United States of America v. Corey Stinefast

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2435
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
C OREY STINEFAST ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09‐cr‐768‐2 — Amy J. St. Eve, Judge.
____________________
A RGUED A PRIL 10, 2013 — D ECIDED A UGUST 1, 2013
____________________
Before P OSNER , WOOD , and WILLIAMS , Circuit Judges.
WILLIAMS, Circuit Judge. After delivering a compact disc
full of child pornography to an FBI informant, Corey Stine‐
fast was arrested and his home was searched. When agents
completed the search, they discovered Stinefast’s collection
of over 190,000 images of child pornography, including im‐
ages depicting the sexual molestation of infants. Stinefast
was eventually charged with distributing child pornography
in violation of 18 U.S.C. § 2252A(a)(2)(A). He pled guilty to

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2 No. 12‐2435
the charge and received an above‐guideline sentence of 216
months.
On appeal, Stinefast presents three challenges to his sen‐
tence. He first contends that during his sentencing hearing
the prosecutor improperly referred to inadmissible and po‐
tentially incriminating statements Stinefast purportedly
made to the government’s psychiatric expert and that this
comment led to his unreasonably lengthy prison term. We
disagree. The prosecutor’s remark did not rise to the level of
impropriety necessary to constitute plain error and, even if it
did, Stinefast failed to show that it influenced the district
court’s sentencing decision. Stinefast next argues that the dis‐
trict court procedurally erred by failing to address the ar‐
gument that his psychological disorders stemming from his
own history of sexual abuse limited his ability to refrain
from engaging in child‐pornography‐related activity. We see
no error. The district court’s brief mention of the issue was
sufficient given the minimal evidence Stinefast presented to
substantiate his diminished capacity argument. Finally,
Stinefast asserts that the district court imposed an unreason‐
ably high sentence. We think the court arrived at a reasona‐
ble sentence based on its thorough examination of the rele‐
vant sentencing factors and specific aspects of Stinefast’s
background such as the vast amount of child pornography
in his possession. As none of Stinefast’s issues have merit, we
affirm.
I. BACKGROUND
In May 2009, federal agents began working with a coop‐
erating individual (“CI”) after discovering a large amount of
child pornography during a search of his residence. Hoping
to secure favorable treatment from the government, the CI

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No. 12‐2435 3
informed agents that he was part of a group who met in per‐
son and on the internet to view and trade child pornography.
The CI identified Corey Stinefast and his co‐defendant Jose
Garcia as the other members of this group.
On August 25, 2009, the CI, equipped with a hidden re‐
cording device, met up with Stinefast and Garcia at Six Flags
Great America in Gurnee, Illinois. The three men wandered
around the park for several hours, stopping periodically to
allow Stinefast to surreptitiously record and photograph
young boys. Eventually, the group left the park and stopped
at Stinefast’s car in the parking lot. Stinefast retrieved a disc
from his car and handed it to Garcia. Garcia then gave the
disc to the CI who promptly delivered it to federal agents.
The disc Stinefast provided contained numerous images and
videos of child pornography.
Not long after the theme park meeting, FBI agents arrest‐
ed Stinefast at his home and executed a search warrant. Dur‐
ing the search, agents discovered in excess of 190,000 images
and hundreds of videos depicting child pornography. Stine‐
fast’s collection included, among other items, images depict‐
ing the sexual molestation of an infant. The government
eventually charged Stinefast with one count of distributing
child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A).
On March 14, 2011, Stinefast notified the government of
his intent to present expert evidence relating to a mental dis‐
ease bearing on the issue of his guilt under Federal Rule of
Criminal Procedure 12.2(b). In response, the government
filed a motion to have its own expert examine Stinefast and
evaluate his mental condition. In an agreed order, the district
court granted the government’s motion and set forth the
conditions under which the examination would take place.

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4 No. 12‐2435
Soon after the government’s expert completed her exam‐
ination, Stinefast filed a notice that he had withdrawn his
mental disease defense along with a motion to preclude the
government’s expert from communicating with the govern‐
ment, the court, or anyone else about her examination of
Stinefast. The government asked the district court to deny
the motion because the relief sought might interfere with the
expert’s mandatory reporting obligations under Illinois law
to the extent such obligations were triggered during Stine‐
fast’s examination. See, e.g., 325 ILCS 5/4 (requiring psychia‐
trists with reasonable cause to believe a child known to them
in their professional capacity may be suffering from abuse to
file a report with Illinois Department of Children and Family
Services). In reply, Stinefast contended that the government’s
reference to its expert’s putative reporting obligations
amounted to a disclosure that Stinefast had admitted abus‐
ing children during his examination. Stinefast contended
that such disclosure was prohibited under both the Fifth
Amendment and Federal Rule of Criminal Procedure
12.2(c)(4).
The district court granted Stinefast’s motion in large part
and later ordered the government’s expert to refrain from
distributing her report to the court or to the Assistant United
States Attorneys assigned to Stinefast’s case. The court did
not directly address whether the government’s arguments
constituted improper disclosures of information from Stine‐
fast’s examination in violation of Rule 12.2(c)(4). When Stine‐
fast’s counsel suggested that the court may have difficulty
ignoring the government’s implication that Stinefast had re‐
vealed that he sexually abused children during his examina‐
tion, the court noted that “[w]ell, I can certainly distinguish
between what is admissible and what is not admissible.”

