United States v. Franklin

FILED
United States Court of Appeals
Tenth Circuit
May 11, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-1519
RICHARD FRANKLIN, a/k/a
westfaliaimplaint,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:11-CR-00235-WYD-l)
Ty Gee, Haddon, Morgan, and Foreman, Denver, Colorado, for Defendant-
Appellant.
Judith A. Smith, Assistant United States Attorney, (John F. Walsh, United States
Attorney, and James C. Murphy, Assistant United States Attorney, with her on the
brief) Office of the United States Attorney, Denver, Colorado, for Plaintiff-
Appellee.
_________________________________
Before BRISCOE, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal involves child pornography. The defendant, Mr. Richard
Franklin, subscribed to a website called “GigaTribe.” Like some other popular
websites, GigaTribe allowed Mr. Franklin to approve other subscribers as
“friends,” allowing them into his “tribe.” For his so-called “tribe,” Mr. Franklin
posted previews of pornographic images of children. In posting the previews, Mr.
Franklin determined which pornographic images to share and with whom. When
GigaTribe “friends” were given access, they could choose what they liked,
download the images, and share these images with other subscribers.
At trial, Mr. Franklin was found guilty on five counts, including
advertisement or notice of child pornography. The guidelines called for life
imprisonment, and the district court imposed five consecutive sentences totaling
100 years.
On appeal, Mr. Franklin contends that the evidence did not support the
conviction on advertisement or notice, that the total years of imprisonment
involved a substantively unreasonable sentence, and that the district judge
improperly found facts (without jury findings) necessary to justify the long
sentence. We reject these arguments and affirm.
I. “Advertisement or Notice”
Count One involved the advertisement or notice of child pornography. The
statute, 18 U.S.C. § 2251(d)(1), prohibits “any notice or advertisement seeking or
2
offering” to provide or receive pictures of minors engaged in sexually explicit
conduct. 18 U.S.C. § 2251(d)(1) (2012).
The prosecution’s theory was that Mr. Franklin had provided advertising or
notice of images of child pornography by making these images available to 108
GigaTribe “friends.” Mr. Franklin argues that this theory was too broad because
GigaTribe was a closed network, meaning someone had to be a “friend” to access
the child pornography. In Mr. Franklin’s view, the “statute is limited to
impersonal and indiscriminate communications to the public.” Appellant’s Second
Amended Opening Br. at 17.
This issue involves sufficiency of the evidence. Ordinarily the evidence
suffices for guilt if a rational fact-finder could have determined that the
prosecution had proven guilt beyond a reasonable doubt. United States v. Hoyle,
697 F.3d 1158, 1163 (10th Cir. 2012). To apply that test, however, the district
court had to interpret the meaning of § 2251(d)(1)(A). And, on issues of statutory
interpretation, we apply de novo review. See United States v. Phelps, 17 F.3d
1334, 1337 (10th Cir. 1994) (“We review the district court’s conclusions of law
regarding the interpretation of the statute de novo.”).
Engaging in de novo review, we start with the key words in the statute:
“advertisement” and “notice.” In Mr. Franklin’s view, both terms involve
interaction with the public and his collection of child pornography was accessible
3
only to his “friends,” not the “public.” But Mr. Franklin’s interpretation of the
terms “advertisement” and “notice” is inconsistent with their plain meaning.
Both terms involve everyday words, so we consult a dictionary to ascertain
their meaning. United States v. Roberts, 88 F.3d 872, 877 (10th Cir. 1996) (per
curiam), superceded by statute on other grounds as recognized in United States v.
Meacham, 115 F.3d 1488, 1491 (10th Cir. 1997). A widely used dictionary,
Webster’s Third New International Dictionary, provides six definitions of the
term “advertisement”:
1. “the action of advertising: a calling attention to or making known”
2. “warning, admonition”
3. “an informing or notifying: notification”
4. “a calling to public attention: publicity”
5. “a statement calling attention to something: notice”
6. “a public notice; esp[ecially]: a paid notice or announcement
published in some public print (as a newspaper, periodical, poster, or
handbill) or broadcast over radio or television . . . .”
