*1 petition of Mr. Harris’s its denial FIRM judge’s concern magistrate relief. for habeas verdict because jury’s affected videos (2) the eyewitnesses, (1)there no were preserved, not was
crime scene before the issue crux of
“the in self-defense.” acted Petitioner
whether at 35-36. App.
Aplt’s not
Nonetheless, decision the OCCA of Chambers. an unreasonable America, STATES UNITED the “model” given jury was Though Plaintiff-Appellee, and the prefers the OCCA instruction theory of Harris’s Mr. likely made videos con- cannot we plausible, less self-defense Defendant-Appellant. BASS, Brian in the OCCA’s alleged error clude that prejudi- grossly ruling “was so evidentiary 04-6049. No. trial and fatally infected
cial that Appeals, Court of that is fairness fundamental denied the Tenth Circuit. Bullock Car- process.” due essence Cir.2002) ver, 297 F.3d 29, 2005. June Gibson, Revilla (quoting Cir.2002)). with the agree We the two videos analysis that court’s district evidentiary support had relevant Harris had introduction. Mr. their challenge the opportunity
adequate trial in- possible
evidentiary underpinnings id. videos. from the
ferences drawn Cf challenge to process due
(rejecting federal im- testimony when children’s
reliability of with chil- techniques interviewing
proper examined, criti- identified, fully “were
dren a trial
cized, interpreted at by competent represented
[petitioner] was
counsel”). the state-court Finally, unlike actually prevented
ruling in Chambers specific de- presenting
a defendant absolutely
fense, Harris was Mr. re- with asserting self-defense
barred from murder; indeed, presented
gard to the expert witness own called his
evidence and theory. support of his
IV. CONCLUSION reasons set substantially the
For same order, AF- we
forth in the *2 McKinneyr-Foster,
Rozia Unit- Assistant (Robert ed Attorney McCamp- G. had a past in the brief), point some on the Attorney, bell, An officer images. that saved such OK, Plaintiff-Appellee. virus City, Oklahoma saved or purposely “if had ever asked Federal Assistant Lacy, Paul Antonio *3 im- any of those copied or downloaded OK, City, Defender, Oklahoma Public Tr. 48. he had not. Bass stated ages,” and Defendant-Appellant. inadver- had once she Partovi stated that BRISCOE, KELLY, and Before image on the pornographic a tently seen TYMKOVICH, Judges. Circuit had Bass removed and that computer, gave also writ- request. She at her image BRISCOE, Judge. Circuit take agents to consent for ten of was convicted Brian Bass Defendant a forensic search. and conduct computer child possession knowing counts five conducted Department Enid Police 2252A(a)(5)(B), 18 U.S.C. pornography, using two search forensic computer imprisonment 37 months to and sentenced and “SNAGIT.” “ENCASE” programs, On release. supervised years and three images over recovered ENCASE (1) there was insuffi contends appeal, he recov- and SNAGIT pornography, child convictions, support to cient unallo- computer’s images in the ered (3) deficient, he (2) and was the indictment changed program which the space, cated resentencing light is entitled (as Partovi’s they existed in files jpeg States in United decision Supreme Court’s files. How- bitmap .bmp computer) U.S.-, 125 S.Ct. v. could not be ever, images origin (2005). jurisdic exercise L.Ed.2d We is, images had whether the identified —that 1291, Bass’ affirm tion 28 U.S.C. under automatically saved intentionally or been directions convictions, with but remand A file the internet. computer from and to resentence. his sentences vacate discussing and “Candyman” referencing comput- I. information from how to remove space; in the unallocated was also found er mother, Charlene with his Bass lived however, source was undiscover- again the Enid, Partovi, She owned Oklahoma. account “Tropica” “Yahoo” and able. In shared. they both computer, found; was the latter account names was FBI Bass learned July websites. to view child used “Candy- entitled e-group of an a member and “Window Washer” entitled Software man,” on member- that based and found, evi- as “History Kill” well was likely possession ship, to be he was (a market- site that Swanksoft.com dence agents 46. Two pornography. child Tr. Kill) History had been accessed him, speak with residence went to Bass’ to Bass’ FBI visits the first two later, between days home. Four he not but was house. Po- from the Enid agents and detective returned Bass Department
lice time af- a second was interviewed to interviews. consented Partovi both Upon hearing search. ter the that he he admitted findings, the search viewing pornog- Bass admitted por- curiosity” with a “morbid at had stated that raphy the internet (S.D.N.Y.2003) descrip (in-depth 463-65 service "Candyman” a "free Internet was e-group). The FBI Candyman people to collect tion interested that enabled group in 2001 in investigating this sexually began ex- pornography and distribute Candy- "Operation has been termed plicit images United States what of children.” Fantauzzi, 260 Schmidt, (2d man.” (E.D.N.Y.2003). Perez, F.Supp.2d 562-63 F.Supp.2d See also United nography, and intentionally that he was to conclude beyond a reasonable viewing such material. Tr. 54. He also doubt that knowingly possessed the he used Window Washer and pornographic images which were found on History Kill to make sure his mother the computer hard drive. With regard to images see the viewing. the definition possession, in United However, he stated that he Tucker, did not know States v.
