United States v. Dennis Hodge , 2015 FED App. 0249P ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0249p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-5256
v. │
>
│
DENNIS WAYNE HODGE, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 3:13-cr-00012-1—Gregory F. Van Tatenhove, District Judge.
Argued: April 22, 2015
Decided and Filed: October 20, 2015
Before: SILER, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: David J. Guarnieri, MCBRAYER, MCGINNIS, LESLIE & KIRKLAND, PLLC,
Lexington, Kentucky, for Appellant. Adam C. Reeves, UNITED STATES ATTORNEY’S
OFFICE, London, Kentucky, for Appellee. ON BRIEF: David J. Guarnieri, Philip C. Lawson,
MCBRAYER, MCGINNIS, LESLIE & KIRKLAND, PLLC, Lexington, Kentucky, for
Appellant. Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, for Appellee.
SILER, J., delivered the opinion of the court in which MOORE and STRANCH, JJ.,
joined. STRANCH, J. (pp. 14–15), delivered a separate concurring opinion.
1
No. 14-5256 United States v. Hodge Page 2
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OPINION
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SILER, Circuit Judge. Dennis Hodge pleaded guilty to one count of receipt of child
pornography. 18 U.S.C. § 2252(a)(2). At sentencing, the district court declined to give him a
two-point base-offense-level reduction under USSG § 2G2.2(b)(1). This reduction applies when
“the defendant’s conduct was limited to the receipt or solicitation of material involving the
sexual exploitation of a minor” with no intent “to traffic in, or distribute, such material.”
Because Hodge was also secretly recording videos of his fifteen-year-old stepdaughter naked, the
district court found that his “conduct” was not “limited to” the receipt or solicitation of child
pornography. Hodge argues that his video voyeurism was not conduct that was “relevant” to his
“offense conduct” under USSG § 1B1.3. We AFFIRM his sentence.
I.
In October 2011, Hodge’s stepdaughter (“TA”), stepped out of the shower and noticed
something unusual: the door on the bathroom cabinet, which hung from the wall directly across
from the shower, was open. Inside the cabinet, TA found a micro video recording device.
According to the presentence report:
TA rewound the video and viewed footage of herself exiting the shower naked
and wrapping a towel around herself. The video then went dark for a few
seconds, then began playing again. She then saw [Hodge] setting up the camera
on one of her bedroom shelves. The video showed him turning out the light and
leaving the room. The video contained images of TA walking into her bedroom
wearing only a towel and then taking the towel off to get dressed. TA placed the
camera back in its location and phoned her mother, who instructed her to obtain
the tape from the camera; however, when she returned to the camera the [storage
medium] had already been removed.
When Hodge’s wife, TA’s mother, came home, Hodge told her he had destroyed the recording.
TA’s mother called the police, who obtained a search warrant. A police forensic investigation of
Hodge’s laptop computer uncovered multiple child pornography images.
No. 14-5256 United States v. Hodge Page 3
A federal grand jury indicted Hodge on two counts: one for receipt of child pornography,
18 U.S.C. § 2252(a)(2),1 and one for possession of child pornography, 18 U.S.C.
§ 2252(a)(4)(B). Both counts were based on the images he had downloaded from the internet.
Hodge pleaded guilty to receipt of child pornography, and the possession count was dismissed.
At the time of his federal indictment, Hodge also had two pending state charges, one of which
related to the voyeurism toward his stepdaughter. Hodge has not been prosecuted for either of
these state charges.
Hodge’s presentence report recommended a two-point base-offense-level reduction under
USSG § 2G2.2(b)(1) “because the defendant’s conduct was limited to the receipt or solicitation
of material involving the sexual exploitation of a minor and the defendant did not intend to
traffic in, or distribute, such material.” The government objected to this reduction. The
government noted that in United States v. Fore, 507 F.3d 412, 415 (6th Cir. 2007), we held that
three facts must be proven for the § 2G2.2(b)(1) reduction to apply: (1) the defendant’s base
offense level must be 22; (2) the defendant’s conduct must be “limited” in scope to the mere
receipt or solicitation of child pornography; and (3) the defendant did not intend to traffic in or
distribute the child pornography. The government argued the second factor was not met because
Hodge’s conduct “included the production or attempted production of child pornography,” i.e.,
the secret recordings of TA.
