Lead Opinion
Opinion by Judge KRAVITCH; Concurrence by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge REINHARDT.
Defendant-appellant Paul Frederick La-ney pled guilty to three counts of conspiring to engage in and engaging in activities relating to the sexual exploitation of children. The district court sentenced him to 81 months in prison and ordered him to pay restitution to one of the conspiracy’s victims. Laney’s appeal of the sentence and the restitution order raises several issues concerning the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) and the restitution statutes.
I.
In late 1995, Laney and several other men began meeting regularly in an Internet chat room called KidsSexPics to discuss and trade child pornography.
For several years Riva regularly had been molesting Jane Doe One, a friend of his young daughter’s. In January 1996, Riva told other members of the Orchid Club that Jane Doe One, then age ten, was willing to be photographed performing sexual acts. Some of the members requested that Jane Doe One perform “live” over the Internet. Laney was not a party tо these conversations. On March 16, 1996, Riva asked Laney for advice on how to teach a ten-year-old girl how to insert a vibrator. Laney sent Riva suggestions on how best to perform this act.
An “on-line molestation” of Jane Doe One occurred on April 1, 1996. Riva and another Orchid Club member, Melton Lee Myers, videotaped Jane Doe One engaging in various sexual acts, including having a vibrator inserted into her vagina. They immediately transmitted the images over the Internet to other members, who replied with requests for further sexual acts. Laney did not participate in the on-line
After one of Riva’s victims complained, the police arrested Riva and Myers. A search of Riva’s computer files led to La-ney’s arrest in June 1996. Laney immediately agreed to cooperate with the government’s investigation; his cooperation helped the government identify at least four other participants in the conspiracy. A grand jury rеturned a 24-eount indictment, and a substantially similar superseding indictment, against Laney and fifteen co-defendants, charging various violations relating to the sexual exploitation of children. The indictment listed three charges against Laney: Count One (conspiracy to sexually exploit children in violation of 18 U.S.C. §§ 2251(a), (d)); Count Two (conspiracy to engage in certain activities relating to the sexual exploitation of children in violation of 18 U.S.C. §§ 2252(a), (b)(1)); and Count Eighteen (distribution of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1)). Laney pled guilty to all three counts without reaching an agreement with the government on sentencing.
In a judgment dated December 22,1997, the district court sentenced Laney to 81 months’ incarceration. Three aspects of the sentence are relevant to this appeal. First, the court increased Laney’s base offense level for Counts Two and Eighteen by five levels for “distribution” pursuant to section 2G2.2(b)(2) of the Guidelines.
Laney appeals his sentence and the restitution order. Finding no error, we affirm.
II.
A.
The district court increased Laney’s base offense level by five levels for “distribution” of child pornography pursuant to U.S.S.G. § 2G2.2(b)(2).
We review a district court’s interpretation and application of the Guidelines de novo. See United States v. Bai
“This court applies the rules of statutory construction when interpreting the Sentencing Guidelines.” United States v. Fellows,
Our first reason for concluding that section 2G2.2(b)(2) requires an element of pecuniary gain lies in Application Note 1 to section 2G2.2, which states in pertinent part that “ ‘[distribution,’ as used in this guideline, includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute.” U.S.S.G. § 2G2.2, comment. (n.l). Because the word “includes,” as used in the Guidelines, is not exclusive, see U.S.S.G. § 1B1.1, comment, (n.2), the “act[s] related to distribution for pecuniаry gain” described in Application Note 1 do not constitute the entire universe of acts that count as “distribution” for purposes of section 2G2.2. Application Note 1 helps us define that universe, however, by mentioning acts of production, transportation, and possession that are related to distribution for pecuniary gain, while omitting identical acts that are related to delivery for nonpeeuniary reasons. This distinction suggests that section 2G2.2(b)(2) covers only those acts of delivery, as well as delivery’s supporting acts of production, transportation, and possession, that the defendant performs for pecuniary reasons. If the Guidelines’ drafters intended section 2G2.2(b)(2) to penalize the person who gratuitously gives a single pornographic image to another person as severely as the commercial retailer of child pornography, we see no convincing reason why they would not similarly have chosen to penalize the former person’s acts of production, transportation, and
The structure of U.S.S.G. § 2G3.1 (“Importing, Mailing, or Transporting Obscene Matter”), a slightly differently worded Guideline discussed by the special concurrence, supports our conclusion that the Guidelines’ drafters intended to impose the same punishment on those who deliver child pornography for profit and those who commit other acts, such as transportation, to further for-profit deliveries.
