United States v. Harvey Cox
2014 U.S. App. LEXIS 4096
| 4th Cir. | 2014Background
- Cox pled guilty to possessing child pornography and to causing a minor to engage in sexually explicit conduct for producing a visual depiction.
- The district court applied a cross-reference from § 2G2.2 to § 2G2.1, increasing Cox’s offense level because the offense involved producing a visual depiction.
- PSR evidence showed Cox took photographs of M.G. after sexual encounters, dated and retained for years, and used alcohol, money, and threats against relatives.
- Cox attempted to influence a witness with letters urging A.C. to lie about the photographs’ origins.
- Cox challenged the cross-reference application as unsupported by sufficient evidence of purposeful production of a visual depiction.
- District court overruled the objection and sentenced Cox within a cross-referenced, recalculated guidelines range, capped by the statutory maximum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cross-reference is properly triggered. | Cox: no evidence of purpose to produce a visual depiction. | Cox: photographs alone do not prove purpose; not central to conduct. | Cross-reference properly applied; purpose shown by PSR evidence. |
| Whether there was sufficient evidence of the defendant's purpose to produce a visual depiction. | Cox: record lacks evidence of producing depiction as a purpose. | Cox: purpose shown by photographs and related conduct; not need primary purpose. | Evidence supports purpose to produce visual depiction; cross-reference applied. |
Key Cases Cited
- Hughes, 282 F.3d 1228 (9th Cir. 2002) (purpose does not have to be sole purpose)
- Veazey, 491 F.3d 700 (7th Cir. 2007) (cross-reference applies when producing a visual depiction is a purpose)
- Crandon v. United States, 173 F.3d 122 (3d Cir. 1999) (requires some inquiry into defendant’s purpose)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (procedural reasonableness standard for sentencing)
- Medina-Campo, 714 F.3d 232 (4th Cir. 2013) (guidelines range review standard and fact-finding deference)
- Benkahla, 530 F.3d 300 (4th Cir. 2008) (weight of evidence in sentencing and evidentiary standards)