UNITED STATES of America, Plaintiff-Appellee, v. Sean M. PRICE, Defendant-Appellant.
No. 12-4010.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 1, 2013. Decided: March 29, 2013.
707 F.3d 455
In short, the district court‘s admission of the challenged statements was neither erroneous nor, it necessarily follows, an abuse of discretion. Blevins, 960 F.2d at 1256.
II.
Finally, invoking the strongly-worded sentiments expressed by the district court at sentencing to the effect that it would not choose to impose a life sentence if it had a choice in the matter,6 Graham challenges his mandatory life sentence.7 Although the argument is not made with great clarity, we understand his principal purpose to be that he wishes to preserve the issue in the event the Supreme Court should elect to reexamine its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).8 In any event, we are bound by Almendarez-Torres unless and until the Supreme Court says otherwise. Accordingly, we reject the challenge to Graham‘s sentence.
III.
For the reasons set forth, the judgment is AFFIRMED.
Before GREGORY and KEENAN, Circuit Judges, and ROBERT E. PAYNE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge KEENAN and Senior Judge PAYNE joined.
OPINION
GREGORY, Circuit Judge:
Section 2G2.2 of the United States Sentencing Commission Guidelines Manual (Guidelines) provides sentencing enhancements for crimes involving the possession, distribution, or receipt of child pornography. Specifically at issue, Guidelines Section 2G2.2(b)(7) allows for a sentencing enhancement based on the number of images of child pornography involved in an offense. In July 2011, Sean Price pled guilty to accessing the internet via computer with the intent to view child pornography, in violation of
I.
In late 2010, West Virginia State Police received a cyber tip from photobucket.com (a picture sharing website) that a user uploaded images of child pornography on the website. State Police were able to trace the uploaded images to Price‘s email account. State Police then used this information to acquire a warrant to search Price‘s residence. The warrant was executed by State Police and the FBI on April 28, 2011. During the search, officers seized three computer hard drives and other computer storage media. Fifteen images of child pornography were found on the hard drives. While the search was taking place, Price consented to an interview with law enforcement officials, at which time he admitted to possessing child pornography, to posting images of child pornography on photobucket.com, and to posting a request for child pornography on an internet blog in 2008.
Less than two months after the search of Price‘s residence, on June 18, 2011, four separate emails with attachments of images depicting child pornography were sent to a total of ninety-three people. The emails were “spoofed” to make it seem as if they were sent by a West Virginia Police Sergeant. Email One contained twelve pornographic image attachments and was sent to nineteen people. Email Two contained twenty-three pornographic image attachments and was sent to thirty-eight people. Email Three contained an attachment of a single collage consisting of sixteen pornographic images and was sent to five people. And Email Four contained seventeen pornographic image attachments, one of which was a collage consisting of sixteen pornographic images, and was sent to thirty-seven people. In total, ninety-eight images of child pornography were emailed to ninety-three people.
In an attempt to get to the bottom of who was behind sending these emails, FBI agents went to Price‘s residence to request a consensual interview. Price agreed. During the interview, Price wrote out a statement of culpability admitting to sending the emails.
On July 12, 2011, Price was named in a one-count indictment alleging he accessed the internet via computer with the intent to view child pornography, in violation of
As a result of this calculation, the PSR recommended a five-level enhancement pursuant to Section 2G2.2(b)(7)(D) given that the offense involved 600 or more images of child pornography. Price filed several objections to the PSR. Relevant to this appeal, Price challenged the calculation of the number of pornographic images. Price argued that duplicate images cannot be counted when applying the Sec-
At sentencing, the district court heard arguments from both sides on Price‘s objections to the PSR. The court then concluded that when Price sent the same image to multiple recipients via email, Price duplicated the image, and each instance of duplication can be counted separately under Section 2G2.2(b)(7)2. Thus, the district court concluded that the PSR calculation was essentially correct. Accordingly, the court imposed a five-level enhancement under Section 2G2.2(b)(7)(D), leaving Price with an offense level of thirty and a category III criminal history. The corresponding Guidelines range was 121 to 150 months. Price was sentenced to 120 months’ imprisonment followed by ten years of supervised release. Price timely appealed, raising the same arguments before us as he did below.
II.
The central question before us is whether the district court erred in counting each iteration of child pornography separately when applying Section 2G2.2(b)(7). Because this question involves Guidelines interpretation, we review the district court decision de novo. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989); United States v. Hudson, 272 F.3d 260, 263 (4th Cir.2001).
A.
