*1 233 Similarly, judge’s instant predicates, review. the case vides substantive the second in quiry is whether the assumption there is no basis for the' that state has mandated specific predicates outcome if the substantive judicial simply stamped” “rubber officer Tony met. and Joey are “L” “L” v. Child By allowing application. warrant of use ers, 1182, 1185(6th Cir.1995); 71 F.3d Pusey presigned police applications, the chief has City (6th Youngstown, v. 656 not committed a Fourth Amendment viola- Cir.1993). rights Procedural that do not re tion. To would make all hold otherwise war- particular quire a substantive outcome are prosecutorial rants issued after authorization liberty protected not interests by the Four presigned invalid—both those that were “man-, Amendment, teenth if right even the signed by those that were reviewed and datory.” prosecutor by stamped” and then “rubber Here, plaintiffs procedural right on rests judicial any officer. In the absence 764.1(2). language M.C.L. is explicitly fact, false statement material the issuance mandatory in stating that a “warrant shall of such a warrant not does violate the war- not issue” until the prosecuting attorney requirement process. rant or due signs the warrant. The statute does not distinguishable This case is from the cases provide outcome, any specific however, so by plaintiff pro- cited where the information plaintiffs procedural process due claim must reviewing request vided to the court Pusey, 656; Childers, fail. See 11 F.3d 71 See, actually e.g., the warrant false. Hill Accordingly, plaintiff F.3d at 1185. has no McIntyre, v. 271 process right city due attorney to have the Here, request the fact the warrant form sign request review and form before may actually presenting not the form to the by have been reviewed court. prosecuting attorney should not affect the Because we hold that there has been no independent judi- review undertaken support constitutional violation to may cial officer. While it undermine the claim, questions the other raised MeMur- purpose provide Michigan law to ray appeal need not be addressed. For review, reasons, impart additional level it foregoing does holding we reverse the any judicial plaintiffs false the district court and facts officer dismiss concern- against claims _ McMurray. ing probable existence cause to issue a warrant.3
In addition to the Fourth Amend
ment violation found
plaintiff pre- also contends that the use of
signed warrants is a violation a state- America, UNITED STATES of Plaintiff- procedural right supports created Appellant/Cross-Appellee, § 1983 claim under the Fourteenth Amend correctly rejected ment. The district court argument. HIBBLER, James Allen Defendant- Appellee/Cross-Appellant. determining whether state law 96-2345, Nos. 96-2450. liberty protected by
creates a interest clause, process due inquiry initial Appeals, United States Court whether the state used “explicitly has man Sixth Circuit. datory language in requiring connection with Argued May 1998. specific predicates” place substantive sub Decided Oct. 1998. stantive limitations on official conduct. Hew Helms, 460, 468, 472, 103 itt U.S. S.Ct. (1983).
864, 74 L.Ed.2d If the statute explicit mandatory language pro-
uses We plaintiff may note that our here makes no find- have. ings any as to the merits of state law claims *2 Attorney U.S. Murray, Asst. S. Richard Attorney briefed), of U.S. Office
(argued and Michigan, Grand District for Western Plaintiff-Appellant/Cross- MI, for Rapids, Appellee. briefed), (argued and Levine S. Randall Levine, Levine & (argued), Markou
Anastase Defendant-Appel- Kalamazoo, MI, lee/Cross-Appellant. NORRIS, MERRITT,
Before: WALLACE, Judges.* Circuit Circuit, * by designation. sitting Wallace, Judge Ninth J. Clifford Honorable The- Appeals Court United States NORRIS, J., delivered agents created e-mail boxes to target individ- WALLACE, J., joined. which previously uals identified as distributors of MERRITT, 238), (p. separate J. delivered One of the targets was opinion concurring part dissenting an individual who used the screen name *3 part. BILLBUM. During their investigation BILLBUM, OPINION FBI discovered evidence also incrimina- NORRIS,
