In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1721

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DOUGLAS LONG,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03 CR 40065—Michael M. Mihm, Judge.

____________

ARGUED FEBRUARY 22, 2005—DECIDED OCTOBER 7, 2005

____________

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Caught with tens of thousands

of images of child pornography on a personal laptop computer that he kept at work, Douglas Long pleaded guilty to

one count of possession of child pornography and one count

of criminal forfeiture. See 18 U.S.C. §§ 2252A(a)(5)(B),

2253. The district court sentenced Long to 96 months’

imprisonment and criminal forfeiture of specified property. In this appeal, Long challenges the district court’s

denial of his motion to suppress evidence (an issue he

reserved in his plea agreement) and his sentence. In determining Long’s sentence, the district court decided to

depart upward by four offense levels beyond the applicable

guideline range. Even though the court used its discretion
2 No. 04-1721

in selecting the degree of its departure, Long’s guideline

range and the extent of that departure were necessarily

influenced by the judge’s understanding that the guidelines

were mandatory. The Supreme Court, however, changed all

that in United States v. Booker, 125 S.Ct. 738 (2005). Long

failed to raise a Sixth Amendment or Apprendi argument to

his sentence below and therefore his appeal is subject to

plain error review. United States v. Paladino, 401 F.3d 471

(7th Cir. 2005). Because we cannot determine whether the

district court would have imposed the same sentence under

an advisory guideline scheme, we order a limited remand in

accordance with the procedures outlined in Paladino. In all

other respects, we affirm the judgment of the district court.

I

On the night of July 10, 2003, Long received a call from

John Brockmeier, the district manager of Washington

Inventory Service, where Long worked in Moline, Illinois.

Brockmeier asked Long to meet him at Long’s office. Long

arrived shortly thereafter; he found not only Brockmeier,

but also Detectives David Frank and Kerrie Davis of the

Peoria Police Department and FBI Agent Greg Catey,

waiting for him. The Peoria Police had arranged the

meeting with Brockmeier because the previous day a girlfriend of one of Long’s employees had given the police two

CDs containing child pornography and told the police that

the CDs belonged to her boyfriend’s boss, whom she identified as Douglas Long. After conducting an examination of

the CDs and verifying that they contained child pornography, the police contacted Brockmeier and arranged for the

unusual evening meeting.

Once Long arrived at his office, Detectives Frank and

Davis opened the conversation (which Long characterizes as

an interview) by telling him that somebody had brought

something illegal to the Peoria Police Department. They
No. 04-1721 3

asked Long whether he knew of any employees such

as those who had recently been fired who might have

wanted to get Long in trouble. During the conversation, the

detectives indicated that the illegal items brought to the

police were “two CDs with something illegal” on them. At no

point, however, did they say that the CDs contained child

pornography.

What happened next in the exchange between Long and

the detectives is a matter of dispute. Detective Frank claims

that before Long gave him permission to search his office

and any computers, including his personal laptop, the

detective asked him if there was anything illegal in

the office and Long replied “to some people it might be.”

Detective Frank then asked what Long meant, and Long

allegedly replied that there were pictures and movies of sex

acts with children. Long took the position that the alleged

conversation containing the admissions about possessing

illegal materials and having files depicting sex acts with

children did not take place prior to his giving consent to

search (and perhaps never took place). What is undisputed

is that Long signed a written consent form that authorized

the police to search his office. The consent form allowed the

officers to remove “whatever documents, items of property

whatsoever, including but not limited to computer hardware, software, and all other external media storage, which

they deem pertinent to their investigation and search said

items . . . .” After signing the form, Detective Davis

searched Long’s office and found 10 CDs. At the same time,

Detective Frank retrieved his forensic laptop, which was

equipped with Encase diagnostic software. (The “Encase

Cybercrime Arsenal” package is sold by a company called

Guidance Software to the law enforcement community; it is

described as a powerful search and diagnostic program. See

http://www. guidancesoftware.com.) Using the Encase

software, the detectives searched the CDs and found movies

and photos of child pornography on them. When Long’s
4 No. 04-1721

laptop was searched at a later date, the detectives found

tens of thousands of images and over a hundred movies of

child pornography on it as well.

