United States v. Eric Ultsch ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3794
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Eric Lee Ultsch, *
*
Appellant. *
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Submitted: June 8, 2009
Filed: August 27, 2009
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Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
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COLLOTON, Circuit Judge.
Eric Ultsch pled guilty to one count of receiving and distributing child
pornography and one count of possessing child pornography. The district court1
sentenced Ultsch to 360 months’ imprisonment. Ultsch appeals his sentence, arguing
that the district court committed procedural error by improperly calculating the
advisory guideline range and abused its discretion by imposing a sentence within the
advisory guideline range. We affirm.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
I.
In March 2008, Ultsch’s wife gave law enforcement officers a folder containing
child pornography that she claimed belonged to Ultsch. She also reported that Ultsch
had been sexually abusing one of their daughters. Officers executed a search warrant
at Ultsch’s residence, and they found two computers, numerous computer disks and
hard drives, two printers, and a scanner. Forensic examination of the seized items
disclosed that child pornography was contained in more than 700 photographic files
and more than 50 movie files. The examination also revealed that LimeWire, a peer-
to-peer file-sharing software program that allows users to distribute and receive files
over the Internet, was installed on both computers. LimeWire’s sharing function was
activated on both computers, meaning that when they were connected to the Internet,
other users of the file-sharing network were able to access files stored in designated
shared folders on the computers.
During interviews with law enforcement officers, Ultsch acknowledged that
LimeWire is a “peer-to-peer file-sharing program,” and admitted that he downloaded
child pornography using the program. Ultsch stated that when he downloaded files
containing child pornography, the files were placed directly into LimeWire’s shared
folder. Ultsch also admitted to viewing child pornography and masturbating while his
daughter was in the same room, sometimes while she sat naked on his bed. In
addition, he admitted to rubbing his penis on his daughter’s vaginal area and
ejaculating on her stomach. According to Ultsch’s daughter, Ultsch sexually abused
her nearly every day.
A grand jury returned an indictment charging Ultsch with receiving and
distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possessing
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Ultsch pled guilty to
both counts of the indictment. At sentencing, over Ultsch’s objection, the district
court applied USSG § 2G2.2(b)(3)(B), which provides for a five-level specific offense
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characteristic if the offense involved “[d]istribution for the receipt, or expectation of
receipt, of a thing of value, but not for pecuniary gain.” The court calculated an
advisory guideline range of 360 months to life imprisonment, and sentenced Ultsch
at the bottom of the range.
II.
Ultsch raises two arguments on appeal. First, he asserts that the district court
committed procedural error in applying USSG § 2G2.2(b)(3)(B). Section
2G2.2(b)(3)(B) provides for a five-level enhancement if the offense involved
“[d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for
pecuniary gain.” In United States v. Griffin, 482 F.3d 1008 (8th Cir. 2007), this court
held that the five-level enhancement applied to a defendant who participated in a peer-
to-peer file-sharing network, knowingly downloading and sharing child pornography
through the network. Id. at 1013. We explained that the district court did not err in
finding that “Griffin expected to receive a thing of value – child pornography – when
he used the file-sharing network to distribute and access child pornography,” because
the government had introduced Griffin’s admissions that he knew that he was using
a file-sharing network, knew that he downloaded child pornography through the
network, and knew that by using the network, he enabled other users of the network
to download files from his computer. Id.
Here, the district court acknowledged that the Griffin decision “is directly on
point,” and found that the government had proved by a preponderance of the evidence
that Ultsch distributed child pornography through LimeWire for the expectation of
receipt of child pornography. The court therefore concluded that § 2G2.2(b)(3)(B)
applied, and increased Ultsch’s offense level by five levels.
Ultsch argues that Griffin was wrongly decided, because it does not require the
government to prove that a defendant’s motive or intent in sharing files on the
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network was the receipt or expectation of receipt of something of value from others.
He contends that we should instead follow the Tenth Circuit’s decision in United
States v. Geiner, 498 F.3d 1104, 1110-12 (10th Cir. 2007), which expressed
disagreement with Griffin.