Second, as the Seventh Circuit pointed out in Black, section 2G2.2(b)(2) “measures the number of levels of an enhancement by the ‘retail value of the material,’ which implies a transaction for pecuniary gain.” Black,
Finally, our examination of the overall punishment scheme laid out in section 2G2.2 shows that section 2G2.2(b)(2) targets those who derive material benefit from their exploitation of children, such as commercial traffickers in child pornography. Section 2G2.2 assigns a base offense level of 15 to six types of offenses: trafficking, receipt, transportation, shipping, advertising, and possession with intent to traffic of material involving the sexual exploitation of a minor. If simple delivery of a piece of child pornography to one other person could trigger section 2G2.2(b)(2)’s five-level “distribution” increase, then only those offenders who merely received or advertised child pornography could receive
Having determined that section 2G2.2(b)(2) requires an element of “pecuniary gain,” we turn to the question of the meaning of that term. “Pecuniary” means “consisting of money or that which can be valued in money,” Black’s Law Dictionary 1131 (6th ed.1990) (emphasis added). One who acts to receive valuable property, like one who seeks to receive cash, therefore acts for “pecuniary gain.” See Black,
We review the district court’s findings of fact in the sentencing phase for clear error. See United States v. Gutierrez-Hernandez,
B.
Laney argues that the district court should not have treated the on-line molestation of Jane Doe One as “relevant conduct” as to Laney under U.S.S.G. § IB 1.3. Relevant conduct used to determine a base offense level under the Guidelines includes “in the case of a jointly undertaken criminal activity ... all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l)(B). “[T]he scope of the criminal activity jointly undertaken by the defendant ... is not necessarily the same as the scope of thе entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” Id., comment. (n.2). Although Laney did not have advance notice of or participate in the online molestation, the act was both reasonably foreseeable to him and “in furtherance of the jointly undertaken criminal activity,” as section lB1.3(a)(l)(B) requires. The Orchid Club existed so that members could share child pornography and advise one another on how to produce it. Laney knew that other members of the Orchid Club were making sexually explicit videotapes and other images of minors; he apparently joined the club and entered into private correspondence with Riva partly in order to receive these images; and he had produced such images himself. He therefore could foresee that other Orchid Club members would exploit children to make such images. More specifically, Laney could foresee the identity of the victim and some of the details of the exploitation: he knew that Riva had molеsted and intended to continue to molest Jane Doe One, and he had given Riva advice on how to perform particular sexual acts on her. The district court therefore did not err in finding that the on-line molestation constituted relevant conduct under section 1B1.3.
Laney argues that the district court erred, when determining the extent to which it would depart downward based on Laney’s substantial assistance to the government, by denying Laney’s motion for an evidentiary hearing and by otherwise failing to conduct an independent review of the degree of Laney’s assistance. Laney sought to prove that he was entitled to a greater departure than that recommended by the government because, among other reasons, he incriminated more individuals than the government acknowledges. The government responds that we do not have jurisdiction to review the district court’s determinations regarding the downward departure and that the district court did not abuse its discretion.
Under 18 U.S.C. § 3742(a), which states the grounds on which a defendant may appeal a sentence, a court оf appeals ordinarily does not have jurisdiction to review the extent of a district court’s discretionary downward departure from a sentence. See United States v. Eureka Lab., Inc.,
Laney claims that the district court erred by following an incorrect process to arrive at the five-level departure, and that we therefore have jurisdiction over his appeal because this error constituted a violation of law or misapplication of the Guidelines. See United States v. Hill,
We need not reach the question, raised in King and Johnson, of whether we have jurisdiction over an appeal of a downward departure determination in which a district court failed to conduct a fully individualized determination under section 5K1.1, because we determine that the district court in this case conducted a proper section 5K1.1 inquiry. Thе record shows that the district court “adequately recognized its duty to evaluate independently [each individual] defendant’s case,” Johnson,
D.
Laney challenges the restitution order, claiming that the government did not show a close enough causal connection between his actions and Jane Doe One’s injuries to make him liable to pay restitution to her. In response, the government suggests that conduct that is reasonably foreseeable enough to constitute relevant conduct under U.S.S.G. § 1B1.3 will make a defendant liable to pay restitution under section 2259.
