UNITED STATES OF AMERICA, Plaintiff - Appellee v. JOE CEPHUS ROSS, Defendant - Appellant
No. 18-20496
United States Court of Appeals for the Fifth Circuit
January 10, 2020
Appeal from the United States District Court for the Southern District of Texas
Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
At issue are Joe Cephus Ross’ constitutional challenges to the district court‘s denying: Ross’ motion to dismiss his being charged, in count one of his two-count indictment, with receipt of child pornography, in violation of
I.
In March 2016, an undercover Homeland Security special agent identified an internet-protocol (IP) address was sharing, via a peer-to-peer-internet network, computer files with hash values (alphanumeric string of characters that identifies computer file‘s contents, see United States v. Reddick, 900 F.3d 636, 637 (5th Cir. 2018), cert. denied, 139 S. Ct. 1617 (2019)) known to belong to child-pornography videos and images. Further investigation revealed the IP address: was associated with the residence of Ross and his mother; and, from February to July 2016, shared child-pornography files with other internet users.
That August, members of a Houston, Texas, police taskforce executed a search warrant at the residence, seizing several computers and other devices. A subsequent forensic examination revealed these contained more than 17,000 images and 500 videos depicting child pornography, including victims appearing to be as young as four, as well as file-sharing programs. Ross admitted he collected child-pornography images and videos; explained how the file-sharing programs worked; and acknowledged he used them to distribute child pornography.
In a two-count indictment, Ross was charged, in count one, with receipt of child pornography, in violation of
The motion was denied from the bench at the conclusion of an April 2018 hearing. Although the district judge doubted the constitutionality of the receipt statute, he reasoned the controlling law was “decidedly
For sentencing, and incorporating the same constitutional grounds as in his motion to dismiss, Ross objected to the presentence investigation report‘s (PSR) calculating his advisory Guidelines sentencing range pursuant to the above-described
Regarding the PSR‘s recommending an advisory Guidelines sentencing range of 151–188 months’ imprisonment, the court varied downward, however, sentencing Ross to, inter alia, 110 months’ imprisonment on each count, concurrently, and deducting a further 23 months for time held in state custody. The sentence was to run concurrently with any imposed in a pending state criminal case charging Ross with possession of child pornography.
II.
Except for the stated constitutional challenges, Ross does not challenge either his guilty-plea convictions or the sentence imposed, including not claiming a double-jeopardy violation. Ross preserved in district court his constitutional challenges (to the child-pornography statute,
A.
Regarding the challenged statute, it is a federal crime to “knowingly receive[] or distribute[]” material containing child pornography.
Ross does not contend
“The prohibition of vagueness in criminal statutes . . . is an essential of [Fifth Amendment] due process . . .“. Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (internal quotation marks and citation omitted). Along that line, the vagueness doctrine requires statutes “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited [—as noted, Ross does not challenge the statute in this regard—] and
“the requirement that a legislature establish minimal guidelines to govern law enforcement“. Id. at 357–58 (internal quotation marks and citation omitted). It “guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges“. Dimaya, 138 S. Ct. at 1212 (citing Kolender, 461 U.S. at 357–58). And, it applies “not only to statutes defining elements of crimes, but also to statutes fixing sentences“. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) (citation omitted). (Ross’ asserted separation-of-powers violation is not separate from his vagueness challenge because the vagueness doctrine “is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not“. Dimaya, 138 S. Ct. at 1212 (citation omitted).)
Ross’ claim that possession and receipt are logically inseparable conduct, and that, as a result,
Conviction of receipt, moreover, requires proof of an element—defendant knowingly received child pornography—that conviction of possession does not. See
of a claimed lack of a rational basis for its distinguishing between possession and receipt offenses, that contention also fails. See United States v. Olander, 572 F.3d 764, 769–70 (9th Cir. 2009) (discussing how Congress could have decided to proscribe and punish receipt separately from possession in order “to deter those who receive child pornography from others and who thereby create demand and drive the market for child pornography“).)
