Stephen Wainwright pleaded guilty to distributing child pornography. The district court sentenced him to 151 months of imprisonment. Wainwright appeals, claiming that the district court erred in applying a five-level enhancement for distributing child рornography to a minor when it calculated his advisory guidelines range. We affirm.
I.
Wainwright, a Wisconsin resident, came to the attention of law enforcement as the result of another investigation into child pornogrаphy in Florida. Joe Burton, who had been arrested in Lake County, Florida, for the production and distribution of child pornography, told officers that he had received numerous images of child pornography from an individuаl using the screen name “gachknhawk.” After law enforcement officials traced that screen name to Wainwright, they executed a search warrant at Wainwright’s residence. Police recovered more thаn 600 images containing child pornography on Wainwright’s computer, as well as approximately 100 videos containing child pornography. Some of the images contained sadistic or masochistic conduct such as bondage and adult males sodomizing prepubescent males. Law enforcement officials identified at least forty-five separate screen names that received images of child pornograрhy from Wainwright’s email address between 2004 and 2005. Further investigation revealed that Wainwright had a conviction for sexually abusing an adolescent minor in 1987, and, more recently, had admitted to molesting a thirteen-year-old boy in 2004 and 2005.
In Aрril 2006, the government filed a one-count information in the Western District of Wisconsin, charging Wainwright with knowingly distributing a visual depiction of a minor engaged in sexually explicit conduct on May 11, 2004, in violation of 18 U.S.C. § 2252(a)(2). On September 6, 2006, Wainwright appeared before the district court and pleaded guilty to that charge.
The district court then proceeded to sentence Wainwright. The presentence report (“PSR”) recommended a sentencing range of 121 to 151 months. That range included a five-level enhancement for distribution of child pornography to a minor. The background section of the PSR stated that Wainwright had exchanged numerous emails containing movies and still images of child pornography, including exchanges with individuals who were under eighteen or who he believed were under the age of 18. Specifically, the PSR referenced the exchange of numerous sexually explicit emails and a sexually explicit video with a person using the screen name “Justified Facade — 16yo.” The PSR also stated that the written content of many of Wainwright’s emails to those with whom he was sharing child pornography reflected that he was communicating with, or believed he
II.
On apрeal, Wainwright asserts that the district court committed plain error by enhancing his offense level five levels for distribution of child pornography to a minor. The November 2003 sentencing guidelines provide that “[i]f the offense invоlved ... [distribution to a minor, increase [the offense level] by 5 levels.” U.S.S.G. § 2G2.2(b)(2)(C) (2003). The 2003 guidelines define “minor” as “an individual who had not attained the age of 18 years.” Id. § 2G2.2 application note 1 (2003). While admitting that he believed that he was distributing child рornography to minors, Wainwright argues on appeal that his offense level could only be enhanced under § 2G2.2(b)(2)(C) if the recipients were, in fact, under the age of eighteen. Wainwright claims that there was no evidenсe in the record that the individuals to whom he distributed child pornography were actually minors, as opposed to individuals posing as minors. Wainwright further contends that the district court appears to have relied on thе first application note 1 to § 2G2.2 to expand the definition of “minors” to individuals who were over eighteen by including those who the defendant believed were minors. Wainwright insists' that such an interpretation violated the plain lаnguage of both 18 U.S.C. § 2256(1), which defines minor as “any person under the age of eighteen years,” and U.S.S.G. § 2G2.2(b)(2)(C).
This court has never addressed the question of whether a § 2G2.2(b)(2)(C) enhancement is appropriate for situations where the rеcipient of the child pornography is over eighteen, but believed by the defendant to be under eighteen. Other circuits have addressed that issue in the context of undercover police officers posing аs minors.
Compare United States v. Morton,
Wainwright challenges that factual finding on appeal. Because he failed to object to the § 2G2.2(b)(2)(C) enhancement at sentencing, however, we review for plain error.
United States v. Grigg,
In this case, the sentencing judge had before him the PSR that stated that the writtеn content of many of Wainwright’s emails indicated that he was communicating with, or believed he was communicating with, individuals under the age of eighteen with whom he was sharing child pornography. Wainwright focuses on the “or,” noting that the PSR’s use of the disjunctive means that the individuals may not have been under the age of 18. However, the PSR also included the screen names of some of the individuals to whom Wainwright transmitted information, including “Justified Facade — 16yo.” The district court could have interpreted that name as descriptive of the actual age of one of Wainwright’s email correspondents.
Wainwright argues that the district court could not have relied on the screen name “Justified Facade-16yo” to apply the § 2G2.2(b)(2)(C) enhancement because people often lie about their age on the internet. Wainwright did not present that argument to the district court. Had he presentеd such an argument, he would have given the government an opportunity to further support its position that the recipients included individuals under eighteen years of age. For instance, at oral argument the government represented that the text of the chat messages between Wainwright and those to whom he sent child pornography, as well as web-camera images of the chat participants, demonstrated that the recipients of Wainwright’s pornographic images were below the age of eighteen. Although that evidence is not currently in the record, it could have been had Wainwright brought this issue to the attention of the district court. Because Wainwright did not, our review is limited to plain error. Given this limited review, we cannot say that the district court committed plain error by relying on a screen name as evidence that at least one of the recipients wаs, in fact, under eighteen.
Moreover, even if we were to conclude that the district court committed plain error in enhancing Wainwright’s sentence under § 2G2.2(b)(2)(C), the error did not substantially prejudice Wainwright— nor did it seriously affect the fairness, integrity, or public reputation of judicial
III.
The district court did not commit plain error by relying on the PSR to enhance Wainwright’s base offense level five levels for distribution of child pornography to a minor. Moreover, any error that occurred neither substantially prejudiced Wainwright nor seriously affected the fairness, integrity, or public reputation of the judicial proceedings because Wainwright would have qualified for a different five-level enhancеment for distributing child pornography in exchange for a thing of value.
We Affirm.
Notes
. The first application note to § 2G2.2 defines "[distribution to a minor” as "the knowing distribution to an individual who is a minor at the time of the offense, knowing or believing the individual is a minor at the time.” Id. Wainwright claims that language expands the definition to mean that § 2G2.2(b)(2)(C) requires only a belief that the recipient of the pornography is a minor, even if the recipient is not a minor. We need not reach that issue here because the district court found that Wainwright distributed child pornography to a minor.