Section 2259 does not make a defendant automatically liable to pay restitution for every crime that forms part of that defendant’s “relevant conduct” under U.S.S.G. § IB 1.3. A comparison of the language of the Guidelines and section 2259 shows that a court may hold a defendant responsible for a broader range of harms connected with the defendant’s crimes when it calculates a sentence than it may consider when it crafts a restitution order. Section 1B1.3 of the Guidelines does not require a causal connection between a defendant’s acts and that defendant’s relevant conduct. It merely states that, in the case of jointly undertaken criminal activity, “whether or not charged as a conspiracy,” relevant conduct must be “reasonably foreseeable” and “in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l)(B). Section 2259, on the other hand, incorporates a requirement of proximate causation: It states that the defendant shall pay “restitution for any offense” to the “victim” of the offense. It defines a “victim” as “the individual harmed as a result of a commission of a crime under this chapter,” 18 U.S.C. § 2259(c) (emрhasis added), and states that restitution shall compensate for “the full amount of the victim’s losses,” id. § 2259(b)(1), which includes medical costs, lost income, and “any other losses suffered by the victim as a proximate result of the offense,” id. § 2259(b)(3)(F) (emphasis added). See also United States v. Crandon,
Section 2259 therefore requires a causal connection between the offense of conviction and the victim’s harm. When the offense of conviction is conspiracy, however, the harms the offense caused may include not only those resulting from the defendant’s individual actions, but also others caused by the conspiracy itself. See United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir.1997) (“[A] co-conspirator is vicariously liable for reasonably foreseeable substantive crimes committed by a co-conspirator in furtherance of the conspiracy.”) (citing Pinkerton v. United States,
a conspiracy participant is legally liable for all reasonably foreseeable acts of his or her coconspirators in furtherance of the conspiraсy.... [T]he losses caused by the entire conspiracy, not just the*966 losses caused by those acts committed by the-defendant, can be attributed to the defendant when the- district court orders restitution.
United States v. Brewer,
E.
Finally, Laney challenges the district court’s determination of the amount of restitution ordered. Part of the $60,000 restitution was to cover future psychological treatment and counseling for Jane Doe One and her family. Jane Doe One’s psychiatrist helped calculate these amounts, estimating that the treatment would last six years. Laney contends that section 2259 does not authorize compensation for amounts that the victims have not yet spent.
“We review the amount of a restitution order for abuse of discretion, provided that it is within the bounds of the statutory framework.” United States v. Johnson,
Compensable losses under section 2259 include the cost of the victim’s “medical services relating to physical, psychiatric, or psychological care,” 18 U.S.C. § 2259(b)(3)(A), and “physical and occupational therapy or rehabilitation,” id. § 2259(b)(3)(B). Courts are to issue and enforce restitution orders under section 2259 “in accordance with [18 U.S.C. § ] 3664.” Id. § 2259(b)(2). Section 3664(d)(5), in turn, provides a mechanism for a victim to approach the court after sentencing and request restitution for losses that were not ascertainable at the time of sentencing.
The language of the relevant statutes shows that Congress intended to allow district courts to include future counseling expenses in the amount of restitution under section 2259. Section 2259 is phrased in generous terms, in order to compensate the victims of sexual abuse for the care required to address the long term effects of their abuse. Section 2259 orders compensation for costs “incurred by the victim.” “Incur” means “become liable or subject to,” Webster’s Third New Int’l Dictionаry 1146 (1986); a person may become “subject to” an expense before she actually disburses any funds. Section 2259 also commands that those who are convicted of sexually exploiting children should compensate their victims for the cost of “physical, psychiatric, or psychological care.” Congress was well aware that children victimized by sexual abuse often do not recover quickly from their injuries. See, e.g., S.Rep. No. 104-358, at 14 (1996) (describing long term effects of sexual exploitation on its victims).
Section 3664, which Laney cites as evidence that Congress created a mechanism for compensating for the cost of future therapy, deals with losses that are not “ascertainable” at the time of sentencing. Jane Doe One’s counseling costs are “ascertainable” and have, in fact, been ascertained, even though she and her parents have yet to spend the money. Section
For these reasons, we reject Lane/s construction of section 2259. We hold that the district court did not err in interpreting the statute to allow restitution for future counseling and did not abuse its broad discretion, within the statutory framework, in setting the amount of restitution.
III.
For the foregoing reasons, the district court’s judgment of December 22, 1997, is
AFFIRMED.
Notes
. A "chat room” is a public or private Internet site that allows people to send messages to one another in "real time.”
