United States v. Whited, Matthew ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1015
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ATTHEW W. W HITED,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 05 CR 50060—Philip G. Reinhard, Judge.
____________
A RGUED S EPTEMBER 13, 2007—D ECIDED A UGUST 25, 2008
____________
Before E ASTERBROOK, Chief Judge, and C UDAHY and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Defendant Matthew Whited was
charged with possession, receipt, and distribution of
child pornography based on evidence gathered in a
search of his home pursuant to an anticipatory warrant.
Federal agents obtained the warrant after Whited ordered
a videotape of child pornography from an undercover
postal inspector; the warrant was premised upon a suc-
2 No. 07-1015
cessful controlled delivery of the package Whited had
ordered. There were two conditions precedent to the
search: Whited’s acceptance of the package and entry
into his home with it.
Whited challenged the legality of the search under the
Fourth Amendment, arguing that one of the conditions
precedent in the warrant did not occur—he claimed he
was on his front stoop when he accepted the delivery and
never entered his house after signing for the package.
Federal agents executing the warrant testified otherwise.
The district court believed the agents and denied the
suppression motion.
Whited pleaded guilty and reserved the right to appeal
the denial of his suppression motion. At sentencing the
district court applied the sentencing guidelines enhance-
ment specified in U.S.S.G. § 2G2.2(b)(3)(B), which adds
five levels to the base offense level when the distribution
of child pornography is for “receipt, or expectation of
receipt, of a thing of value.” The factual basis for this
enhancement was Whited’s transmission of child-pornog-
raphy images to an e-mail correspondent with whom he
was trying to arrange a sexual encounter.
Whited now appeals his conviction and sentence,
challenging the denial of his suppression motion, the
application of the § 2G2.2(b)(3)(B) enhancement, and the
reasonableness of his sentence under 18 U.S.C. § 3553(a).
We affirm. Anticipatory warrants are constitutional, and
although the testimony at the suppression hearing was
conflicting, the district court’s determination that the
warrant’s triggering conditions had occurred was not
No. 07-1015 3
clear error. The court properly applied the § 2G2.2(b)(3)(B)
sentencing enhancement based on the e-mail correspon-
dence establishing that Whited reasonably expected his
transmission of child pornography would lead to the
sexual encounter he and his e-mail correspondent were
then discussing. Finally, the 300-month sentence im-
posed by the district court was within the applicable
guidelines range and is therefore presumed reasonable;
Whited’s perfunctory challenge to the district court’s
consideration of the § 3553(a) factors is not enough to
rebut the presumption.
I. Background
In March 2004 an undercover postal inspector received
an e-mail responding to an advertisement the inspector
had posted on the Internet offering child-pornography
videos. The e-mail came from an address later determined
to be Whited’s. After an initial exchange of e-mails,
Whited sent the inspector $30 for a video depicting child
pornography. The inspector then forwarded this infor-
mation on to the federal Child Exploitation Strike Force
in Chicago.
The Strike Force then arranged for a controlled delivery
of the package and obtained an anticipatory warrant
permitting agents to search Whited’s residence after two
conditions were satisfied: (1) Whited accepted the
control package; and (2) he entered his house with it. On
July 29, 2004, Postal Inspector Lary Maxwell, dressed as a
postal carrier, approached Whited’s home with the control
package and rang the doorbell. Michael Hoeft, a friend of
4 No. 07-1015
Whited’s 12-year-old son who had stayed overnight on a
“sleepover,” answered the door and then called Whited.
Whited came down the stairs, accepted the package, and
walked to his car. Whether he was inside or outside of the
house when he accepted the package is disputed; we will
discuss the testimony in more detail in a moment. As
Whited was getting into his car, he was detained by
FBI agents.
The agents then searched the home and found child
pornography in a locked suitcase in a closet, on compact
discs, and on the hard drive of Whited’s computer. The
agents also discovered e-mail correspondence on Whited’s
computer between Whited and a man named “Will,” in
which child-pornography images were transmitted and
arrangements for a sexual encounter were discussed.
