United States v. Dickson
2011 U.S. App. LEXIS 1693
| 5th Cir. | 2011Background
- Federal agents found a CD containing child-pornography videos and images at Dickson's residence; some images depicted a one-year-old boy, A.B., who Dickson did not create.
- Dickson was tried bench-wise on counts for possession of child pornography under 18 U.S.C. § 2252(a)(4)(B) and production under § 2251(a); he moved for judgment of acquittal, which the court denied, and he presented no evidence.
- The presentence report grouped counts under U.S.S.G. § 3D1.1(a)(1)-(3) because one count allegedly embodied conduct treated as a specific offense characteristic of the other.
- The PSR determined count two (production) had the highest base offense level (32) and added a four-level enhancement for depictions of violence, yielding a total offense level of 42 and a guideline range of 360 months to life.
- Dickson was sentenced to 840 months total (240 for possession, 600 for production), consecutive, based on the court's view that the defendant posed a continuing danger and must be deprived of society.
- Dickson appealed his conviction, the denial of his acquittal motion, the denial of his indictment-dismissal motion, and the reasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidence sufficiency: production via interstate commerce for § 2252(a)(4)(B)? | Dickson produced the images using a CD manufactured abroad; CD origin satisfies interstate-transport element. | Dickson stored images on a CD, not produced using interstate materials; production requires initial creation, not later copying. | Conviction affirmed; copying to a CD constitutes production. |
| Does producing include copying or downloading to storage media for § 2252(a)(4)(B)? | Producing broadly includes creating, publishing, or distributing; copying fits production. | Producing should mean initial creation, not mere reproduction or storage. | Yes, producing includes copying onto storage media. |
| Sentencing: error in grouping and applying enhancement under 3D1.2(c) and 3D1.3? | Grouping uses the highest offense level after applying enhancements; error; but adequate independent bases exist for the sentence. | District court erred by applying enhancement to the grouped counts based on possession of violent images. | Plain error occurred in calculation, but Dickson lacked showing a reasonable probability of lesser sentence; independent bases supported the sentence; no reversible error. |
| Indictment dismissal under Commerce Clause; still foreclosed? | Dickson argues Commerce Clause limitations; issue preserved for review. | Argument foreclosed by controlling Fifth Circuit precedent. | Affirm denial of dismissal; issue foreclosed. |
Key Cases Cited
- United States v. Izydore, 167 F.3d 213 (5th Cir. 1999) (standard for judging denial of motions for acquittal)
- United States v. Moser, 123 F.3d 813 (5th Cir. 1997) (evidence viewed in favor of government; rational jury could convict)
- United States v. Pankhurst, 118 F.3d 345 (5th Cir. 1997) (guilty verdict supported by evidence beyond a reasonable doubt)
- United States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. 2008) (plain-error review for sentencing; requires substantial rights impact)
- United States v. Fowler, 216 F.3d 458 (5th Cir. 2000) (relevant-conduct doctrine; acts during offense can affect sentence)
- United States v. Norris, 159 F.3d 926 (5th Cir. 1998) (grouping guidelines context; potential victim differences)
- United States v. Davis, 602 F.3d 643 (5th Cir. 2010) (non-overlapping ranges; substantial rights can still be served by other basis)
- United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002) (production includes copying onto a disk creating a new image)
- United States v. Fadl, 498 F.3d 862 (8th Cir. 2007) (broad definition of 'producing' in context of child-pornography)