(1) how to download from the inter- Cir.2002), this court stated: net or that the computer automati- The statute possession, does define cally saving the images he viewed. but term, interpreting the we are fact, Special Agent McLemore testified guided by ordinary, its everyday mean- *4 when Bass computer turned over the he ing. [Citation omitted.] Possession is worried, stated wasn’t “[h]e because he defined as “the holding or having some- knew he had any never saved photographs (material immaterial) thing or as one’s ” to his hard drive.... Tr. 62. -own, or in one’s control.” English Oxford (2d Dictionary ed.1989); see also United
Counts three and five of the indictment States v. Simpson, 94 F.3d jpeg one, two, identified files and counts (10th Cir.1996) (defining “knowing pos- and four were images by recovered SNAG- session” in drug context encompass- as IT and were identified as .bmp files. Bass in situations which an individual judgment moved for acquittal on each “knowingly the power hold[s] and ability count arguing there was insufficient evi- to exercise dominion and control” over dence knowing to find possession and that the narcotics. the indictment was defective because it types identified file that did not exist “We review sufficiency the evi computer but rather by were created novo, dence claims de asking only whether, the SNAGIT software.2 The district court taking the evidence-both direct and cir denied the motion. Bass’ renewed motion cumstantial, together with in reasonable at the close of the defense evidence was ferences to be drawn therefrom-in the also denied. light most favorable to government, reasonable could jury find [Defendant]
II. guilty beyond a reasonable Unit doubt.” Allen, ed States v. 235 F.3d Sufficiency the Evidence Cir.2000) (internal omitted). quotations At issue is here whether there was suffi- “We do not question jury’s credibility cient presented jury determinations itsor conclusions about the support Bass’ conviction of five counts of weight of the evidence.” Id. knowing possession of child pornography 2252(a)(5)(B).3 violation § of 18 U.S.C. Bass contends this case presents Specifically, we must determine whether the second question left by unanswered there was sufficient evidence presented for this court in Tucker-whether an individu- 2. capturing SNAGIT is a program screen image contains an pornography of child snapshot which images mailed, takes a recovered that has shipped been or or trans- from the computer. unallocated clusters ported foreign interstate or commerce program's The setting means, default to save any these including by computer, or that snapshots .bmp as jpeg files rather than files. produced using was that have materials mailed, shipped been or transported or foreign interstate or any commerce means, including by computer ... shall be Any person who-knowingly possesses any book, film, magazine, periodical, videotape, punished provided (b). as in subsection disk, any 2252A(a)(5)(B). material that other 18 U.S.C. files .bmp images as they identified cause knowing posses guilty found can be al files, they existed jpeg than under rather
sion suf review indictment images viewing computer.4 such We 2252A(a)(5)(B) for his the fact than technical “practical rather ignorant ficiency on while the Internet over automatically stored v. Dash images considerations.” Tucker, defen computer. ney, on the when “knew that forth conceded he if sets
dant indictment is “An the Web images on page, charged, puts a Web visited of the offense the elements cache to his browser sent page would charges notice of on fair defendant drive”; hard his thus saved file defend, and enables must which he against not know he did contends whereas jeopardy a double to assert defendant automatically saved. being images defense.” However, the Tucker, at 1204. indict- in Bass’ identified The inferred reasonably could have here comput- indisputably came was knew that Bass change that occurred only er. com to his mother’s automatically saved identification, type file *5 at Bass that on evidence puter based soft- forensic examiner’s by the caused images. There is the tempted to remove Otherwise, the numerical identifica- ware. soft used two Bass evidence that ample in Bass’ existed identical to tion was what and “Win “History Kill” programs, ware a de- included and each count computer, to remove attempt Washer,” an dow Thus, un- image involved. scription of the computer. from the the indictment analysis, practical der a “History- both had used Bass admitted the notice of put Bass sufficient delete and “Window Washer” Kill” him. charges against want his “he didn’t because ” ROA, images.... to see those mother Sentencing-Booker install were programs Both II at 54. Vol. of know- was convicted Bass Although searched. computer when was the ed on the pornography, possessing ingly signifi not differ Therefore, does this case he be sentenced PSR recommended cases, In both there cantly from Tucker. 