United States v. Garrett ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
09/29/99
THOMAS K. KAHN
No. 98-6337 CLERK
D. C. Docket No. 97-CR-176-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS SAMUEL GARRETT,
a.k.a. Fire-Man,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Alabama
(September 29, 1999)
Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.
DUBINA, Circuit Judge:
___________________________
*Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia sitting
by designation.
This is a child pornography case. A federal grand jury in the Southern
District of Alabama charged defendant Thomas Samuel Garrett (“Garrett”) in a
three count indictment. Count One of the indictment charged sexual exploitation
of a minor, in violation of 18 U.S.C. § 2252(a)(2); Count Two charged transporting
child pornography, in violation of 18 U.S.C. § 2252(a)(1); and Count Three
charged enticement of a minor, in violation of 18 U.S.C. § 2422(b). Garrett pled
guilty to Counts One and Two of the indictment and the government dismissed
Count Three pursuant to a plea agreement. The district court sentenced Garrett to
60 months imprisonment. He then perfected this appeal.
I. BACKGROUND
Officers of the Hillsborough County, Florida, Sheriff’s Department
conducted an investigation of child pornography displayed on the Internet. As part
of the investigation, deputies would log on to sex chat rooms and identify
themselves as underage children. In this case, the investigator contacted Garrett
by identifying himself as “Katrina,” a 15 year old girl.
Garrett and “Katrina” maintained contact over the Internet for a two-month
period of time. During these contacts, Garrett talked about sexual acts that he and
“Katrina” could perform.
Garrett had numerous pornographic photographs on his computer that
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involved minors as young as eight years old engaging in vaginal and anal
intercourse, and one minor female inserting a glass soda bottle into her vagina.
Garrett illustrated his intentions of wanting to have sex with “Katrina” by
transmitting these pornographic photos from Alabama to “Katrina” in Florida, and
asking her if she would perform the depicted acts if he would travel to meet her.
Garrett was scheduled for job related training in Florida and discussed
meeting “Katrina” in a hotel room to have sex. He provided his office telephone
number to “Katrina.” A female detective called Garrett and identified herself as
“Katrina.” After his training session was canceled in Florida, Garrett and
“Katrina” discussed the possibility of Garrett taking a vacation to meet her.
Subsequently, based on this information, the FBI obtained a search warrant for
Garrett’s residence and his office and arrested him.
At the sentencing hearing, the government presented the testimony of Dr.
John N. Shriner, a physician who works primarily with the Child Advocacy Center
in Mobile, Alabama. In the course of his career, Dr. Shriner has examined
approximately 1200 children that have been sexually abused. He has also been
admitted as an expert witness in child sexual and physical abuse cases in state and
federal courts over 50 times. Dr. Shriner testified, among other things, that he
examined the photographs which were recovered from Garrett’s computer.
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Importantly, he testified that, in his opinion, the acts depicted in the photographs
would have caused the children involved physical pain.
II. ISSUES
1. Whether the district court erred in finding that Garrett distributed child
pornography in an effort to seduce a minor and that this finding warranted an
upward adjustment pursuant to U.S.S.G. § 2G2.2(b)(2).
2. Whether the district court erred in finding that child pornography which
depicted acts which would necessarily have been painful to the young children
involved constituted sadistic material which warranted an upward adjustment
pursuant to U.S.S.G. § 2G2.2(b)(3).
III. STANDARD OF REVIEW
This court reviews the district court’s factual findings for clear error, and
application of the sentencing guidelines de novo. See United States v. Miller, 166
F.3d 1153, 1155 (11th Cir. 1999)(per curiam).
IV. ANALYSIS
A. Distribution Enhancement
Garrett first argues that the district court erred in imposing a distribution
enhancement because the enhancement requires distribution for a pecuniary gain
which he did not receive. The government argues that Garrett distributed the
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photographs to receive sex, which is a “valuable gain” sufficient for the
enhancement. The guideline section provides for an increase in the base offense
level if the offense involved distribution of pornography. See U.S.S.G. §
2G2.2(b)(2). Specifically, the guideline states that “[i]f the offense involved
distribution, 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 five
levels.” Id. Application Note 1 to this section states that “[‘d]istribution’ includes
any act related to distribution for pecuniary gain, including production,
transportation, and possession with intent to distribute.” U.S.S.G. § 2G2.2,
commentary, n.1.
The type of gain needed for a distribution enhancement is an issue of first
impression in this circuit. Three circuits have held that the enhancement is not
limited to instances involving distribution for pecuniary gain. See United States v.
Lorge, 166 F.3d 516, 518-19 (2nd Cir.), cert. denied, 119 S.Ct. 1372 (1999);
United States v. Hibbler, 159 F.3d 233, 237-38 (6th Cir. 1998), cert. denied, 119
S.Ct. 1278 (1999); United States v. Canada, 110 F.3d 260, 263 (5th Cir.)(per
curiam), cert. denied, 118 S.Ct. 195 (1997). At least one circuit has held that the
enhancement is limited to transactions for pecuniary gain, but includes swaps,
barter, in-kind transactions, and other valuable consideration. See United States v.
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Black, 116 F.3d 198, 202-03 (7th Cir.), cert. denied, 118 S.Ct. 341 (1997).
We agree with the approach taken by the Fifth Circuit in Canada, a case
with very similar facts to the present case. In Canada, the defendant transmitted
child pornography for the purpose of enticing a 13 year old child to have sex with
him. 110 F.3d at 263. The Fifth Circuit upheld the five-level enhancement for
distribution and held that the identification of distribution as used in § 2G2.2(b)(2)
is not limited to transactions for pecuniary gain. See id. The court was persuaded
that while Application Note 1 included distribution with pecuniary gain, it was not
intended to be an exhaustive list of what constitutes distribution. See id. We hold
that Garrett’s distribution of materials depicting sexual acts of minors and adults is
sufficient to trigger the enhancement characteristic of U.S.S.G. § 2G2.2(b)(2).