At sentencing, Hodge’s counsel argued that the court should not consider the voyeur
videos because they did not qualify as “relevant conduct” under USSG § 1B1.3(a)(1). Hodge
claimed that under United States v. Fowler, 216 F.3d 459, 460-61 (5th Cir. 2000), receipt—in
this case, downloading—of pornography happens at a discrete moment in time. He argued that
because § 1B1.3(a)(1) requires that relevant conduct must have “occurred during the commission
of the offense of conviction,” to qualify, the video recording had to have occurred
simultaneously to the downloading.
1
Section 2252(a)(2) punishes “[a]ny person” who “knowingly receives . . . any visual depiction using any
means or facility of interstate or foreign commerce . . . including by computer” if “the producing of such visual
depiction involves the use of a minor engaging in sexually explicit conduct” and the “visual depiction is of such
conduct.”
No. 14-5256 United States v. Hodge Page 4
In response, the government noted that the indictment specified that the offense conduct
occurred “in or around October, 2011,” and that the plea agreement referred to multiple
“downloads.” The government argued that Hodge’s possession of the pornography (a lesser-
included offense of receipt) continued through the entire period that he was both receiving
(downloading) child pornography and creating the videos of TA.
The district court sustained the government’s objection to the offense level reduction.
The court reasoned:
I don’t think you can actually conclude that the defendant’s conduct was
[“limited” under § 2G2.2(b)(1)(B)]. There is this other conduct, and I think to
determine whether or not it’s appropriately considered, you do look at the relevant
conduct guideline, which is Section 1B1.3(a), which defines relevant conduct and
says, you know, conduct that occurs during the commission of the offense of
conviction. So this is all going on at the same time. I’m not persuaded that
[Fowler] necessarily supports the conclusion that there has to be this absolute
precise temporal connection, that the [voyeur video recording] has to have
occurred exactly at the moment that a web site is downloaded. I think as [the
government] points out in terms of the time period in the indictment and the
multiple accessing of the web sites and what we know about the timing of the
video, that it falls within the definition of relevant conduct[. T]herefore, I don’t
think it’s actually appropriate in the end to provide for the two-level reduction for
those reasons.
II.
We review a district court’s findings of fact at sentencing for clear error and its legal
conclusions regarding the Sentencing Guidelines de novo. United States v. Maken, 510 F.3d
654, 656-57 (6th Cir. 2007). The applicability of USSG § 2G2.2(b)(1) to Hodge’s sentence is
one such legal question.
III.
Under USSG § 2G2.2(b)(1),
(1) If (A) [the defendant’s base offense level is 22]; (B) the defendant’s conduct
was limited to the receipt or solicitation of material involving the sexual
exploitation of a minor; and (C) the defendant did not intend to traffic in, or
distribute, such material, decrease by 2 levels.
No. 14-5256 United States v. Hodge Page 5
This appeal concerns subsection (b)(1)(B): was Hodge’s conduct “limited to the receipt or
solicitation” of child pornography? The question can be answered only by considering what
constitutes relevant conduct.
USSG § 1B1.3(a) defines relevant conduct. This section explains that generally the
defendant’s base offense level, specific offense characteristics, and Chapter Three adjustments
“shall be determined on the basis of the following:”
(1) (A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant;
and
(B) in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in
concert with others, whether or not charged as a conspiracy), all
reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or responsibility
for that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would
require grouping of multiple counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same course of
conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions specified in subsections
(a)(1) and (a)(2) above, and all harm that was the object of such acts and
omissions; and
(4) any other information specified in the applicable guideline.