. All references are to the November 1, 1995, version of the Guidelines, the version the distriсt court used in sentencing Laney.
. Section 2G2.2(a) sets a base offense level of 15 for trafficking, possessing with intent to traffic, receiving, transporting, shipping, or advertising material involving the sexual exploitation of a minor. Section 2G2.2(b)(2) states, "[i]f the offense involved distribution, increase by the number of levels from the lable in § 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.” The table in section 2F1.1 correlates offense level increases to dollar amounts; a five-level increase applies to a value between $40,000 and $70,000. Application Note 1 to Section 2G2.2 states that "distribution” "includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute."
. In the course of deciding related issues, át least two other circuits have assumed that "distribution” in section 2G2.2 refers to activities undertaken for profit. See United States v. Stanton,
. Section 2G3.1(b)(1) states ”[i]f the offense involved an act related to distribution for pecuniary gain, increase by the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.” Application Note 1 to section 2G3.1 states that "'[a]ct related to distribution,’ as used in this guideline, is to be construed broadly and includes production, transportation, and possession with intent to distribute.”
. The Chairman of the Sentencing Commission has shared this view, writing in a letter to Congress that sentences under section 2G2.2 were "further increased by at least 5 levels if the offense involved for-profit distribu-tion137 Cong. Rec. H6736-02, H6737 (1991) (letter of William W. Wilkins, Jr., Chairman of the U.S. Sentencing Commission) (emphasis supplied).
. A recent statute shows that Congress would like the Guidelines to include deliveries of child pornography made for non-pecuniary reasons within the definition of "distribution.” See Protection of Children from Sexual Predators Act of 1998, Pub.L. No. 105-314, § 506, 112 Stat. 2980, 2982 (reprinted in 28 U.S.C. § 994 historical notes) (directing the Sentencing Commission to review the Guidelines relating to the distribution of child pornography and "promulgate such amendments to the ... Guidelines as are necessary to clarify that the term 'distribution of pornography' applies to the distribution of pornography-(A) for monetary remuneration; or (B) for a nonpecuniary interest”). Until the Sentencing Commission promulgates such amendments, however, we must interpret the Guidelines as currently written.
. Laney also claims that the district court made no express factual finding of reasonable foreseeability, an error that would require a remand. See Gutierrez-Hernandez,
.The court did not abuse its discretion by denying Laney’s motion for an evidentiary hearing. "A district court may permissibly deny a hearing where a defendant is allowed to rebut the recommendations and allegations of the presentence report either orally or through the submission of written affidavits or briefs.” United States v. Sarno,
. Laney also argues that the restitution order was erroneous for two other reasons: because Jane Doe One's molestation was not reasonably foreseeable to him and because the district court did not make findings of fact on the amount of Jane Doe One's injuries proximately caused by Laney. We find these arguments without merit.
. Section 2259 states in relevant part:
*965 (a) In general.—Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.
(b) Scope and nature of order.—
(1) Dirеctions.—The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).
(2) Enforcement.—An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3 663A.
(3) Definition.—For purposes of this subsection, the term "full amount of the victim’s losses” includes any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation; [and]
(F) any other losses suffered by the victim as a proximate result of the offense.
(c) Definition.—For purposes of this section, the term "victim” means the individual harmed as a result of a commission of a crime under this chapter....
. See supra note 11 for the text of section 2259.
. Section 3664(d)(5) states:
If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the сourt, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionaiy relief.
. Of course, district courts must estimate the amounts that victims will spend on future counseling with reasonable certainty, in accordance with the procedures set forth in 18 U.S.C. § 3664. In many cases, an order of restitution for future losses may be inappropriate because the amount of loss is too difficult to confirm or calculate. See, e.g., United States v. Fountain,
Concurrence Opinion
specially concurring:
In this case, we encounter an existing circuit split. Although Yogi Berra enjoined us, “when you come to a fork in the road, take it,” I believe we have chosen the wrong path here.