Garrett distributed these photographs to “Katrina” for the purpose of enticing her
to engage in deviant sexual acts with him. The record does not dispute this fact.
As the Canada court stated:
[w]hile § 2G2.2(b)(2) calls upon the sentencing court to
impose enhancement based on the retail value of the
material distributed, in cases such as this where the
material was distributed for a purpose which is difficult
to evaluate monetarily, the sentencing court is within its
province to impose the threshold five-level enhancement.
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110 F.3d at 263.
Therefore, although Garrett did not distribute these photographs for
commercial gain, he did distribute them in order to receive what he considered to
be another “valuable gain.” Accordingly, the enhancement was warranted.
Garrett also argues that the district court erred in its factual finding that he
transmitted photographs in order to seduce the child to have sex with him. This
argument is belied by the record. Garrett first contacted “Katrina” in a sex chat
room. During the two month investigation, Garrett contacted “Katrina” 25
different times. During these contacts, he transmitted five photographs to
“Katrina.” One photograph depicted a child between 10 and 15 years of age
engaging in sexual intercourse with an adult male. Garrett accompanied these
photographs with suggestions that he and “Katrina” engage in similar conduct.
Garrett told “Katrina” that he had been scheduled for travel to Florida. They
discussed getting a hotel room in order to have sex. Garrett later advised “Katrina”
that his business trip had been canceled so he would take vacation days to meet
her. Garrett also provided “Katrina” his office telephone number. A female police
officer called Garrett and identified herself as “Katrina.” Despite Garrett’s claim at
the time of his arrest that he thought the chances were “slim to none” that he would
have actually traveled to Florida to meet “Katrina,” Garrett did go so far as to make
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preliminary inquiry on a motel room. Based on these facts, we conclude that the
district court did not clearly err in finding that Garrett transmitted the photographs
in an effort to seduce “Katrina.” This finding is not changed by the fact that
Garrett was arrested before he could actually travel to Florida. Accordingly, we
affirm the upward adjustment pursuant to U.S.S.G. § 2G2.2(b)(2).
B. Sadistic or Masochistic Conduct
Garrett asserts the enhancement for sadistic or masochistic conduct is not
warranted, as this court has never defined those terms, and the photographs do not
fall within the traditional understanding of those terms as they relate to bondage or
acts of violence. The government argues that the district court correctly
determined that the photographs involved conduct that would have been painful to
the minor children involved. This conduct, the court reasoned, is excessively cruel
and therefore, sadistic.
The sentencing guidelines provide for a four-level enhancement if the
material depicts minors and sadistic and masochistic or violent acts. See U.S.S.G. §
2G2.2(b)(3). Neither the guidelines nor this circuit has ever defined these terms.
In fact, no circuit has addressed whether photographs depicting minors in a
situation that would have caused them pain could be considered sadistic such that
an enhancement is warranted pursuant to U.S.S.G. § 2G2.2(b)(3).
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As previously noted, at the sentencing hearing, the government called Dr.
Shriner, who testified that young girls have extremely sensitive genitalia and that
as a medical doctor he must use extreme care in their examinations. Moreover, he
testified that he had examined the photographs that were downloaded from
Garrett’s computer. He testified that they involved children between eight and 11
years of age being penetrated vaginally and anally by adult males. One photograph
depicted an 11 year old girl with a glass soda bottle in her vagina. Dr. Shriner
testified that, based on his expert opinion, the acts portrayed in these photographs
would necessarily have been painful to the young children involved.
In United States v. Delmarle, 99 F.3d 80 (2nd Cir. 1996), the Second Circuit
reviewed application of this enhancement and noted that the term “sadism” is not
defined by the sentencing guidelines. Id. at 83. The court reviewed a photograph
of an eight or nine year old boy and found that the anal penetration depicted was
likely to cause the child pain. See id. The court concluded that, “whatever might
be inferred as to the purpose of the act depicted or the reaction of the actor, it was
within the court’s discretion to conclude that the subjection of a young child to a
sexual act that would have to be painful is excessively cruel and hence is sadistic
within the means of § 2G2.2(b)(3).” Id.
Based on Dr. Shriner’s testimony at the sentencing hearing in the present
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case, we agree with the district court’s finding that an upward adjustment was
warranted pursuant to U.S.S.G. § 2G2.2(b)(3). Moreover, we conclude that
Garrett’s reliance on United States v. Tucker, 136 F.3d 763 (11th Cir. 1998)(per
curiam), is misplaced. In Tucker, we held that intent is a requirement of a §
2G2.2(b)(3) enhancement. Id. at 964. The court found that the evidence was
sufficient that Tucker intended to possess material depicting minors involved in
sadistic conduct based on his Internet conversations in which he stated that he was
into “young action” and would “like to start trading.” Id. The court did not require
evidence that Tucker wanted photographs of children who had been tortured,
beaten or tied up. See id. Likewise, Garrett never argued that he did not intend to
receive child pornography. He did not dispute that he intended to receive
photographs that depicted very young children who were vaginally and anally
penetrated by adult men, as well as a photograph of a young girl who was vaginally
penetrated by a glass bottle. In our opinion, this is sufficient to satisfy the intent
requirement of § 2G2.2(b)(3).
In conclusion, because we see no reversible error in this record, we affirm
Garrett’s sentences in all respects.
AFFIRMED.
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