United States v. Vincent Tenuto ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2075
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V INCENT J. T ENUTO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 0484—William J. Hibbler, Judge.
A RGUED N OVEMBER 12, 2009—D ECIDED F EBRUARY 3, 2010
Before C UDAHY, M ANION, and W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. Vincent Tenuto pleaded guilty
to transporting child pornography in violation of 18
U.S.C. § 2252A(a)(1). At sentencing he unsuccessfully
challenged two guideline enhancements for use of a
computer and distribution of material that involved the
sexual exploitation of a minor. On appeal he argues
that the enhancements constitute double counting
because the behavior they are based on was already
2 No. 09-2075
accounted for in his conviction. In this context, double
counting occurs when the underlying offense itself neces-
sarily includes the same conduct as the enhancements.
Because Tenuto’s conduct that gave rise to the enhance-
ment went beyond what was needed to satisfy the
statute he pleaded guilty to violating, no double
counting occurred. We affirm.
I.
Tenuto pleaded guilty to one count of knowingly trans-
porting in interstate commerce an image of child pornog-
raphy, namely by sending an email with the illicit
image attached. This was not simply a one-time deal.
When Tenuto was arrested, over 1200 images of child
pornography were on his computer, including some
that featured sadistic images of children. At sentencing,
many enhancements applied to his conduct, and he
agreed to all but two of them. He objected to a two-
level enhancement for distribution and a two-level en-
hancement for using a computer to carry out his crime.
Tenuto argued that the application of these enhance-
ments constituted impermissible double counting; the
district court overruled his objections, noting that based
on the factual circumstances of Tenuto’s case these en-
hancements were appropriate. With these enhancements,
his guideline range was 151-188 months; without them
his guideline range would have been 97-121 months. After
consulting the factors under 18 U.S.C. § 3553, the district
court sentenced Tenuto to 96 months’ incarceration.
He appeals the two enhancements.
No. 09-2075 3
II.
We review de novo whether the district court
impermissibly double counted Tenuto’s conduct when
it applied the two enhancements. United States v. Haynes,
582 F.3d 686, 708 (7th Cir. 2009). Tenuto’s first argument
is that the fact that he distributed child pornography is
accounted for in his base offense level and that
applying the distribution enhancement under U.S.S.G.
§ 2G2.2(b)(3)(F) to his guideline range punished him
twice for that same conduct.
There are two forms of double counting and both are
prohibited. The most common is when a district court
calculates a defendant’s offense level and applies “two
or more upward adjustments . . . when both are
premised on the same conduct.” Haynes, 582 F.3d at 710(quotation omitted). The other form of double counting,
and the one at issue here, is when a district court relies on
conduct that was necessary to satisfy an element of the
defendant’s conviction yet uses that same conduct to
enhance the defendant’s guideline range. United States v.
Calimlim, 538 F.3d 706, 716 (7th Cir. 2008) (“The bar on
double counting comes into play only if the offense
itself necessarily includes the same conduct as the en-
hancement.” (quotation omitted)). This second bar is
rooted in the fact that the conduct that satisfied an
element of the underlying offense is already part of the
base offense level. Thus, if that same conduct also
enhances the sentence, the defendant is being punished
twice for the same act. E.g., United States v. Podhorn, 549
F.3d 552, 560 (7th Cir. 2008) (citing United States v. Jackson,
103 F.3d 561, 569 (7th Cir. 1996)).
4 No. 09-2075
In this case, that did not occur. Tenuto was convicted
of transporting child pornography, a distinct offense
from distributing child pornography. They are, in fact,
separate crimes. Compare 18 U.S.C. § 2252A(a)(1) (pros-
cribing transportation of child pornography), with 18 U.S.C.
§ 2252A(a)(2)(A)-(B) (proscribing receipt or distribution
of child pornography). The two crimes are similar
because a person who has distributed child pornography
has likely transported it, and a person who transports it
is likely to eventually distribute it. Although closely
connected, they are still separate crimes. 1
Tenuto’s charged offense was satisfied by knowingly
transporting by any means child pornography. Any
subsequent distribution of the child pornography is
immaterial in determining whether he can be convicted
under § 2252A(a)(1). He simply needed to transport the
child pornography. It was inconsequential whether he
was transporting it for himself or for others. Either way,
he violated the statute. See United States v. McCaffery,
437 F.3d 684, 689 (7th Cir. 2006); cf. United States v.
Olander, 572 F.3d 764, 770 (9th Cir. 2009) (noting “receipt
of child pornography, with or without an intent to distrib-
1
By prosecuting (and obtaining a guilty plea) for transporting
child pornography, Tenuto’s distribution of the material
remained available for the two-level enhancement under
U.S.S.G. § 2G2.2(b)(3)(F). See United States v. Malik, 385 F.3d
758, 760 (7th Cir. 2004) (“When the same acts violate
multiple laws, the prosecutor is free to choose the one with
the highest sentence.”).
