United States of America v. Benjamin Daniel Rumbo

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2025
Decided January 10, 2025
Before
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1527
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENJAMIN DANIEL RUMBO,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 4:21-CR-40041-JPG-1
J. Phil Gilbert,
Judge.
O R D E R
Benjamin Rumbo† pleaded guilty to distributing child pornography and was
sentenced to 240 months in prison. He appeals, but his appointed counsel asserts that
the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744
† The record notes that Rumbo began a gender transition in February 2023,
though it does not indicate Rumbo’s preferred pronouns. With no disrespect intended,
we use the pronouns that appear throughout the record and in the briefs.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1527 Page 2
(1967). Counsel’s brief details the nature of the case and discusses issues that an appeal
of this kind might be expected to involve. Because counsel’s analysis appears thorough,
and Rumbo did not respond to the motion, see C IR . R. 51(b), we limit our review to the
subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Rumbo sent messages via Kik, an online messaging platform, to an undercover
FBI agent who was posing as a mother with a 10-year-old daughter. Rumbo and the
agent conversed through direct messages: Rumbo solicited pornographic images of the
child and expressed interest in having sexual relations with both the purported mother
and the child. On January 6, 2021, Rumbo sent the agent several videos depicting child
pornography. After his arrest on a criminal complaint, Rumbo was indicted under
18 U.S.C. § 2252A(a)(2) for distributing one of those videos. Rumbo was released on
bond, but he was admonished for violations including viewing adult pornography, and
later taken back into custody for drinking alcohol to intoxication.
Rumbo ultimately pleaded guilty without a plea agreement. The district court
conducted the change-of-plea hearing, and Rumbo confirmed under oath that he
understood the charge, the minimum and maximum penalties (imprisonment for 5 to
20 years, up to a $250,000 fine, 5 years to life of supervised release, and registering as a
sex offender), and the trial rights he was waiving. After finding that Rumbo was
competent, that the plea was knowing and voluntary, and that there was an adequate
factual basis establishing Rumbo’s guilt, the court accepted Rumbo’s guilty plea.
In the final presentence investigation report (PSR), the probation officer
calculated a total offense level of 39 under the Sentencing Guidelines. From a base level
of 22, see U.S.S.G. § 2G2.2(a)(2), the PSR applied 5 special offense characteristics to
increase the offense level: by 2 levels for material involving a minor under the age of 12,
see § 2G2.2(b)(2); by 7 for an offense involving distribution to a minor intended to
persuade the minor to travel for prohibited sexual conduct, see § 2G2.2(b)(3)(E); by 4 for
material with sadistic, masochistic, or violent depictions, see § 2G2.2(b)(4)(A); by 2 for
the use of a computer, see § 2G2.2(b)(6); and by 5 for the offense involving 600 or more
images, see § 2G2.2(b)(7)(D). It then decreased the offense level by 3 for acceptance of
responsibility. See § 3E1.1(a), (b). Rumbo had no criminal history and was therefore
assigned a category of I.
Rumbo objected to the seven-level increase under § 2G2.2(b)(3). He argued that
he did not send materials with an intent to persuade the minor to travel for prohibited
sexual conduct. Instead, Rumbo argued that the two-level increase under
§ 2G2.2(b)(3)(F)—the catchall provision for knowing distribution—should apply

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No. 24-1527 Page 3
instead. At the sentencing hearing, the court heard argument and agreed that both the
seven-level and two-level increases were inapplicable but concluded that
§ 2G2.2(b)(3)(C)—distribution to a minor—applied, adding five levels. Rumbo agreed
that this provision applied to his offense. The court adopted the PSR with that change.
The district court then explained that Rumbo’s guidelines range was 210 to 262
months’ imprisonment and 5 years to life of supervised release, based on a total offense
level of 37 and a criminal history category of I. There were no objections to these
calculations. After hearing arguments from both sides, as well as Rumbo’s allocution,
the court sentenced Rumbo to the statutory maximum of 240 months’ imprisonment, 10
years’ supervised release, and a fine of $300.
In his brief, counsel first states that he consulted with Rumbo and confirmed that
Rumbo does not wish to withdraw the guilty plea, so counsel properly omits discussion
of potential arguments related to the guilty plea or plea colloquy. See United States v.
Larry, 104 F.4th 1020, 1022 (7th Cir. 2024).
Counsel next considers procedural challenges to Rumbo’s sentence. The district
court applied the five-level increase under § 2G2.2(b)(3)(C), which applies to offenses
involving “distribution to a minor.” During the sentencing hearing, counsel agreed that
this increase applies to Rumbo’s conduct based on United States v. McMillan, in which
we held that contact with the parent of a minor constituted persuasion of a minor into
criminal sexual acts, even without direct contact between the defendant and the minor.
744 F.3d 1033, 1036 (7th Cir. 2014). We have not decided whether the logic of McMillan
would apply in the context of § 2G2.2(b)(3)(C), and we need not do so here, because
Rumbo has waived any challenge to its applicability. See United States v. Fuentes,
858 F.3d 1119, 1121 (7th Cir. 2017).
Counsel correctly concludes that any other procedural challenge would be
frivolous. Rumbo did not object to the other increases to his offense level, so we would
review them only for plain error. See United States v. Truett, 109 F.4th 996, 1002 (7th Cir.
2024). Although we have recently clarified that a defendant does not need to object to
an error that arises in the course of a sentencing explanation to preserve the issue for
appeal, see United States v. Martin, 122 F.4th 286, 289–90 (7th Cir. 2024), an objection was
required here to preserve a challenge to the district court’s guidelines calculation. And
Rumbo could not establish that the offense level was plain error because the special
offense characteristics that the court applied were based on undisputed facts in the PSR.
Additionally, the sentence does not exceed the statutory maximum of 240 months.
See § 2252A(b)(1). Counsel identifies no other potential procedural errors.

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Finally, counsel considers, and appropriately rejects, any argument challenging
the substantive reasonableness of the sentence. A within-guidelines sentence is
presumptively reasonable, and we will affirm if the court provides an “adequate
statement of [its] reasons.” United States v. Major, 33 F.4th 370, 384–85 (7th Cir. 2022)
(quotation omitted). Here, the court explained the sentence with reference to the
18 U.S.C. § 3553(a) factors, highlighting the “horrendous offense” and Rumbo’s
“several” bond violations. Balancing these factors against Rumbo’s lack of criminal
history and his addiction, the court settled on the within-guidelines sentence of 240
months. Rumbo therefore would be unable to overcome the presumption of
reasonableness on appeal.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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