In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2087

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RALPH W. ANGLE,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:98 CR 37—James T. Moody, Judge.

ARGUED OCTOBER 14, 2009—DECIDED MARCH 15, 2010

Before COFFEY, EVANS, and WILLIAMS, Circuit Judges. 

WILLIAMS, Circuit Judge. This is the fourth time

Ralph Angle appeals the sentences imposed for his childpornography crimes. Three times we have remanded

for resentencing because of our uncertainty about the

reliability of information used to justify a total period of

imprisonment well above the range established by the

sentencing guidelines. In our last remand we also

directed the district court to explain why a “pattern of
2 No. 08-2087

abuse” upward adjustment did not fully account for the

uncharged conduct used to justify the stiff punishment.

Both of these concerns have now been satisfied. Finally,

the district court did not abuse its discretion in

thwarting Angle from gaining personal access to the

Internet during the period of his supervised release.

I. BACKGROUND

Angle was found guilty in 1998 of possessing

child pornography, attempting to receive child pornography, and attempting to entice a child to engage in

prohibited sexual activity, in violation of 18 U.S.C.

§§ 2252(a)(4)(B), 2252(a)(2), and 2422(b). He already had

a 1977 conviction for sodomy (involving a 15-year-old)

and a 1987 conviction for child molestation. At Angle’s

initial sentencing hearing in September 1999, the district

court imposed a sentence of 325 months in prison, a

significant increase above the range of 151 to 188 months

calculated by the court under the 1998 version of the

sentencing guidelines. That first sentencing hearing

predated United States v. Booker, 543 U.S. 220 (2005), so the

judge’s freedom to exceed the guidelines range was

still cabined by mandatory rules on “departures.” The

judge concluded that Angle’s sodomy conviction, which

was too old to count in his criminal history score, warranted an upward departure under U.S.S.G. § 4A1.3, which

encourages sentencing courts to exceed the guidelines

imprisonment range if the defendant’s criminal history

category substantially understates the seriousness of his

criminal history or the likelihood of recidivism. We
No. 08-2087 3

ordered resentencing because the district court had not

followed the specific steps that, under circuit precedent

interpreting § 4A1.3, were essential to depart based on

that guideline. United States v. Angle (Angle I), 234 F.3d 326,

344 (7th Cir. 2000). We also concluded that the district

court might have miscalculated the guidelines range

and directed further study of that question on remand.

Id. at 345.

The district court resentenced Angle in 2001. The court

recalculated a lower guidelines range of 97 to 121 months

but still imposed the same amount of imprisonment. In

explaining its upward departure—a greater departure

than before—the court again cited Angle’s uncounted

sodomy conviction, but this time the court also explicitly

relied on additional information. For example, the court

noted that Angle had bragged about a sexual encounter

with a Georgia boy in an online chat with an individual

Angle thought was a 13-year-old boy. And the court cited

accusations that Angle had traveled to Mexico to have

sex with children; that he had committed acts of sexual

abuse involving his niece, his nephew, and his girlfriend’s daughter; and that he preyed on children he met

at a gym in Indiana. The government introduced a letter

from the nephew’s wife accusing Angle of molesting

several of his young relatives. Finally, a postal inspector

testified that amateur videotapes recovered from Angle

when he reentered the United States from Mexico

depicted boys performing sex acts. But the district court

did not explain why it credited these accounts of uncharged criminal acts, so we again remanded for

resentencing and directed that the case be reassigned to
4 No. 08-2087

a different judge. United States v. Angle (Angle II), 315 F.3d

810 (7th Cir. 2003).