2G2.2, gov- § to U.S.S.G. pursuant knowing posses in child trafficking involving offenses erns pornography. of child sion ROA, 5, at 6. Section Vol. pornography.5 the Indictment Sufficiency of 17 offense a base level 2G2.2 establishes (as opposed trafficking offenses for such one, two, and counts argues under imposed level offense be- base deficient of his indictment four 2252A(a)(5)(B) § is found one, two, 18 U.S.C. indictment and four the Counts 4. to that § cross reference 2G2.4. The argument to USSG the .bmp In his files. identified one, involved court, if offense indicates that argued counts section involving sexual two, four, trafficking Tr. in material 158. were deficient. and five one, receiving, (including However, exploitation counts he meant of minor we assume two, pos- advertising, or shipping, transporting, and four. exploi- involving the sexual sessing material appli- Although traffic), the PSR recommended intent of a minor with tation 2G2.2, any factual it did not offer cation to that sec- § 2G2.2. Pursuant apply USSG Instead, simply doing PSR so. for tion, basis Bass] is 17. [for level base offense as follows: stated ROA, is made No other mention at 6. Vol. having in child trafficked of Bass in the PSR States Sen- The United Base Offense Level: pornography. guideline for violation tencing Commission simple offenses). possession 2G2.4 Federal Sentencing Guidelines, holding The PSR further recommended up- two the Sixth Amendment requires that adjustments ward to the base level: offense (other ‘[a]ny fact prior conviction) than a (1) two levels because the in- material ... necessary to support a sentence ex prepubescent volved minors or minors un- ceeding the maximum authorized age der years; of twelve two facts established aby plea guilty or a because levels was used for jury verdict must be the de transmission of the material. Bass did not fendant proved to a jury beyond a ” object to the factual allegations the PSR reasonable doubt.’ United States v. Daz and the district adopted them as its ey, Cir.2005) own findings. See Fed.R.Crim.P. (quoting 756). 125 S.Ct. at “To 32(i)(3)(A) (“At sentencing, the court ... remedy this constitutional infirmity creat may accept any undisputed portion of the ed by applying judge-found facts to man presentence report a finding of datory sentencing guidelines, the Court fact....”). result, As a adjusted Bass’ severed provision of the Sentencing offense level was 21 awith sentencing Reform Act making application of the (as range of 37-46 months compared to an mandatory.” Guidelines offense level 17of and a sentencing range Immediately following the issuance of of 24-30 months that would have resulted Booker, we directed parties to file sup- solely from jury’s findings). The dis- plemental briefs addressing effect, if trict court sentenced Bass to 37 months any, of Booker on Bass’ sentence. imprisonment on each counts, of the five supplemental brief, Bass now contends the *6 with the sentences to be served concur- district court violated his Sixth Amend- In rently. so, doing the district court ac- rights ment by enhancing his sentence knowledged that friends and family mem- upon based judicially-found Specifi- facts. bers of Bass had written letters asking for cally, complains that the district leniency, “[ujnder that, but noted our form court improperly enhanced his sentence of sentencing,” it was “extremely limited in upon (1) based its findings that he engaged the amount of discretion that [it] ha[d].” in trafficking, as opposed mere posses- ROA, 4,Vol. at 6. sion, of (2) child pornography, and the While this case was pending on appeal, material at issue involved prepubescent Supreme the Court opinions issued its minors or minors under the age of twelve Blakely v. Washington, 296, 542 U.S. years.6 2531, S.Ct. (1994), L.Ed.2d 403 Booker, United Because States v. Bass did not -, 543 U.S. raise these below, issues (2005). S.Ct. “we review L.Ed.2d 621 the district In Blakely, court’s the Court sentencing held plain that in a decision for state error.” prosecution Id. To error, the Sixth establish plain Amendment requires Bass “must that the maximum permissible (1) demonstrate that the sentence in district court a particular (2) case error, must be committed determined sole that the error was ly by (3) reference to “facts plain, reflected in the that the error affected jury verdict or by defen substantial rights.” Id. “If all these dant.” 124 Booker, at 2537. In S.Ct. met, conditions are a court reviewing the “Court extended logic of Blakely to the error may exercise discretion to correct it Although the district imposed court also supported by enhancement was the jury's two-level upon enhancement based Bass’ use findings. factual of conviction, in the offenses of Amend Sixth [Bass’] violated fairness, methodology seriously affects
if
at 1174.
