United States v. Joe Ross, 948 F.3d 243

In early–mid 2016 an undercover HSI agent identified an IP address on a peer‑to‑peer network sharing files whose hashes matched known child‑pornography material; the IP traced to Ross’s residence.
From Feb.–July 2016 the address allegedly participated in file‑sharing; in Aug. 2016 police executed a warrant and seized computers containing >17,000 images and ~500 videos of child pornography and file‑sharing programs.
Ross admitted collecting child‑pornography and using file‑sharing software to distribute it.
A two‑count indictment charged (1) receipt of child pornography (18 U.S.C. § 2252A(a)(2)(B)) based on peer‑to‑peer activity Feb.–July 2016, and (2) possession (18 U.S.C. § 2252A(a)(5)(B)) based on files seized in Aug. 2016.
Ross moved to dismiss the receipt count and later objected to the PSR’s application of Sentencing Guideline §2G2.2 (higher base offense level for receipt), arguing statutory vagueness, separation‑of‑powers, and arbitrary prosecutorial charging; the district court denied the motion and objection.
Ross pleaded guilty to both counts (no plea agreement); the court imposed concurrent 110‑month terms after a downward variance.

Issue	Plaintiff's Argument (Ross)	Defendant's Argument (Government)	Held
Whether 18 U.S.C. §2252A is unconstitutionally vague because "receipt" and "possession" are indistinguishable, enabling arbitrary prosecutorial charging	Receipt and possession are logically inseparable; Congress’ separate penalties permit prosecutors to arbitrarily impose harsher punishment, violating due process and separation of powers	The crimes have different elements (receipt requires knowingly receiving); prosecutorial charging discretion is constrained by evidence and anti‑discrimination principles; Batchelder permits choice among offenses	Court held §2252A not unconstitutionally vague; receipt and possession differ in elements and application; charging discretion here is not arbitrary; judgment affirmed
Whether U.S.S.G. §2G2.2 (higher base level for receipt) violates due process or separation of powers as arbitrary or vague	The Guidelines’ higher base level for receipt arbitrarily penalizes defendants depending on prosecutorial charging choices and thus lacks limiting principles	Guidelines are advisory (Booker) and not amenable to vagueness challenges (Beckles); sentencing court retains discretion; rational‑basis review supports differing treatment (deterring demand)	Court held Guideline challenge fails: advisory Guidelines cannot be vagueness grounds; §2G2.2 is rationally related to legitimate objectives; no separation‑of‑powers or due process violation

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (vagueness doctrine and its relation to separation of powers).
Kolender v. Lawson, 461 U.S. 352 (1983) (vagueness standard: need for minimal guidelines to prevent arbitrary enforcement).
Johnson v. United States, 135 S. Ct. 2551 (2015) (vagueness doctrine applies to statutes fixing sentences).
Batchelder v. United States, 442 U.S. 114 (1979) (prosecutorial choice between statutes with differing penalties does not by itself violate due process).
Beckles v. United States, 137 S. Ct. 886 (2017) (advisory Sentencing Guidelines are not subject to vagueness challenges).
United States v. Booker, 543 U.S. 220 (2005) (rendered Guidelines advisory; sentencing court has discretion).
United States v. Olander, 572 F.3d 764 (9th Cir. 2009) (upholding harsher treatment of receipt to deter demand as a rational basis).
United States v. Dunning, 857 F.3d 342 (6th Cir. 2017) (receipt and possession are distinct offenses).
United States v. Burrows, 905 F.3d 1061 (7th Cir. 2018) (same conclusion that receipt differs from possession).