*1 304 Pearson, (1995); 555 see also U.S.
588 America, 242, (noting that defense of UNITED STATES 129 S.Ct. immunity is not available Plaintiff-Appellee, qualified where against “§ individuals 1983 cases or in sought instead of injunctive relief Likewise, under damages”). addition GOLUBA, David L. Defendant- Young, Parte 209 U.S.
the doctrine of Ex Appellant. (1908), 52 L.Ed. 28 S.Ct. officer in injunctive against relief state No. 10-11301. may if capacity appropriate
his official Appeals, States Court of an alleges ongoing violation complaint “the Fifth Circuit. properly law and seeks relief federal Verizon prospective.” characterized as Feb. 2012. Md., Md. Inc. v. Pub. Serv. Comm’n 635, 645, 122 S.Ct. 152 L.Ed.2d U.S. (2002) (internal quotation marks and omitted).
citation
Although Defendants contend that
employment
termination of Frederick’s
County
with the Greenwood
Sheriffs Of-
“cognizable danger
fice means there is no
violation,”
of recurrent
United States v.
Co.,
345 U.S.
73 S.Ct.
W.T. Grant
(1953),
894,
We the district court’s decision to order De to safeguard
fendants Plaintiffs First rights Amendment refrain from im permissible content-based restrictions affirm portion
the future. We opinion district court’s and order.
III. sum, In we affirm the district court’s grant summary judgment to Defendants grounds immunity,
on of qualified the deni- attorney’s al of an award of fees Plain- tiff, grant injunctive and the relief to against
Plaintiff Defendants. AFFIRMED
JONES, Judge:
EDITH H. Chief is an from the
This following decision of the district court defendant-appellant David Goluba’s convic- pleaded tion. Goluba was indicted and guilty, plea agreement, without a written of child in violation Before his sen- objections tencing, Goluba filed to the dis- range trict court’s calculation of his the Federal Guidelines of 151 argued months. He that he was entitled to two-level reduction under district court objection overruled Goluba’s and sen- him tenced to 151 months followed years supervised ap- release. Goluba peals. Because the district court did not by declining apply err the two-level under U.S.S.G. 2G2.2(b)(l), AFFIRM. we
I. BACKGROUND In November of a woman in Minnesota contacted enforcement local law sexually explicit after she discovered inter- net chat conversations between her ten- year-old daughter and several users of the networking Tagged.com. social site Tagged.com account re- young daughter’s that a vealed user with screen name “Dave sent several of the ex- G” messages. profile Dave G’s user plicit (ar- Schall, Atty. Dale Asst. U.S. Jason forty-three-year-old stated he was Dallas, TX, Plaintiff-Appellee. gued), Arlington, male from Texas. His user Beard, Def., Jerry Asst. Fed. Pub. Van photograph sitting file showed him in a Hawkins, Douglas Fed. (argued), Jason penis chair of his erect visible. tip Dallas, TX, Def., Allen Christopher messages, Pub. one of his Dave G directed In Def., Worth, Curtis, Fort picture, Asst. Fed. Pub. at ten-year-old girl to look TX, Defendant-Appellant. “hey my pic at the writing, profile look it?” ya
bottom see Minnesota law enforcement established belonged that the Dave G account David Goluba. The defendant-appellant, in- JONES, authorities transmitted that Judge, and Minnesota Before Chief DeMOSS, Arlington Depart- Police Judges. formation to the Circuit DAVIS of children that Texas, an investi- initiated which ment in Arlington during sentencing. ought two to consider March gation. On at his interviewed Goluba with the agreed officers The PSR Government’s interview, Goluba During the workplace. reasoning. *3 Tagged, a member that was admitted sentencing, adopted At mes- explicit and that he sent com PSR, findings factual overruled Go- ten-year-old in Minnesota. sages to objection, guide- luba’s and found (1) that he additionally admitted Goluba range line recommended the PSR was on his home
possessed proper. The court sentenced Goluba to (2) computer had used computers, imprisonment, a sentence at 151 months of (3) collected female chil- solicit a range of the 151-to-188-month bottom (4) underwear, a he had tutored dren’s Sentencing suggested Guidelines. man, email, to have sex with on how via appeals Goluba here that decision. daughter. After twelve-year-old the man’s home, searching au- subsequently II. STANDARD OF REVIEW 30,000 images and at found over thorities containing pornogra- least 987 videos pre a properly When defendant thereafter, apparent- phy. Shortly objection sentencing guide serves an to a April area. On ly fled the here, adjustment, line as Goluba did one count of charged was court will determine on whether