United States v. Burr ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4711
WILLIAM JAMES BURR, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-03-57)
Submitted: December 10, 2003
Decided: February 26, 2004
Before LUTTIG, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BURR
OPINION
PER CURIAM:
William James Burr, Jr., pled guilty to possession of child pornog-
raphy, 18 U.S.C.A. § 2252A(a)(5)(B), (b)(2) (West Supp. 2003), and
was sentenced to a term of twenty-four months imprisonment. On
appeal, Burr challenges the district court’s decision to enhance his
sentence on the ground that his possession of child pornography
resulted from use of a computer. U.S. Sentencing Guidelines Manual
§ 2G2.4(b)(3) (2002). We affirm.
Using the library at a community college, Burr visited an internet
news group where a United States Postal Inspector had posted an
advertisement for a video containing child pornography. After making
several inquiries and receiving responses from the postal inspector by
email, Burr ordered a video. As directed, Burr mailed $40 to the
address he had been given and emailed the postal inspector that he
had sent his payment. When the video was delivered, Burr accepted
the package and was subsequently arrested. He pled guilty to posses-
sion of child pornography that had been mailed in interstate com-
merce.
At his sentencing, Burr contested a two-level enhancement recom-
mended by the probation officer for possession of child pornography
resulting from use of a computer, USSG § 2G2.4(b)(3). Burr took the
position that the enhancement for possession resulting from use of a
computer should not apply because he received the video through the
mail. He argued that § 2G2.4(b)(3) is ambiguous and should be read
narrowly as applicable only when the defendant acquired the child
pornography by downloading it from the internet, thus using a com-
puter to acquire the material in the most direct way. The district court
decided that no ambiguity existed and that the enhancement applied.
The district court’s legal interpretation of a guideline is reviewed
de novo. United States v. Souther, 221 F.3d 626, 628 (4th Cir. 2000).
Burr argues that § 2G2.4(b)(3) could be read broadly "to mean a
defendant’s use of a computer, at some point, no matter how remote
and no matter how isolated, to come into possession of prohibited
material," but urges a more narrow interpretation that would limit the
UNITED STATES v. BURR 3
enhancement to cases in which there is "actual employment [by the
defendant] of a computer to acquire through and/or onto such
machine, the prohibited material." Burr asserts that Congress directed
the Sentencing Commission to enact this enhancement to punish only
persons who download child pornography from the internet, citing a
House Report that discusses trafficking in child pornography.* H.R.
Rep. No. 104-90, at 3-4, reprinted in 1995 U.S.C.C.A.N. 759, 760-61.
Burr’s argument is unpersuasive. As the district court found, the
language of the guideline is not ambiguous. The phrase "resulted from
[his] use of a computer," does not limit the defendant’s use of a com-
puter to the downloading of images to his own computer in his own
home, as Burr argues, but clearly permits a wider range of activity
involving the use of a computer in the acquisition of child pornogra-
phy. Burr’s interpretation would read into the language of the guide-
line a limitation that the Sentencing Commission did not include.
Thus, the district court correctly determined that the guideline was not
ambiguous.
Because the enhancement is not ambiguous, this court need not
resort to rules of statutory construction. See Carbon Fuel Co. v. USX
Corp., 100 F.3d 1124, 1133 (4th Cir. 1996) ("Under the most basic
canon of statutory construction, we begin interpreting a statute by
examining the literal and plain language of the statute."); United
States v. Irvin, 2 F.3d 72, 76 (4th Cir. 1993) (absent ambiguity, this
court should not look beyond a statute’s plain language). Based on the
plain language of § 2G2.4(b)(3), the district court did not err in mak-
ing the enhancement.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
*The report hardly supports Burr’s argument; it notes that computer-
assisted dissemination of advertisements for child pornography allow
purveyors of child pornography to easily reach a wide audience. Burr
responded to just such an advertisement.