United States v. Dennis Hodge, 805 F.3d 675

Background

Defendant Dennis Hodge pleaded guilty to receipt of child pornography (18 U.S.C. § 2252(a)(2)); possession count dismissed.
Forensic review of Hodge’s computer found multiple downloaded child‑pornography images from October 2011.
Victim (Hodge’s 15‑year‑old stepdaughter) discovered a hidden micro‑camera that recorded her naked/exiting a shower and partially undressed in her bedroom; Hodge removed the storage medium and claimed he destroyed the recording.
Presentence report recommended a 2‑level reduction under USSG § 2G2.2(b)(1) for conduct “limited to receipt or solicitation”; the government objected, arguing Hodge’s secret videotaping constituted attempted production and thus his conduct was not limited to receipt.
District court found the voyeur recordings were relevant conduct under USSG § 1B1.3 and denied the § 2G2.2(b)(1) reduction; the Sixth Circuit affirmed.

Issues

Issue	Hodge's Argument	Government's Argument	Held
Whether Hodge’s secret videotaping is “relevant conduct” under USSG § 1B1.3(a)(1) (i.e., "occurred during the commission of the offense of conviction").	The downloading (receipt) is a discrete act; (a)(1) requires temporal simultaneity, so the voyeur videos are not "during" the receipt.	Possession (a lesser‑included offense of receipt) continued beyond each download; voyeurism occurred while Hodge possessed the images, so it occurred during the offense of conviction.	Court: possession is part of the offense of receipt; the recordings occurred during the offense and are relevant conduct under (a)(1).
Whether the voyeur recordings are relevant under USSG § 1B1.3(a)(2) as part of the same course of conduct or common scheme/plan.	Argued (implicitly) that attempted production/recordings are distinct and not groupable with receipt such that (a)(2) should not reach them.	The offense of conviction (covered by § 3D1.2(d)) is groupable; the recordings shared common purpose, victims, modus operandi, timing and repetition, making them part of the same course/scheme.	Court: recordings qualify under (a)(2) as part of the same course of conduct/common scheme or plan.
Whether relevant conduct finding defeats eligibility for the two‑level reduction in USSG § 2G2.2(b)(1)(B) (i.e., defendant’s conduct was “limited to the receipt or solicitation”).	Hodge contended his conduct was limited to receipt and thus eligible for the 2‑level reduction.	Because relevant conduct included attempted production/voyeurism, his conduct was not limited to receipt and he is ineligible for the reduction.	Court: Because the voyeur recordings are relevant conduct and amount to attempted production (and at minimum criminal voyeurism), Hodge’s conduct was not limited to receipt; reduction denied.

Key Cases Cited

United States v. Fore, 507 F.3d 412 (6th Cir. 2007) (defendant’s conduct not "limited to" receipt where additional criminal conduct existed)
United States v. Sims, 708 F.3d 832 (6th Cir. 2013) (hidden non‑lascivious videos can support attempted production of child pornography)
United States v. Maken, 510 F.3d 654 (6th Cir. 2007) (standard of review and that unprosecuted state crimes may be relevant conduct)
United States v. Roxborough, 99 F.3d 212 (6th Cir. 1996) (interpretation of § 1B1.3(a)(2) incorporating subsection (a)(1))
United States v. Hill, 79 F.3d 1477 (6th Cir. 1996) (factors showing same course of conduct/common scheme under § 1B1.3)
United States v. Kappes, 936 F.2d 227 (6th Cir. 1991) (purpose of relevant conduct provision is sentence proportionality)
United States v. Fowler, 216 F.3d 459 (5th Cir. 2000) (receipt may be a discrete moment)
United States v. Gleich, 397 F.3d 608 (8th Cir. 2005) (examples of nonlascivious images)
Doe v. Chamberlin, 299 F.3d 192 (3d Cir. 2002) (examples of nonlascivious images)
United States v. Brown, 579 F.3d 672 (6th Cir. 2009) (adopting Dost factors for lasciviousness analysis)