UNITED STATES v. OHLINGER (2004)

In 2003, John Ohlinger pled guilty to one count of transporting a visual depiction of a minor engaged in sexually explicit conduct.   Ohlinger was subsequently sentenced to 360 months' imprisonment and he now appeals this sentence.   For the reasons stated herein, we remand the case for resentencing.

i. Background

On October 6, 2001, John Ohlinger posted a message on an Internet website stating that he was a “male PEDO truck driver” and was seeking a “real PEDO female to share real life experiences and travel with me.”   Ohlinger posted another message a week later stating, “I truly do love sex with kids.   But I also truly love sex with adult women too ․ I seek an adult female that has experienced it too and would like to have a man that knows what it's really all about.”   In Ohlinger's online profile, he described himself as a “trucker pedophile.”

Four months later, Ohlinger's messages were discovered by law enforcement when Special Agent Eric Szatkowski of the Wisconsin Department of Justice's Division of Criminal Investigations received a tip that he should log onto the website.   The agent, posing as a 31-year-old single mother with a young daughter, responded to Ohlinger's messages.   Ohlinger and the agent corresponded for several days, and Ohlinger repeatedly asked to meet the supposed mother and daughter.   During this correspondence, Ohlinger also sent the agent a photograph of a ten-year-old girl in a sexually explicit pose.   Ohlinger was eventually arrested when he arrived at a truck stop in Racine, Wisconsin, hoping to meet the mother and her daughter.

In March 2003, Ohlinger pled guilty to one count of transporting a visual depiction of a minor engaged in sexually explicit conduct.   In exchange, the government then dropped its second charge against Ohlinger, which was for knowing possession of more than two depictions of a minor engaged in sexually explicit conduct.   This count was based upon a search of Ohlinger's residence that the government contends uncovered more than 1,131 images of child pornography.

According to Ohlinger's plea agreement, all of his relevant conduct could be used to determine his sentence.   Due to the district judge's finding that Ohlinger's conduct was the “most egregious, perhaps more so than any similar case” the judge had seen, Ohlinger was sentenced to 360 months' imprisonment.   Ohlinger now appeals his sentence.

ii. Discussion

Ohlinger raises the number of challenges to his sentence. The district court sentenced Ohlinger prior to the Supreme Court's decision in Booker v. United States, 125 S. Ct. 738 (2005) and treated the sentencing guidelines as mandatory. In accordance with Booker and our recent decision in United States v. Paladino et al., No. 03-2296, et al. (7th Cir. Feb. 25, 2005), we remand this case to the district court for determination whether that court would have imposed the same sentence had it understood that the guidelines were advisory.

Iii. Conclusion

Pursuant to the procedure announced in Paladino, we direct a limited remand oh Ohlinger's sentence while retaining appellate jurisdiction.

FLAUM, Chief Judge.