Section 2G2.2(b)(7) provides for a sentencing enhancement based on the number of images of child pornography involved in the underlying offense. Relevant here, if a crime involves more than 600 images, a five-level enhancement applies. U.S.S.G. § 2G2.2(b)(7)(D). Application Note 4 to Section 2G2.2(b)(7) reads: “For the purpose of determining the number of images under subsection (b)(7): Each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image.” The Application Note goes on to define an “image” as “any visual depiction... that constitutes child pornography.”
Application Note 4 expressly states that each and any image of child pornography shall be counted when applying the Section 2G2.2(b)(7) enhancement, and the Application Note binds our interpretation of Section 2G2.2(b)(7). See Hudson, 272 F.3d at 263 (citing United States v. Banks, 130 F.3d 621, 621-24 (4th Cir.1997)). There is nothing further in the Guidelines that limits this broad pronouncement. Price would have us read Section 2G2.2(b)(7) as only allowing unique images to be counted when applying this enhancement. This argument has no basis in the language of Section 2G2.2(b)(7). Quite contrary to Price‘s assertion, Application Note 4 suggests that when applying the number of images enhancement, each and every depiction of child pornography with-
This conclusion is bolstered by the legislative history of Section 2G2.2(b)(7). Section 2G2.2(b)(7) was enacted under the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003.
There is nothing before us that remotely indicates Congress was concerned with the unique characteristics of an image when it sought to punish child pornographers. In fact, Congress recognized that images of child pornography are rarely a “first-generation product,” but still felt the need to impose a number of images sentencing enhancement. 149 Cong. Rec. S2573-02 (Feb. 24, 2003). Accordingly, when viewing the plain language of Section 2G2.2(b)(7) in conjunction with its legislative history, we find that the district court did not err by counting each image in each email separately when applying the Section 2G2.2(b)(7) enhancement.
B.
Price attempts to draw a distinction between digital and hard copy images, arguing that if the same image is emailed multiple times, each email should not be counted separately under the Guidelines as that does not fit within the definition of duplication. While Price‘s concept of what constitutes duplication is dubious at best, his argument is inconsequential to our resolution of this case.
Price reproduced images of child pornography when he emailed a limited number of images of child pornography to a large number of people. That Price reproduced the pornographic images with the click of a “send” button as opposed to the use of a photocopier does not sway the outcome; his conduct still had the effect of increasing the number of images of child pornography. See generally United States v. Sullivan, 451 F.3d 884, 890 (D.C.Cir.2006) (“the prohibition against possessing child pornography transported... by computer is one important aspect of a
Under Price‘s interpretation of Section 2G2.2(b)(7), Price could email the same image to one million people, and only the one image would be attributable to him when applying the number of images sentencing enhancement. Given the absurd results that could abound, we refuse to accept Price‘s argument, as his conduct had the effect of exponentially multiplying both the real and projected evils encapsulated within the distribution of child pornography. As such, the district court was true to both the spirit and letter of Section 2G2.2(b)(7) in counting every image sent by Price to every person when applying the number of images enhancement.
III.
At bottom, Price cannot point to a single authority that has adopted his interpretation of Guidelines Section 2G2.2(b)(7).4 And for good reason—his interpretation flies in the face of both the language of Section 2G2.2(b)(7) and the history behind its enactment. For these reasons, we find that the district court did not err as a matter of law when it counted each image in each email separately without regard to the uniqueness of the image when applying the Section 2G2.2(b)(7) enhancement. As such, we affirm the five-level enhancement applied pursuant to 2G2.2(b)(7)(D), and therefore affirm Price‘s sentence.
AFFIRMED
Notes
In this case, if I did have my discretion, I would impose a harsh sentence. It would be a sentence at the bottom of the guidelines. It would be a 30-year sentence, which I find would be appropriate and would meet the goals of 3553(a), because you certainly deserve, I believe, every day of the sentence within the guidelines, but, as I said, at the bottom of the guidelines. I impose, because I am required to, a sentence of life.
J.A. 528.Finally, Mason contends that the fact of his prior convictions needed to be proved to a jury beyond a reasonable doubt. Because that fact was not found by a jury beyond a reasonable doubt, he asserts, the use of the prior convictions to enhance his sentence violated his Sixth Amendment rights. Mason candidly acknowledges that this argument is presented for purposes of preserving the issue for the Supreme Court and that, under the present jurisprudence of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), such an argument cannot be sustained. We agree. Moreover, we note that since Almendarez-Torres, the Supreme Court has repeatedly affirmed the exception, as have we. See Shepard v. United States, 544 U.S. 13, 25-26 & n. 5, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Apprendi v. New Jersey, 530 U.S. 466, 488-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Cheek, 415 F.3d 349, 354 (4th Cir.2005).