Dazey, 403
rights.”
judicial
of
reputation
public
integrity,
constitu-
proceedings.”
Although the
of
the time
at
“plain”
tional error
dis
dispute that the
beyond
It is
time
law at the
it is the
sentencing,
Bass’
As
Bass.
sentencing
court erred
trict
relevant
that is
decision
appellate
court,
Bass,
applying
the district
noted
States, 520
v. United
Johnson
here. See
Guidelines, enhanced
then-mandatory
1544, 137 L.Ed.2d
117 S.Ct.
U.S.
upon
based
respects
two
his sentence
law at
that “where
(holding
First,
accepted as
facts.
judicially-found
clearly
settled
trial was
time of
assertion
PSR’s
fact the
finding appeal&emdash;
time of
law at the
contrary trafficking
involved
issue
at
the offenses
at the
‘plain’
the error
enough that
it is
of, child
simple possession
consideration.”). Thus,
in,
than
rather
appellate
time
Fed.R.Crim.P.
See
plain.
is now
the error
pornography.7
light
triggered
(reaching
turn
32(i)(3)(A).
finding in
That
at 1174-75
Dazey, 403 F.3d
See
2G2.2,
involving Sixth
required
in case
conclusion
same
violation).
17of
level
a base offense
Amendment
imposition
level of
offense
(as
to a base
opposed
the consti-
is whether
question
next
offenses). Second,
simple possession
Bass’ substantial
affected
error-
tutional
finding
aas
accepted
the district
out-
it “affected the
i.e., whether
rights,
the material
assertion that
PSR’s
fact the
proceedings.”
district court
come
in) by
(and
trafficked
allegedly
725, 734,
Olano,
possessed
507 U.S.
(1993).
mi
minors or
In
prepubescent
“involved
L.Ed.2d 508
S.Ct.
ROA,
years.”
involving
of 12
age
cases
under the
Dazey,
nors
we noted
32(i)(3)(A).
error,” a
6;
defendant
see Fed.R.Crim.P.
Booker
“constitutional
Vol.
demonstrating
en
showing
in a two-level
make
finding resulted
can
This
that a
probability
“a
pursuant
level
reasonable
offense
there
to Bass’
hancement
doubt standard
2G2.2(b)(1).
a reasonable
light
jury applying
to U.S.S.G.
*7
material
same
found the
not have
sentencing would
Booker,
that
it is clear
“[t]his
that,
(1938)
a waiver
(noting
order for
Booker,
in
the
regularly
1461
held that
we
to
7. Prior
valid,
have
party
"waives” must
who
presentence
the
a
to
object
a fact in
to
to
"[failure
is
of what
personal
degree
awareness
[sentencing]
of
some
object at the
to
report, or-failure
relinquishment
relinquished, and the
being
Unit-
of fact.”
an admission
hearing, acts as
choice).