the under 18 U.S.C. pornography, “significant proce district court committed 2252(a)(2), in the Northern District Delgado- dural error.” United States v. on arrested in Minnesota Texas. He was (5th Cir.2009). Martinez, 564 F.3d 753 pleaded guilty to April 2010. Goluba ap The court reviews the district court’s August on the one-count indictment plication interpretation of the Federal 2010. Sentencing de novo and its find Guidelines (“PSR”) con- presentence report ings of fact for clear error. United States total offense level was cluded that Goluba’s (5th Mudekunye, 286 Cir. criminal history category 32 and that his 2011). III, range resulting guideline was objected months. III. DISCUSSION guideline range, ar- this calculation of his Section 2G2.2 of Federal to a two-level guing that he was entitled applies pornogra- Guidelines to the child under reduction U.S.S.G. phy offenses set forth 18 U.S.C. provision applies This when a “defendant’s 1466A, 2252, 2252(A)(a)-(b), limited to the or solici- 2260(b). It part: states involving the sexual ex- tation of material ploitation of minor” and defendant (a) Base Offense Level in, distribute, to traffic “did intend (1) 18, if the defendant is convicted of respond- such material.” The Government 1466A(b), 2252(a)(4), objection by arguing that he ed to Goluba’s 2252(a)(5), §or because, did not (2) 22, otherwise. alia, sexually graphic inter Goluba sent a (b) Specific Offense Characteristics image to the minor in Minnesota. (1) (A) (a)(2) applies; If subsection merely his conduct was not limited to the (B) limit- the defendant’s conduct was pornography, solicitation of child of ma- rather it included other related to ed to the or solicitation but acts (b)(1) exploitation terial Subsection offers a two-level (C) only minor; decrease the defendant de did fendant’s conduct limited to the re in, distribute, not intend to traffic ceipt or solicitation of material material, by 2 such decrease levels. of minor that the (2009). (b)(1) 2G2.2(a), defendant did not intend to distribute. Nothing in language suggests its that the The first and elements of subsec- third conduct must be (b)(1)
tion are not at issue here. The expressly constituting offense. properly assigned district court Goluba a Rather, “the guidelines provide that in cal base *4 culating the offense level the district court 2G2.2(a)(2) the Government does may consider acts in addition to the acts argue not that intended to traffic Goluba underlying the of conviction so in, distribute, pornography. or child The long as those other acts constitute ‘rele that Government conceded the forensic guidelines.” vant conduct’ as in the defined analysis computers of Goluba’s “revealed Fowler, States v. F.3d that did not distribute his collec- [Goluba] (5th Cir.2000). Neither the Sentencing do key tion of pornography.” The issue any require Guidelines that surrounding is whether Goluba’s conduct was limited to conduct by the district court the of child pornog- or solicitation necessarily is limited to “material involving raphy meaning within the of sexual exploitation the a minor.” of 2G2.2(b)(l)’s element. second The unindicted conduct discussed that, since he argues distributed in Goluba’s replete PSR is with instances no material the sexual exploita- support that the district court’s decision to tion of a eligible he should be for deny Goluba the reduction two-level at is the two-level He reduction. contends that sue. Goluba sent a photograph sexual of During the himself to the applies subsequent defendants who child. child, internet with chats charged solely receipt of instructed her to look at the bottom of the photo pornography, unless the defendant distrib- where graph, penis was visible. This uted or pornog- intended to distribute the conduct alone demonstrates raphy. reading A plain guideline, beyond viewing acted mere collec argues, suggests a minor must of tion Rather than pornography. visually depicted in the material re- limiting his conduct to the or solici 2G2.2(b)(l). ferred in image The Go- images, tation of such the defendant here Minnesota, in luba sent to the minor sought engage to entice in minors to sexu himself, exposing visually not depict did ally explicit acts, conversations image child. was not itself child in sexually discussed his interest ex pornography and its transmission cannot ploiting children with others. Goluba’s disqualify him from the two-level reduction not limited to of a mere §by of child pornography, viewer nor was his however, argument, Goluba’s erroneous- (b)(1) conduct casual or The isolated. re ly emphasizes the word “material” instead did apply duction not for his benefit. applicable the word “conduct” IV. CONCLUSION guideline. Moreover, argument this disre- gards totality above, of the defendant’s con- For the reasons discussed we duct. AFFIRM the district court’s sentence. by Sentencing
