# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 22, 2013 *

Decided June 13, 2013

Before

DIANE P. WOOD, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12

‐ 2855

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

MICHELLE D. SIEGEL,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

No. 12

‐ 10010

Michael M. Mihm,

Judge

.

O R D E R

After pleading guilty to one count of producing child pornography in violation of 18

U.S.C. § 2251(a), Michelle Siegel was sentenced to 288 months’ imprisonment. On appeal,

she contests for the first time the district court’s calculation of her advisory guidelines

range. Although we agree with her that the court erred, we conclude that the error was not 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. For that reason, the appeal is submitted on the briefs and the record. See F ED

. R.

A PP

. P. 34(a)(2)(C).

### No. 12

‐ 2855 Page 2

so serious as to entitle her to relief under the plain error standard. We thus affirm the

judgment of the district court.

Underlying Siegel’s conviction is a video depicting her and her husband sexually

abusing a two

‐ year

‐ old girl. The video was made in 2007 when the couple lived in Illinois;

the victim was a neighbor’s child whom they were babysitting. It was not discovered,

however, until 2011. In the interim, Siegel and her husband had moved to California, where

they lived during 2009 and 2010, and then moved back to Illinois. At the same time as the

police recovered the video of the neighbor’s child, they found images that Siegel had taken

of her husband sexually assaulting their own two

‐ year

‐ old daughter in California. Siegel

was not charged for that conduct in the case before us.

In calculating Siegel’s advisory sentencing range under the U.S. Sentencing Guidelines,

the court properly turned to U.S.S.G. § 2G2.1. That provision applies to cases in which the

defendant produces child pornography by causing a minor to engage in sexually explicit

conduct. As we noted, Siegel pleaded guilty to only one count, but the district court

calculated her total offense level by assuming the existence of a hypothetical second count

(sometimes called a “pseudo count”) for the abuse of her own daughter. See U.S.S.G.

§ 2G2.1(d) & cmt. n.5. Siegel did not object to the use of this “pseudo count.” With it, the

district court calculated a total offense level of 43, which included a two

‐ level adjustment

for multiple counts under U.S.S.G. § 3D1.4. Siegel’s total offense level, combined with her

Category II criminal history, yielded a guidelines imprisonment “range” of life. The

statutory maximum for her crime, however, is 30 years. This in effect transformed her

advisory sentence from a range to a point: exactly 360 months. See 18 U.S.C. § 2251(e);

U.S.S.G. § 5G1.1(a).

On appeal, Siegel argues that the district court should not have treated her case as if it

had included a “pseudo count” covering the abuse of her daughter in California; that

incident, she urges, does not qualify as relevant conduct for her offense of conviction. See

U.S.S.G. § 1B1.3(a). Siegel points out a number of differences, which add up in the end to

her conclusion: the sexually explicit recording of her daughter was made two years after the

abuse of the neighbor’s child; it occurred in a different state; she used different equipment

to make the video; and she stored the two videos on different media. All told, she contends,

these distinctions take the California abuse out of the realm of relevant conduct for the

Illinois crime.

Siegel may have a point. For offenses that are not grouped, like crimes covered by

U.S.S.G. § 2G2.1, see U.S.S.G. § 3D1.2(d), the guidelines limit relevant conduct to acts “that

occurred during the commission of the offense of conviction, in preparation for that offense,

or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G.

§ 1B1.3(a)(1). On the other hand, had she raised the point in the district court, the

### No. 12

‐ 2855 Page 3

government may have been able to explain why the California conduct deserved

consideration as a “pseudo count.”

We have no need to resolve the point here. Even if, giving Siegel the benefit of the doubt,

the events in California were not committed during the commission of the crime in Illinois,

the bottom line for Siegel will be the same. Plain error analysis requires first that there has

been an error, that it was not subject to reasonable dispute, and that it affected the outcome

of the district court proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009). If all

three of those requirements are met, the court must go on to ask whether that error seriously

affected the “fairness, integrity, or public reputation” of judicial proceedings. Id. (quoting

United States v. Olano, 507 U.S. 725, 736 (1993)).

Siegel’s case founders on the third criterion: She cannot establish that the district court’s

presumed mistaken use of the “pseudo count” for the abuse of her daughter in California

affected her substantial rights. See United States v. Winters, 695 F.3d 686, 689 (7th Cir. 2012).

An error affects substantial rights if it results in a sentence that is more onerous. United

States v. Marcus, 130 S. Ct. 2159, 2164 (2010). This is a possibility when a district court

misapplies the Sentencing Guidelines and then relies on an erroneous guidelines range. See,

e.g., United States v. Pineda

‐ Buenaventura, 622 F.3d 761, 767 (7th Cir. 2010); United States v.

Avila, 557 F.3d 809, 822 (7th Cir. 2009); see also Peugh v. United States, No. 12

‐ 62, 2013 WL

2459523 (U.S. June 10, 2013). In Siegel’s case, however, the district court’s misapplication of

§ 2G2.1(d) did not affect her imprisonment range. Without the two extra offense levels

attributable to the “pseudo count,” Siegel’s total offense level in the absence of the statutory

maximum would have been 41 and her imprisonment range 360 months to life. But because

360 months (30 years) was the maximum, her guidelines sentence remained 360 months

exactly, just as it was under the district court’s mistaken methodology. See 18 U.S.C.

§ 2251(e); U.S.S.G. § 5G1.1(a). Moreover, the sentencing transcript shows that the court

recognized that the statutory maximum trumps the higher guidelines range, and it leaves

no doubt that the court considered only the statutory maximum when imposing Siegel’s

below

‐ guidelines sentence of 288 months. In the end the court did not rely on an incorrect

guidelines calculation; there is thus no need for resentencing.

We A FFIRM the judgment of the district court.