More specifically, Whited sent Will two images of child
pornography and expressed his interest in using child
pornography in connection with the sexual encounter
they were then planning. Will, in turn, expressed his
approval of the images and asked Whited to continue
to send him child pornography to “keep me happy” until
the proposed encounter could take place.
Whited was charged with two counts of distribution of
child pornography under 18 U.S.C. § 2252A(a)(1), one
count of receipt of child pornography under 18 U.S.C.
§ 2252A(a)(2)(A), and one count of possession of child
pornography under 18 U.S.C. § 2252A(a)(5)(B). He moved
to suppress the evidence seized during the search of his
home. Whited testified at the suppression hearing that
when he came to the door after being summoned by his
No. 07-1015 5
son’s friend, he stepped out onto the stoop and closed
both the main door and the exterior screen door before
speaking with Inspector Maxwell.
In contrast, Inspector Maxwell testified that when
Whited came to the door, he stood on the threshold
between the main door and the screen door, opened the
screen door for Inspector Maxwell, and from that
position—with the main door still open behind
him—accepted and signed for the control package. Inspec-
tor Maxwell then turned and began to walk away, but
looked back over his shoulder and saw Whited retreat
back into the house momentarily before exiting the
house, closing both doors behind him, and starting toward
his car. Maxwell testified that when Whited signed for
the package, he had not closed either door but stood on
the threshold between them. FBI Special Agent Scott
McDonough, observing the operation from about 200
feet away, also testified that the exchange of the package
took place when Whited was standing on the threshold
between the doors; he testified that he saw Whited briefly
go back into the house before leaving with the package.
Michael Hoeft—the friend of Whited’s son who had
spent the night and answered the door when Inspector
Maxwell rang the bell—testified that he had been asleep
in the living room when he was awakened by the doorbell
ringing. He said he answered the door and a mailman
asked for Matthew Whited. Michael went to get Whited,
and then observed as Whited talked to the mailman while
standing in the doorway with both feet still in the house.
He saw Whited sign for and take the package from the
6 No. 07-1015
mailman and then leave the house. Ryan Manley, another
friend of Whited’s son who was at the “sleepover,” did not
remember much; he testified only that he saw Whited
leave through the front door of the house.
The district court denied Whited’s suppression motion,
holding that the conditions triggering the execution of the
warrant had been satisfied. The court credited the testi-
mony of Inspector Maxwell and Special Agent McDonough
and found that Whited had been standing on the threshold
between the outer screen door and the inside main door
of the house when he received the control package, and
then had retreated into the house, however briefly, to
close the main door behind him before leaving.
Whited pleaded guilty to one count of distribution, one
count of possession, and one count of receipt of child
pornography, reserving the right to challenge the search.
At sentencing the district court determined that Whited
had distributed child pornography in expectation of
receiving a thing of value, warranting application of the
five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B).
The court found that Whited distributed child pornogra-
phy to Will in the reasonable expectation that it would
lead to the sexual encounter the two were then arranging.
This produced an advisory sentencing guidelines range
of 296 to 365 months. The judge made specific mention of
several § 3553(a) factors, including the defendant’s lack of
criminal history; his lack of documented aggression
against minors; the seriousness of child-pornography
crimes; the results of Whited’s psychological evaluation,
which had diagnosed pedophilia; the need to deter Whited
No. 07-1015 7
from escalating from child pornography to child molesta-
tion; and the need for general deterrence and protection of
the public. The court imposed a sentence of 300 months
in prison, at the low end of the guidelines range.
II. Discussion
Whited raises three issues on appeal. He renews his
argument that the search of his home violated the Fourth
Amendment because the triggering conditions precedent
in the anticipatory warrant did not occur. He also argues
that the district court should not have applied the five-
level sentencing enhancement under § 2G2.2(b)(3)(B)
because his distribution of child pornography to Will was
merely gratuitous and not in reasonable expectation of
receiving sex. Finally, he argues that the district court
failed to properly consider the relevant factors under
18 U.S.C. § 3553(a) and therefore his sentence is unrea-
sonable. None of these arguments has merit.
