United States v. Anderson ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 13 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6235
(D.C. No. CR-96-129-L)
JAMES S. ANDERSON, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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.
James A. Anderson was convicted of conspiring to receive and distribute
child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); transporting
child pornography in interstate commerce via delivery service in violation of
§ 2252(a)(1); and electronically transporting child pornography in interstate
commerce in violation of § 2252(a)(1). The district court sentenced him to
104 months and to a three-year term of supervised release on each count, to be
served concurrently. The district court also ordered him to pay $60,000 in
restitution to an exploited child’s family and imposed $300.00 in special
assessments. Mr. Anderson appeals from that part of his sentence that was
enhanced based on relevant conduct of one of his co-conspirators. We affirm.
I.
The facts are undisputed. Mr. Anderson was a member of a nationwide
group called the Orchid Club, the purpose of which was to exchange new and rare
child pornography, including private pictures produced by group members with
access to children. Mr. Anderson participated in an online chat room discussion
in February 1996 when Ronald Riva, one of the members, announced that Ashley,
his daughter’s ten-year-old friend, was spending the night at his house. He stated
that she had volunteered to participate in a sexual video but that he did not have a
camera at that time. Before he left the chat room, Mr. Anderson stated, “I didn’t
want to miss Ashley.” R. Vol. 6, at 611 (quoting Ex. 59 at 8). In March 1996,
-2-
Mr. Anderson was again online when Mr. Riva stated that Ashley would again be
spending the night and that he was excited about it. On April 2, 1996, Riva
sexually molested Ashley, recording it by video live and on-line for club
members’ benefit. While Mr. Anderson was not on-line the night the video was
created and transmitted, he later received still pictures of Ashley’s molestation
that he stored on a private drive with the files labeled “Ash 1” through “Ash 9.”
Id. at 621.
After conviction, the United States proposed calculating Mr. Anderson’s
base offense level using USSG § 2G2.1 because Mr. Anderson’s offense of
conviction involved causing a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of that conduct. Even though
Mr. Anderson had not himself physically engaged in the child’s sexual
exploitation, under the Guidelines he could be held accountable for Mr. Riva’s
conduct if it was a “reasonably foreseeable act . . . of [another] in furtherance of
the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). The district
court agreed, noting that it could consider “any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and others.”
R. Vol. 1, Doc. 168 at 8 (quoting § 1B1.3(a) cmt.2).
The court noted that the government had proved that: “[Mr. Anderson] had
notice of [the molestation] prior to its occurrence” and that he “received a still
-3-
picture [of the child] after the incident.” Id. at 9. The court further cited the trial
exhibits and testimony presented at the sentencing hearing that specifically
demonstrated Mr. Anderson’s knowledge of Mr. Riva’s intended conduct and the
purpose of the Orchid Club. The court stated,
Based on the government’s proffer of evidence at the sentencing
hearing and the exhibits that were admitted, the court finds that use
of the cross-reference [to U.S.S. G. § 1B1.3(a)] is warranted. The
conduct of defendant’s co-conspirators was reasonably foreseeable
given the purpose of the Orchid Club and the on-line conversations
that occurred regarding this conduct. See Government’s Exhibit 59
at 7-8; Government’s Exhibit 60 at 171-72, 176. Furthermore, given
the purpose of the Orchid Club, such conduct was also in furtherance
of the jointly undertaken activity.
Id.
II.
On appeal, Mr. Anderson raises a single legal issue: whether the
above-described statements of the district court constitute sufficient factual
findings to support its conclusion that Riva’s conduct was foreseeable to
Mr. Anderson. Mr. Anderson asserts that the court’s statements were only legal
conclusions and that “[t]here were no factual findings . . . of what conduct the
defendant engaged in to make the acts of the Orchid Club foreseeable to him.”
Appellant’s Br. at 5.
We review questions of law regarding the application of the sentencing
guidelines de novo. United States v. Tagore , 158 F.3d 1124, 1127 (10th Cir.
-4-
1998). When basing an offense level upon the conduct of co-conspirators,
“[p]roper attribution at sentencing requires the district court to analyze, and make
‘particularized findings’ about, the scope of the specific agreement the individual
defendant joined in relation to the conspiracy as a whole.” United States v.
Melton , 131 F.3d 1400, 1404 (10th Cir. 1997) (citing United States v. Thomas ,
114 F.3d 228, 324 (D.C. Cir. 1997)). “[E]ven a ‘brief’ finding can be sufficient
if, when viewed in context, it is more than simply a generalized or conclusory
finding that [the defendant] was involved in the conspiracy.” Thomas , 114 F.3d
at 255 (quotation omitted) (alteration in original) (disagreed with on other
grounds in United States v. Delatorre , 157 F.3d 1205 (10th Cir. 1998)).
We read the court’s statement that it “[b]ased” its legal conclusions on the
government’s proffered evidence as indicative that the court adopted the
government’s position and found that (1) Mr. Anderson “had notice of [Rivas’
intent to molest and exploit Ashely] prior to its occurrence” and (2) he had
“received a still picture of [Ashley] after the incident.” R. Vol. 1, Doc. 168 at 9.
Reading these findings in context with the court’s reference to specific exhibits
and testimony establishing Mr. Anderson’s individual knowledge and conduct
regarding Ashley’s molestation and exploitation, we hold that the district court
made sufficiently particularized findings to support its conclusion.
-5-
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED .
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-6-