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No. 12‐2435 5
Stinefast eventually pled guilty to distributing child pornog‐
raphy.
At sentencing, Stinefast maintained that he had dimin‐
ished capacity at the time he committed the offense that ren‐
dered him less culpable than an ordinary offender. The
sources of Stinefast’s purported diminished capacity were
his low IQ and various psychological disorders (e.g., depres‐
sion, anxiety, and post‐traumatic stress disorder) that he
claimed were the result of sexual abuse he suffered at the
hands of his older brother. Stinefast relied upon a psycholog‐
ical evaluation from the year 2000 that documented his
abuse accusations as well as diagnoses for his mental health
ailments. According to Stinefast, his psychological disorders
and lack of intelligence rendered him more amenable to dis‐
tributing child pornography and militated in favor of a less‐
er sentence in his case.
In its sentencing presentation, the government highlight‐
ed Stinefast’s criminal history, inability to refrain from crimi‐
nal behavior, and the seriousness of his offense in requesting
a sentence above the range recommended by the Guidelines.
In particular, the government focused on Stinefast’s 2000
conviction in Wisconsin state court for two counts of causing
a child to expose his genitals. According to the complaint in
that case, Stinefast confronted two young boys in a public
washroom and pulled down their swimsuits to view their
genitals. The Wisconsin court sentenced Stinefast to a brief
period of incarceration and ordered him to complete sex of‐
fender treatment. The government argued that Stinefast’s in‐
ability to refrain from sexually exploiting children despite
his brief jail time and treatment suggested that a lengthy
prison term was necessary to specifically deter Stinefast from

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6 No. 12‐2435
future offenses. Prosecutors also highlighted the volume of
child pornography Stinefast had amassed in support of its
request for a higher sentence.
At the conclusion of its argument, the government re‐
ferred to the earlier dispute regarding Stinefast’s statements
during his psychological evaluation by the government’s ex‐
pert:
[Government]: And one last thing–
The Court: Yes.
[Government]: –for just the record, your Honor.
The Court: Yes.
[Government]: Months and months and months ago,
there was discussion held on the record regarding a
psychosexual evaluation of Mr. Stinefast by the gov‐
ernment. And as we discussed on the record months
and months ago, the Court, as you acknowledged, is
fully capable of hearing some things and considering
them and deciding not to consider them.
And I wanted to put forth on the record today that
anything the Court heard during those hearings re‐
garding—for instance, the government’s obligation to
make certain disclosures—you are not considering as
part of your sentence.
The Court: I am not considering those as part of my
sentence.
The district court sentenced Stinefast to 216 months’ im‐
prisonment, a term of incarceration more than five years
greater than the top of his Guidelines range of 121 to 151
months. In justifying its above‐guidelines sentence, the court

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No. 12‐2435 7
cited the amount of child pornography Stinefast had accu‐
mulated, the particularly disturbing nature of some of the
images, and Stinefast’s continued sexual exploitation of chil‐
dren despite an earlier run‐in with the criminal justice sys‐
tem. The court also rejected Stinefast’s argument that he de‐
served a reduced sentence because of psychological trauma
caused by the sexual abuse he endured during his child‐
hood. Stinefast now appeals.
II. ANALYSIS
Stinefast presents a number of challenges related to his
sentence. With regard to the sentencing hearing, Stinefast
contends that the prosecution acted improperly by remind‐
ing the court that Stinefast may have revealed prior acts of
child abuse during the examination by the government’s ex‐
pert. Stinefast also maintains that the district court commit‐
ted a procedural sentencing error by failing to consider his
diminished capacity argument. Furthermore, Stinefast con‐
tends that the district court’s above‐guideline sentence was
substantively unreasonable.
A. No Plain Error Resulted from Prosecutor’s Com‐
ments at Sentencing
Stinefast argues that the prosecutor engaged in miscon‐
duct during the sentencing hearing by referring to Stinefast’s
purported damaging statements to the government’s expert.
When a defendant argues that a prosecutor made an im‐
proper comment for the first time on appeal, we review the
claim under the plain error standard. United States v. Turner,
651 F.3d 743, 751 (7th Cir. 2011). To succeed under the plain
error standard, Stinefast first must show that the prosecu‐
tor’s comments “were obviously or clearly improper.” United