At the third sentencing hearing in 2005, the new judge

decided that Angle’s conduct warranted 300 months’

imprisonment, 25 fewer than before, but still well above

the guidelines range. The district court took into

account the evidence introduced at trial and during the

first two sentencing hearings, and also allowed the government to introduce new testimony from one previously

unavailable witness, a woman who said that Angle had

molested her as a child when he was dating her mother

and living with them in California. The district court

cited Angle’s long history of sexual abuse of children

to justify the substantial increase above the guidelines

range, but the judge overlooked our instruction to explain why he deemed reliable the evidence of uncharged

sexual abuse. We thus sent the case back again for

resentencing, and this time we also directed the

court to explain why its application of a 5-level upward

adjustment for engaging in a “pattern of activity

involving the sexual abuse or exploitation of a minor,”

see U.S.S.G. § 2G2.2(b)(4) (1998) (current version at

U.S.S.G. § 2G2.2(b)(5)), did not fully account for the

uncharged conduct that contributed to the aboverange period of incarceration. United States v. Angle

(Angle III), 216 F. App’x 557 (7th Cir. 2007).

In late 2007, well after Booker was decided, the district

court conducted yet another sentencing hearing, which

is the subject of this appeal. The court reviewed an updated presentence report, evaluated the evidence pre-
No. 08-2087 5

sented at trial and during the prior sentencing hearings,

and heard live testimony from Angle’s niece, his two

nephews, an employee from the Indiana gym, a gym

patron and her son, the Georgia boy, and the postal

inspector. As we had directed, the court made extensive

findings concerning the reliability of the allegations of

molestation, and Angle does not contest those findings

on appeal. Appellant’s Br. at 13. The court still applied

the 1998 guidelines but also took note of amendments

promulgated since Angle’s first sentencing in 1999;

Angle’s imprisonment range under the 1998 version of

the guidelines was 97 to 121 months but would have been

360 months to life under the 2006 version then in effect.

In again settling on a total period of imprisonment of

300 months, the district court explained that the “pattern

of abuse” upward adjustment under § 2G2.2(b)(4)

did not fully account for Angle’s extensive history of

sexual misconduct involving children. The court reasoned

that the “pattern of abuse” adjustment would apply any

time a defendant engaged in at least two instances of

sexual abuse or exploitation, and yet Angle, whose

pattern of misconduct had run virtually unchecked for

20 years, was one of the worst child predators the judge

had seen in his 25 years on the bench. The court observed

that Angle had abused a position of trust as a relative to

three of the abused children, and had established a modus

operandi of ingratiating himself with single mothers

in order to abuse their children. Moreover, the court explained, Angle had produced child pornography in addition to consuming it. The court noted a series of e-mails

Angle had sent to what he thought was a distributor
6 No. 08-2087

of child pornography in Colorado (but was actually a

government front). These emails established that during

a trip to Mexico, Angle helped create at least one

sexually explicit video of children. In one e-mail sent

before his departure, Angle boasted that he was traveling

to Mexico to “play with boys” and had them “lined up

already and waiting for our arrival.” This extensive

evidence, the court concluded, signaled that Angle’s crimes

would quickly resume upon his release from prison. He

showed no remorse, and despite telling the judge that

he now wanted to participate in sex-offender treatment,

Angle had passed up opportunities to do so after his

two prior convictions for sex offenses against children.

II. ANALYSIS

A. Above-range Sentence Warranted

As we noted, in this appeal Angle does not dispute

that the district court adequately explained why it found

the evidence of uncharged acts of sexual abuse to be

reliable. That prong of our last remand is satisfied. Angle

contends, however, that the court still did not justify the

need for an above-range sentence after applying the

“pattern of abuse” upward adjustment under § 2G2.2(b)(4).

That guideline mandates a 5-level increase in offense

level “[i]f the defendant engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor.”

U.S.S.G. § 2G2.2(b)(4) (1998) (current version at U.S.S.G.

§ 2G2.2(b)(5)); see United States v. Osborne, 551 F.3d 718, 721-

22 (7th Cir. 2009). As discussed above, the district court

gave several reasons for concluding that an above-range
No. 08-2087 7

sentence was warranted in addition to the “pattern of

abuse” adjustment: Angle had an unbroken, 20-year

pattern of abusive conduct; he exploited positions of

trust to get at his young victims; he created as well as

consumed child pornography; he showed no remorse;

and he would have faced a significantly higher imprisonment range if sentenced under the current version of

the guidelines. Angle insists that the first four reasons are

fully embodied in § 2G2.2(b)(4), and that the last is improper given the limited scope of our remand. We reject

both contentions.