DeMOSS, vant conduct defined Judge, dissenting: Circuit notes, As the itself Guidelines. whether issue this sole calculating lev- a defendant’s offense the re- “conduct was el, may district acts “the consider material ceipt or solicitation underlying the offense addition acts a minor” exploitation of long so as those other acts conviction element of meaning of the second by ‘relevant conduct’ as defined constitute 2G2.2(b)(l). To answer Fowler, guidelines.” United States v. court must first determine question, the (5th Cir.2000) 459, 461 (emphasis conduct” that scope of “other type lB1.3(a). added); see also U.S.S.G. intended Commission as “all Guidelines define relevant conduct qualifying from prevent would defendant committed, aided, abet- acts and omissions has reduction. While issue counseled, commanded, induced, ted, circuit, yet addressed been cured, willfully caused the defendant other, majority’s opin- apparently during the ... that occurred commission clearly misses the mark. ion conviction, preparation the offense *5 majority suggest The seems to that offense, in the at- for that or course of relevant, sexually conduct a deviant to or tempting responsibili- avoid detection just defendant —not lB1.3(a). ty § for that offense.” pornography preclude applica- —will 2G2.2(b)(l)’s pleaded guilty to a one count § tion of two-level reduction. that him (1) charged indictment with receiv- It as courts consider reasons follows: February conduct, ing pornography between defined the Guide- 2010, 1, and lines, March in violation determining when whether a defen- § reduction; The (2) U.S.C. indictment dant for the re- qualifies 2G2.2(b)(l) pornographic the file of two § lists names applies only duction under files images Goluba received. The was when a defendant’s conduct limited to 25, 2010, February 27, and are dated of child pornog- solicitation (3) 2G2.2(b)(l) admitted in the factual resume ac- raphy; and not ex- does companying plea that downloaded plicitly that only state images The fac- those from Internet. pornography should photo tual resume does not discuss the determining that require- whether minor, any of standard, that Goluba sent to the ment Applying is satisfied. the majority the other conduct that as- majority notes that Goluba sent a sex- precludes serts the two-level reduction. ual a minor photograph of himself to in November of that he in engaged to in picture Goluba sent the the minor the online a minor solicitation of and dis- time November of months before the cussed his interest in exploiting period That set forth in the indictment. majority children with others. The con- conduct, therefore, could not have oc- acts, that, in light cludes of those “during the of- curred the commission of not “that limited to of a mere lB1.3(a). of conviction.” Nor is fense viewer child pornography” and he does any indication that Goluba sent the there for the reduction. preparation in im- picture to download the in ages receiving, he was for problems There several First, majority’s reasoning. attempting most course of to avoid detection ma- glaring, majority responsibility the conduct that the con- or for that offense. The fact jority points tends is also to the that Goluba precludes not rele- (5th Cir.2011) (“A admitted, during Arling- his interview with guideline violates due officers, that he had in engaged only ton if process it no rational has basis or is solicitation the online of minor and that subject to arbitrary application.”). sex having he had e-mail discussions about Finally, majority’s opinion ignores PSR, however, The
with children. guidance the Guidelines as vides no information as when that con- the intended and proper appli Rather, it suggests duct occurred. 2G2.2(b)(1). cation of The commentary simply having admitted done accompanying Guidelines Amendment things point those past. some 2G2.2(b)(1), provides which added as fol there basis to Consequently, is no conclude lows: that conduct occurred “during conviction, provides The amendment also commission a two- 2G2.2(b)(l) offense, preparation or in the level decrease at de- attempting course of to avoid detection or fendant whose base offense responsibility for that offense.” Id. whose conduct limited to the or solicitation of material involving the provide any also fails to meaningful type direction as to the of con whose conduct did not involve an intent