Sentencing guideline § 2G2.2 provides for enhancements to sentences of persons convicted of receiving, transporting, shipping or advertising materials involving the sexual exploitation of minors. According to the guideline, a sentence can be enhanced “[i]f the offense involved distribution.” U.S.S.G. § 2G2.2(b)(2). Application Note 1 provides that: “‘Distribution’ includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute.” Id. comment, (n.l). The majority accepts the reasoning of United States v. Black,
Because this road has had previous traffic on it, I do not need to blaze a new trail. Rather, I believe the analysis of the Second Circuit in United States v. Lorge,
The language of the Guidelines makes clear that the definition of “distribution” in Section 2G2.2(b)(2) is not limited by Application Note 1 thereof to acts for “pecuniary gain.” Because Section 1B1.1 states that the term “includes” is not exhaustive, the language of Application Note 1 ... is most easily read as intended to avoid an overly narrow reading of distribution that excluded acts ancillary to sales, such as transportation. Moreover, the structure of Section 2G2.2 also supports the inference*968 that a motive of pecuniary gain need not be shown. Subsection (b)(2) provides for an enhancement “[i]f the offense involved distribution.” The ordinary meaning of distribution involves an act or series of acts without regard to the actor’s motive. Application Note 1, which provides, inter alia, that the term distribution “inсludes any act related to distribution for pecuniary gain,” makes clear that when the profit motive is present, not only “distributions,” as the term is commonly understood, but also “any act” related thereto, “including production, transportation, and possession with intent to distribute,” suffices to sustain the enhancement.
... Moreover, the fact that Section 2G2.2(b)(2) cross-references the table in Section 2F1.1 setting forth incremental offense-level enhancements based on the amount of monetary loss does not support appellant’s argument.... The purpose of the reference to the table in Section 2F1.1 is clearly to provide for increased distribution enhancements tied to the value of the distributed material, not to modify the meaning of the term “distribution.”
Id. at 518-19 (citations omitted); see also United States v. Hibbler,
Contrary to the dissent, application of the enhancement to any and all trades of child pornography is not suspect or contrary to the guidelines. The sentencing guidelines distinguish between receiving and distributing child pornography. Hibbler,
Notably, Section 2G3.1, the sentencing guideline for the similar, but lesser offense of “importing, mailing, or transporting obscene matter” also includes a five-level increase; but specifically for an act related to distribution for pecuniary gain. Section 2G3.1 states that “[i]f the offense involved an act related to distribution for pecuniary gain, increase the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event less than 5 levеls.” IJ.S.S.G. § 2G3.1(b)(l) (emphasis added). In contrast, Section 2G2.2, for child pornography, applies if the offense merely “involved distribution.” This is clearly broader language. Thus, mere distribution of child pornography results in a five-level enhancement, whereas distribution of pornography that does not include depictions of children must be for pecuniary gain in order to result in a five-level increase. This distinction is logical. To interpret Section 2G2.2(b)(2) to require pecuniary gain negates a clear choice to give heavier sentences to those who engage in child pornography offenses.
Thus, I do not believe that the enhancement for distribution under Section 2G2.2(b)(2) is limited to those circumstances where the Government can show that the act was for pecuniary gain. While the majority has reached the correct endpoint in finding that the enhancement of Laney’s sentence was not clearly erroneous, it has taken a path which limits the intended and proper reach of the guideline. As such, I concur only in the result reached in Part II.A of the opinion.
Concurrence Opinion
concurring in part and dissenting in part.
Although I cоncur in the majority opinion in all other respects, I disagree with
Judge Kraviteh and I agree that “distribution,” for purposes of § 2G2.2, means distribution for pecuniary gain. We believe that meaning to be clear from the text of Application Note 1, which states that “ ‘distribution’ includes any act related to distribution for pecuniary gain.... ” But, Judge Kraviteh then concludes that the requirement that the distribution be “for pecuniary gain” is satisfied so long as the offender in question receives something that has monetary value in exchange. Here, we part company. I believe that the phrase “for pecuniary gain” applies when the offender in question has acted to acquire something with monetary value because of that value — put another way, when the offender’s actions are motivated, at least in substantial part, by a desire for profit.
Thus, while I agree with Judge Kraviteh and the Seventh Circuit in Black that distribution for pecuniary gain can include a variety of aсts, such as barters, swaps, and trades, I believe that in order to qualify for the enhancement, those acts must be motivated by a desire for economic benefit. In contrast, Judge Kraviteh would find that “[a] person who delivers pornography in order to receive other pornography that has economic value acts for ‘pecuniary gain’ and therefore engages in ‘distribution’ for purposes of Section 2G2.2(b)(2).” Thus, Judge Kravitch’s interpretation of the Guidelines would in essence read the word “for” out of the Application Note.
