USA v. Kevin Hoffman
Filed opinion of the court by Judge Manion. AFFIRMED. Kenneth F. Ripple, Circuit Judge; Daniel A. Manion, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6817381-1]  [16-1595]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
KEVIN A. HOFFMAN, also known
as KEVIN HOFFMAN,
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 13‐cr‐00134 — Robert L. Miller, Jr., Judge.
ARGUED NOVEMBER 10, 2016 — DECIDED FEBRUARY 8, 2017
Before RIPPLE, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. For conduct arising out of one day’s
sexual abuse, Kevin Hoffman was convicted after a two‐day
federal jury trial of one count of exploitation of a child and
one count of possession of child pornography in interstate
commerce, and faced a sentence of up to thirty years in prison.
While his sentence was pending, he was convicted in state
court of sexual abuse of the same child over a period of eight‐
een months, and faced a sentence of up to fifty years in state
prison. This case involves the discretion of a federal district
court judge under U.S.S.G. § 5G1.3 to impose a concurrent or
consecutive sentence, or to decline to impose either, when a
subsequent state sentence for relevant conduct is anticipated.
Hoffman argues that the plain language of the Sentencing
Guidelines requires a district judge to impose a concurrent
sentence in such a situation. Because the Guidelines are advi‐
sory, and because U.S.S.G. § 5G1.3 is inapplicable in this case,
we affirm the decision below.
Hoffman’s federal conviction arises out of events occur‐
ring on one day, September 5, 2013. On that day, Hoffman was
at home in Michigan City, Indiana. He lived there with his
girlfriend, Shannon, her sister‐in‐law, Nina, and Nina’s two
young sons. Shannon had two daughters who also lived in the
house: Hannah, 18, and the victim, Jane Doe, 6. Finally, the
primary witness, Ashley Randle‐El, 23, was a friend of Han‐
nah’s and also lived in the house.
On September 5, 2013, Hoffman and Randle‐El were car‐
ing for Jane Doe and Nina’s two young sons. All five went to
the back yard patio at some point during the day. Later, Hoff‐
man and Jane Doe went inside. Shortly thereafter, Randle‐El
and Nina’s two boys returned to the house, and Randle‐El wit‐
nessed Jane Doe return from Hoffman’s bedroom to the
kitchen. Randle‐El walked to the bedroom and asked Hoff‐
man to borrow his cell phone, which he gave to her. She re‐
turned to the kitchen in order to place a call.
When she opened the phone, she saw a photograph of Jane
Doe, nude, in what the District Court characterized as a “bla‐
tantly sexual pose.” Screaming, Randle‐El asked Jane Doe:
“What’s going on?” Jane Doe replied: “My dad took the x‐
rays,” and Jane Doe ran back towards the bedroom. Hoffman
came out, seized the phone, and deleted the photographs.
Randle‐El took the children outside, and when Jane Doe’s
mother, Hoffman’s girlfriend Shannon, returned home, they
found no photos, and notified police. Pursuant to a search
warrant, Michigan City police seized Hoffman’s cell phone
and a forensic analyst discovered ten deleted images of Jane
Doe naked in various postures. Hoffman was arrested on No‐
vember 26, 2013, and he has remained in custody since. A
grand jury returned an indictment against Hoffman on De‐
cember 11, 2013, on one count of violating 18 U.S.C. § 2251(a),
sexual exploitation of a child, and one count of violating 18
U.S.C. § 2252(a)(4)(B), possession of child pornography in in‐
As noted by the district court and affirmed by the govern‐
ment at oral argument, the case was tried “as a child pornog‐
raphy case” related to the events of September 5, 2013. How‐
ever, during the course of the trial the jury did hear testimony
from Jane Doe which related to her grooming and abuse by
Hoffman over a period of time. Specifically, Jane Doe related
that she and Hoffman had “practice[d] having sex … lots,
multiple times.” Further, she testified that Hoffman’s hands
would shake and that he told her he was a diabetic and would
die without oral sex, which she would then perform on him.
This abuse, however, was not what Hoffman was charged
with: he was charged with, and convicted of, one count of sex‐
ual exploitation of a child and one child pornography count,
both related to the events of September 5, 2013.
Following Hoffman’s first sentencing hearing, the district
court on January 5, 2015, increased Hoffman’s base offense
level pursuant to U.S.S.G. § 2G2.1 (sexual exploitation of a mi‐
nor) and U.S.S.G. § 4B1.5(b) (repeat and dangerous sex of‐
fender against minors). The maximum allowable sentence un‐
der the statutes was 30 years, or 360 months. This fell below
the advisory guideline range of life. Therefore, the advisory
range was limited to 360 months. The government agreed that
360 months was reasonable. Hoffman’s attorneys, for their
part, recommended 17 years, which was 2 years above the
statutory minimum of 15 years. After applying the various
factors set out in 18 U.S.C. § 3553, the district judge sentenced
Hoffman to a term of 300 months’ imprisonment, and ten
years of supervised release, with various conditions upon that
release. He noted that the single count of production of child
pornography would carry with it a minimum mandatory sen‐
tence of 15 years, so that the other aspects of the case de‐
manded more than simply the two years requested by defense
counsel. Accordingly, he imposed a 25‐year sentence on Hoff‐
man solely for the production count, merging the possession
count with it.
