United States of America v. Adam Sprenger

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 22, 2024*
Decided January 30, 2024
Before
F RANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
THOMAS L. K IRSCH II, Circuit Judge
No. 23-2104
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A DAM S PRENGER ,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division.
No. 18 CR 105
John J. Tharp, Jr., Judge.
O R D E R
Adam Sprenger pleaded guilty to producing and possessing child pornography.
He was sentenced to 30 years’ imprisonment. On his initial appeal we vacated the pro-
duction conviction as inconsistent with United States v. Howard, 968 F.3d 717 (7th Cir.
2020), but held that the possession conviction remains valid. We remanded for resen-
tencing. United States v. Sprenger, 14 F.4th 785 (7th Cir. 2021).
*This successive appeal has been submitted to the panel that decided Sprenger’s initial appeal. See
Operating Procedure 6(b). After examining the briefs and the record, we have concluded that a second oral
argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 23-2104 Page 2
In addition to pleading guilty to producing and possessing child pornography,
Sprenger stipulated that the district court could consider the conduct alleged in a sepa-
rate production charge, though only for the purpose of sentencing. Under the stipula-
tion Sprenger admitted to the following:
He lived with Victim B’s mother and took four videos of Victim B,
who was 13 years old, while she was sleeping. In the first video,
he “pulled back the blanket that was covering Victim B and fo-
cused the camera on Victim B’s clothed buttocks and vagina”; his
“erect penis was visible as he masturbated over Victim B.” In the
second video, he “reached with his hand and made physical con-
tact with Victim B’s clothed vagina.” In the third, he “made physi-
cal contact with Victim B’s clothed vagina and buttocks,” and in
the last, he “ejaculated onto Victim B’s clothed buttocks.”
14 F.4th at 789 (citations to record omitted). Our opinion left unresolved the question
whether such conduct constitutes the production of child pornography under Howard.
See 14 F.4th at 794 & n.2.
The district judge resentenced Sprenger to 19 years, a reduction of 11 years from
the original sentence. The judge concluded that the stipulated conduct amounts to the
production of child pornography under 18 U.S.C. §2251(a) and Howard. He immediately
added:
It should be understood, however, that what we’re talking about
is a guideline calculation. Whether or not this conduct under the
guideline calculation constitutes an offense that should count as
another offense that the guideline calculation takes into account
and, you know, you go through the grouping rules and every-
thing else, ultimately is absolutely immaterial to my evaluation of
the appropriate sentence to impose here. Whether or not the con-
duct technically satisfies the definition of production under
2251(a) or not, the conduct is the conduct, and it was abhorrent,
reprehensible conduct that, you know, again, regardless of
whether it constituted technically a violation of that particular
statute doesn’t change the nature, doesn’t mitigate the seriousness
and reprehensibility of that conduct, and doesn’t really change the
nature of that conduct.
It’s undeniable that Mr. Sprenger was taking advantage through
physical contact of Victim B’s genitalia for his own sexual

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No. 23-2104 Page 3
gratification. Whether that’s a violation of 2251(a) or not, that’s the
conduct that the Court’s sentence is going to be based on, or the
Court’s sentence is going to include consideration of that conduct.
And ultimately, as will be discussed further, the question of
whether this conduct technically satisfies the requirements of
2251(a) will not be material to the Court’s determination of the ap-
propriate sentence.
The 11-year reduction in Sprenger’s sentence gives force to the judge’s statement that
Sprenger was being sentenced for possession, not for possession plus production.
Sprenger’s principal appellate argument is that the district judge erred in con-
cluding that the stipulated conduct constitutes the production of child pornography.
But Sprenger was convicted of possession alone, and the district judge forcefully de-
clared that the appropriate classification of the stipulated conduct did not affect the sen-
tence. This is not a passing remark but is the sort of considered and detailed explanation
that makes it unnecessary—indeed, inappropriate—to decide a substantive question of
first impression in this circuit. See United States v. Abbas, 560 F.3d 660, 667 (7th Cir.
2009); United States v. Asbury, 27 F.4th 576, 581 (7th Cir. 2022). Because the sentence is
independent of the conduct’s appropriate legal classification—and because the judge
unquestionably was entitled to consider the conduct for its bearing on Sprenger’s be-
havior, character, and risk of recidivism—we need not address this matter further.
Sprenger’s second appellate argument is that the district judge should have al-
lowed him to hire a second recidivism expert at public expense. See 18 U.S.C.
§3006A(e)(1). The judge approved funds for one such expert, whose opinion was not as
favorable to Sprenger as counsel wished. Sprenger hoped for a more favorable evalua-
tion from a second expert (or perhaps a re-evaluation by the first expert). The district
judge thought that one expert on the subject suffices, and we conclude that the judge
did not abuse his discretion. Sprenger does not explain why he believes the first report
defective or why a second would produce a more accurate evaluation. No more need be
said.
A FFIRMED

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