United States of America v. Jeremy Hogenkamp

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 22, 2013
Decided May 24, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐3829
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JEREMY HOGENKAMP,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 11‐CR‐131‐BBC‐01
Barbara B. Crabb,
Judge.
O R D E R
While Jeremy Hogenkamp was out on bond awaiting trial on state charges of
possessing child pornography, the FBI searched his home and discovered additional
images, many of them showing the violent rape of young children by adult men. After
Hogenkamp was charged with multiple counts of possessing and distributing child
pornography, see 18 U.S.C. § 2252(a)(2), (a)(4)(B), he pleaded guilty to one of the distribution
counts as part of a plea agreement and was sentenced to an imprisonment term of 120
months. He filed a notice of appeal, but his appointed lawyer contends that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Hogenkamp
has declined to respond to counsel’s submission. See CIR. R. 51(b). We confine our review to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 12‐3829 Page 2
the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
Hogenkamp has told his lawyer that he does not want his guilty plea vacated.
Counsel therefore properly refrains from discussing the adequacy of the plea colloquy or
the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel does address whether Hogenkamp could raise a nonfrivolous challenge to
his prison sentence and concludes that he could not. As counsel explains, the district court
correctly calculated Hogenkamp’s imprisonment range under the guidelines at 210 to 240
months. This range resulted from a total offense level of 37 combined with a criminal
history category of I, capped by the statutory maximum of 20 years. See 18 U.S.C.
§ 2252(a)(2), (b)(1); U.S.S.G. § 5G1.1(a). (The offense level reflects a base of 22, see
§ 2G2.2(a)(2), plus 2 levels because Hogenkamp possessed images of children under age 12,
see id. § 2G2.2(b)(2), 5 levels because he distributed the images to others, see id.
§ 2G2.2(b)(3)(B), 4 levels because the images depicted sadism and violence, see id.
§ 2G2.2(b)(4), 2 levels because Hogenkamp used a computer to commit his crimes, see id.
§ 2G2.2(b)(6), 5 levels because he possessed at least 600 images, see id. § 2G2.2(b)(7)(D), less
3 levels because he accepted responsibility, see id. § 3E1.1.) After correctly calculating the
imprisonment range, the district court, guided by U.S.S.G. § 5K2.0(b)(2), explained that
Hogenkamp’s offense level should be reduced by two because the upward adjustment for
using a computer in the commission of his crimes was excessive (computers being a
ubiquitous feature of child‐pornography offenses). This reduction resulted in an effective
sentencing range of 168 to 210 months.
The below‐guidelines sentence Hogenkamp actually received—120 months—would
be entitled to a presumption of reasonableness on appeal, see Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012), and counsel argues
that Hogenkamp would not be able to rebut that presumption because the district court
adequately applied the sentencing factors of 18 U.S.C. § 3553(a). As the sentencing transcript
reflects, the court weighed Hogenkamp’s possession and distribution of appalling
pornographic images of young children against his completion of sex‐offender treatment,
his lengthy service in the U.S. National Guard, and the fact that he already had served four
months in state custody. See id. § 3553(a)(1)–(2). We agree with counsel that any appellate
challenge to Hogenkamp’s sentence would be frivolous under these circumstances.
Counsel’s motion is to withdraw is GRANTED and the appeal is DISMISSED.

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