United States v. Sean Price , 711 F.3d 455 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 12-4010
SEAN M. PRICE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Senior District Judge.
(5:11-cr-00029-FPS-JES-1)
Argued: February 1, 2013
Decided: March 29, 2013
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.
COUNSEL
ARGUED: Kristen Marie Leddy, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Martinsburg, West Virginia,
2 UNITED STATES v. PRICE
for Appellant. Robert Hugh McWilliams, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Wheeling, West Vir-
ginia, for Appellee. ON BRIEF: Brendan S. Leary, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Wheeling,
West Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
Section 2G2.2 of the United States Sentencing Commission
Guidelines Manual (Guidelines) provides sentencing enhance-
ments 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 access-
ing the internet via computer with the intent to view child por-
nography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
(b)(2). At sentencing, the district court calculated Price’s
offense as involving more than 600 images of child pornogra-
phy, and as a result, imposed a five-level sentencing enhance-
ment pursuant to Section 2G2.2(b)(7)(D). Price now
challenges the five-level enhancement. Price argues that
duplicate images should not be counted when applying the
Section 2G2.2(b)(7) sentencing enhancement. He alterna-
tively argues that what he did—sending the same image mul-
tiple times via email—does not constitute duplication. For the
reasons that follow, we reject Price’s arguments and affirm
his sentence.
I.
In late 2010, West Virginia State Police received a cyber
tip from photobucket.com (a picture sharing website) that a
UNITED STATES v. PRICE 3
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. Dur-
ing the search, officers seized three computer hard drives and
other computer storage media. Fifteen images of child por-
nography 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 pornogra-
phy 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 por-
nography were emailed to ninety-three people.
In an attempt to get to the bottom of who was behind send-
ing these emails, FBI agents went to Price’s residence to
request a consensual interview. Price agreed. During the inter-
view, Price wrote out a statement of culpability admitting to
sending the emails.
On July 12, 2011, Price was named in a one-count indict-
ment alleging he accessed the internet via computer with the
4 UNITED STATES v. PRICE
intent to view child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2). On August 25, 2011, Price
filed a Notice of Intent to Plead Guilty to the indictment, and
on August 29, 2011, Price entered his guilty plea. At the close
of the plea hearing, the district court ordered U.S. Probation
to prepare a Presentence Report (PSR). The PSR stated that
"emails were sent out by [Price] ninety-three (93) times with
a total of fifty-four (54) attachments." Using these figures, the
PSR calculated the total number of images of child pornogra-
phy involved in the offense to be "approximately 2,696
images."1
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. Rele-
vant to this appeal, Price challenged the calculation of the
number of pornographic images. Price argued that duplicate
images cannot be counted when applying the Section
2G2.2(b)(7) enhancement. He alternatively argued that he did
not duplicate the images when he sent them to multiple people
via email. Price wanted the district court to only consider at
sentencing the number of unique images he possessed or
emailed, which in this case was 113. Resultantly, Price rea-
soned that since the number of unique images involved in the
offense was 113, a two-level sentencing enhancement should
have been applied under Section 2G2.2(b)(7)(A). The govern-
ment filed a response agreeing with the PSR’s calculation.
At sentencing, the district court heard arguments from both
sides on Price’s objections to the PSR. The court then con-
cluded that when Price sent the same image to multiple recipi-
ents via email, Price duplicated the image, and each instance
of duplication can be counted separately under Section
1
The PSR erroneously calculated the number of attachments as 54
instead of 53. Price concedes that this miscalculation does not impact the
resolution of this appeal.