The district court first explained that Angle’s pattern

of abuse was atypical. Many of the reported decisions

analyzing the “pattern of abuse” adjustment involve a

narrower range of abuse than was present in this case.

See, e.g., United States v. Alvarez, 478 F.3d 864, 865-66 (8th

Cir. 2007) (upholding application of the adjustment

where defendant repeatedly abused one victim); United

States v. Gunderson, 345 F.3d 471, 472-73 (7th Cir. 2003)

(upholding application of the adjustment where defendant abused two victims); United States v. Lovaas, 241

F.3d 900, 901 (7th Cir. 2001) (upholding application of

the adjustment where defendant abused three victims).

Indeed, the commentary to § 2G2.2 encourages district

courts to impose a term of imprisonment outside the

guidelines range if an upward adjustment under subsection (b)(4) is inadequate to account for the seriousness

of the sexual abuse or the exploitation involved. U.S.S.G.

§ 2G2.2 cmt. n.2 (1998) (current version at U.S.S.G.

§ 2G2.2 cmt. n.7); United States v. Griffith, 344 F.3d 714,

719 (7th Cir. 2003). We cannot disagree with the district
8 No. 08-2087

court that Angle’s prolonged and extensive pattern of

abusive conduct placed him squarely within the group of

offenders contemplated by the commentary.

Second, the district court thought it significant that

Angle’s pattern of abuse involved exploiting positions

of trust. Angle opposes this reasoning on two fronts,

though his initial objection is frivolous. The government’s evidence, he says, does not show that he held a

position of trust involving his victims. But sentencing

judges are not bound by the stringent evidentiary standards applicable at trial; rather, the evidence need only be

reliable. United States v. Cooper, 591 F.3d 582, 591 (7th Cir.

2010); United States v. Johnson, 489 F.3d 794, 796 (7th Cir.

2007). At Angle’s latest sentencing hearing, the judge

found that Angle had abused his niece and nephews, and

had targeted single mothers whose trust he could

engender in order to abuse their children. These factual

findings are reviewed only for clear error, United States

v. Davis, 442 F.3d 1003, 1008-09 (7th Cir. 2006), and though

Angle disagrees with the inference drawn by the

district court from the evidence, he has not identified

any error in the court’s assessment of that evidence.

Angle’s other objection to receiving an above-range

sentence in part for exploiting positions of trust rests on

our decision in United States v. McCaffrey, 437 F.3d 684

(7th Cir. 2006). That child-pornography prosecution involved a priest who was sentenced to 240 months—

60 less than Angle—after abusing more than 100 children,

most of them from his congregations. 437 F.3d at 686-88.

Angle reads that outcome as confirmation that his own
No. 08-2087 9

situation does not warrant both a “pattern of abuse”

upward adjustment and an increase above the resulting

guidelines range. But Angle did not read our McCaffrey

opinion carefully. In that case the government successfully argued that the defendant’s pattern of abuse warranted not only the 5-level increase under the “pattern of

abuse” adjustment, but also a (pre-Booker) upward departure equivalent to another 5 offense levels. Id. at 686-87.

We rejected the defendant’s “double counting” argument

and upheld both increases, which effectively yielded a

guidelines imprisonment range of 360 months to life. Id.

at 687-89. The only reason that the defendant in that

case averted a higher prison sentence is that he was

charged with just two counts carrying a combined maximum of 20 years, which is what the district court gave

him. Id. at 687-88. The sentencing judge was explicit,

however, that the defendant would have been imprisoned for longer if not for the statutory caps. Id. at 690. At

all events, McCaffrey represents an extreme, and simply

because Angle’s conduct was less egregious does not

mean that his pattern of abuse could not sustain both the

upward adjustment and an above-range sentence. The

district court concluded that there was reliable evidence

that Angle abused positions of trust and, on this basis,

reasoned that Angle’s case was comparable to McCaffrey.