Along those lines, it goes without saying that prosecutors routinely decide to charge defendants with certain offenses, instead of others, based on the evidence available to meet the requisite elements. This is particularly relevant for receipt of child pornography. It can be difficult to prove the requisite knowing-receipt because this requires intricate—and sometimes impossible—tracing and analysis of computer files unless, as in this instance, the Government happened to be operating undercover on the same peer-to-peer, internet-file-sharing network as defendant. Such decisions, flowing from the available evidence, are anything but arbitrary.
Ross contends this is not the factual scenario in this instance because his conduct underlying the receipt count constituted both receipt and possession. “[B]ut
Ross attempts to distinguish Batchelder, but its reasoning further demonstrates why the receipt statute is not unconstitutionally vague. Batchelder concerned two statutes,
criminalizing convicted felons’ receiving firearms; and the statutes’ “substantive elements” were “identical” as applied to defendant. Id. at 116–17. A conviction under
The Supreme Court held conviction and sentencing under
Batchelder did not rest, as Ross claims, on the statutes’ somehow expanding judicial-sentencing discretion. Nor, as he also contends, did it concern only the vagueness doctrine‘s fair-notice component. Compare id. at 124–25 (dismissing claim statutes allowed “unfettered” discretion), with Johnson, 135 S. Ct. at 2556 (recognizing as unconstitutionally vague statute “so standardless that it invites arbitrary enforcement“).
Batchelder also rejected the claim “the statutes might impermissibly delegate to the Executive Branch the Legislature‘s responsibility to fix criminal penalties“. Batchelder, 442 U.S. at 125–26 (citations omitted). The statutes “plainly demarcate[d] the range of penalties that prosecutors and judges m[ight] seek and impose“, id. at 126, as does
As stated, and unlike the statutes at issue in Batchelder, the receipt and possession offenses in
Regarding Ross’ claim that any distinction between receipt and possession is theoretical and does not empirically demonstrate that production of child pornography plays any role in the application of
B.
In the alternative, Ross challenges as unconstitutional
enforcement and application, in violation of the
Pursuant to
Moreover, as Ross concedes, the advisory Guidelines are not amenable to a vagueness challenge. Beckles v. United States, 137 S. Ct. 886, 894 (2017). And, as discussed supra, because the vagueness doctrine is a “corollary of the separation of powers“, Dimaya, 138 S. Ct. at 1212, Ross’ claim
Concerning Ross’ Fifth Amendment due-process challenge on grounds other than his foreclosed vagueness claim, “[a] guideline violates due process only if it has no rational basis or is subject to arbitrary application“. United States v. Bacon, 646 F.3d 218, 221–22 (5th Cir. 2011) (citations omitted). Such rational-basis review is satisfied where the challenged Guideline is rationally related to a conceivable, legitimate objective. See United States v. Galloway, 951 F.2d 64, 65–66 (5th Cir. 1992) (citations omitted) (applying rational-basis review to due-process and equal-protection challenges to Guidelines). As stated, a rational basis for Congress’ deciding to punish receipt more severely than possession could have been to deter demand for child pornography. See Olander, 572 F.3d at 769–70.
That a prosecutor may choose to charge a defendant with receipt instead of possession may be unpredictable, as Ross contends; this, however, is a necessary
may be influenced [in his charging decision] by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the. . . Due Process Clause.“).
Nor do the differing base offense levels allow, as Ross claims, prosecutorial selection of the ultimate sentence. Pursuant to United States v. Booker, 543 U.S. 220, 245 (2005), which rendered the Guidelines advisory, the district court determines that sentence. E.g., Beckles, 137 S. Ct. at 894. “The court relie[s] on the [Guidelines] merely for advice in exercising its discretion to choose a sentence within [the] statutory limits.” Id. at 895.
The court‘s downward variance in this instance demonstrates the distinction between the advisory Guidelines sentencing range and the sentence imposed. The Guidelines sentencing range Ross complains was arbitrarily assigned him (because he was charged with receipt in count one) did not bind the court, which exercised its discretion to vary from the Guidelines and impose a significantly lower sentence. This advisory character is precisely why the Guidelines “are not amenable to a vagueness challenge“. See id. at 894.
III.
For the foregoing reasons, the judgment is AFFIRMED.