“The goal of the relevant conduct provision is to allow a court to impose sentences
commensurate with the gravity of the offense.” United States v. Kappes, 936 F.2d 227, 229
(6th Cir. 1991).
The government’s position is that Hodge’s surreptitious videotaping of his stepdaughter
qualifies as relevant conduct under either § 1B1.3(a)(1)(A) because it “occurred during the
commission of the offense of conviction” or § 1B1.3(a)(2) because his crime is a groupable
offense under USSG § 3D1.2(d) and recording the shower videos was “part of the same course
of conduct or common scheme or plan as the offense of conviction.”
No. 14-5256 United States v. Hodge Page 6
IV.
As a threshold matter, to be “relevant” under § 1B1.3(a)(2), the conduct must be a
criminal offense that carries the potential for incarceration. Maken, 510 F.3d at 659. To be
“relevant,” the conduct need not result in a conviction. Id. at 658; see also United States v.
Pierce, 17 F.3d 146, 150 (6th Cir. 1994) (noting that criminal conduct may be “relevant” even
though a statute of limitations forecloses prosecution). “Relevant conduct” may include state
crimes over which the federal courts have no jurisdiction. See, e.g., Maken, 510 F.3d at 657
(finding a defendant’s state tax evasion crimes “relevant” to his federal tax evasion case); United
States v. McDaniel, 398 F.3d 540, 553 (6th Cir. 2005) (finding that the victims’ losses related to
the defendant’s state convictions were “relevant” to his federal convictions when the modus
operandi, the victims, and the time period were the same); United States v. Hough, 276 F.3d 884,
898 (6th Cir. 2002) (finding a defendant’s unprosecutable juvenile drug sales “relevant” to
determining the quantity of drugs he sold for sentencing purposes). However, “conduct that can
never lead to criminal conviction cannot constitute relevant conduct.” Maken, 510 F.3d at 658
(citing United States v. Shafer, 199 F.3d 826, 830-31 (6th Cir. 1999)); see also United States v.
Harris, 200 F. App’x 472, 496-97 (6th Cir. 2006) (holding that “losses from conduct not shown
to have been criminal” were not relevant to sentencing).
Therefore, in order to qualify as “relevant” conduct under § 1B1.3, Hodge’s shower
videos must have constituted a criminal violation that could result in incarceration—either under
federal or state law. Relevant conduct must also bear some logical relationship to the offense of
conviction. See United States v. Ellison, 113 F.3d 77, 83 (7th Cir. 1997) (finding that possessing
child porn magazines was “relevant” to a prosecution for receipt of child porn videos because the
acts were not “unrelated”—both acts “indicate[d]” the defendant’s “dangerous propensities in the
realm of sexual exploitation of minors”).
A.
We note first that the voyeur videos described in Hodge’s presentence report do not
appear to qualify as child pornography under federal law. TA reported to investigators that she
“viewed footage of herself exiting the shower naked and wrapping a towel around herself,” and
No. 14-5256 United States v. Hodge Page 7
that another recording “contained images of TA walking into her bedroom wearing only a towel
and then taking the towel off to get dressed.”
To qualify as a federal child pornography offense, the images must meet the definition of
“sexually explicit conduct” found in 18 U.S.C. § 2256(2)(B). The only sub-definition that could
conceivably apply here is § 2256(2)(B)(iii), which captures “graphic or simulated lascivious
exhibition of the genitals or pubic area.” We have adopted the “Dost factors” as a rubric for
analyzing whether a particular image is lascivious. United States v. Brown, 579 F.3d 672, 680
(6th Cir. 2009) (citing United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986)).
Because we have not seen the videos, we cannot determine they were lascivious. See
United States v. Gleich, 397 F.3d 608, 614 (8th Cir. 2005) (finding a “mooning” picture not
lascivious); Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir. 2002) (finding that pictures of naked
girls showering at a beach were not lascivious).
B.
