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United States v. Williams ( 2001 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 15 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 00-7138
    v.                                             (Eastern District of Oklahoma)
    (D.C. No. 99-CR-71-B)
    DEAN ELTON WILLIAMS,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before HENRY, BRISCOE, and MURPHY, Circuit Judges.
    I. INTRODUCTION
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    This appeal from the United States District Court for the Eastern District of
    Oklahoma concerns a challenge to the sentence imposed on Dean Elton Williams.
    Williams pleaded guilty to a charge of Attempted Transfer of Obscene Material to
    a Minor, in violation of 
    18 U.S.C. § 1470
    . The district court sentenced under
    United States Sentencing Guideline (U.S.S.G.) Section 2G2.1 pursuant to the
    cross-reference in Section 2G2.4(c)(1), because it found by a preponderance of
    the evidence that Williams caused his minor daughter to engage in sexual conduct
    so pictures could be taken of the acts. In addition, the district court enhanced the
    sentence pursuant to U.S.S.G. Section 3C1.1 because it concluded that Williams
    committed perjury during the sentencing proceedings. Williams challenges both
    decisions. This court has jurisdiction under 
    28 U.S.C. § 1291
     and affirms.
    II. FACTS
    Dean Williams attracted the attention of Oklahoma law enforcement when
    he engaged in an Internet chat with “okiegirl.” To Williams, okiegirl was a 14-
    year-old girl named Tammy from Oklahoma. In reality, okiegirl was Detective Ed
    Harwood of the Ardmore, Oklahoma, Police Department. Over the course of
    several weeks, Williams and Harwood had several Internet chats. During those
    chats Williams sent images of himself masturbating, nude images of his wife,
    Janice Williams, and images of minors under the age of 16 having sex. Williams
    -2-
    and Harwood also arranged for Williams to travel to Oklahoma where Williams
    would pick up okiegirl at the Love’s Truck Stop in Ardmore.
    Williams and his wife were arrested in Oklahoma at the meeting place
    Williams and Harwood had agreed upon. Defendant was initially charged with
    crossing state lines to engage in sex with a minor, in violation of 
    18 U.S.C. § 2423
    (b) and attempted transmission of obscene matter to a minor, in violation of
    
    18 U.S.C. § 1470
    . The government sought forfeiture of certain property, pursuant
    to 
    18 U.S.C. § 1467
    (a)(3), belonging to Williams. In exchange for a guilty plea
    on the attempted transmission count, the government dropped the § 2423(b)
    charge.
    At Williams’ first sentencing hearing, there arose a dispute as to whether
    the base offense level of 15 should be enhanced by two levels, pursuant to
    U.S.S.G. § 2G2.4(b)(1), because some of the material transmitted to Detective
    Harwood involved prepubescent minors or minors under the age of twelve. The
    government, through an expert, identified four of the pictures transferred to
    Harwood as containing images of prepubescent minors or minors under the age of
    twelve. After the expert testified, Williams took the stand and testified that he
    did not recognize any of the four pictures and that they could not have come from
    his computer. Following Williams’ testimony, the government requested, and the
    -3-
    district court granted, a continuance so that it could search Williams’ computer
    for any of the four pictures.
    A subsequent search of Williams’ computer revealed two pictures identical
    to two pictures in the disputed group of four. Germane to this appeal, the search
    revealed seven other pictures which appeared to investigating officers to be
    pictures of Williams’ children nude and, in some cases, involved in sexual
    conduct. The government presented testimony from an FBI agent involved in a
    Hugo, Oklahoma, child pornography case that he had seized computer equipment
    that contained six other images that appeared to be of Williams’ children or
    stepchildren.
    The government also put on the mother of two of Williams’ daughters, Gail
    Franks. Ms. Franks testified that five of the pictures recovered from Williams’
    computer featured their eldest daughter, Danielle. Ms. Franks testified that
    Danielle appeared to be five or six years old at the time the pictures were taken,
    and that she recognized Danielle by “her hair, her eyes” and a distinguishing lump
    in the middle of Danielle’s chest. She also testified that she recognized
    background furniture and bedding in the five pictures as being from Williams’
    home. In a sixth picture from Williams’ computer, Franks testified that she
    recognized a mattress as coming from Williams’ home. From the six pictures
    recovered from the Hugo pornography investigation, Franks testified that she
    -4-
    recognized Danielle in at least two pictures, sheets from Williams’ home in two
    pictures, a chair from Williams’ home in another picture, and in one picture she
    identified Williams.
    The district court subsequently interviewed Danielle with both sides
    observing by video. Danielle told how Williams molested her and took pictures
    of her while she was undressed and while being molested by her father and his
    friends. She identified herself in four pictures, three taken from Williams’
    computer and one taken in the separate pornography investigation. She also
    identified a spiked collar in the pictures she said Williams made her wear. She
    identified furnishings and personal belongings in the backgrounds of the pictures.