Following his first sentencing, Hoffman filed a notice of
appeal. During the pendency of that appeal, this court de‐
cided both United States v. Thompson, 777 F.3d 368 (7th Cir.
2015), and United States v. Kappes, 782 F.3d 828 (7th Cir. 2015),
which bore on the validity of several conditions of supervised
release imposed on Hoffman at his initial sentencing. As a re‐
sult, on October 7, 2015, the parties filed a joint motion to re‐
mand for full resentencing, which this court granted the next
day. Hoffman was resentenced in district court on March 14,
2016, again for 25 years, in the order now on appeal before
Also during the pendency of Hoffman’s appeal from his
first sentencing, parallel proceedings in state court were de‐
veloping related to his 18‐month period of abusing Jane Doe.
Shortly before his federal resentencing, an Indiana jury con‐
victed Hoffman of child molestation, a charge for which he
faced a sentencing range of 20 to 50 years. Facing this addi‐
tional sentence, Hoffman argued at resentencing in the fed‐
eral case that because his sentence was enhanced under
U.S.S.G. § 4B1.5(b)(1), for “engage[ing] in a pattern of activity
involving prohibited sexual conduct,” he was entitled to a
concurrent sentence under U.S.S.G. § 5G1.3(c). That section
If subsection (a) [the crime was committed while incar‐
cerated] does not apply, and a state term of imprison‐
ment is anticipated to result from another offense that
is relevant conduct to the instant offense of conviction
under the provisions of subsections (a)(1), (a)(2), or
(a)(3) of §1B1.3 (Relevant Conduct), the sentence for
the instant offense shall be imposed to run concur‐
rently to the anticipated term of imprisonment.
After considering the arguments, the district court de‐
clined to apply § 5G1.3(c). Its reasoning was three‐fold. First,
it noted that under United States v. Moore, 784 F.3d 398 (7th Cir.
2015), section § 5G1.3(c) is advisory, rather than mandatory,
rejecting Hoffman’s argument that the district court was com‐
pelled to sentence concurrently. See also United States v. Booker,
543 U.S. 220 (2005). Second, it rejected, “though somewhat
tentatively,” Hoffman’s argument that his sentencing en‐
hancement under U.S.S.G. § 4B1.5 was the requisite “relevant
conduct” under § 5G1.3(c). The court instead held that
§ 5G1.3(c) simply did not apply to any Chapter Four enhance‐
ments, such as § 4B1.5. Finally, the district court noted that
even if § 5G1.3(c) applied, it would have sentenced Hoffman
consecutively, citing this court’s decision in United States v.
Hawkins, 777 F.3d 880, 885 (7th Cir. 2015) (“We have encour‐
aged district judges to bypass debatable issues in the calcula‐
tion of Guideline ranges if the issues turn out not to matter,
and to state on the record whether the sentence would have
been the same if the debated issue had come out the other
Specifically, it noted that the state court might have addi‐
tional information that the federal court did not have, so that
the state court would be in a better position to determine an
appropriate sentence for Hoffman. Rather than imposing a
consecutive sentence, however, the district judge simply de‐
clined to rule, noting that “[t]his court would have no objec‐
tion to the state and federal sentences running concurrently.”
It is this decision that is before us on appeal.
One last event bears mentioning. On May 12, 2016, Hoff‐
man was sentenced in Indiana state court to the statutory
maximum, 50 years, and the sentence was imposed consecu‐
tively. As aggravating factors, the state court cited:
the victim’s young age, Hoffman’s role as a father fig‐
ure, his high risk to re‐offend, his lack of remorse and
denial of responsibility despite the evidence and his
prior criminal history‐‐‐which includes having raped a
child at knifepoint when he was 12 and having raped a
relative when he was 15.
The state court cited no mitigating factors.
We review district court interpretations of the Sentencing
Guidelines de novo, and factual determinations underlying the
application of the Guidelines for clear error. United States v.
Grzegorczyk, 800 F.3d 402, 405 (7th Cir. 2015).