As we explained above, to qualify as relevant conduct under USSG § 1B1.3(a)(2), the
conduct must constitute a logically related crime—federal or state—that carries incarceration as
a potential punishment. Maken, 510 F.3d at 657-58. Hodge’s voyeur videos meet this standard
because they constitute a federal child pornography attempt crime. See 18 U.S.C. § 2251(a)
& (e) (imposing a minimum 15-year sentence for attempted sexual exploitation of a minor).
A useful comparison case is United States v. Sims, 708 F.3d 832 (6th Cir. 2013). In Sims,
we held that non-lascivious voyeur videos of a girl getting dressed after showering could support
a charge of attempted production of child pornography. Id. at 835. The elements of attempted
production are the intent to create child pornography and that the defendant “took a substantial
step towards the creation of child pornography.” Id. The crucial issue in Sims was the
defendant’s intent because videotaping the naked child through a bedroom window constituted a
substantial step. Id.; see also United States v. Vanderwal, 533 F. App’x 498, 501-02 (6th Cir.
2013) (holding that hidden-camera videos of naked girls showering and using the bathroom,
though not actually lascivious, could support a verdict for attempted production of child
pornography).
No. 14-5256 United States v. Hodge Page 8
Because Hodge’s voyeuristic video recording resembles the attempted production of
child pornography in Sims and Vanderwal, his conduct meets our threshold requirement that to
be relevant conduct under USSG § 1B1.3(a)(2), the conduct must be a logically related crime
that could result in incarceration.
Additionally, Hodge’s presentence report notes that he faced a pending state charge for
“voyeurism.” He was never indicted or prosecuted on this charge. Kentucky’s “voyeurism”
statute, Ky. Rev. Stat. § 531.090, makes it a Class A misdemeanor when a person intentionally
uses any video or image recording device
for the purpose of observing, viewing, photographing, filming, or videotaping the
sexual conduct, genitals, an undergarment worn without being publicly visible, or
nipple of the female breast of another person without that person’s consent . . .
and . . . [t]he other person is in a place where a reasonable person would believe
that his or her sexual conduct, genitals, undergarments, or nipple of the female
breast will not be observed, viewed, photographed, filmed, or videotaped without
his or her knowledge.
A Class A misdemeanor in Kentucky may result in a prison sentence that “shall not exceed
twelve (12) months.” Ky. Rev. Stat. § 532.090(1). Therefore, even though it went unprosecuted,
Hodge’s conduct appears to be a violation of state law that could have resulted in incarceration.
V.
Having determined that Hodge’s voyeur videos could have resulted in incarceration, we
now consider whether they otherwise qualify as relevant conduct under USSG § 1B1.3(a). The
government argues that Hodge’s shower videos qualify under both § 1B1.3(a)(1)(A) and
§ 1B1.3(a)(2).
A.
Subsection (a)(1) contains two subparagraphs followed by a trailing clause. It defines the
following as relevant conduct:
(1) (A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant;
and
No. 14-5256 United States v. Hodge Page 9
(B) in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in
concert with others, whether or not charged as a conspiracy), all
reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection
or responsibility for that offense[.]
The issue here is whether Hodge’s voyeuristic video recording “occurred during the
commission of the offense of conviction,” in accordance with the trailing clause. Hodge insists,
as he did before the district court, that because “receipt,” i.e., downloading, happens at a discrete
moment in time, to be relevant under (a)(1)’s trailing clause, the voyeur videos must have been
made at the exact moment as one of his pornographic downloads. The district court correctly
rejected this argument.
The indictment against Hodge alleged that “[i]n or around October 2011 . . . Hodge did
knowingly receive” child pornography over the internet. Hodge pleaded guilty to this count, and
the plea agreement specified Hodge “searched for and knowingly downloaded over 100 images
of child pornography . . . in October 2011.”