In
572,
(10th
personal
a
of
Deninno,
be matter
must
29 F.3d
v.
ed States
conclusion,
emphasize that
we
reaching this
validity
remaining
the
Whatever
States
distinguishable from United
be,
unwilling
case is
to
may
this
we are
precedent
this
of
Cir.2005),
Green,
(10th
and
object operated
v.
to
that Bass’ failure
conclude
Hahn,
F.3d 1315
the
purposes of
United
Cir.2004),
fact”
for
an "admission
as
in
words,
the
we held that
decisions
where
other
in Booker.
rights announced
defen-
Blakely
the
did
render
Booker
say
to
unwilling
Bass’ failure
to
that
arewe
appel-
voluntary
of their
prior
waivers
dants'
of the Sixth
a
object
waiver
resulted
unknowing or
agreements
rights
plea
a
late
"prove[ to
requirement
]
to
Amendment
specifically, defendant
involuntary. More
in-
doubt” that
was
beyond a reasonable
object
a
alle-
factual
simply
failed
pornography.
trafficking of child
volved
the
report, whereas
presentence
a
gation in
generally United
at 756. See
125 S.Ct.
Hahn,
part
as
725, 733,
Green
Olano,
S.Ct.
defendants
507 U.S.
signaled
agreements,
plea
respective
(noting
a
that
their
L.Ed.2d
their
generally to waive
constitu-
relinquish-
intent
their
the intentional
involves
waiver
appeal
right
Zerbst,
including
rights,
the
tional
right); Johnson
aof
known
sentences.
82 L.Ed.
their
58 S.Ct.
U.S.
facts that
judge
by
[the]
found
a prepon-
hotice constitutional Booker error where
”
derance of the evidence....
403 F.3d at
the defendant failed- to contest
judge-
found facts on which the sentence was
enhanced
court,”
before the district
After reviewing the record
appeal,
we
Dowlin,
States v.
671-72
conclude that Bass has made
such show-
(10th Cir.2005), we conclude this is a
ing.
case
Although
asserted,
the PSR
and the
where we should exercise our
district court in
found,
discretion
turn
that
the of-
notice constitutional Booker error
fenses
in,
at issue
because
trafficking
involved
as
complete
lack of
opposed
support
record
possession of,
mere
for
por-
the district
finding
nography,
that
neither the
Bass en-
PSR nor the district
gaged in trafficking
court
offered a
rationale for
pornography.
the finding,
In particular,
we
there is
note
little
evidence
evidence
record to
presented at trial
support such a finding.
sure,
To be
would
reasonably
have
government
allowed a
presented
finding
of trafficking,
at trial in-
dicating that
PSR
offered no explanation
had been
by
identified
whatsoev-
as a
er
its conclusory
FBI
member
the e-group Can-
assertion that Bass
dyman,
subject
and that
to a
numerous
trafficking-based
of child
enhance-
Third,
ment.
were found on
Partovi’s com-
district court’s finding
puter. We are not
persuaded, however,
Bass engaged in trafficking of child
evidence,
alone,
such
standing
increased Bass’ offense level
have been
points,
to allow a
two
jury to
which in
find
turn had the effect
beyond a reasonable doubt that Bass
increasing
the applicable guideline
involved in the trafficking
range
pornog-
from 30-37 months
to 37-46
raphy. See generally Dazey, 403 F.3d at months.8 See United States v. Villegas,
1174 (noting that
analysis
is
conducted 404
Cir.2005) (conclud-
“less rigidly” in cases involving
that,
constitu-
because district court’s
in-
error
error).
tional
creased Guideline-suggested
sentence
months,
at least five
error seriously
question
The final
whether,
under the
fairness,
affected the
integrity, or public
fourth prong of
test,
we
reputation
judicial
proceedings).
should exercise our discretion to correct
Fourth,
the district
imposed
sen-
district court’s plain error. We con-
tence at the bottom of the 37-46
clude
month
there are
four
why
least
reasons
we
guideline range, and there
should
First,
noted,
do so.
indications
Bass’ “sen-
in the sentencing
tence
transcript
was the
that it might
of a
result
violation of his
have
Sixth
selected
lower
rights.”