We agree with that assessment.

A third reason given by the district court for sentencing Angle above the guidelines range is that he

created child pornography. Angle not only traveled to

Mexico for the specific purpose of engaging in sexual

abuse of children, but he arranged for the encounters to be
10 No. 08-2087

filmed so that he could trade the tapes. The upward

adjustment for a pattern of abuse is designed to punish

sexual abuse or exploitation, McCaffrey, 437 F.3d at 688;

Lovaas, 241 F.3d at 904, not the production of child pornography, see U.S.S.G. § 2G2.2 cmt. n.1 (“ ‘Sexual abuse or

exploitation’ ” does not include possession, accessing

with intent to view, receipt, or trafficking in material

relating to the sexual abuse or exploitation of a minor.”);

United States v. Williamson, 439 F.3d 1125, 1139 n.16 (9th

Cir. 2006); United States v. Woodward, 277 F.3d 87, 91 (1st

Cir. 2002); United States v. Kemmish, 120 F.3d 937, 941-42

(9th Cir. 1997). Section 2G2.2 does not address the

creation of child pornography, and it was appropriate for

the district court to take into account that narrow scope

in exercising its sentencing discretion. See Griffith, 344

F.3d at 719 (explaining that an upward adjustment may

be inadequate to address the degree of sexual exploitation); see also United States v. Whorley, 550 F.3d 326, 339-

42 (4th Cir. 2008) (affirming above-range sentence as

reasonable where circumstances were atypical and not

taken into account by the guidelines). In fact, Angle’s

involvement in making child pornography might have

warranted a cross-reference to the higher offense

levels in U.S.S.G. § 2G2.1 for production offenses.

See U.S.S.G. § 2G2.2(c) (1998); United States v. Dawn, 129

F.3d 878, 880-81 (7th Cir. 1997).

Fourth, the district court was unpersuaded that Angle

had shown any remorse for his abusive conduct. Twice

previously Angle had been convicted of sex offenses

against children, and after those convictions he declined opportunities to participate in treatment for sex
No. 08-2087 11

offenders. What is more, the court observed, Angle

boasted about his criminal conduct in written correspondence and Internet chat messages. The absence of

remorse, the court reasoned, made it likely that Angle

would resume his abusive conduct when he is released.

Angle’s future dangerousness is not accounted for in

§ 2G2.2(b)(4), and, thus, there was no error in the judge’s

decision to impose an above-range sentence on this basis.

See Griffith, 344 F.3d at 719-20 (upholding upward departure based on defendant’s two prior convictions for

sexual abuse of children and his three failed attempts to

complete treatment for sex offenders); United States v.

Turchen, 187 F.3d 735, 742 (7th Cir. 1999) (upholding

upward departure in child-pornography prosecution

where defendant’s criminal history and unsuccessful

rehabilitation suggested risk of recidivism).

Angle asserts that none of these reasons is “compelling,”

but his contention is obviously subjective and, regardless,

misunderstands the nature of our review. Our task is

simply to assess whether the overall prison sentence

imposed by the district court is reasonable in light of the

justifications for that sentence. E.g., United States v. Perez,

581 F.3d 539, 548 (7th Cir. 2009); United States v. McKinney,

543 F.3d 911, 913 (7th Cir. 2008). The sentencing guidelines are advisory; the imprisonment range is one of the

factors enumerated in 18 U.S.C. § 3553(a), but a district

court does not need a “compelling” reason to exceed the

range. United States v. Nelson, 129 S. Ct. 890, 892 (2009);

United States v. Kirkpatrick, 589 F.3d 414, 415-16 (7th Cir.

2009). That was the point of Kimbrough v. United States,

552 U.S. 85 (2007), which, after our last remand, clarified
12 No. 08-2087

that a district court is free to weigh any sentencing factor

differently than the Sentencing Commission, even in a

typical case. Kimbrough, 552 U.S. at 101; United States v.