It may be true in some cases that receipt (in this case downloading) of child pornography
is an action that happens “at a discrete moment.” United States v. Fowler, 216 F.3d 459, 461
(5th Cir. 2000). But it is also true that receipt is accompanied by possession, and that
possession is a lesser-included offense of receipt. The government therefore argues that Hodge’s
possession, as an offense lesser included in his offense of receipt, is part of Hodge’s “offense
of conviction.” The receipt and possession are inseparable. Together they are the behavior
underlying “the offense of conviction.” To phrase it differently, Hodge’s possession of child
pornography is not “relevant conduct” to the offense of conviction; it is included within the
offense of conviction.2
2
In contrast, possessing other child pornography images unrelated to the images received or solicited under
the count of conviction may count as relevant conduct. See United States v. Nance, 611 F.3d 409, 416-17 & nn. 6-7
(7th Cir. 2010).
No. 14-5256 United States v. Hodge Page 10
Here, Hodge’s possession of the child pornography he downloaded “[i]n or around
October 2011” continued through the period he was secretly video recording his stepdaughter.
Under this reasoning, the video recording happened “during” the offense of conviction. It
happened while Hodge continued to possess the child pornography, and this possession is
contained within the offense of conviction—the receipt of that pornography.
Because Hodge’s continuing offense of possession was included within his offense of
conviction for receipt, he did in fact produce the voyeur videos “during the commission of the
offense of conviction.” The behavior was therefore relevant conduct under USSG
§ 1B1.3(a)(1)(A).
B.
Likewise, Hodge’s video recording of his stepdaughter qualifies as relevant conduct
under USSG § 1B1.3(a)(2).
Subsection (a)(2) states:
solely with respect to offenses of a character for which § 3D1.2(d) would require
grouping of multiple counts, all acts and omissions described in subdivisions
(1)(A) and (1)(B) above that were part of the same course of conduct or common
scheme or plan as the offense of conviction [are relevant conduct].
First, Hodge’s offense of conviction qualifies as one “for which § 3D1.2(d) would require
grouping of multiple counts.” This is because § 3D1.2(d) includes “[o]ffenses covered by . . .
§ 2G2.2.” Section 2G2.2 addresses various child pornography offenses, including receipt and
possession.
Hodge insists that § 1B1.3(a)(2) does not apply because his relevant conduct—attempted
production—would not be grouped with his offense conduct—receipt—under § 3D1.2(d). Even
assuming he is correct, the guideline is not concerned with whether the relevant conduct would
be grouped with the offense conduct. Section 1B1.3(a)(2) simply says its provisions apply to
groupable “offenses,” and then authorizes courts to consider other acts that “were part of the
same course of conduct or common scheme or plan as the offense of conviction.” For example,
application note 3 to § 1B1.3 authorizes courts in drug distribution cases to consider unindicted
sales as relevant conduct. In the same way, an unindicted child exploitation offense (like
No. 14-5256 United States v. Hodge Page 11
Hodge’s voyeur videos) may be relevant to a groupable child exploitation “offense of
conviction,” provided that the unindicted acts were part of the same “course of conduct” or
“common scheme” as the offense.
The second phrase of § 1B1.3(a)(2) limits relevant conduct to “all acts and omissions
described in subdivisions (1)(A) and (1)(B) above.” There is an ambiguity as to whether the
phrase in (a)(2)—“all acts and omissions described in subdivisions (1)(A) and (1)(B) above”—
refers to (a)(1)(A) and (a)(1)(B) with the trailing clause or without the trailing clause. In other
words, do both (a)(1) and (a)(2) require that the conduct occur “during” (or in preparation for or
while covering up) the offense of conviction?
In United States v. Roxborough, 99 F.3d 212, 214-15 (6th Cir. 1996), we interpreted
(a)(2)’s post-1992 clause to incorporate all of subsection (a)(1). But in other cases, we have
applied (a)(2) without mentioning (a)(1)’s trailing clause. See United States v. Henderson, 17 F.
