30 F.4th 538
6th Cir.2022Background
- In 2018–19 Mark Gould responded to an online advertisement offering a "live online session with an 8-year-old in exchange for child pornography," initiated FaceTime requests, and later communicated with an undercover agent posing as the advertiser.
- Gould sent links and a cloud password containing thousands of images of minors, discussed videoing the encounter, and traveled to Tennessee to meet the undercover agent; he was arrested and pleaded guilty to violating 18 U.S.C. § 2422(b).
- The Presentence Report applied the USSG § 2G1.3(c)(1) cross-reference to § 2G2.1 (raising the base offense level) on the grounds the offense involved seeking/offering by advertisement a minor to produce a "visual depiction," and added multiple enhancements for age, distribution, computer use, and infant/toddler material.
- Gould objected that (1) a live FaceTime call is not a "visual depiction" because it is not permanently stored, and (2) his responding to an existing advertisement is not "seeking by notice or advertisement." He also contested the toddler-material enhancement.
- The district court overruled Gould’s objections (but granted a § 5K1.1 downward departure), sentenced him to 210 months, and Gould appealed raising two pure legal questions about the cross-reference’s scope.
Issues
| Issue | Plaintiff's Argument (Gould) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether a FaceTime (live video) call qualifies as a "visual depiction" under USSG § 2G1.3(c)(1) | "Visual depiction" requires a recorded/permanent format; live transmissions are not covered | Plain meaning of "visual depiction" includes images attained by sight; no permanency requirement; statute definitions treat non‑permanent transmissions as depictions | FaceTime is a "visual depiction" under § 2G1.3(c)(1); plain language and the Commission's instruction to construe the cross‑reference broadly support application |
| Whether responding to an existing advertisement constitutes conduct that "involved" offering or seeking by notice or advertisement under § 2G1.3(c)(1) | The phrase "seeking by notice or advertisement" should be limited to the party who placed the notice; a passive responder does not "seek by" advertisement | The cross‑reference uses the broad term "involved" and a response to an ad is closely related and necessarily connected to an advertisement offering a minor | Gould’s offense "involved" an advertisement offering a minor; responding to the ad falls within § 2G1.3(c)(1) because "involved" is expansive and the response is closely related to the posting |
Key Cases Cited
- United States v. Canestraro, 282 F.3d 427 (6th Cir. 2002) (Sentencing Guidelines interpretations reviewed de novo)
- Buford v. United States, 532 U.S. 59 (2001) (principle that pure legal questions on Guidelines are reviewed de novo)
- United States v. Sands, 948 F.3d 709 (6th Cir. 2020) (apply traditional canons when construing Guidelines language)
- United States v. Eason, 919 F.3d 385 (6th Cir. 2019) ("involving" construed as "relate to or connected with")
- United States v. McKenney, 450 F.3d 39 (1st Cir. 2006) (discussing narrower and broader definitions of "involve")
- Shular v. United States, 140 S. Ct. 779 (2020) (discussion of "involved" and statutory interpretation principles)
- United States v. Wynn, 579 F.3d 567 (6th Cir. 2009) (on effect of differing commentary/amendments across Guidelines)
- United States v. Nichols, [citation="371 F. App'x 546"] (5th Cir.) (per curiam) (plain meaning of "visual depiction" encompasses remotely viewable video)
- United States v. Lynn, 636 F.3d 1127 (9th Cir. 2011) (ordinary meaning of "visual depiction" not tied to particular medium)