UNITED STATES v. PRICE 5
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 Guide-
lines range was 121 to 150 months. Price was sentenced to
120 months’ imprisonment followed by ten years of super-
vised release. Price timely appealed, raising the same argu-
ments 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 sepa-
rately when applying Section 2G2.2(b)(7). Because this ques-
tion 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 num-
ber of images under subsection (b)(7): Each photograph, pic-
ture, computer or computer-generated image, or any similar
visual depiction shall be considered to be one image." The
2
The images that Price distributed via email implicated the Section
2G2.2(b)(7) sentencing enhancement because the PSR concluded, and the
district court agreed, that those images were relevant conduct to his con-
viction under Section 1B1.3(a)(1) of the Guidelines. Price does not argue
on appeal that the district court erred in considering the distribution of
these images as relevant conduct under Section 1B1.3(a)(1).
6 UNITED STATES v. PRICE
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, 624-24 (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 enhance-
ment. 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
without regard to originality must be counted. We reject any
uniqueness requirement that Price tries to read into Section
2G2.2(b)(7) and hold that any image without regard to its
originality should be counted when applying this enhance-
ment so long as that image depicts child pornography and is
relevant to the underlying conviction.3
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 Exploita-
tion of Children Today (PROTECT) Act of 2003. Pub L. No.
108-21, 117 Stat. 650 (codified in scattered sections of 18
U.S.C.). The PROTECT Act was spurred by Congress’s find-
ing that "[c]hild pornography stimulates the sexual appetites
3
Our holding brings us in accord with both the Sixth and Eighth Cir-
cuits. See United States v. McNerney, 636 F.3d 772, 777 (6th Cir. 2011)
(holding "duplicate digital images, like duplicate hard copy images, should
be counted separately for the purposes of calculating a sentence enhance-
ment pursuant to § 2G2.2(b)(7)"); United States v. Sampson, 606 F.3d
505, 510 (8th Cir. 2010) ("The distribution of duplicate images increases
the supply and availability of child pornography just as the distribution of
unique images does.").
UNITED STATES v. PRICE 7
and encourages the activities of child molesters and
pedophiles, who use it to feed their sexual fantasies . . . [and]
to convince potential victims that the depicted sexual activity
is normal." S. Rep. No. 108-2, at 3 (2003) (quoting S. Rep.
No. 104-358, at 12-13). Therefore, Congress felt an "obliga-
tion to prevent the resurgence of the child pornography mar-
ket," 149 Cong. Rec. H3059-02 (Apr. 10, 2003) (statement of
Rep. Sensenbrenner), which required "stamping out the vice
of child pornography at all levels in the distribution chain."
149 Cong. Rec. H2950-01 (Apr. 9, 2003) (statement of Rep.
Sensenbrenner). Put simply, Congress has shown its clear
intent to stop the proliferation of child pornography by enact-
ing the PROTECT Act and the concomitant sentencing
enhancements.
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, Con-
gress 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
8 UNITED STATES v. PRICE
a large number of people. That Price reproduced the porno-
graphic 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 comprehensive legislative scheme
aimed at eliminating traffic of child pornography."). Each
time Price sent an email with images of child pornography
attached he gave fodder to potential abusers who may now
have access to the images. Price’s mass proliferation of child
pornography via email makes it almost impossible to know
who will come into possession of the images and that much
harder for law enforcement to eradicate the images’ existence.
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 argu-
ment, as his conduct had the effect of exponentially multiply-
ing 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
4
We note that the Third and Seventh Circuits have affirmed decisions
in which the district court judge did not count duplicates when applying
the number of images enhancement. See United States v. Lacey, 569 F.3d
319 n.1 (7th Cir. 2009); United States v. Long, 425 F.3d 482, 486-87 (7th
Cir. 2005); United States v. Goff, 501 F.3d 250, 255 n.9 (3d Cir. 2009).
These cases did not interpret Section 2G2.2(b)(7) and did not hold that
duplicates cannot be counted under Section 2G2.2(b)(7). The courts only
assumed, without deciding, that the district court did not err as a matter
of law by not counting duplicates.
UNITED STATES v. PRICE 9
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 dis-
trict court did not err as a matter of law when it counted each
image in each email separately without regard to the unique-
ness 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