App’x 362, 366-67 (6th Cir. 2001); United States v. Hill, 79 F.3d 1477, 1481-85 (6th Cir. 1996);
United States v. Pitts, 72 F.3d 130, 1995 WL 730461, at *3 (6th Cir. Dec. 8, 1995) (unpublished
table opinion) (per curiam). For example, in Hill, which predates Roxborough, we discussed at
length the factors that might cause a defendant’s conduct to be relevant under (a)(2) even when
more than a year elapsed between the conduct at issue and the conduct underlying the offense of
conviction. 79 F.3d at 1483-85. Additionally, two other Circuits have expressly held that (a)(2)
does not incorporate (a)(1)’s trailing clause. See United States v. Ashford, 718 F.3d 377, 382-83
(4th Cir. 2013); United States v. Horton, 693 F.3d 463, 476 (4th Cir. 2012); United States v.
Johnson, 347 F.3d 635, 638-39 (7th Cir. 2003); see also USSG § 1B1.3 cmt. n.9(B)
(contemplating that relevant conduct under (a)(2) could be “relatively remote” in time to the
offense of conviction).
Even if (a)(2) incorporates (a)(1)’s trailing clause, it makes no difference in this case.
As we have already explained, Hodge’s voyeuristic video recordings occurred “during the
commission of the offense of conviction,” in accordance with the trailing clause.
This brings us to the final requirement of subsection (a)(2), which renders conduct
relevant if it was “part of the same course of conduct or common scheme or plan as the offense
of conviction.” Hodge’s attempted production of child pornography was both part of a “common
No. 14-5256 United States v. Hodge Page 12
scheme or plan” with his offense of conviction and part of the same “course of conduct.” Under
application note 9(A) to § 1B1.3(a)(2), a “common scheme or plan” requires that the offenses
“be substantially connected to each other by at least one common factor, such as common
victims, common accomplices, common purpose, or similar modus operandi.” See Hill, 79 F.3d
at 1481. Here, Hodge had a common purpose—fulfillment of his sexual interest in minors—for
his receipt of child pornography and his production of the voyeur videos. The voyeur videos
were thus part of a “common scheme” with his offense of conviction.
Similarly, under application note 9(B) to § 1B1.3(a)(2), offenses are the same course of
conduct “if they are sufficiently connected or related to each other as to warrant the conclusion
that they are part of a single episode, spree, or ongoing series of offenses.” Three factors guide
this analysis: “the degree of similarity of the offenses, the regularity (repetitions) of the offenses,
and the time interval between the offenses.” Hill, 79 F.3d at 1481-82 (quoting USSG § 1B1.3
cmt. n.9(B). Here, Hodge’s conduct was an “ongoing series of offenses.” The time interval was
close. The voyeuristic video recording and the downloading of internet child pornography also
both happened multiple times. And the fact that both sets of conduct involved Hodge’s sexual
interest in minors shows a high degree of similarity. The downloading and attempted production
were therefore part of the same course of conduct.
Accordingly, Hodge’s voyeur videos were relevant conduct under USSG
§ 1B1.3(a)(1)(A) and (a)(2).
VI.
Because Hodge’s voyeur videos were relevant conduct under USSG § 1B1.3(a), his
conduct was not “limited to the receipt or solicitation” of child pornography under USSG
§ 2G2.2(b)(1)(B). Although no evidence suggests Hodge intended to distribute any child
pornography, his criminal behavior related to his sexual interest in children went beyond mere
“receipt or solicitation.” See Fore, 507 F.3d at 415-16. (holding that a defendant’s conduct was
not “limited to” receipt or solicitation of child pornography because he was also convicted of
interstate transportation of child pornography, even though there was no evidence of intent to
distribute); Ellison, 113 F.3d at 83. Hodge’s relevant conduct included behavior that qualified as
attempted production of child pornography under federal law and as misdemeanor voyeurism
No. 14-5256 United States v. Hodge Page 13
under Kentucky law. The district court properly concluded that Hodge did not qualify for
§ 2G2.2(b)(1)’s two-point base-offense-level reduction.