Webster’s Neiv World Dictionary defines “for” as: “with the aim or purpose of ...; in order to ... get, have, keep, etc., because of.... ” Webster’s New World Dictionary, Third College Edition (3d ed.1988). The plain meaning of the Note, therefore, is that to act for pecuniary gain is to act in order to obtain pecuniary gain-that, simply put, pecuniary gain must be the motive for the act. A person who exchanges pornography for more pornography may be acting for pecuniary gain, but he may also be acting out of an entirely different motivation wholly unrelated to a desire for profit — specifically, he may be acting out of a desire for personal рleasure or gratification. To me, acting for the latter purpose is not acting “for pecuniary gain,” even though pecuniary gain may be an incidental benefit of the transaction.
In my view, the profit (or economic benefit) motive is an essential element of an act for pecuniary gain, for two reasons — in addition to the fact that such is the plain meaning of the Application Note. First, any other reading would mean that any one in possession of child pornography who trades pictures with acquaintances for mutual satisfaction or gratification would automatically qualify for the same five level enhancement that would be received by commercial venturers who sell child pornography for money, or who, in hopes of escaping detection or prosecution, exchange or barter pornographic materials for other items that have a significant economic value. Second, to construe distribution as applying to transactions that are motivated by considerations unrelated to economiс benefit would leave nothing to be covered by the base offense level other than the acts of the rare individuals who on occasion make gifts of pornographic pictures to similarly-inclined acquaintances, without any hope or expectation that those acquaintances will return the favor — a very small class indeed.
The Chairman of the Sentencing Commission has confirmed that the five level enhancement was intended to include only
Contrary to Judge Nelson’s special concurrence, a comparison of the sentencing guidelines concerning child pornography with those concerning other forms of pornography, i.e. “obscenity,” demonstrates clearly that in both categories of cases the Sentencing Commission’s intention in imposing a five level increase was simply to have that increase apply whenever the distribution of the material was “for pecuniary profit.” A reading of the two relevant sections should make that clear. Moreover, while Judge Nelson’s “logical” justification for his position — namely, that the Commission intended to give heavier sentences to those who engage in offenses involving child pornography — accurately describes the Commission’s desires, it does not in any way support Judge Nelson’s position. The Commission’s intent to punish child pornography more severely is manifested by its establishment of a higher base level of punishment for that offense. In fact, the Commission established a far higher base level for trafficking in child pornography than for trafficking in obscene material not involving children (15 for trafficking in child pornography; and 10 for importing, mailing or transporting obscene matter). The Commission therefore had no cause to, and did not, create nice distinctions regarding the use of the term “distribution” in its child pornography and obscenity guidelines in order to provide for heavier penalties for child pornography. Instead, having already recognized the difference in the seriousness of the two offenses by imposing different base level sentences, the Commission then provided that the punishment for each type of offense (both more serious and less serious) would be increased by five levels whenever any of the crimes were committed for pecuniary gain. In short, under the Sentencing Guidelines, those who engage in distribution of child pornography, whether for pecuniary gain or not, do in fact receive heavier sentences than those who engage in the trafficking of obscenity under similar circumstances. As a result, Judge Nelson’s argument that interpreting § 2G2.2(b)(2) to require pecuniary gain “negates a clear choice to give heavier sentences to those who engage in child pornography offenses” is plainly not correct.
Finally, Judge Nelson’s suggestion that § 2G2.2’s base offense level is intended to deal simply with “receipt” is inconsistent not only with the Commission’s specification of the acts covered by that section— namely, “Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic” — but with the related Guidelines sections such as § 2G2.4, which only two sub-sections later establishes a lower base level for possession of the same materials. Because possession, as described in § 2G2.4 includes subcategories such as possession of ten or more books, magazines or periodicals, it is clear that in most instances, possession will involve the prior receipt of the child pornography by the defendant. The purpose of Section 2G2.2 is to deal with (and punish more severely) persons engaged in more than simple possession (including prior receipt) — specifically, it is intended to levy the appropriate punishment on persons who engage in “trafficking” — a far more pernicious activity. Once that concept is understood, it follows inevitably that the five level increase is intended to apply to people who traffic for pecuniary gain.
The business of child pornograрhy feeds off of the victimization of children. I believe that the Sentencing Commission intended to distinguish (and punish with
. Thus, while Judge Kraviteh and I would agree that the five level enhancement applies to someone who trades one set of pornographic images for another for the purpose of obtaining some economic benefit, she would also hold that the five level enhancement applies to a person who makes the same trade solely for the purpose of his own personal gratification and regardless of any incidental economic benefit that may accrue.