After examining the content of the CDs, the detectives

gave Long his Miranda warnings. They then continued

their interview with Long. Long admitted that the CDs that

the anonymous woman had brought to the police were his

and that he had downloaded images of child pornography

from the Internet. He explained that he had been collecting

child pornography for five to six years. Long also admitted

to having inappropriate sexual contact with his daughter.

Once the interview concluded, Long and the agents went

to Long’s home. The agents did not seize or search his home

computer, because they believed Long when he said that he

had used only his laptop to download images. While at his

residence, Long, in the presence of the agents, admitted to

his wife that he possessed child pornography and that he

had had inappropriate sexual contact with their daughter.

Afterwards, Long was taken to the Peoria Police station.

Long filed a motion to suppress the physical evidence

seized from his workplace and his statements, on the

ground that the search of his laptop and the CDs exceeded

the scope of his consent. The district court denied his

motion. The court found that Long “was informed that [the

agents] were there in part to investigate because of allegations of wrongdoing against him and also that the allegations included allegations that there was illegal material

there.” The court found Long’s claim that he did not know

that the police would search the CDs or use forensic

programs to conduct their search of the items to be beside

the point, because Long had been informed of the basis of

the search, the consent form he signed was very broad, and

the form specifically mentioned searching “computer

hardware, software, and all other external media storage.”

After losing his motion to suppress, Long entered a

conditional guilty plea to both counts of the indictment,
No. 04-1721 5

reserving his right to appeal the denial of his motion to

suppress.

On March 18, 2004, the court sentenced Long to 96

months’ imprisonment and 10 years of supervised release.

His sentence was calculated using the 2003 version of

the Sentencing Guidelines. The base level offense for

violating 18 U.S.C. § 2252A(a)(5)(B) is 15. The district court

increased that level by applying the following enhancements: a two-point increase for possession of material

involving prepubescent minors under § 2G2.4(b)(1); a twopoint increase for possession of material that resulted from

the use of a computer under § 2G2.4(b)(3); a four-point

increase for an offense that involved material portraying

sadistic or masochistic conduct under § 2G2.4(b)(4); and a

five-point increase for an offense that involved more than

600 images under § 2G2.4(b)(5)(D), which led to a level 28.

At Long’s sentencing hearing, the court heard arguments by

defense counsel that the addition of § 2G2.4(b)(5), enacted

under the Prosecutorial Remedies and Other Tools to End

the Exploitation of Children Today Act of 2003 (PROTECT

Act), Pub. L. 108-21, 117 Stat. 650, created a redundancy

with section (b)(2) of the same guideline. At the time of

sentencing, a defendant such as Long could receive both a

two-point upward adjustment for having more than ten

images under (b)(2) and additional upward adjustments

for the number of images he possessed under (b)(5). The

potential double counting was later resolved, as of November 1, 2004, through an amendment to the guidelines which

consolidated § 2G2.4 with § 2G2.2 and removed the enhancement for 10 or more images. The court correctly

anticipated this change by applying the guideline and then

departing downward two levels to negate its effect.

The total offense level that resulted for Long’s sentence

was 25, after the court deducted three levels for acceptance

of responsibility. With a criminal history category I, he

faced a guidelines range of 57 to 71 months. The judge
6 No. 04-1721

decided to depart upward by four offense levels, which

resulted in a final range of 87 to 108 months.

The judge structured the upward departure by referring

to § 2G2.4(b)(5), which sets forth the following rules for

enhancements:

(A) at least 10 images, but fewer than 150, increase

by 2 levels; (B) at least 150 images, but fewer than 300,

increase by 3 levels; (C) at least 300 images, but fewer

than 600, increase by 4 levels; and (D) 600 or more

images, increase by 5 levels.

§ 2G2.4(b)(5). The judge explained that a four-level upward

departure was appropriate for Long’s sentence because

“if we take the officer’s estimate at 15 to 20,000 [pornographic images] and we reduce it by, let’s be generous,

2,000 possible duplicates, which would be double what his

suggestion was, we’re still talking about 13 to 18,000

different child pornography images. That’s many, many

times more than the 600 that call for an upward adjustment

of 5 levels.” In fact, the choice of four more levels

was consistent with the pattern that the guidelines establish. The structure of § 2G2.4(b)(5)(D) contemplates an

increase of one offense level every time the quantity of

images doubles after the first increase to 150 images, and

thus the judge could have extrapolated from that pattern

and increased the offense level each time the previous

ceiling of the quantity of images doubled. Doing so would

have resulted in a finding that a 9-level increase over the

base was appropriate for at least 9,600 images but less than

19,200 (or four levels beyond the maximum of five prescribed by § 2G2.4(b)(5)(D)), which is exactly what Long got.