AFFIRMED.
No. 14-5256 United States v. Hodge Page 14
_________________
CONCURRENCE
_________________
JANE B. STRANCH, concurring. I join my colleagues in affirming Hodge’s sentence
because the language used by the Sentencing Commission in USSG § 2G2.2(b)(1)(B) does not
accomplish the objective the Commission intended to achieve.
USSG § 2G2.2(b)(1) became effective on November 1, 2004, after Congress passed the
Prosecutorial Remedies and Other Tools Against the Exploitation of Children Today Act of 2003
(PROTECT Act). Pub. L. 108–21, 117 Stat. 650 (2003). In drafting guideline amendments to
respond to the PROTECT Act, the Commission consolidated two existing guidelines: § 2G2.2,
which applied to trafficking, receipt, and transportation of child pornography, and § 2G2.4,
which applied to possession of child pornography. The Commission then published a revised
§ 2G2.2 and deleted § 2G2.4. USSG App. C, Amendment 664 (Nov. 1, 2004).
In its Reason for Amendment, USSG App. C, Amendment 664 (Nov. 1, 2004), the
Commission explained that the PROTECT Act established a five-year mandatory minimum
sentence and increased the statutory maximum sentence for child pornography trafficking and
receipt offenses. In light of these increased statutory penalties, the Commission sought to
maintain proportionality in setting the guideline base offense levels for possession, receipt, and
trafficking of child pornography. The Commission increased the base offense level for
possession from 15 to 18 and set the base offense level for trafficking at 22. The Commission
deemed simple receipt offenses—those where defendants received child pornography but
harbored no intent to distribute the material received—worthy of an intermediate base offense
level of 20:
The amendment . . . provides a two-level decrease at § 2G2.2(b)(1) for a
defendant whose base offense level is level 22, whose conduct was limited to the
receipt or solicitation of material involving the sexual exploitation of a minor, and
whose conduct did not involve an intent to traffic in or distribute the material.
Thus, individuals convicted of receipt of child pornography with no intent to
traffic or distribute the material essentially will have an adjusted offense level of
level 20, as opposed to an offense level of level 22, for receipt with intent to
traffic, prior to application of any other specific offense characteristics. The
No. 14-5256 United States v. Hodge Page 15
Commission’s review of these cases indicated the conduct involved in such
“simple receipt” cases in most instances was indistinguishable from “simple
possession” cases. The statutory penalties for “simple receipt” cases, however,
are the same as the statutory penalties for trafficking cases. Reconciling these
competing concerns, the Commission determined that a two-level reduction from
the base offense level of level 22 is warranted, if the defendant establishes that
there was no intent to distribute the material.
USSG App. C, Amendment 664, page 59 (emphasis added).
I understand from this explanation that the Commission intends for base offense level
20 to apply if the defendant’s conduct of conviction is limited to receipt of child pornography and
the defendant had no intent to distribute the material received. See United States v. Goluba,
672 F.3d 304, 309–10 (5th Cir. 2012) (DeMoss, J., dissenting). Unfortunately, that is not what
§ 2G2.2(b)(1)(B) says. The provision refers without limitation to “the defendant’s conduct.” In
view of the express language used, I am constrained to agree with my colleagues that “the
defendant’s conduct” includes relevant conduct as defined in USSG § 1B1.3. Taking into
account the defendant’s relevant conduct of videotaping his stepdaughter, I am unable to
conclude that “the defendant’s conduct was limited to the receipt or solicitation of material
involving the sexual exploitation of a minor.” The district court did not err in declining to apply
§ 2G2.2(b)(1) in favor of the defendant.
The Commission may decide in the future to revise § 2G2.2(b)(1)(B) to effectuate the
intended meaning of the provision, but until that occurs, I agree that we must interpret the
provision in accordance with the relevant conduct guideline. For these reasons, I concur in the
majority opinion.