In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2787

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GLENN LANGE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 764—David H. Coar, Judge.

____________

ARGUED APRIL 7, 2006—DECIDED APRIL 28, 2006

____________

Before FLAUM, Chief Judge, and POSNER and

EASTERBROOK, Circuit Judges.

FLAUM, Chief Judge. Glenn Lange plead guilty to distributing child pornography. He claims that he amassed his

collection of pornographic photographs because his

“Asperger’s-like” disorder made him unable to control his

compulsion to do so. He requested a downward departure on

the basis of diminished capacity, which the district court

denied. After reviewing the sentencing factors in 18 U.S.C.

§ 3553(a), the district court sentenced Lange to 55 months

imprisonment, a sentence within the advisory Guidelines

range. He appeals, claiming that the sentence was unreasonable. For the following reasons, we now affirm.
2 No. 05-2787

I. Background

Glenn Lange, a resident of Lyons, Illinois, sent several

e-mails containing child pornography images to an undercover FBI agent in December 2002. The FBI located him

and obtained a warrant to search his residence in August

2003. Lange was present during the search, and admitted

to agents that he was obsessed with child pornography

since obtaining his personal computer; indeed he claimed it

was the first thing he looked for when he got online.

He gave agents consent to use his online identity. When

they did so, they discovered a number of e-mails that Lange

had written. In these e-mails, Lange described fantasies

that he had about a nine-year-old relative. Interviews with

the relative revealed that Lange had never actually harmed

her.

The agents sent Lange’s computer for forensic analysis.

The analysis revealed approximately 28,000 images,

roughly 20,000 of which were child pornography. The

majority of the child pornography on the computer depicted

girls and boys between the ages of five and twelve. Some of

the images were sadistic in nature.

In early 2004, Lange was charged with nine counts

of knowingly distributing images of child pornography

and one count of knowingly possessing child pornography.

On March 31, 2004, he plead guilty to one count of distributing child pornography.

During the sentencing proceedings, Lange argued for a

reduced sentence on a number of grounds, including

diminished capacity. Under the 2003 version of the Guidelines, § 5K2.13 stated:

A sentence below the applicable guidelines range

may be warranted if (1) the defendant committed the

offense while suffering from a significantly reduced

mental capacity; and (2) the significantly reduced

mental capacity contributed substantially to the com-
No. 05-2787 3

mission of the offense. Similarly, if a departure is

warranted under this policy statement, the extent of the

departure should reflect the extent to which

the reduced mental capacity contributed to the commission of the offense.

The application note to § 5K2.13 defines “significantly

reduced mental capacity” as having significantly impaired ability to (1) appreciate the wrongfulness of the

behavior constituting the offense or to exercise the power of

reason; or (2) control behavior that the defendant knows is

wrongful. Lange has never argued that he did

not appreciate the wrongfulness of his behavior or that

he could not exercise the power of reason; he instead

bases his argument on the control prong of the diminished

capacity test.

The defense presented evidence that Lange qualified for

this downward departure because he suffered from a

syndrome akin to Asperger’s Syndrome. Asperger’s Syndrome is essentially a mild form of autism. Lange argues

that he suffers from this disorder or some variant of it

and that the disorder impaired his ability to control his

compulsion to amass his large collection of child pornography.

In support of this theory, the defense called two witnesses: Dr. Steven Rothke and Dr. Eliezer Margolis. Dr.

Margolis was Lange’s treating psychologist since August

2003, when the FBI investigation prompted him to seek

treatment. Although Margolis did not perform cognitive

testing on the defendant, Margolis testified that he believed

that Lange lacked the ability to control his pornographycollecting behavior. Margolis believed that Lange suffered

from an “Asperger’s-like” syndrome, which impaired his

ability to function and monitor himself cognitively and

volitionally. Margolis testified that these deficits, when

mixed with computer technology, allowed Lange to become
4 No. 05-2787

hypnotically drawn into “the internet world.” During this

state, Margolis testified that Lange would lose the sense of

himself and become unable to comprehend beyond that

moment in time. He also testified that in his opinion, the

fantasy e-mails were not about a relative, but were fictional

role-play that Lange obtained from a website. Moreover,

Margolis stated that he did not believe that Lange should

be classified as a pedophile.

Margolis further elaborated his theory when he testified as a rebuttal witness. He reiterated his claim that

Lange had an executive functioning impairment as a result of an “Asperger’s-like” syndrome. That executive

functioning impairment, Margolis testified, caused Lange

under certain conditions to “ha[ve] a disconnection among

the parts of his self, and that executive functioning

would describe the ability to keep those parts of

one’s self integrated in relation to one another so they could

all work together.” The district court then directly asked Dr.

Margolis whether Lange suffered from a cognitive impairment, which prior testimony had established would include

the brain’s control mechanisms. Margolis responded that

although Lange had not tested positive for cognitive

disabilities, such tests do not always detect problems with

executive functioning.

The defense also offered the testimony of Dr. Steven

Rothke. Rothke testified that he had evaluated Lange at the

request of Dr. Margolis. His evaluation, he stated, revealed

nothing inconsistent with Margolis’s diagnosis

of “Asperger’s-like” syndrome. Dr. Rothke also testified that

he believed that tests administered by the government’s

psychological expert did not indicate that Lange was a

sexual predator. Most relevant to the dispute on appeal,

Rothke testified on cross-examination that his tests reflected that Lange was “cognitively intact” and that his

executive functioning, including his ability to control behavior, was not impaired.
No. 05-2787 5

The government called its own psychologist, Dr. Diana

Goldstein. She testified that her independent evaluation

of Lange caused her to believe that his cognitive functions were intact and that he could control his behavior.