On appeal, Long makes three arguments: first, that the

district court erred in denying his motion to suppress;

second, that the court erred in upwardly departing four

offense levels; and finally, that his sentence is unconstitutional in light of United States v. Booker, 125 S.Ct. 738

(2005), and he is entitled to full resentencing.
No. 04-1721 7

II

A

We review legal questions in connection with a district

court’s denial of a motion to suppress de novo, while we

apply the normal deferential “clear error” review for

underlying factual determinations. United States v. Cellitti,

387 F.3d 618, 621 (7th Cir. 2004). Long has essentially

challenged the district court’s finding that the search of his

office and computer fell within the scope of his consent,

noting that a consent search must stay within the boundaries of the consent that was given. Florida v. Jimeno, 500

U.S. 248, 251 (1991). The scope of consent is “limited by the

breadth of actual consent, and whether the search remained

within the boundaries of the consent is a question of fact to

be determined from the totality of all the circumstances.”

United States v. Raney, 342 F.3d 551, 556 (7th Cir. 2003)

(quoting United States v. Torres, 32 F.3d 225, 230-31 (7th

Cir. 1994)). In determining the scope of a defendant’s

consent, we apply an objective standard: “what would the

typical reasonable person have understood by the exchange

between the officer and the suspect?” Id. (quotation marks

omitted).

Long argues that no reasonable person would have

expected that the detectives’ request to search his “office”

was meant to include a search of his personal laptop and

CDs with the aid of the Encase diagnostic software installed

on Detective Frank’s forensic laptop. Long argues that he

did not have notice that he was consenting to such an

intrusive search because the police had informed him only

that they were investigating something illegal that was

given to them by someone who might want to get Long in

trouble.

We reject Long’s argument for the simple reason that

the consent form he signed explicitly allowed the agents

to search his office and laptop, with no limitations or
8 No. 04-1721

qualifications. The consent form stated, in relevant part,

that the officers were authorized to remove and search any

documents and property “including but not limited to

computer hardware, software, and all other external media

storage.” Long’s laptop and CDs fit within this definition,

and we observe that it is impossible to search computer

hardware or software without using some type of software.

The fact that the Encase search engine was sophisticated is

of no importance. We agree with the district court’s conclusion that Long “could not reasonably assert at this point

that he didn’t understand that [the police] were going to

search any CDs that they found.” Moreover, the court

credited the testimony of the officers to the effect that Long

was told that “not only were there allegations

of wrongdoing, but allegations that there were illegal

materials in his possession.” This conclusion makes it

unnecessary to decide whether Long admitted prior to

the search to possessing material that contained depictions of adults having sex with children—a point on which

the district court gave Long the benefit of the doubt in

any event. The district court correctly denied Long’s motion

to suppress.
No. 04-1721 9

B

We turn now to Long’s challenges to the district court’s

decision to make a four-level upward departure in computing Long’s sentence. After Congress passed the PROTECT

Act and before Booker, the courts of appeals were instructed

to review de novo the question whether a departure was

based on a factor that did not advance the objectives of 18

U.S.C. § 3553(a)(2), or that was not authorized by § 3553(b),

or that was not justified by the facts of the case. See 18

U.S.C. § 3742(e). Section 3742(e), however, is one of the two

provisions that the Supreme Court “sever[ed] and excise[d]”

from the guidelines in Booker, in the course of deciding on

the proper remedy for the Sixth Amendment violation it had

found. See Booker, 125 S.Ct. at 764-68. After Booker, all

sentences, including those that are above or below the range

that the guidelines would advise (i.e., those that we would

have described as the result of “departures” in the preBooker world), are to be reviewed for reasonableness. Id. In

fact, however, whether we were conducting the de novo

review called for by the PROTECT Act or a more generalized reasonableness review, the result would be the same

for Long. Putting to one side for the moment the question

whether the judge’s range of choice was unduly restricted

by the need he perceived to tie his decisions to the guidelines’ framework, we conclude that the district court did not

err (or act unreasonably) in its decision to impose

a sentence above the guideline range that it had calculated,

nor in the degree of its departure.