ALAN E. Judge. ting defendant. An agent FBI obtained im- age files depicting engaged explic- in appeal This stems from defendant James it sexual from conduct BILLBUM that were Allen Hibbler’s conviction shipping and images forwards of previous- BILLBUM had possession pornography. Although ly received from defendant. The e-mails re- he was shipping convicted of seven counts ceived from BILLBUM indicated defen- count, and one the sentence im- dant had images traded pornography child posed upon by him the district court included on numerous occasions. period no of incarceration. government The appeals now sentence, from argu- defendant’s September 1995, In the FBI executed a ing by court erred grouping search warrant at the home of defendant and his sentencing offenses for by refusing and to computer AOL’s facility Vienna, in Virgi- in sentencing include his calculation a five- nia. From defendant’s home agents tbe upward adjustment level “distributing” seized his computer, handwritten notes list- child pornography pursuant to U.S.S.G. ing screen names and image sugges- names 2G2.2(b)(2). Because sentencing issues tive of trading pornography, and a videotape raised here are overriding ap- issues on “Nightline” óf a television program about peal and have squarely not been addressed addition, Internet pornography. In a search by this we discuss them All below. computer defendant’s equipment revealed other appeal issues raised this are ad- twenty-one over images of pornography child unpublished dressed in an appendix to this and some pornography. adult Another child opinion. pornographic image was also discovered dur-
ing the search of defendant’s e-mail box at I. AOL. May purchased defendant a During home home, defendant, search his
computer
opened
and
an account with Amer-
a school principal, claimed that he was “in-
(AOL),
ica
computer
Online
a
provid-
service
vestigating”
accessibility
of pornography
allowing
er
to,
its
among
subscriber
other
on the Internet because his
was in
school
things,
access
Internet. He
process
then created
of going on-line.
investiga-
Further
the screen name
Using
that,
“SHIGUY5811.”
tion revealed
although the school was
name,
logged
screen
he
onto AOL and
upgrading
computer network,
creat-
its
plans did
ed a
profile,
false
claiming
to
a student
general
include a
connection
the Inter-
to
bom 1976 whose
trading
hobbies included
net or to on-line service's such
Fur-
as AOL.
“gifs”1 depicting
thermore,
child
Be-
of,
defendant was not a member
or
August
tween
September
to,
a consultant
the committee at the school
logged
defendant
onto
approximately
AOL
responsible
developing
carrying
out
fifty times for a total of
sixty-eight
over
the network
plan.
upgrading
computer
hours of
time under the screen
Defendant
charged
was
in a seventeen-
name SHIGUY5811.
count
of conspiracy
ship
indictment
to
Around the same time that
pur-
defendant
receive
depicting
pornography,
child
chased his
computer,
home
the FBI
was
violation of U.S.C.
receiving by
organizing
group
agents assigned
computer
to
sexually explicit
transmission
im-
investigate
trading
children,
pornography
child
ages of
in violation of 18 U.S.C.
part
AOL. As a
investigation,
of their
2252(a)(2),
sending
such images
com-
computer
slang
GIF is
pictures.
for on-line
Sentencing
Com-
2252(a)(1),
account
taken into
18 U.S.C.
puter, in violation
guidelines....
formulating
computer
mission
three
at least
possession of
pornog-
child
images of
containing visual
files
spe-
departure was
degree of downward
2252(a)(4).
18 U.S.C.
raphy,
violation
permit a sentence
cifically chosen
order
trial,
jury
found
eight-day
After
imprisonment, as the
require
that did not
shipping
counts of
guilty of seven
defendant
“imprisonment
opined that
court
posses-
one count of
specif-
child
offense
prerequisite for this
”
him
acquitted
pornography,
sion of
then
The court
of this case....
ic facts
charges.
remaining
twenty-four months’
sentenced
par-
Both
fine.
probation, and levied $500
argued
government
sentencing,
At
*4
appeal.
ties
affected
that,
conduct
because defendant’s
victims,
not be
the counts could
separate
II.
receive
thus he should
together, and
grouped
adjustment.
See
upward
a
five-level
gov
the
issue
The first
raised
however,
Defendant,
ar-
§ 3D1.4.