A. Denial of Suppression Motion
The district court’s denial of Whited’s suppression is
subject to a dual standard of review; we review legal
conclusions de novo and findings of fact for clear error,
giving special deference to the district court’s superior
vantage point on matters of witness credibility. United
States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993).
“An anticipatory warrant is ‘a warrant based upon an
affidavit showing probable cause that at some future time
8 No. 07-1015
(but not presently) certain evidence of crime will be located
at a specified place.’ ” United States v. Grubbs, 547 U.S. 90, 94
(2006) (quoting 2 W AYNE R. L AF AVE, S EARCH AND S EIZURE
§ 3.7(c), p. 398 (4th ed. 2004)). Anticipatory warrants
generally “subject their execution to some condition
precedent other than the mere passage of time—a so-called
‘triggering condition.’ ” Id. An anticipatory warrant may
issue if “the magistrate . . . determine[s] (1) that it is now
probable that (2) contraband, evidence of a crime, or a
fugitive will be on the described premises (3) when the
warrant is executed.” Id. at 96. The probable-cause
inquiry is twofold: there must be a fair probability that
contraband or evidence of a crime will be found in the
described place if the triggering condition occurs and
probable cause to believe the triggering condition will
occur. Id. at 96-97.
The focus here, however, is on the execution of the
anticipatory warrant, not its issuance.1 Whited claims one
of the warrant’s triggering conditions—his entry into his
1
Whited does not, for example, raise an argument regarding
the scope of the warrant under the Fourth Amendment. That is,
he does not challenge the particularity of the warrant’s descrip-
tion of the place to be searched and things to be seized. See
Grubbs, 547 U.S. at 97-99 (explaining the Fourth Amendment’s
“particular description” requirement). Accordingly, this opin-
ion should not be read as suggesting that a controlled delivery
of one parcel automatically authorizes a general search of a
home. But see United States v. Watzman, 486 F.3d 1004, 1008-09
(7th Cir. 2007) (discussing the general sufficiency of information
in warrant application to establish probable cause to search
for and seize child pornography in a home).
No. 07-1015 9
home with the control package—did not occur. This is a
challenge to the district court’s fact-finding at the suppres-
sion hearing, which is subject to deferential review for
clear error. Here, the district court weighed the con-
flicting testimony regarding the circumstances of
Whited’s receipt of the control package and specifically
rejected Whited’s claim that he closed both the inside
main door and the exterior screen door behind him
before he accepted the package from Inspector Maxwell.
Inspector Maxwell and Special Agent McDonough, who
was observing Whited’s interaction with Maxwell from
the street, both testified that Whited was on the threshold
between the doors when he took delivery of the package.
Maxwell also testified that he specifically checked to
make sure that Whited entered his house after receiving
the package; he said that if Whited had not entered the
house, he planned to ask Whited for permission to use his
bathroom to ensure that he entered the house with the
package. Michael Hoeft, the youngster who answered
the door and summoned Whited, testified that he saw
Whited talking with Maxwell and signing for a package;
this would have been impossible if Whited had closed
both doors prior to talking with Maxwell. Also, Michael
testified that Whited had both feet in the house when he
accepted the package.
The district court’s findings that Whited received the
control package while standing on the threshold between
the doors and briefly retreated into the house with it were
10 No. 07-1015
not clearly erroneous.2 The triggering conditions for the
anticipatory warrant were satisfied, and Whited’s motion
to suppress the evidence obtained in the search was
properly denied.
B. Sentencing Enhancement Under § 2G2.2(b)(3)(B)
Whited argues the district court should not have applied
the sentencing enhancement under § 2G2.2(b)(3)(B),
which adds five levels to the defendant’s base offense
level if the distribution of child pornography was “for the
receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain.” He maintains that his transmission
of child-pornography images to Will was gratuitous and
not in connection with any “precise bargain” for sex, and
therefore was not in “expectation of receipt[] of a thing
of value.” To the extent this argument raises a question
about the interpretation of the guideline, our review is
de novo; to the extent that it challenges the district
court’s factual findings, our review is for clear error.
