United States v. Gary Belflower ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1450
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Gary Belflower, *
* [TO BE PUBLISHED]
Defendant-Appellant. *
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Submitted: November 18, 2004
Filed: December 3, 2004
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Before MURPHY, LAY, and MELLOY, Circuit Judges.
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PER CURIAM.
Gary Belflower took part in e-mail chat rooms with a person he believed to be
a fourteen year-old girl named “Jenny.” He also e-mailed images of child
pornography to “Jenny.” Unfortunately for Belflower, “Jenny” was actually an
undercover detective. On February 21, 2002, Belflower’s residence was searched and
a number of incriminating images were seized from his computer files. Ultimately,
Belflower pled guilty to one count of knowingly transporting in interstate commerce,
by means of a computer, visual depictions of minors engaged in sexually explicit
conduct, in violation of 18 U.S.C. §§ 2252(a)(1) and (b)(1), and one count of
possession of visual depictions of minors engaged in sexually explicit conduct, in
violation of 18 U.S.C. § 2252A(a)(5)(B).
The Presentence Report (PSR) recommended a four-level enhancement to
Belflower’s offense level because the images involved in the offenses “portray[ed]
sadistic or masochistic conduct or other depictions of violence . . . .” United States
Sentencing Guidelines (U.S.S.G.) § 2G2.2(b)(3) (2002).1 Belflower objected to the
enhancement. At the sentencing hearing, the Government submitted Exhibit 2, which
contained one image sent by Belflower to “Jenny” during their on-line conversations.
The Government also submitted Exhibit 3, which contained seventeen images seized
from Belflower’s computer. After reviewing these images, the district court found
that several images contained in Exhibit 3 met the definition of “sadistic” or “violent”
depictions, while the image in Exhibit 2 did not. The court overruled Belflower’s
objection to the enhancement. He was sentenced to sixty-three months of
imprisonment for the trafficking count and sixty months of imprisonment for the
possession count, with the terms of imprisonment running concurrently.
Belflower now appeals the enhancement of his sentence. He claims that the
district court failed to make adequate findings explaining why the images contained
in Exhibit 3 constituted “sadistic” or “violent” depictions pursuant to U.S.S.G.
§ 2G2.2(b)(3), and claims the images show, “at worst,” attempted and actual anal and
vaginal penetration of male and female children by adult males which “do not depict
a child experiencing physical cruelty or pain” and “may or may not [be] a violent act.”
Appellant’s Brief at 9-10.
We reject these arguments. This circuit recently ruled that images involving
the sexual penetration of a minor girl by an adult male and images of an adult male
1
The 2002 version of the Guidelines applies in this case due to Ex Post Facto
concerns. See PSR at 11 ¶¶ 39, 40.
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performing anal sex on a minor girl or boy are per se sadistic or violent within the
meaning of U.S.S.G. § 2G2.2(b)(3). See United States v. Diaz, 368 F.3d 991, 992
(8th Cir. 2004). Today, we hold that images of an adult attempting such acts are
likewise “sadistic” or “violent” for the purpose of U.S.S.G. § 2G2.2(b)(3). Such
images portray conduct sufficient to presume the infliction of mental or physical
coercion or abuse upon a minor. They also bespeak a sadistic intent to achieve sexual
pleasure through the necessarily violent depiction of a minor as either a sexual object
ripe for or deserving of sexual exploitation, or as a sexual subject desirous of and
complicit in his or her own sexual exploitation.
Belflower next argues that even if the images in Exhibit 3 were sadistic or
otherwise violent, the images which supported his possession offense should not be
used to enhance the sentence for his trafficking offense. He claims that U.S.S.G.
§ 2G2.2(b)(3) permits an enhancement only for the trafficking offense, and there is
no evidence that the images in Exhibit 3, which were merely stored in his computer
files, were trafficked in any way. Belflower acknowledges the Eighth Circuit’s rule
that a defendant’s contemporaneous possession of violent images during the same
time frame that he or she engaged in the trafficking offense is “relevant conduct” for
the purposes of the trafficking charge. See United States v. Stulock, 308 F.3d 922,
926 (8th Cir. 2002); see also U.S.S.G. § 1B1.3(a)(1) (stating that specific offense
characteristics are determined on the basis of all acts by the defendant that “occurred
during the commission of the offense of conviction” or “in preparation for that
offense”). However, Belflower observes that the record is silent as to when the
images in Exhibit 3 were placed on his computer, and therefore, “it is not at all clear
that the merely-possessed images have a temporal or other relation to the trafficking
offense . . . .” He further argues that it is not clear they are “part of the same course
of conduct” as the guideline requires. He relies upon United States v. Fowler, 216
F.3d 459, 461 (5th Cir. 2000) to support this argument.
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It is not necessary to resolve the issue of contemporaneous possession to affirm
the district court’s sentence. Pursuant to U.S.S.G. § 3D1.2 (2002), a court can group
multiple crimes for the purpose of sentencing when the various crimes involve
“substantially the same harm.” Crimes involve “substantially the same harm” within
the meaning of this section when, inter alia, “one of the counts embodies conduct that
is treated as a specific offense characteristic in . . . the guideline applicable to another
of the counts.” U.S.S.G. § 3D1.2(c). The offenses of trafficking child pornography
and possession of child pornography are specifically identified as crimes which are
to be grouped. See U.S.S.G. § 3D1.2 (listing offenses in §§ 2G2.2 and
2G2.4–possession and trafficking–as ones that should be grouped).
The trafficking offense incorporates as a “specific offense characteristic”
images portraying “sadistic or masochistic conduct or other depictions of violence
. . . .” U.S.S.G. § 2G2.2(b)(3). Here, the district court found that the conduct
constituting Belflower’s possession offense involved “sadistic” or otherwise “violent”
images of child pornography, based on a review of the Exhibit 3 images. Therefore,
the possession offense and the trafficking offense involve “substantially the same
harm,” and may be grouped together and “treated as . . . a single offense for purposes
of the guidelines.” U.S.S.G. § 3D (introductory cmt.).
Accordingly, we hold that the district court did not err in applying the four-
level enhancement to Defendant Belflower. The sentence is AFFIRMED.
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