U.S.S.G.
the dis
appeal concerns whether
ernment’s
only individ-
charged acts were
gued that the
society
by identifying
as the
trict court erred
just one
single scheme with
parts
a
ual
than the
crimes rather
victim of defendant’s
not be
the children could
objective because
images
depicted
pornographic
in the
counts
because several
the
and
identified
treating
shipment counts
seven
and then
images. The dis-
upon common
based
were
count,
which oc
one
each
and
request,
government’s
the
trict court denied
differ
times and involved
curred
different
at
the victim
that
agreeing with defendant
children,
sentencing.
offense for
as one
ent
large,
society at
and
was
each of the counts
interpretation
court’s
We review
as one
should be treated
thus that
counts
regarding application of
legal
and
conclusions
pursuant to U.S.S.G.
sentencing purposes
for
novo. United
Sentencing
de
Guidelines
§ 3D1.2.
Surratt,
817-18
argued that defen-
government also
The
five-level enhancement
a
should receive
dant
provides
guidelines
3D1.2 of the
Section
pursuant
to U.S.S.G.
for
substantially
involving
that
counts
“[a]ll
2G2.2(b)(2).
defendant, that
According to
§
into a
grouped together
shall be
same harm
applies only in cases involv-
guideline section
“In
es-
Group.” U.S.S.G.
3D1.2.
single
pecuniary gain. The dis-
for
ing distribution
are
sence,
grouped together
that are
counts
defendant,
held
with
agreeing
trict
constituting
single
offense
as
treated
of dis-
specific offense characteristic
that the
U.S.S.G. Ch.
purposes
guidelines.”
reserved for
be
sales
tribution should
intro,
to deter-
commentary.
In order
DPt.
grouped
counts
mine whether the
should
a two-level
court then denied
The district
whether
court must
together, a
determine
government based
sought by the
increase
victim;
(1)
involve:
same
the counts
granted de-
images and
upon prepubescent
(2)
U.S.S.G.
or transaction.
the same act
acceptance
respon-
fendant
reduction
to resolve
dispute we are asked
3D1.2.
granted
also
de-
court
sibility. The district
was
multiple
defendant
counts
is whether
departure,
downward
fendant
three-level
victim. The
involved the same
convicted
stating that
3D1.2,
“victim,”
is ex-
as used
term
this ease
circumstances of
facts and
commentary
section:
to that
plained in the
adopts a bond
district
which a school
person who is
Generally,
will be one
there
computerizing
provides
proposal by the
seriously affected
directly and most
schools,
principal
a middle school
as the
therefore identifiable
and is
offense
computer and
his own
thereafter obtains
no
there are
which
victim. For offenses
expose on
access
Nightline
then sees a
immigra-
(e.g., drug or
identifiable victims
Inter-
by children over the
offenses,
large
at
society
where
tion
investigation of that
net
undertakes
victim),
purposes “victim” for
that was
type of conduct
...
fact
not
is the societal
[§ 3D1.2]
interest
Accordingly, we hold that it is the children
harmed....
depicted in the child pornography distributed
possessed by
who
defendant
are the
(n.2).
3D1.2,
commentary
U.S.S.G.
primary victims of the crimes of which he
August
Between
September
was convicted.
shipped
at least
im-
seven
ages
possessed
at
image
least one
III.
contained,
pornography;
image
each
de-
pictions of a different child. Defendant
2G2.2(b)(2)
provides:
U.S.S.G.
“If
maintains, however, that because the chil-
distribution,
the offense involved
increase by
depicted
dren
pornographic
the number of levels from the table in
identified,
society
large
were
is the
§ 2F1.1 corresponding to the retail value of
victim and his counts were
properly
thus
material,
no event
less than grouped.
disagree.
We
contended,
levels.” Defendant
and the trial
court agreed, that this distribution enhance
Only in those instances where there
ment is limited to child pornography transac
is no identifiable victim should a court deem
tions involving pecuniary gain. According to
primary
society.
victim to be
See United
*5
“
Application
1Note
to
guideliné,
‘[dis
Ketcham,
(3d
789,
80
States
F.3d
792-93
tribution’
guideline]
[as used in this
includes
Cir.1996). With regard to the distribution of
any act related to distribution for pecuniary
pornography,
persons
child
who are di
gain,
including production,
transportation,
rectly
affected,
seriously
and most
there
with
to'
intent
distribute.”
victims,
fore identifiable as the
“are the chil
2G22,
(n.l).
