34 F.4th 381
4th Cir.2022Background
- In July–September 2019 investigators linked a Snapchat upload of child pornography to Army servicemember Jonathan K. Morehouse; a search found fewer than ten images on his phone and none on other devices.
- Morehouse admitted downloading child-porn images/videos from websites and apps, and admitted uploading/distributing at least one image via Snapchat and sharing material via Wickr to obtain more images.
- The PSR (using independent investigation) attributed 36 images to Morehouse and recommended enhancements: +5 levels under U.S.S.G. §2G2.2(b)(3)(B) (exchange-for-value) and +2 levels for 10–149 images; acceptance-of-responsibility reduced three levels.
- At sentencing Morehouse withdrew his objection to the image-quantity enhancement but objected to the five-level exchange-for-value enhancement; the district court overruled that objection, applied the +5 enhancement, calculated a Guidelines range of 97–121 months, and imposed an 84‑month downward-variance sentence.
- On appeal Morehouse challenged both enhancements; the Fourth Circuit held the 2016 amendment to §2G2.2(b)(3)(B) abrogated the court’s prior McManus test and that the district court erred applying the five-level enhancement because the record lacked an agreement with a specific person; the panel vacated the sentence and remanded for resentencing under the correct enhancement (+2 under §2G2.2(b)(3)(F)).
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Morehouse) | Held |
|---|---|---|---|
| Whether §2G2.2(b)(3)(B) five-level "exchange-for-value" enhancement applies | Morehouse admitted distributing to obtain more images; McManus supports applying enhancement without a bilateral agreement | McManus was abrogated by the 2016 amendment; enhancement requires an agreement with a specific other person | 2016 amendment changed the test; enhancement requires an agreement with a specific person who provided value; district court erred; reverse and remand; apply two-level distribution enhancement instead |
| Whether §2G2.2(b)(7)(A) two-level image-quantity (10–149 images) enhancement applies | PSR supports attribution of at least 10 images (36) | Morehouse bargained for a statement saying fewer than ten images and sought benefit of plea; argues PSR conflicts with Statement of Facts | Waived on appeal: Morehouse explicitly withdrew his objection below, so the argument is not reviewable |
Key Cases Cited
- United States v. McManus, 734 F.3d 315 (4th Cir. 2013) (pre-2016 test for exchange-for-value enhancement)
- United States v. Oliver, 919 F.3d 393 (6th Cir. 2019) (post-2016 amendment: enhancement requires agreement/mutual understanding between parties)
- United States v. Halverson, 897 F.3d 645 (5th Cir. 2018) (same interpretation of amended enhancement)
- United States v. Goines, 357 F.3d 469 (4th Cir. 2004) (Sentencing Commission amendments can override circuit precedent)
- United States v. Robinson, 744 F.3d 293 (4th Cir. 2014) (explicit waiver at sentencing precludes appellate review)
- United States v. Brizuela, 962 F.3d 784 (4th Cir. 2020) (government bears burden to show a procedural error is harmless)