Amendment
sentence had it had
Dazey, 403
*8
F.3d at
Thus,
ROA,
1178.
discretion to do
so.
procedural
Vol.
at 6
(“Under
standpoint,
“plain
our form of sentencing,
error
I
review bur-
ex-
am
den” imposed
tremely
on Bass is
rigorous”
“less
limited
the amount of discretion
than
have.”).
it would otherwise be in a
that I
Accordingly,
case involv-
“we believe
ing
Second,
error.
non-constitutional
this
our
warrants
exercise of
although we recently stated that “we are
discretion to remand the case” for resen-
likely
less
to exercise our discretion to tencing. Dazey,
8. previously As the district find- guideline range. court’s his Setting aside en- this prepubescent material involved hancement trafficking-based in addition to the minors or age minors under the of twelve enhancement have resulted in of- an years resulted in a two-level to increase Bass’ guideline fense level range and a 24- offense level and a corresponding increase- in 30 months. (10th Kimler, 335 F.3d v. reasons, States we AFFIRM foregoing For defendant knew Cir.2003), where with-di- and convictions, and REMAND Bass’ automatically saved being images were his sentences to vacate rections later re-accessed and he computer his resentence. Tucker, at F.3d 1205. them. KELLY, JR., Judge, Circuit PAUL out and sought intentionally Mr. Bass part. dissenting concurring part internet; pornography viewed child opinion in the court’s IWhile concur however, indicators of the established none sufficiency of the indictment regarding the Evi- present. knowing possession agree do not analysis, I and the Booker intentionally downloaded dence that was in that Mr. holding with the any or saved pornography child pornography of child possession knowing Tr. 59- See is non-existent. images to disk The court doubt. beyond a reasonable pornogra- child any attach GO. He did and as a result wrong facts focuses on the Tr. 142. phy to email. issu,e is not issue. The the real ignores knew his prove that Mr. also fails to might suspected have Mr. Bass whether automatically images saved the computer embed- was somehow Tr.117-18, internet,1 see on the he viewed he know- but computer, whether ded in his images after he re-accessed such or that pornography. The ingly possessed automatically saved. Tr. they had been effectively rewrites the decision 132. pornog- viewing child statute to criminalize Window use the did software Mr. Bass computer. raphy via Kill, and based on History Washer2 and notes, sufficiency we review As the court the evidence fact, the court concludes novo, “viewing the evi de of the evidence knew Mr. Bass prove was sufficient most favorable light in the dence being stored viewed were images he a reason asking whether government exercising and that he was guilty find defendant able could However, given the them. control over doubt.” United beyond a reasonable here, pure specu this conclusion record Campos, F.3d v. States to draw the factfinder and allows lation (10th Cir.2000). ‘knowing “An act is done inferences. United impermissible intentionally, voluntarily ly’ if done Nichols, Cir. accident or or of mistake and not because 2004) (“[W]e uphold a conviction may not reason.” United other innocent upon infer by piling inference obtained Fabiano, Cir. of in ence, link the chain each unless 1999). ability connotes Possession strong to sufficiently avoid [is] ferences Tucker, something. over control exercise (internal quota speculation.”) into lapse 1204; 94 F.3d at Simpson, omitted). citations tions and Thus, knowing possession Tucker, held because we where has been found [automatical- “knew his browser defendant intentionally hard downloaded files, each time he image ly saved] the disk, Lacy, United States drive *9 out viewed child intentionally sought and (9th Cir.1997), they where F.3d he browser with his Web pornography messages, United to email were attached program was not reflects this 2. The record computer’s automati- internet browser 1. The friend, Kyle his Mr. Bass but installed images internet cally viewed on the saves Osborn, given computer was time the at the frequently visited sites so that the hard drive 106-10, 98-99, Tr. 183. to Ms. Partovi. Tr. faster. will load knowingly acquired and possessed the im- Additionally, the evidence fails to estab- ages.” F.3d at 1205. Mr. Tucker lish that Mr. Bass exercised the same level intentionally viewed on of control over images computer his the internet and knew his as Mr. Tucker. if Even Mr. Tucker had computer automatically saving the im- not admitted he knew his auto- ages he viewed. F.3d at 1204. He matically saved images, internet that he “routinely also accessed the images manually located, [saved] selected, and moved the on his hard drive and deleted them after images demonstrated his knowledge and an Internet session.” Id. at 1198. ability To do to control Tucker, them.