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8 No. 12‐2435
States v. Jones, 600 F.3d 847, 856 (7th Cir. 2010). If the remarks
were blatantly improper, Stinefast must also demonstrate
that the statements prejudiced him. United States v. Washing‐
ton, 417 F.3d 780, 786 (7th Cir. 2005).
We do not think the prosecutor’s comment was clearly
improper. Stinefast describes the prosecutor’s remark as an
attempt to inflame the judge’s passions by referring to Stine‐
fast’s inadmissible statements to the government’s expert re‐
garding prior instances of molestation. The comment seems
better construed, however, as an attempt to protect the rec‐
ord on appeal by asking the court to confirm that it did not
consider the government’s representations regarding this
sensitive issue when imposing sentence. Given that the
comments at issue are ambiguous at best, we are not inclined
to find that the prosecutor’s statement was clearly improper.
See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) (“[A]
court should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning”).
We note, however, that protecting the record in this way
was unnecessary under the circumstances. While we appre‐
ciate the government’s attempts to make our jobs easier by
clarifying issues with the trial court, the district court’s earli‐
er rulings on the subject should have alleviated any concerns
about the district court’s reliance on anything Stinefast may
have said to the government’s expert. Months before sen‐
tencing, the district court issued a minute order in which it
expressly ordered the government’s expert not to distribute
her examination report “to any party, including the court.”
Moreover, in resolving a separate dispute about the report,
the district judge stated in open court that the report “is not
going to be used against Mr. Stinefast.” In light of the preex‐

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No. 12‐2435 9
isting clarity of the record on this issue, we think the gov‐
ernment may have been a little too cautious in raising such a
sensitive issue at the sentencing proceeding.
Even if we found the prosecutor’s comment to be im‐
proper, however, Stinefast’s claim would not succeed be‐
cause he cannot show prejudice. We are convinced that the
district court judge did not take the prosecutor’s problematic
statements into account in imposing sentence. Judges often
hear improper argument and other forms of inadmissible
evidence that they are presumed to disregard when deciding
matters of importance. See Harris v. Rivera, 454 U.S. 339, 346
(1981). To overcome this presumption of conscientiousness
on the part of district judges, a party must present some evi‐
dence that the statement influenced the court’s decisionmak‐
ing. United States v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000).
In this case, the district court explicitly stated that “I am not
considering those as part of my sentence” after the prosecu‐
tor mentioned Stinefast’s incriminating statements to the
government’s expert. We see no reason not to take the court
at its word. In the absence of any indication that the district
court predicated her sentencing decision on Stinefast’s pur‐
ported admissions, we must reject Stinefast’s prosecutorial
misconduct challenge.
B. No Error Resulted from District Court’s Considera‐
tion of Diminished Capacity Argument
Stinefast also contends that the district court failed to
give meaningful consideration to his argument that he was
less deserving of punishment because his offense was the
product of a diminished capacity. “In selecting an appropri‐
ate sentence, district courts are expected to address princi‐
pal, nonfrivolous arguments in mitigation”; failure to do so

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10 No. 12‐2435
constitutes procedural error. United States v. Chapman, 694
F.3d 908, 913‐14 (7th Cir. 2012). But “the judge’s failure to
discuss an immaterial or insubstantial dispute relating to the
proper sentence would be at worst a harmless error.” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).
Stinefast maintains that the district court erred in failing
to address the effect of Stinefast’s mental condition on his
ability to refrain from engaging in the offense of conviction.
As a general matter, courts may impose a lesser sentence
based on a defendant’s diminished capacity. United States v.
Miranda, 505 F.3d 785, 792 (7th Cir. 2007). A defendant may
be entitled to a lower sentence on this basis if, for example,
the defendant has “a significantly impaired ability
to…control behavior that the defendant knows is wrongful”
and shows that this lack of restraint “contributed substan‐
tially to the commission of the offense[.]” U.S.S.G. § 5K2.13.
So in order to warrant a lower punishment due to a dimin‐
ished capacity, there must be some “showing that the de‐
fendant’s reduced mental capacity contributed to the com‐
mission of the offense; such a link cannot be assumed.” Unit‐
ed States v. Frazier, 979 F.2d 1227, 1230 (7th Cir. 1992).
We think the court’s discussion, while brief, reflects its
consideration and rejection of Stinefast’s diminished capacity
argument. As Stinefast acknowledges, the court did discuss
the relationship between his psychological disorders and his
offense:
I will accept your representation and the representa‐
tion of the doctor from the report in 2000 that you
were sexually abused. And no doubt that has had an
impact on you. And no doubt during this time period
you were struggling with your own problems of be‐