Goldstein disagreed with Margolis’s “Asperger’s-like”

diagnosis, and noted that Lange did not meet the criteria

for Asperger’s Syndrome as laid out in the most recent edition of the American Psychiatric Association’s Diagnostic

and Statistical Manual of Mental Disorders, the

most common reference tool for psychological disorders. She

noted that Lange displayed strong nonverbal communication skills, which is quite uncharacteristic of a person

suffering from Asperger’s Syndrome. She also testified that

she had diagnosed Lange with non-exclusive pedophilia

based on the investigative file in the case.

After hearing the testimony, the district court stated,

“Despite Dr. Margolis’s testimony, I do not find that there

is any evidence of a cognitive impairment. The testing

indicated that, and indeed the testimony was that, there

was not cognitive impairment and that Mr. Lange can

control himself.” The court then refused to depart downward based on diminished capacity, stating that the

evidence was “woefully inadequate” to support such a

departure. The court also refused the defendant’s other

arguments for a downward departure, because it believed, after reviewing the § 3553(a) factors, that “the

guidelines have it about right.” The court sentenced Lange

to the high end of the Guidelines range, 55 months.

II. Discussion

Lange’s argument on appeal is essentially that the

district court misapprehended his diminished capacity

argument. He focuses quite a bit on the district court’s

comments that indicate that the court doubted that Lange’s

disorder fits the psychological community’s current definition of Asperger’s Syndrome. The district court did make
6 No. 05-2787

1 The following are direct quotes from Judge Coar during the

sentencing hearings:

[Spoken after dismissing the defense’s first witness, Dr.

Rothke] “Folks, let me just try to bring this back to the center

because I think we’re getting far afield.

“Under our system of jurisprudence it is not criminal

behavior nor is it properly a factor for sentencing to have

thoughts about criminal conduct. It’s action that is punished. Let me remind everybody as to what the issue is. The

defendant has moved for a departure based on diminished

mental capacity.

“As I understand the defendant’s position, the defendant

has the burden of showing that he had a significantly impaired capacity to control his conduct at the time of the

offense. That’s the issue. And that capacity has to be a

contributing cause of the offense. That’s what we’re talking

about here. And there is a lot of very interesting psychological

information that’s been provided. Most of it has nothing to

do with that issue. So if we could confine ourselves to the

issue at hand, that would be helpful.”

[Questioning Dr. Margolis] “You heard me articulate what

the psychological issue was, whether or not he had an

impaired capacity to control his conduct at the time of the

(continued...)

such a statement; indeed the statement is arguably correct,

as even Lange concedes. The issue in this case, Lange

points out, is not whether he suffers from a defined disorder, but whether he was impaired in his ability to control

his actions.

We agree that this is the proper focus of the inquiry under

the Sentencing Guidelines. Unlike Lange, however, we

believe that the district court fully apprehended the

relevant issue when ruling against Lange’s diminished

capacity arguments. The court’s questions and statements

during the two-day sentencing hearing dispel any notions to

the contrary.1

 Judge Coar understood and acknowledged Dr.
No. 05-2787 7

1 (...continued)

offense. That’s the question.

“All right. Now, I read your report, but let me ask you to state

succinctly what has Asperger’s Syndrome to do with that

question.”

[Questioning Dr. Margolis during rebuttal testimony] “The

United States Sentencing Commission defines what we’re

addressing here is whether or not Mr. Lange has a significantly reduced mental capacity as including both a

cognitive and volitional impairments which are connected

to the offense.

“Now, as I understand the testing, indeed as I understand

all of the expert testimony, Mr. Lange suffers from no

cognitive impairment. Do you agree with that?”

[While making his sentencing ruling] “With respect to the

departure for diminished capacity, I indicated early on during

these proceedings what the standard was. I don’t think that

there is any serious dispute with respect to what the standards are. The evidence here is I think woefully short of

meeting the requirements of the guidelines. And as I said,

significantly reduced mental capacity includes both cognitive

and volitional impairments which are connected to the

offense.

“Despite Dr. Margolis’s testimony, I do not find that there

is any evidence of cognitive impairment. The testing indicated

that, and indeed the testimony was that there was

no cognitive impairment and that Mr. Lange can control

himself. . . .”

Margolis’s testimony that Lange’s mental constitution affected his ability to control his pornography-collecting

behavior, yet disagreed. That alone does not indicate that

he misapprehended the nature of the argument.

Lange claims that two cases support his position in this

matter. They do not. The first, United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), merely holds that a
8 No. 05-2787

district court must address a defendant’s psychological

problems if they are offered by the defense as a mitigating

factor during sentencing. The district court in this case

not only addressed Lange’s condition, but held two days

of hearings on the matter. See United States v. Brock,

433 F.3d 931, 937 (7th Cir. 2006) (“Unlike in Cunningham,

in this case the district court’s reasoning is supported by the

record.”) The second, United States v. Lighthall, 389 F.3d

791 (8th Cir. 2004), affirmed a downward departure where

the district court found that the defendant’s crime was the

result of obsessive behavior. That situation is not parallel

to the case before us.

The sentence is also reasonable in light of the factors

set out under 18 U.S.C. § 3553(a). Judge Coar both acknowledged and considered those factors, and he coherently

articulated which affected his sentencing decision. Lange

has not rebutted the presumption of reasonableness for his

sentence, which was within the Guidelines range. See

United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).

III. Conclusion

The district court’s sentence is AFFIRMED.
No. 05-2787 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-28-06