Alldredge, 551 F.3d 645, 647 (7th Cir. 2008). All that

matters is that the sentence imposed be reasonable in

relation to the “package” of reasons given by the court,

and in that sense Kimbrough has eroded the premise in our

last remand of requiring the district to quantify how

Angle’s situation exceeded a “mine run” application of

§ 2G2.2(b)(5). See Kimbrough, 552 U.S. at 110; McKinney, 543

F.3d at 913. The district court did exactly what we asked

in explaining its application of subsection (b)(4), but, as

we now recognize, it was also within the court’s power

to disagree with the weight given by the Sentencing

Commission to the “pattern of abuse” adjustment.

That brings us to the final reason given by the district

court for its sentence: the imprisonment range that

Angle would have faced under the 2006 version of the

guidelines in effect when he was last sentenced. Angle

principally contends that the language of our remand

precluded the court from taking notice of revisions to

§ 2G2.2, but we imposed no such limitation. Angle is

correct in assuming that a district court must adhere to

the scope of a remand from this court, United States v.

White, 406 F.3d 827, 831 (7th Cir. 2005), but the scope of

any remand is determined from reading all, not part, of

an opinion, United States v. Husband, 312 F.3d 247, 251 (7th

Cir. 2002); United States v. Parker, 101 F.3d 527, 528 (7th

Cir. 1996). After oral argument in Angle’s third appeal, his

lawyer notified us that Angle had been apprised of the

possibility that his fourth sentencing would be governed
No. 08-2087 13

by the updated guidelines, and we responded with the

observation that applying the current guidelines on

remand would not raise an ex post facto concern; we

did not imply that using the current guidelines would

exceed the scope of our remand. Angle III, 216 F. App’x at

559 n.1. Our decision in Angle III was released before

this court clarified that, under 18 U.S.C. § 3742(g), the

guidelines in effect at the time of the original sentencing

must be used again when an appeal results in an order

for resentencing, United States v. Tanner, 544 F.3d 793,

795 (7th Cir. 2008), but the force of this statutory limitation does not alter the scope of the remand we contemplated. Moreover, even though § 3742(g) precluded the

district court from applying the 2006 guidelines, the

statute did not bar the court from consulting the Sentencing Commission’s current views as a guide to its

exercise of Booker discretion. United States v. Johnson, 427

F.3d 423, 427 (7th Cir. 2005); United States v. Coe, 220 F.3d

573, 578 (7th Cir. 2000). And that is all the district court

did here. To quote the district court, “it would be impossible to ignore the perverse fact that, were Angle to be

sentenced for the same conduct under the current guidelines, his advisory range would be 360 months to life,

and the court would need to explain why a sentence of

less than 360 months is appropriate.”

Angle also contends that the district court’s assessment

of his guidelines range under the 2006 version of § 2G2.2

was inaccurate. But this assertion really comes down to

his belief that the court did not adequately explain its

conclusion that, under the 2006 guidelines, he would

receive a 5-level increase for intending to trade
14 No. 08-2087

child pornography for other child pornography, see

U.S.S.G. § 2G2.2(b)(3)(B) (2006), plus a 4-level increase for

possessing 300 to 600 images of child pornography, id.

§ 2G2.2(b)(7) (2006). Before Angle’s latest resentencing,

however, the probation officer revised the presentence

report to explain that Angle would be eligible for both

increases. Angle did not object on the ground that the

probation officer’s proposed findings were not supported by the evidence, and the district court relied on

those findings, which the court was entitled to do.

See United States v. Heckel, 570 F.3d 791, 795 (7th Cir. 2009);

United States v. Salinas, 365 F.3d 582, 587 (7th Cir. 2004).

Had Angle wished to cast doubt on the reliability of the

information in the revised presentence report, he was

obligated to dispute its accuracy, which he did not do. See

Heckel, 570 F.3d at 795. This final argument, then, like

Angle’s previous contention, is without merit. We thus

uphold the 300-month total imprisonment.