On appeal, Hoffman asks us to vacate his sentence and re‐
mand for resentencing, arguing that it was an abuse of discre‐
tion for the district court judge to decline to impose the sen‐
tence concurrent to the pending state sentence, as he argues is
mandatory under § 5G1.3(c). On the one hand, Hoffman cites
Setser v. United States, 132 S. Ct. 1463 (2012), for the proposi‐
tion that a district court has discretion to order a federal sen‐
tence to run concurrently or consecutively to an anticipated
state sentence. This is certainly true, and the district court
On the other hand, Hoffman seems to believe that because
the Guidelines are advisory, the district court committed error
when it noted that “The court doesn’t have the authority to do
what Mr. Hoffman asks.” We do not take this stray comment
to mean that the district court judge was unaware that the
Guidelines are advisory. Indeed, the district court’s very next
sentence explicitly notes that the Guidelines are indeed advi‐
sory. Rather, the district court was signaling that it could not
apply § 5G1.3(c) in Hoffman’s case because his sentencing en‐
hancements were simply not for “relevant conduct” that
would trigger that section. Thus, the legal question before us
is whether the district court erred in declining to apply
§ 5G1.3(c) to Hoffman’s sentence. Today, we hold that it did
The text of § 5G1.3(c) is straightforward, as is its purpose.
When sentencing a federal defendant for certain criminal con‐
duct, a district judge should take note of anticipated state
terms of imprisonment for relevant conduct, and, where ap‐
propriate, impose a concurrent sentence, in order to avoid an
unduly harsh sentence unwittingly. What constitutes “rele‐
vant conduct” is explicitly laid out in the section: “provisions
of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3.”
This exhaustive list of “relevant conduct” under § 5G1.3(c)
relates back to a single subsection, U.S.S.G. § 1B1.3(a): rele‐
vant conduct under Chapters Two and Three. Thus, under
§ 5G1.3(c), the federal district judge is instructed to consider
anticipated state terms of imprisonment where that term of
state imprisonment is relevant conduct to a Chapter Two or
Three enhancement. As noted in the district court’s decision
before us, Hoffman’s Chapter Four enhancement, U.S.S.G.
§ 4B1.5(b)(1), simply does not fall under § 5G1.3(c).
While it is true that Hoffman’s sentence was enhanced un‐
der a few Chapter Two enhancements—specifically,
§ 2G2.1(b)(1)(A), § 2G2.1(2)(A), and §2G2.1(5)—Hoffman did
not argue before the district court that these sentencing en‐
hancements triggered § 5G1.3(c). As a result, we consider this
argument waived, and will review it only for plain error.
However, we need not fully consider whether § 5G1.3(c) was
triggered by the Chapter Two sentencing enhancements ap‐
plied to Hoffman, because any hypothetical error by the dis‐
trict judge was harmless. United States v. Olano, 507 U.S. 725,
As detailed in the district court opinion below, even had
§ 5G1.3(c) been applicable, the district judge still would have
declined to impose a concurrent sentence. With due care for
both the rights of the accused and for our federal system, the
judge noted that “this court can’t be so presumptuous as to
claim certainty of the information that will be available to the
state court in the event of a conviction.”1 Rather than impos‐
ing a concurrent sentence and thus limiting the sentencing op‐
tions of the state judge, the federal district judge merely de‐
ferred. Such deferral was entirely appropriate, and to be en‐
couraged, when the district judge has reason to believe that a
state judge might have additional facts before it relevant to
As tried in federal court, the jury did hear some testimony
of Jane Doe related to her long‐term abuse at the hands of
Hoffman, but this testimony was limited because the charges
were related to a single day’s conduct. The district court ob‐
served that the potentially more expansive state criminal trial
might unveil additional factors, both aggravating and miti‐
gating, that could serve to place the state judge in a better po‐
sition than the federal judge to determine whether a concur‐
rent or consecutive sentence was warranted. As it turns out,
the state judge did preside over a more expansive prosecution
covering not one day, but 18 months of repeated abuse of a 6‐
year old girl at the hands of a man who was supposed to be
caring for her. The state court found several aggravating fac‐
tors, no mitigating factors, imposed the statutory maximum
1 Certainly, in Setser v. United States, Justice Scalia, writing for the ma‐
jority, notes that “it is always more respectful of the State’s sovereignty for
the district court to make its decision up front rather than for the Bureau
of Prisons to make the decision after the state court has acted.” 566 U.S.
231, 241 (2012). But this holds when all the facts are known and the district
judge is unsure about what actual time might be served in an anticipated
state sentence. It does not hold when what the district judge is unsure
about is equitable factors due to a narrow federal prosecution.
sentence, and imposed that sentence consecutively. The in‐
stincts of the federal judge in this case about the need to defer
were entirely appropriate.
To find the district court order in error, vacate it, and re‐
mand for a third resentencing could thus place Hoffman in no
better position than he is now. As the district judge indicated,
even applying § 5G1.3(c) he would still decline to impose a
concurrent sentence, so that any hypothetical error clearly did
not affect the district court’s decision. United States v. Gill, 824
F.3d 653, 662 (7th Cir. 2016).
The decision of the district court is thus AFFIRMED.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?