United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006).
We have not yet had occasion to consider the meaning of
the “expectation of receipt” alternative in § 2G2.2(b)(3)(B).
The application notes broadly explain that this enhance-
2
The threshold is part of the home, although it may be con-
sidered exposed to the public and therefore not carrying an
expectation of privacy for Fourth Amendment purposes,
depending on the circumstances. See United States v. Santana,
427 U.S. 38, 42 (1976).
No. 07-1015 11
ment applies to “any transaction, including bartering or
other in-kind transaction, that is conducted for a thing
of value, but not for profit.” U.S.S.G. § 2G2.2 cmt. n.1. A
“thing of value” is specifically defined in the application
notes as “anything of valuable consideration.” Id. Whited
concedes that the sexual encounter he and Will were
contemplating would qualify as a “thing of value.”
The district court relied on a decision from the Sec-
ond Circuit interpreting the word “expectation” in
§ 2G2.2(b)(3)(B) according to its dictionary definition: “the
act or action of looking forward: anticipation.” United
States v. Maneri, 353 F.3d 165, 169 (2d Cir. 2003) (quoting
W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY 799
(1976)). The court in Maneri rejected the defendant’s
argument that “expectation of receipt” in § 2G2.2(b)(3)(B)
required a “specific agreement.” Id. Instead, the court
held that if the defendant distributed child pornography
“in anticipation of, or while reasonably believing in the
possibility of, the receipt of a thing of value,” the enhance-
ment applied. Id. The defendant in Maneri had sent child-
pornography images to a sheriff’s deputy posing on the
Internet as an adolescent girl with the screen name
“nygrl12,” and had engaged in detailed chat-room dis-
cussions with “nygrl12 ” about a time and place to meet
for sex. The court upheld the application of the enhance-
ment.
We agree with the Second Circuit that “expectation of
receipt” under § 2G2.2(b)(3)(B) does not require an ex-
plicit agreement or precise bargain, as Whited contends.
Distribution of child pornography in the reasonable
12 No. 07-1015
anticipation or reasonable belief of receiving a thing of
value is enough for the enhancement to apply. The dis-
trict court did not clearly err in finding that Whited
distributed child pornography in reasonable anticipation
of obtaining sex from Will. Here, as in Maneri, Whited and
his Internet correspondent engaged in detailed online
discussions to arrange their sexual encounter. Whited, like
Maneri, sent his correspondent images of child pornogra-
phy to facilitate that transaction. In this case Will went
so far as to request that Whited send more child pornog-
raphy to “keep me happy” until the encounter could
take place. The enhancement was properly applied.
C. District Court’s Application of § 3553(a) Factors
Finally, Whited contends that his 300-month sentence is
unreasonable because the district court did not give
adequate consideration to the § 3553(a) factors that favored
a below-guidelines variance. A sentence within a properly
calculated guidelines range enjoys a rebuttable presump-
tion of reasonableness. United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). “[W]hen a judge decides
simply to apply the Guidelines to a particular case, doing
so will not necessarily require lengthy explanation.” Rita
v. United States, 127 S. Ct. 2456, 2468 (2007).
Here, the district court calculated the appropriate
guidelines range and then gave consideration to Whited’s
lack of criminal record and the absence of any documented
history of aggression against children. On the other side
of the ledger, however, the court considered the serious-
ness of child-pornography distribution; Whited’s psycho-
No. 07-1015 13
logical evaluation, diagnosis of pedophilia, and pattern
of placing of himself in a position of power over children;
and the need for protection of the public and specific and
general deterrence. On appeal Whited does little more
than question the weight the court assigned to these
factors; this is insufficient to rebut the presumption of
reasonableness. The district court more than satisfied
its obligations under § 3553(a).
A FFIRMED.
8-25-08