B. Special Condition of Supervised Release

Angle makes one additional argument that arose for the

first time after our last remand. At the final resentencing,

the district court imposed as a special condition of supervised release that Angle “shall not have personal access

to computer Internet services.” This condition was not

suggested in advance but first raised in open court during

sentencing. Angle objected to that condition, and on

appeal he contends that the district court was required

to give him notice before imposing such a condition and

that barring him from using the Internet is both unnecessary and unreasonable.
No. 08-2087 15

We review special conditions of supervised release for

an abuse of discretion. Angle I, 234 F.3d at 346. When

imposing supervised release, a district court must

include several mandatory conditions, may impose any

condition set forth as a discretionary condition of probation, and may also include any other condition it

considers to be appropriate. See 18 U.S.C. § 3583(d);

§ 3563(b)(1)-(10). The conditions however, must be reasonably related to (1) the defendant’s offense, history and

characteristics; (2) the need for adequate deterrence; (3) the

need to protect the public from further crimes of the

defendant; and (4) the need to provide the defendant with

treatment. 18 U.S.C. § 3583(d); United States v. Holm, 326

F.3d 872, 877-78 (7th Cir. 2003). They must also “involve

no greater deprivation of liberty than is reasonably necessary” to effectuate sentencing purposes. 18 U.S.C.

§ 3583(d)(2). Although we have expressed skepticism

about the reasonableness of banning Internet use

entirely, see United States v. Silvious, 512 F.3d 364, 371 (7th

Cir. 2008); Holm, 362 F.3d at 877-78, we nonetheless have

left open the possibility that such a condition might be

justified if the Internet was used to commit the crime of

conviction, Silvious, 512 F.3d at 371; United States v. Scott,

316 F.3d 733, 735 (7th Cir. 2003).

Angle first argues that the court was required to give

notice of its intent to impose this condition of supervised

release because it was analogous to a departure from the

guidelines. This argument fails. Post-Booker, which made

the guidelines advisory, Angle III, 216 Fed. App’x at 560,

and four sentencing hearings, Angle could have had no

expectations for a sentence within guideline range. As
16 No. 08-2087

the guidelines contemplate a term of supervised release,

and provide the district court with broad discretion in

imposing appropriate conditions for the supervised

release, Angle could not reasonably believe that an

Internet ban was so “out of the ordinary,” as to require

notice. United States v. McKissic, 428 F.3d 719, 725 (7th Cir.

2005). In fact, the 2006 guidelines which the district court

had the discretion to consult, specifically contemplate

limiting the use of a computer in cases where the defendant used a computer for sex offenses. U.S.S.G

§ 5D1.3(d)(7)(B) (2006).

Angle next argues that the condition is unnecessary

and unreasonable. We disagree. In 1997 and 1998, when

the Internet was fairly new, Angle was convicted of using

the Internet to solicit a minor for sex. He also used

the Internet to set up a pornography trade with a distributer, and possessed an extensive amount of child pornography on computer diskettes and zip disks. Furthermore,

his use of the Internet was not integrally connected

to his profession as he was previously employed as a

salesman and mechanic. These facts easily distinguish

Angle from the defendant in Holm who was convicted

of simply possessing child pornography and used the

computer and Internet extensively in his occupation as

a information systems technologist. Finally, unlike the

district court in Holm, here the district court did not

impose a complete ban on the Internet, disallowing only

“personal” access to Internet services. Under these circumstances, we cannot conclude that the district court

abused its discretion in thwarting Angle from gaining

personal access to the Internet during the period of his
No. 08-2087 17

supervised release. See, e.g., United States v. Zinn, 321

F.3d 1084, 1092-93 (11th Cir. 2003); United States v. Paul,

274 F.3d 155, 166-66 (5th Cir. 2001); United States v. Crandon,

173 F.3d 122, 127-28 (3d Cir. 1999); c.f. United States v.

Perazza-Mercado, 553 F.3d 65, 70 (1st Cir. 2009) (holding

that total Internet ban unrelated to charged offense

was impermissibly broad).

III. CONCLUSION

Accordingly, we AFFIRM the district court’s sentence.

3-15-10