United States of America v. Shawn H. Abbott

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 14, 2021*
Decided January 26, 2022
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2363
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAWN H. ABBOTT,
Defendant-Appellant.
Appeal from the
United States District Court for the
Southern District of Illinois.
No. 4:20-CR-40046-JPG-1
J. Phil Gilbert,
Judge.
O R D E R
Shawn Abbott was sentenced to 240 months in prison and 10 years of supervised
release for the sexual exploitation of a child, 18 U.S.C. § 2251(a), (e). The district judge
imposed an above-Guidelines sentence, given the “unspeakable” and “unforgivable”
* We granted the parties’ joint motion to waive oral argument. Thus, the appeal is
submitted on the briefs and record. See F ED. R. A PP . P. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-2363 Page 2
nature of the offense, in which Abbott gave his teenage victim a sleeping pill so that he
could undress her and take nude photos. Because this determination was an
appropriate exercise of the judge’s discretion, we affirm.
After receiving a tip, FBI agents interviewed Abbott (a 39-year-old man with
paraplegia) about pictures depicting child pornography that he had downloaded to his
computer. During the interview, Abbott consented to a search of his cell phone, which
uncovered five additional images that appeared to be child pornography. Abbott
admitted that he had taken the photographs and that they were of his friend’s 13-year-
old daughter. Though Abbott had previously traded child pornography in exchange for
new images, he denied that he distributed the photos that he took.
The photos dated back to a sleepover held at Abbott’s house for his daughter.
Abbott gave the victim an adult dose of sleeping medication. Once she was asleep, he
pulled down her sweatpants and underwear to take the pictures. He said that his
contact with the victim was limited to touching her buttocks while he repositioned her
for the photos. But the victim confirmed that he had also touched her buttocks during
other visits to Abbott’s house, and on one occasion he touched her breasts over and
under her clothing.
Abbott pleaded guilty without a plea agreement to a one-count indictment
charging him with sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and
(e). The judge adopted the presentence investigation report’s Guidelines calculations,
which included three offense-level enhancements: one for an offense involving a minor
between 12 and 16, U.S.S.G. § 2G2.1(b)(1)(B); another for an offense involving sexual
contact, id. § 2G2.1(b)(2)(A); and a third for an offense involving a minor under the
defendant’s care, id. § 2G2.1(b)(5). After applying a reduction for acceptance of
responsibility, the judge calculated an offense level of 35 and criminal history
category I, resulting in a Guidelines range of 168 to 210 months that was adjusted to
180 to 210 months because of a statutory minimum 180-month prison term.
The judge sentenced Abbott to 240 months in prison—30 months above the
Guidelines range—and justified the upward variance based on several aggravating
factors: Abbott admitted to possessing and trading other child pornography, drugging
the victim so that he could photograph her, and smelling her vagina while taking the
photos. Additionally, the judge noted that on at least one other occasion, Abbott
touched the victim’s breasts. In the judge’s view, that act was not factored into the
sexual-contact enhancement, which accounted only for the contact that occurred while
Abbott took the pictures. The judge also determined that neither of Abbott’s arguments

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No. 21-2363 Page 3
in mitigation involving his paraplegia or his lack of any criminal history excused or
prevented his conduct. The judge concluded that the sentence reflected “the horrific
nature of this offense” and the harm done to the victim, who is “scarred” and will have
to “deal with [what happened] mentally [for] the rest of her life.”
Abbott first argues that the judge’s findings that the victim experienced greater-
than-normal harm and that Abbott’s offense was “horrific” are too speculative or
generalized to justify an above-Guidelines sentence. Abbott acknowledges that all
victims of child-exploitation crimes experience some amount of harm but insists that his
victim experienced no harm that was greater than normal. Similarly, he accepts the
horrific nature of all child-exploitation crimes but maintains that the particular facts of
his case do not warrant an above-Guidelines sentence. See United States v. Miller,
601 F.3d 734, 739 (7th Cir. 2010).
The judge adequately explained why he found Abbott’s conduct sufficiently
troubling to support an upward variance. See United States v. Ballard, 12 F.4th 734, 740
(7th Cir. 2021). For instance, the judge highlighted Abbott’s drugging of the victim so
that she could not resist him, sexual contact with her while taking the photos, violation
of her trust, touching the victim’s breast on a previous occasion, and possession and
swapping of child pornography. The judge appropriately exercised his broad discretion,
see United States v. Fogle, 825 F.3d 354, 359 (7th Cir. 2016), by considering and rejecting
Abbott’s mitigation arguments (e.g., that the victim did not suffer greater-than-normal
harm because the offense was limited in duration, involved sexual contact rather than
overt sexual acts, and took place while she was unconscious, sparing her any
recollection of firsthand knowledge).
Abbott also argues for the first time that the judge wrongly based the upward
variance on his drugging of the victim—a factor that Abbott equates on appeal with an
enhancement under § 2G2.1(b)(2)(B) of the Guidelines. Abbott points out that the
enhancement would apply only if he had engaged in a sexual act, which he denies
doing. Regardless, the Guidelines are advisory, and a sentencing judge is free to
disagree with a particular provision of the Guidelines or the sentencing range resulting
from the application of the Guidelines as a whole, and even to impose a non-Guidelines
sentence that better reflects the severity of the defendant’s conduct. United States v.
Rosales, 813 F.3d 634, 637 (7th Cir. 2016). Here the judge explained that he did not
believe that the Guidelines range adequately accounted for the behavior he found
troubling (which included Abbott’s drugging of the victim), and this explanation is all
that is required. United States v. Dawson, 980 F.3d 1156, 1166 (7th Cir. 2020).

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Abbott relatedly argues that the judge wrongly based the upward variance on
his previously having touched the victim’s breasts—conduct that, he believes, already
was accounted for in the enhancement under § 2G2.1(b)(2)(A) (“offense involv[ing] the
commission of a sexual act or sexual contact”). But Abbott misapprehends the basis for
the enhancement. The Guidelines define “offense” as “the offense of conviction and all
relevant conduct,” U.S.S.G. § 1B1.1 cmt. n.1(I), which must be germane to the charged
offense. United States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994). Abbott received the
enhancement not for previously touching the victim’s breasts but for touching her
buttocks while positioning her in the photos; a sexual touching that related to the
commission of the instant offense.
Even if Abbott were correct that § 2G2.1(b)(2)(A) accounted for him touching the
victim’s breasts, the judge was entitled to consider the conduct when applying the
sentencing factors in 18 U.S.C. § 3553(a). The Guidelines and the sentencing factors may
at times overlap, and as long as a properly calculated Guidelines range is used as a
starting point, a judge may impose an upward variance by reference to the statutory
factors alone. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir. 2018).
AFFIRMED

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