    Danielle indicated she knew it was wrong to lie and would not lie about the
    pictures even if her mother told her to do so. The district court determined that in
    regard to her demeanor and credibility “that she is a very smart little girl and very
    credible in what she said and I think she was telling the truth about what she told
    me.”
    Williams put on several witnesses to cast doubt on the identity of the
    children and adults in the pictures. He called his mother who testified that she
    did not recognize her son or her granddaughter Danielle in any of the pictures
    taken from Williams’ computer or the pictures that turned up in the Hugo
    investigation. On cross-examination she admitted that she had not seen Williams’
    -5-
    genitals since he was a small boy, but insisted that the male in the pictures, whose
    face could not be seen, was not her son, since Williams had a protruding belly
    button, while the male in the pictures did not.
    A one-time police officer, Bobby Hall, Williams’ witness, testified that he
    knew Williams’ daughters at the age of the girls in the pictures, and that
    Williams’ daughters were not featured in the pictures. Mr. Hall was engaged to
    Williams’ sister at the time of his testimony. On cross-examination, Hall stated
    that he did not recognize any of the furnishings in the pictures as belonging in
    Williams’ house, though he had been there frequently to investigate complaints of
    sexual abuse of the children. Hall admitted that he would not be surprised to find
    out that third parties had observed Williams’ daughters engaged in sexual play
    that seemed advanced given their age. Hall also admitted he was not surprised
    when he found out Williams had been charged in the current case.
    Williams’ sister, Leanne Williams, testified that she did not recognize the
    girls in any of the pictures, and that the male featured in the pictures had more
    body hair than her brother. On cross-examination, Leanne Williams testified that
    she did not recognize any of the furnishings in the pictures as belonging to her
    brother, but admitted that she had not been in his home often enough to know
    what his house furnishings would look like.
    -6-
    Williams himself testified that he did not recognize any of the furnishings
    in the pictures, that he did not recognize his daughters in any of the pictures, and
    that he did not recognize himself in the pictures.
    Williams also tried to cast doubt on the credibility of Gail Franks. Former
    police officer Hall testified that Franks routinely lied to him during investigations
    into whether Williams molested any of his children and that she had a reputation
    in the community for dishonesty. Williams’s mother testified that Franks had
    stolen some of her property and did not have a reputation for honesty. Williams’s
    sister, Leanne Williams, testified that Franks’ earlier testimony that Franks had
    not contacted Williams or his family since January of 2000 was false.
    In addition, Williams attempted to impugn the credibility of Danielle
    through testimony of Jonathon, his stepson, and Kristina, his stepdaughter.
    Kristina’s testimony contradicted several aspects of Danielle’s. In particular,
    Kristina denied ever having her picture taken with her clothes off even though
    Danielle had identified Kristina in several photographs. She denied seeing
    Danielle in a spiked collar or tied up. But she testified that Williams touched her
    under her underwear, though she was fully clothed. Finally, Kristina testified that
    she had no idea whether Danielle usually told the truth.
    Jonathon testified that he did not know whether Danielle or Kristina had
    their pictures taken without their clothes. He denied hearing from Danielle or
    -7-
    Kristina that Williams had taken nude pictures of them or that Williams had
    molested them. He also testified that he did not see Danielle wear a spiked collar.
    Jonathon said that Danielle usually told the truth but had lied once over a dispute
    over a board game.
    The district court found by a preponderance of the evidence that Williams
    raped or had another man rape his daughter Danielle for the purposes of taking
    pictures and distributing them over the Internet. A cross reference in the relevant
    sentencing guideline, § 2G2.4, provides that guideline § 2G2.1 should be applied
    if a defendant caused a minor to engage in sexually explicit conduct for the
    purpose of producing a visual depiction of the conduct. See U.S.S.G. §
    2G2.4(c)(1). The district court applied § 2G2.1.
    The district court further found that Williams had obstructed justice by
    committing perjury. When faced with four pictures he allegedly sent to Harwood
    and that the government contended featured girls under the age of twelve,
    Williams testified that the pictures could not have come from his computer. The
    district court found that testimony in the case “clearly refute[s]” Williams’
    statements. Because Williams purposefully committed perjury to avoid an
    enhancement of his sentence, the district court found the two-level enhancement
    contained in U.S.S.G. § 3C1.1 to be applicable.
    -8-
    After ruling on various other enhancements and reductions not relevant to
    this appeal, the district court computed an offense level of 35, which, based on
    Williams’ criminal history, gave an imprisonment range of 168 to 210 months.
    Because the statutory maximum for violation of 
    18 U.S.C. § 1470
     was 120
    months, the district court sentenced Williams to ten years’ imprisonment.