this he would access a file and manually Here, 1203-05. the record is devoid of drag it to the computer’s recycle bin. any evidence showing Mr. re-ac- Bass He did not intentionally download any of any cessed images computer, his images. Id. at 1199. or that he knew how to do so. The most that can be said is that he exercised gener- Here, no evidence that Mr. exists Bass al control over all the files in his computer knew his computer automatically sav- by relying on software to up clean the hard ing the images he viewed. Whereas Mr. drive. This cannot equated be with manu- Tucker admitted this knowledge, Mr. Bass ally retrieving files and deleting them. only stated that a computer virus had caused his mother to accidentally view Although reprehensible, viewing child pornographic image and that he used the pornography is not a crime. See 18 U.S.C. software “in an attempt to clear 2252A; his com- see also United States v. Stu puter’s registry,” Tr. 54, lock, and protect
mother
seeing
images
Thus,
such
again.
to support a conviction under 18
Id. at
59. The automatic
saving
2252A(a)(5)(B)
U.S.C.
something more
internet
by a
caused
than viewing
browser
must
proven,
and the
default
virus;
and
anot
something
howev-
more is “knowingly holding
er,
government
never
refuted Mr.
power
the]
and ability to exercise dominion
Bass’s contention regarding the virus.
and control.” Simpson,
1208 under error plain to demonstrate ability with dominion coupled knowledge jective prongs. fourth expert third and an Merely because both and control. for not substitute will known have
rnight^ “[fjailure a object to held, to have We proof. adequate to or failure report, presentence in a fact context, Supreme Court In a similar hearing, acts as [sentencing] object at the to not intend Congress did instructed v. States fact.” United an admission negli- out performed actions criminalize (10th Deninno, F.3d 580 done act itself was even when gence, stan plain Accordingly, “[u]nder X-Citement v. States knowingly. United court’s the district dard, we will review 68-69, Inc., S.Ct. Video, U.S. sentencing, but relating to findings factual (1994). In X-Cite- L.Ed.2d or egregious particularly for review will pro- Video, Inc., at issue the statute error, which legal and substantial obvious shipping, transporting, knowingly hibited in a result failure to consider our reproducing distributing, receiving, v. States justice.” United miscarriage of § 2252. 18 U.S.C. pornography. (10th Heredia-Cruz, 1283, 1288 those who prevent held to The Court Cir.2003) Bal United States (quoting materials but transported such knowingly Cir.1994)). (10th lard, F.3d illegal contents unaware their who were an object to constitutes the failure That convicted, the statute must being from waiver) is (or, a properly, more admission act of trans- require to construed longstanding our corollary of logical (2) that etc., knowing and to be porting, court’s sentencing a to review practice knowledge of material’s have the actor error. for determinations factual here. reasoning applies This contents. Saucedo, 950 See, e.g., im- knew clearly Mr. Bass Whereas Cir.1991) (holding 1508, 1518 the evidence pornography, ages were district issue before raise of the factual was aware failure that he prove fails to over appeal) on him to be waiver causing posses- constituted circumstances Knowledge is inex- v. Unit images. grounds Stinson sion of those on other ruled ability to exer- up with tricably States, 113 S.Ct. bound 508 U.S. ed control, in the realm especially (1993). cise for this The reason L.Ed.2d Thus, technology. computers properly a defendant is that “when rule viewing pornogra- leap in the factual issues disputed raises sole- knowingly possessing based phy court, permit record with- operation, default ly on On thereby developed. adequate review about knew any the defendant proof out hand, fails to a defendant when the other precedent operation, establishes such factual below, no we have the issue raise for criminal suffices negligence that mere to review the by which record criminality net of liability, and casts the Id.; see also United guidelines.” of the I re- Congress provided. than far wider McCully, dissent. spectfully (“a Cir.2005) specifical in the PSR not fact purposes admitted for objected to is ly TYMKOVICH, Judge, Circuit ”). Booker dissenting part. concurring part Rule area in this rests precedent Our majority opin- join the I otherwise "While Proce- Rules Criminal the Federal 32 of to the remand ion, I dissent respectfully 32(i)(3)(A), a Under Fed.R.Crim.P. dure. view, fail- my Bass’s resentencing. any undis- accept “may sentencing court used calculate facts object ure report as presentence