The district court concluded that an offense level of 25 “is

not an accurate reflection of what [Long’s] sentence should

be.” In deciding how many levels to add, the court relied on

its authority under § 5K2.0(a)(3) to use a circumstance that

“is taken into consideration in determining the guideline

range, if the court determines that such circumstance is

present in the offense to a degree substantially in excess

of . . . that which ordinarily is involved in that kind of
10 No. 04-1721

offense.” In Long’s case, the court found that Long possessed between 13 to 18,000 images and “[t]hat’s many,

many times more than the 600 that call for an upward

adjustment of 5 levels” under § 2G2.4(b)(5)(D). This is (or

would have been) a legitimate reason for an upward

departure.

The district court thus adequately explained how the

departure was linked to the structure of the guidelines. See

United States v. Hogan, 54 F.3d 336, 342 (7th Cir. 1995)

(“[A] district court must link the extent of departure to the

structure of the guidelines.” (internal quotation marks and

citation omitted)). As we noted earlier, the upward departure followed, as a practical matter, the pattern of imposing

an additional offense level each time the number of images

doubled from the previous cap. This was one acceptable way

to link the departure to the guidelines. The court adequately explained its reasons for increasing Long’s sentence, and we find no error in either the decision to depart

or the degree of departure.

C

Finally, we consider Long’s challenge that his sentence is

unconstitutional in light of the Supreme Court’s decision in

Booker. In Paladino, we found that our plain error review

in the sentencing context normally will require input from

the district court before we can determine whether a

defendant’s substantial rights have been affected by the

Booker error. See 401 F.3d at 483-84. The only difficult

question here is whether the district court’s decision to

depart upward should direct us instead to the rule announced in United States v. Lee, 399 F.3d 864 (7th Cir.

2005). In Lee, we recognized that although it is usually

impossible to say whether a district court’s sentence would

have been influenced by the knowledge that the guidelines

are advisory, there are some cases in which “we can be
No. 04-1721 11

confident that none of [the defendant’s] substantial rights

was adversely affected by the district judge’s application of

pre-Booker law.” Id. at 867. In Lee itself, this was plain,

because the judge had sentenced Lee at the statutory

maximum and had expressed regret that he could not go

higher. Lee referred to upward departures as another

possible instance, id. at 866-67. Lee did not, however,

establish a per se rule that plain error is impossible if the

district court departed upwards. As we wrote on the same

day in Paladino, “[a] conscientious judge— one who took the

guidelines seriously whatever his private views—would pick

a sentence relative to the guideline range.” 401 F.3d at 482.

Although we consider it a close call, we have concluded

that a Paladino remand is necessary in this case. As a

responsible district court judge in the pre-Booker era, the

judge here adhered scrupulously to both the guidelines and

the structure of the guidelines in determining the departure. Freed from the mandatory nature of that structure,

the court will be free to consider the factors outlined in

18 U.S.C. § 3553(a), including those that were specifically

prohibited by the guidelines and those that are not constitutionally prohibited such as race or sex. See, e.g.,

§ 5H1.11 (discouraging courts to factor “[m]ilitary, civic,

charitable, or public service; employment-related contributions; and similar prior good works” in deciding

whether to depart); § 5H1.12 (stating that “[l]ack of guidance as a youth and similar circumstances indicating a

disadvantaged upbringing” are not relevant grounds in

determining whether a departure is warranted).

At Long’s sentencing hearing, the lawyers for both the

government and Long emphasized numbers: the number of

images Long possessed; the method the government used to

calculate the number of images; the number of images that

contained actual pornographic images; the number of

possible duplicate images; and the quantity of images that

contained aggravating circumstances to warrant the
12 No. 04-1721

application of other guidelines. Under advisory guidelines,

defense counsel now has the opportunity to present and

argue a wider range of factors that should be factored into

the calculation and the weight to be accorded each factor.

For example, the judge might take into account his long

history of community service. Because we cannot be certain

that Long’s sentence would be the same under advisory

guidelines, we will follow the Paladino procedure here.

III

We AFFIRM the district court’s denial of Long’s motion to

suppress and the judge’s calculations under the Sentencing

Guidelines. We order a limited REMAND with respect to

his sentence while retaining jurisdiction in accordance with

the procedure outlined in Paladino.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-7-05