This panel, of course, is bound to follow Griffin. See United States v. Moore,
572 F.3d 489, 491 (8th Cir. 2009). We note, moreover, that the Tenth Circuit in
Geiner did not speak of “motive” or “intent,” but held that “a defendant expects to
receive a thing of value under USSG § 2G2.2(b)(3)(B) when he distributes child
pornography in anticipation of, or while reasonably believing in the possibility of, the
receipt of a thing of value.” Geiner, 498 F.3d at 1110. This court in United States v.
Stults, No. 08-3183, 2009 WL 2476695 (8th Cir. Aug. 14, 2009), recently clarified
that Griffin did not call for automatic application of the enhancement “based merely
on a defendant’s installation of file-sharing software,” as the Tenth Circuit may have
suggested. Geiner, 498 F.3d at 1111. Rather, “whether a defendant qualifies for the
five-level enhancement must be decided on a case-by-case basis, with the government
bearing the burden of proving that the defendant expected to receive a thing of value”
when he used the file-sharing software. Stults, 2009 WL 2476695, at *12 (internal
quotation omitted).
The district court in this case explained its finding as follows:
As shown by the evidence here today, the Limewire program itself
indicates that the files will be shared. The defendant was a relatively
sophisticated user of it as demonstrated by the different types and the
large quantity of material that he received. He used the terms peer-to-
peer and shared folder which were both indicative of a level of
knowledge at least as great as necessary to understand the nature of peer-
to-peer software and the sharing capabilities of that.
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The evidence cited by the court is sufficient to support its finding that Ultsch
distributed child pornography through LimeWire for the expectation of receipt of
other child pornography, a thing of value. See id. at *13 (relying on circumstantial
evidence of defendant’s knowledge to affirm the application of § 2G2.2(b)(3)(B)).
Accordingly, the district court properly calculated Ultsch’s advisory guideline range
and did not commit procedural error.
Ultsch also argues that the district court imposed a substantively unreasonable
sentence. He observes that portions of § 2G2.2 were added directly by Congress, see
PROTECT Act, Pub. L. No. 108-21, § 401(i)(1)(C), 117 Stat. 650, 673 (2003); USSG
App. C, amend. 664, rather than through what he describes as “the ‘careful study’ of
the Section 3553(a) factors that the [Sentencing Commission’s] processes afford.”
Because of the manner in which the guideline was conceived, Ultsch asserts that a
district court “should not give deference to or heavily rely upon the § 2G2.2
guidelines in fashioning a proper sentence,” and he suggests that we should not apply
the appellate presumption of reasonableness typically given to a sentence within the
advisory guideline range. See Rita v. United States, 551 U.S. 338, 347 (2007).
We conclude that the sentence imposed is not unreasonable. There is no
indication in the record that the district court gave deference to, or heavily relied upon,
the guideline in imposing sentence. Rather, the court followed the Supreme Court’s
instruction to calculate the advisory guideline range, and to use that range as a starting
point, but to determine the ultimate sentence based on consideration of all of the
factors set forth in 18 U.S.C. § 3553(a). See Gall v. United States, 128 S. Ct. 586, 596
(2007). The district court did select a sentence within the advisory range, but not
because the court impermissibly presumed the guideline range to be reasonable.
While the district court may have been free to vary from the guideline based on policy
concerns, the Supreme Court’s recent decisions “do not hold that a district court must
disagree with any sentencing guideline, whether it reflects a policy judgment of
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Congress or the Commission’s ‘characteristic’ empirical approach.” United States v.
Barron, 557 F.3d 866, 871 (8th Cir. 2009).
As for the appellate presumption of reasonableness, it is true that Rita permitted
the presumption in the “real-world circumstance . . . when the judge’s discretionary
decision accords with the Commission’s view of the appropriate application of
§ 3553(a) in the mine run of cases.” 551 U.S. at 350-51 (emphasis added). But we
have observed, in addressing an argument that the presumption should not apply to
a sentence within a range determined by USSG § 2G2.2, that “in the real-world
circumstance where a sentencing judge agrees with Congress, then the resulting
sentence is also probably within the range of reasonableness.” United States v.
Kiderlen, 569 F.3d 358, 369 (8th Cir. 2009) (emphasis added). Particularly given the
deference due a district court’s sentencing decision under § 3553(a), see United States
v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc), we see no basis to hold that
the district court’s selection of a sentence at the bottom of the advisory range was
substantively unreasonable.
* * *
The judgment of the district court is affirmed.
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