    III. DISCUSSION
    A. Standard of Review
    This court reviews legal interpretation and application of the sentencing
    guidelines de novo. See United States v. Wilkinson, 
    169 F.3d 1236
    , 1237 (10th
    Cir. 1999); United States v. Pappert, 
    112 F.3d 1073
    , 1078 (10th Cir. 1997). Any
    factual findings of the district court are upheld unless clearly erroneous. See
    Pappert, 
    112 F.3d at 1078
    . We read the evidence and inferences drawn from the
    evidence in the light most favorable to the district court’s sentence. See United
    States v. Conley, 
    131 F.3d 1387
    , 1389 (10th Cir. 1997).
    B. Cross-Reference
    Williams does not contend that cross reference § 2G2.4(c)(1) should not
    apply because there was not adequate proof under a preponderance of the
    evidence standard that he caused his minor daughter to engage in sexually explicit
    conduct for the purpose of photographing the conduct. Rather, Williams contends
    that the government should have had to prove beyond a reasonable doubt that he
    -9-
    caused the conduct before it used the cross reference in U.S.S.G. § 2G2.4(c)(1).
    Williams is in error.
    The sentencing guidelines provide that the preponderance of the evidence
    standard should be used in application of the guidelines to the facts of a case. See
    U.S.S.G. § 6A1.3, cmt. Furthermore, this circuit has held that “[s]entencing
    determinations of relevant conduct and offense characteristics must be supported
    by a preponderance of the evidence.” See United States v. Gomez-Arrellano, 
    5 F.3d 464
    , 466 (10th Cir. 1993). “Relevant conduct” includes conduct relating to
    application of cross references. See U.S.S.G. § 1B1.3(a). The district court did
    not err in using the preponderance of the evidence standard to determine if cross
    reference § 2G2.4(c)(1) applied.
    The district court’s determination that the government met its burden was
    not in error. Danielle’s mother identified Danielle in five of the pictures coming
    from Williams’ computer and in four of the pictures from the Hugo pornography
    investigation. She also identified Williams in one of the pictures. Danielle
    identified herself in three pictures from Williams’ computers and in one picture
    from the separate pornography investigation. In both a picture from the Hugo
    investigation and a picture from Williams’ computer, the subject of the picture is
    wearing a spiked collar. Danielle and her mother identified Danielle as the
    subject of both.
    -10-
    Williams did put witnesses on the stand who testified that Danielle was not
    in any of the pictures and that Danielle’s mother, Gail Franks, had a reputation for
    dishonesty. Further, both Jonathon and Kristina gave testimony that conflicted in
    some respects with Danielle’s testimony, but neither testified that Danielle was
    generally dishonest; quite the opposite.
    Though there is some conflicting evidence in the record as to the identity
    of the girl or girls in the pictures, the district court resolved the factual dispute by
    deciding it was Danielle in the pictures. Supported as it is by both Danielle’s
    mother and Danielle, who the district court found very credible, this court cannot
    say that the district court’s finding is clearly erroneous. See United States v.
    Moore, 
    130 F.3d 1414
    , 1416 (10th Cir. 1997) (declining to disturb district court’s
    factual findings unless without support in the record or appellate court has
    “definite and firm conviction” or error). Because the pictures involved Danielle
    wearing a spiked collar, the district court’s determination that Williams caused
    Danielle to engage in sexually explicit conduct for purposes of producing a
    photograph of the conduct was amply supported. Cf. 
    18 U.S.C. § 2256
    (2)
    (defining “sexually explicit conduct” to include “sadistic or masochistic abuse”);
    U.S.S.G. § 2G2.2, cmt. n.1 (giving “sexually explicit conduct” the definition
    given in 
    18 U.S.C. § 2256
    ).
    -11-
    Furthermore, Danielle testified that her father often took pictures of her in
    the nude and had himself and his friends molest her so that he could take pictures.
    The district court found Danielle to be a credible witness. Such a credibility
    determination is solely within the district court’s province. See United States v.
    Sloan, 
    65 F.3d 861
    , 865 (10th Cir. 1995). Danielle’s testimony as to Williams’
    molestation and photographing of the acts was not contradicted. The testimony
    thus provides a sound, independent basis to apply the cross reference.
    C. Obstruction of Justice
    Because we find application of the cross reference in § 2G2.4(c)(1) to be
    proper, we need not consider Defendant’s contention that the two-level
    enhancement under U.S.S.G. § 3C1.1 was improper. Because the base offense
    level under § 2G2.1 was 27 and the district court imposed several enhancements
    besides the obstruction of justice enhancement, none of which were appealed, the
    sentencing range before the § 3C1.1 enhancement was 135-168 months. The
    statutory maximum for violations of 
    18 U.S.C. § 1470
     is 120 months. Thus, the
    district court would have sentenced to 120 months, i.e. the same sentence, even
    without the two-level enhancement for obstruction of justice. Cf. Williams v.
    United States, 
    503 U.S. 193
    , 203 (1992) (holding that remand for resentencing
    when district court misapplies guidelines is inappropriate if “the error did not
    affect the district court’s selection of the sentence imposed”).
    -12-
    V. CONCLUSION
    The sentence imposed by the District Court for the Eastern District of
    Oklahoma is AFFIRMED.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
    -13-