No. 09-2075 5
ute, is a crime.”). The fact that Tenuto also distributed the
material that he transported is conduct separate and
distinct from what is required to convict him of transport-
ing under § 2252A(a)(1). Put another way, a conviction
for transporting child pornography does not necessarily
entail distribution or an intent to distribute. Accordingly,
it is not double counting when in addition to trans-
porting child pornography a defendant also receives an
enhancement for distributing the material. Thus, the
district court did not err in applying to Tenuto’s offense
conduct the enhancement under U.S.S.G. § 2G2(b)(3)(F)
for distribution of child pornography.
Tenuto’s second argument poses a slightly different
issue. The language of § 2252A makes it a crime to know-
ingly mail, transport, or ship “by any means, including by
computer, any child pornography.” 18 U.S.C. § 2252A(a)(1)
(emphasis added). The Guidelines provide a two-level
enhancement for a defendant who uses a computer to
commit an offense involving the sexual exploitation of a
minor. U.S.S.G. § 2G2.2(b)(6) (“If the offense involved
the use of a computer . . . for the possession, transmission,
receipt, or distribution of the material.”). Tenuto makes
two arguments for why application of this enhance-
ment constitutes double counting. First, he contends
that transporting, the offense he pleaded guilty to com-
mitting, included the element of using a computer.
Second, he maintains that because the means he em-
ployed to transport the pornography was by a computer,
enhancing his sentence for using a computer constituted
double counting.
6 No. 09-2075
Tenuto’s arguments misapprehend the nature of
double counting. Tenuto transported child pornography
through interstate commerce—that was his offense.
To violate the statute, it was not necessary that he use a
computer. Calimlim, 538 F.3d at 715. He could have
chosen to mail or fax the material; he could have carried
it on a train or simply walked it across state lines. It would
not matter for purposes of violating § 2252A(a)(1):
the statute broadly proscribes transportation of child
pornography by using the phrase “any means” affecting
interstate commerce. Citizens Bank v. Alafabco, Inc., 539 U.S.
52, 56 (noting that “affecting commerce” is a “[term] of
art that ordinarily signal[s] the broadest permissible
exercise of Congress’ Commerce Clause power.”); cf. United
States v. Ye, 588 F.3d 411, 415 (7th Cir. 2009) (noting the
use of “any means” language places no limit on the
conduct that can satisfy the statute).
The fact that the statute goes on to specifically articulate
one of those means, “by use of a computer,” does not mean
that use of a computer is an element of the crime. At trial,
the government must prove that the offense was com-
mitted “knowingly.” It must prove that the offensive
material was “child pornography,” as that term is
defined in § 2256(8). And it must prove that the material
was mailed, transported, or shipped “using any means
or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce.” 18 U.S.C.
§ 2252A(a)(1). The fact that the statute specifically articu-
lates one of those means, “by use of a computer,”
does not mean that the use of a computer is an element
of the crime.
No. 09-2075 7
Using a computer is not an element of the offense, it is
just one of many ways that a defendant can satisfy the
third element. Indeed, it is not necessary for a violation
of the statute that a defendant use a computer to
transport the material; it is merely a sufficient method
(and likely the most efficient method). Because a
defendant need not use a computer to violate the
statute, the fact that Tenuto used a computer becomes
one of the offense characteristics that apply to his con-
duct. U.S.S.G. § 1B1.3(a)(1) (a defendant’s relevant con-
duct includes all acts that “occurred during the com-
mission of the offense of conviction.”). Thus, it does not
constitute double counting to use that fact to enhance
his guidelines.
Here, it is undisputed that Tenuto used a computer in
the commission of his offense: he possessed the material
through use of a computer; he transmitted it through
use of a computer; he distributed it through use of a
computer. Id. § 2G2.2(b)(6) (the enhancement applies “[i]f
the offense involved the use of a computer . . . for the
possession, transmission, receipt, or distribution of
the material”). The computer enhancement provided
a complete overlay to his “offense conduct.” Id.
§ 1B1.3(a)(1)(A). Therefore, the district court properly
applied the enhancement for use of a computer under
U.S.S.G. § 2G2.2(b)(6) to Tenuto’s guideline range.
III.
The district court did not engage in “double counting”
when it applied the two enhancements to Tenuto’s guide-
8 No. 09-2075
line range. The enhancement for distributing material
that involved the sexual exploitation of a minor was not
based on the same factual predicate as the offense of
transporting child pornography under § 2252A(a)(1), to
which Tenuto pleaded guilty. And the use of a computer
is not an element of § 2252A(a)(1). Thus, the application
of the enhancements to Tenuto’s offense level was appro-
priate. We A FFIRM .
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