U.S.S.G.
commentary
perform
dren who
pornographic
aets.”
Boos,
1207,
States v.
United
127 F.3d
1210
appeals
Two courts of
recently
have
(9th Cir.1997). As
Appeals
the Court of
for
considered this issue but have reached differ
Boos,
Ninth
recognized
Circuit
in
“quite
ent
Compare
conclusions.
United States v.
drug
immigration
unlike the
offenses Canada,
(5th
Cir.1997)
263
in [Application]
mentioned
Note
[2
(holding that the
definition
“distribution”
§ 3D1.2]
are ‘victimless’
in
crimes
—which
2G2.2(b)(2)
as
used
is not limited to
they
the sense that the
produce
harm that
pecuniary
for
gain)
transactions
with United
spread evenly throughout society
harm
—the
Black,
States v.
202-03
F.3d
caused
the distribution of
pornogra
child
Cir.1997) (holding that “distribution” as used
phy
[upon
Boos,
is concentrated
the child].”
2G2.2(b)(2)
§in
is limited to transactions for
1210. The
pornographer,
child
pecuniary gain,
barters,
swaps,
but includes
quite simply, directly victimizes the children
in-kind transactions and other valuable con
pictured in such materials. One need not
sideration.).
In holding that the term “dis
know the
verify
child’s name to
this fact.
is not
only
tribution”
limited
to transactions
adopted
When it
18 U.S.C.
Con-
pecuniary
for
conducted
gain, the Court of
gress clearly
depict-
Appeals
considered
for the Fifth Circuit reasoned that
ed in such
primary
materials to be the
plain
vic-
meaning
“[t]he
of [the word ‘includes’]
Boos,
tims. See
volving distribution court ex- agree I with the assertions, Contrary to defendant’s guideline question III. The cept for section original not render holding does pecu- such as “distribution defines distribution “traffick for the gain of fifteen in this level no such base offense There was niary gain.” -The superfluous. is uncalled case, increase so the 5-level ing” of child receipt Seventh mere I would follow the distinguish between for. guidelines Black, 116 F.3d the case United offense level base distribution. (1997), point. on this receipt possession or into account takes the distribution pornography; pe images or for like pornography for $70,000 a five- receives cuniary gain level. the base offense
level enhancement pecuniary gain
Further, any $70,000 an enhancement receives
over Thus, under five
more than levels. impose must sentencing court
guidelines, upon the retail value based
an enhancement pornography distributed.
of the child easily calculat cases, value can
most proceeds received ed, looking e.g., SERV IC GEROPSYCHIATRIC ROYAL similar to the In cases from the transaction. *6 Psychological INC.; Asso ES, Ohio hand, however, no actual “sale” where one newly class mem certified ciation and the mate the value of place takes and hence bers, Plaintiffs-Appellants, ascertainable, easily rials distributed ap enhancement minimum five-level Director, TOMPKINS, De Ohio Arnold R. 2G2.2(b)(2) (setting propriate. U.S.S.G. Services; De partment Ohio of Human “in no level for distribution the enhancement Services; E. partment Donna of Human levels”); see also five than event less Department Shalala; United States Canada, United Services, Defen Health and Human therefore, guidelines, dants-Appellees. punishment correlat a continuum mandate materials. No. 97-3146. of the distributed ed to the value Appeals, show that United States Court at trial established The facts Sixth Circuit. por- depicting child traded over the of like kind nography pictures July Submitted clearly type Internet. This 26, 1998. Decided Oct. 2G2.2, thus parameters of within the ac- been enhanced should have his sentence
cordingly.
IV. above, the district
For the reasons stated and this cause is vacated
court’s sentence For the rea- re-sentencing.
remanded appendix to unpublished in the
sons stated court’s opinion, we affirm appeal. issues
disposition of the other