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No. 12‐2435 11
ing sexually abused as a child. But knowing what that
did to you, you turned around and victimized chil‐
dren.
As the excerpt above shows, the court acknowledged
Stinefast’s serious mental health issues but decided that they
had no effect on his willingness to refrain from distributing
child pornography. Instead, the court reasoned that Stinefast
was more deserving of punishment because he continued to
develop the market for child pornography despite knowing
the harm inflicted on the children involved in its production
and distribution.
Moreover, the court’s discussion of this argument was
more than sufficient given its lack of evidentiary support.
Although Stinefast presented evidence showing that he sus‐
tained serious psychological trauma as the victim of sexual
abuse, there was no evidence at all linking his condition to
his offense conduct. The psychiatric evaluation Stinefast
submitted contained diagnoses for post‐traumatic stress dis‐
order, depression, and anxiety resulting from his sexual
abuse. But the report did not connect these mental health is‐
sues with Stinefast’s sexual fascination with children gener‐
ally or to the specific instance of child pornography distribu‐
tion that led to his conviction. Indeed, the report noted an
absence of evidence that Stinefast was sexually attracted to
children. Moreover, despite Stinefast’s suggestions that the
report showed he lacked the intellectual wherewithal to ap‐
preciate the unlawful quality of his actions, the same report
also states that “Mr. Stinefast is of above‐average or well‐
above average intelligence[.]” The lack of evidence establish‐
ing a link between Stinefast’s psychological disorders and
the offense of conviction rendered his diminished capacity

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12 No. 12‐2435
argument immaterial. See United States v. Portman, 599 F.3d
633, 639 (7th Cir. 2010) (“[A] legal diminished capacity find‐
ing also requires a causal link between the mental capacity
and the crime”); see, e.g., United States v. Beier, 490 F.3d 572,
574 (7th Cir. 2007) (affirming sentence when defendant did
not “present any evidence suggesting that a low‐normal IQ,
or learning disabilities, break down a person’s resistance to
becoming…a producer of child pornography”). Although
Stinefast’s attorney argued that this connection existed in
this case, these unsupported assertions are not evidence and
cannot take the place of expert reports or other scientific ev‐
idence needed to establish such a link. United States v. Chap‐
man, 694 F.3d 908, 914‐15 (7th Cir. 2012). Under the circum‐
stances, even if we found any error resulting from the dis‐
trict court’s discussion of this argument, it would be harm‐
less. Cunningham, 429 F.3d at 679.
C. Stinefast’s Sentence Was Reasonable
Stinefast also argues in passing that his above‐guidelines
sentence was unreasonable. We review the reasonableness of
a district court’s sentencing decision under an abuse of dis‐
cretion standard. Gall v. United States, 552 U.S. 38, 46 (2007).
“We will uphold an above‐guidelines sentence so long as the
district court offered an adequate statement of its reasons,
consistent with 18 U.S.C. § 3553(a), for imposing such a sen‐
tence.” United States v. Taylor, 701 F.3d 1166, 1174 (7th Cir.
2012) (quoting United States v. Adebe, 651 F.3d 653, 657 (7th
Cir. 2011)). If the court imposes an above‐guideline sentence,
the court “must provide a justification that explains and
supports the magnitude of the variance.” United States v.
Bradley, 675 F.3d 1021, 1025 (7th Cir. 2012). “An above‐
guidelines sentence is more likely to be reasonable if it is

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No. 12‐2435 13
based on factors sufficiently particularized to the individual
circumstances of the case rather than factors common to of‐
fenders with like crimes.” United States v. Jackson, 547 F.3d
786, 792‐93 (7th Cir. 2008) (internal quotation marks omit‐
ted).
We are convinced that the district court appropriately ex‐
ercised its discretion by selecting an above‐guidelines sen‐
tence for Stinefast. In deciding to impose a term of incarcera‐
tion more than five years greater than the top of Stinefast’s
guidelines range, the district court considered a number of
section 3553(a) factors and concluded that they warranted a
more severe sentence in this case. With respect to Stinefast’s
personal characteristics, the court focused on Stinefast’s mas‐
sive collection of child pornography and reasoned that his
insatiable demand for such materials likely contributed to
the production of other images involving the sexual exploi‐
tation of children. The court also cited the particularly dis‐
turbing quality of Stinefast’s collection, including images of
infants being sexually abused, as favoring a higher sentence.
In addition, the court also noted Stinefast’s criminal history,
particularly his previous convictions for causing children to
expose their genitals, as aggravating factors. Moreover, the
court relied heavily on the need for specific deterrence in
imposing a higher sentence for Stinefast. In discussing this
issue, the court found that Stinefast had shown his incorrigi‐
bility by viewing and distributing child pornography even
after serving jail time and completing sex offender treatment
in connection with his prior convictions. In summary, the
district court did not abuse its discretion in determining that
these certain considerations unique to Stinefast warranted an
above‐guidelines sentence in his case.

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14 No. 12‐2435
III. CONCLUSION
The judgment of the district court is A FFIRMED.

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