portion puted fatally undercuts range his Guidelines *11 finding of fact.” The rule has the salu rule to plain error Booker appeals. Unit States, tary purpose of encouraging defendants to ed v. Trujillo-Terrazas, for exam point any alleged out factual inaccuracies ple, explains that the primary reason in the at PSR a time they when can be Booker rendered the Guidelines advisory by resolved the court. See Fed. R. Crim was concern over judges determining con 32(i)(3)(B) P. (requiring court to resolve tested factual issues under mandatory contested issues at This sentencing). pro (10th Guidelines. See 405 F.3d cess serves the common goal sense of en Cir.2005) (Booker provisions “severed the couraging the defendant to speak rather of the statute making the Guidelines man than risk an punishment increased based datory, not because mandatory sentencing on inaccurate government, facts. The as ranges unconstitutional, but because always, retains burden proving con allowing judges to decide contested ques facts, tested such as that an offense in fact, tions of pursuant to a preponderance volved trafficking, may increase the standard, the evidence is unconstitution sentence. See Guzman, al when such finding fact ineluctably leads (10th 1191, 1198 Cir.2003). 318 F.3d to a higher sentence than would be war Even if the failure object does not by ranted the facts by found jury an constitute “admission of fact” for Book by defendant.”). Trujillo- er purposes, the reasoning supporting the Terrazas itself found no constitutional er objection requirement is equally applicable ror because the judge in that case did to constitutional Booker claims the con decide contested facts. Similarly, text of plain error. Defendants bear the we Dazey stressed that the defendant vig burden showing the record supports our orously contested the factual basis for the noticing plain error. See United enhancements a significant factor lead Dowlin, (10th Cir.2005). ato remand. See at F.3d Where a defendant has not contested the judge-found Accordingly, facts on which a sentence rationale supporting is based, objection do not we have a requirement sufficient applies record to Book- to evaluate the accuracy er precedent claims and our supports ap- court’s determination of plication facts. those This the rule these circum- precisely the concern that Thus, has in the stances. it is proper to require a past led court to decline party object review ato factual determination factual sentencing claims error. made a sentencing court before we will See, Heredia-Cruz, e.g., F.3d 1288- accuracy review of that determination 89; Green, United States v. on appeal, even when brought the fact into Cir.1999); Saucedo, 950 F.2d at dispute relates ato constitutional Booker result, 1518. As a a defendant who did not claim. majority does not follow this object the sentencing factual de approach, concluding instead in- there is terminations has failed to establish “a rea the record to support sonable probability applying the classification of crime Bass’s as one doubt reasonable standard have involving trafficking despite Bass’s failure found the same material facts that a judge to properly object finding. But the found a preponderance of the evi reason the record does an ex- not.include dence.” See Dazey, United States v. 403 planation for application of the trafficking Guideline is did not contest the
Furthermore, post-Booker our jurispru- trafficking finding despite having a strong dence supports objection incentive to do so. *12 the rec- analysis plain
Applying has not find Bass us, I would
ord before First, failed to his burden.
satisfied that established facts
object to majority cor- range. While
Guidelines cite did not the PSR out that
rectly points trafficking desig- supporting when unobjectionable
nation, found out factual point every incentive
he had the court Second, although
deficiencies. end of the low Bass at
sentenced his conduct nothing about there
range, have sen- would court suggests the discre- differently given more him
tenced comment did Finally, while
tion. under the of discretion relative lack
on the nothing “it said before
Guidelines merited a conduct that [Bass’s] suggest range.” prescribed
sentence below 671;
Dowlin, cf. Clifton, 406
Cir.2005) Booker constitutional (remanding sen- where error review
error under discre- “if I had more judge stated
tencing sentence”). a lower
tion, impose I sum, has conclude I would or fourth the third either
not satisfied error. noticing plain
prong America, STATES
UNITED
Plaintiff-Appellee, Jack, MATTHEWS, a.k.a.
Terrance Jack, Say Defendant-
a.k.a.
Appellant.
No. 03-15528. Appeals, Court
United States Circuit.
Eleventh 8, 2005.
June