duct a district should consider when traffic or distribute the material. determining whether a defendant’s con individuals convicted of duct or solicita child pornography with no intent to traf- tion of child the mean fic or 2G2.2(b)(1). essentially distribute the material only ing support *6 adjusted will have an based offense level majority provides for its conclusion that of as opposed to an the offense level of conduct considered need not involve 2G2.2(b)(1) traffic, receipt § for with intent pornography pri- is that to application explicitly any does not state otherwise. to of Again, specific other 2G2.2(b)(1) that, provides § to for offense characteristics. The Commis- reduction, “the defendant’s conduct of sion’s review these cases indicated [must been] have limited involved in such “simple re- of material solicitation ceipt” cases most instances was indis- exploitation Obviously, of minor.” tinguishable from “simple possession” 2G2.2(b)(1)’s § language explicitly does not The statutory penalties cases. “sim- for any type being exclude conduct from ple receipt” cases, however, are of determining whether that statutory penalties same as the traf- for requirement is satisfied. under the ficking Reconciling cases. these com- majority’s reasoning, need not concerns, peting the Commission deter- child, sexual involve the that a mined two-level reduction from Indeed, even be nature. the base offense of level 22 is war- reasoning the district court can consider ranted, if the defendant establishes any when deciding conduct whatsoever there was no intent distribute whether a defendant’s “limit material. ed” to the or solicitation of child (2004). C, app. amend. standard, however, That pornography. is all, commentary no makes standard and lends itself to arbi clear 2G2.2(b)(l) trary application of an the reduction and rais intended establish adjusted process es serious due concerns. See base level for defendant’s Bacon, 221- “simple receipt” por States with of child distinguish was intended to language in to” disparity counteract nography re offenses from the offenses simple simple receipt sentences between mandatory possession pur offenses. for the simple grouped which ceipt light words, backdrop, and In other Against pose sentencing. of cov for the offenses statutory framework to the re conduct is limited defendant’s (b)(1)’s 2G2.2, “con subsection ered ceipt pornography of child perfect makes language to” 2G2.2(b)(1) duct meaning if his indicted of sense. conduct does not include with re grouped of the offenses notes, § 2G2.2 covers
As the sentencing. Be ceipt for the set forth in offenses pornography the child standard, cause Goluba satisfies 2252A(a)-(b), 1466A, 2252, entitled to the two-level reduction. 2260(b). 1466A, 2252, Sections pornography of child group 2252A I dissent. respectfully offenses pornography with other minimum and applicable establishing sentences, providing sepa-
maximum maximum rate, minimum and less severe simple possession offenses. sentences 1466A(a) under a convic- example, For MARINE In re ECKSTEIN distribution, receipt, or production, tion for SERVICE, L.L.C. intent to distribute child possession with no less requires sentence Complaint In Re In Matter twenty, than years and no more than five Service, Marine L.L.C. now Eckstein simple possession while a conviction Transportation Marquette known and a maxi- requires no minimum sentence Company as own Gulf-Inland L.L.C. years.1 mum ten See sentence er/operator Andrew for St. M/V 1466A(a)-(b). Similarly, Limitation of Li Exoneration from or transportation, ship- conviction for the ability. *7 distribution, sale, ment, receipt, posses- Service, L.L.C., Eckstein Marine now to sell child sion with intent Transportation Marquette known as years, minimum of five requires a sentence Company L.L.C.; Mar Gulf-Inland twenty years, and a maximum of Company quette Transportation Gulf- requires simple possession conviction for L.L.C., Plaintiffs-Appellants, Inland minimum and a maximum sen- no sentence 2252(a)-(b). years. Section tence of ten provides a similar framework. 2252A Jackson, Claimant-Appellee. Lorne 2G2.2(b)(1) in Considering that No. 10-20600. dis tended to counteract posses parity simple receipt between Appeals, United States Court offenses, and that the statutes covered sion Fifth Circuit. §by group receipt with other child 2G2.2 22, 2012. Feb. for the pornography offenses sentences, mandatory it establishing seems 2G2.2(b)(1)’s
clear that “conduct limited previous The same is has certain convictions. 1. The sentences become more severe for all of true under 2252 and 2252A. listed in 1466A if the defendant offenses