Webster’s Third New Int’l Dict. 31 (ed. Philip Babcock Gove 1993). Two of the
six definitions involve a public component. See id.The same dictionary provides eighteen definitions of the noun “notice”:
1. a “formal or informal warning or intimation of something:
announcement”
2. “a warning, announcement, or intimation given a specified
time before the event to take place”
4
3. “notification by one of the parties to an agreement or relation
. . . of intention of terminating it at a specified time”
4. “a communication of intelligence or of a claim or demand often
required by statute or contract and prescribing the manner or form of
giving it”
5. “the condition of being warned or notified”
6. “information, intelligence”
7. “knowledge”
8. “actual knowledge of a pertinent legal fact”
9. “knowledge of a particular fact . . . capable of being acquired by the
exercise of reasonable care on the part of the person legally
chargeable with it – called also implied notice”
10. “knowledge of a particular fact . . . imputed by a positive rule of law
to a person regardless of his actual knowledge – called also
constructive notice”
11. “notion or idea”
12. “attention, heed, observation”
13. “the condition of being noticed”
14. “polite or favorable attention”
15. “a written or printed announcement or bulletin”
16. “a critical account or commentary on a play or other public
performance”
17. “book review” and
18. “critical examination”
Id. at 1544.
5
In his reply brief, Mr. Franklin acknowledges that the term “notice . . . has
substantial definitional bandwidth.” Appellant’s Reply Br. at 2. With this
acknowledgment, he has not cited any definitions limiting the term “notice” to
communications with the public. But, as noted above, Webster’s Third New
International Dictionary supplies eighteen definitions of the term “notice,” and
none contains a public component.
Nonetheless, Mr. Franklin argues that
! the term “advertisement” requires a public component, and
! because the terms “advertisement” and “notice” are parts of a series,
the canon of noscitur a sociis (a word is given more precise content
by the neighboring words) requires that we treat the term “notice” as
if it contained a public component.
This argument is invalid as a matter of law. The Supreme Court has held that a
list of three words is too short for application of the canon of noscitur a sociis.
Graham Cnty. Soil & Water Conservation Dist. v. United States, 559 U.S. 280,
288 (2010). If three words is too short for the canon, a list of two words
(“advertisement or notice”) must also be too short.
For the sake of argument, we might assume that both terms
(“advertisement” and “notice”) are meant to involve communication with the
public. Even with this generous assumption, Mr. Franklin’s argument would fail.
This argument is flawed because it assumes a communication is “public” only if it
is “indiscriminately” and “impersonally” made available to everyone.
6
The public consists of numerous groups. For example, dozens of
individuals may belong to an exclusive wholesale club. Though the number of
members is limited, communications to the membership would remain public even
if they were not “indiscriminate” or “impersonal.” Similarly, a popular basketball
star might have hundreds or thousands of “friends” on his or her Facebook page.
Though the “friends” are limited, communications to these individuals would be
considered “public” even if they are not “indiscriminate” or “impersonal.”
Like members of a wholesale club or “friends” on a basketball star’s
Facebook page, membership in an informal group of like-minded individuals
would constitute a subset of the public. 1 Our subset of the public, GigaTribe
subscribers interested in child pornography, could be considered “the public”
even if Mr. Franklin were correct about the need for a public component.
Mr. Franklin likens this group to family members, suggesting that
communications to family members would not be considered “advertisements.”
But Mr. Franklin’s GigaTribe “friends” were not family members or even
acquaintances. They were fellow subscribers, accepted by Mr. Franklin, who
shared his interest in child pornography. Unlike a family relationship, Mr.
Franklin’s connection with the 108 individuals existed solely to share child
1
Mr. Franklin acknowledges that the term “‘public’ . . . can . . . mean a
subset of people.” Appellant’s Reply Br. at 10 (quoting Appellee’s Resp. Br. at
32).
7
pornography. We do not view that connection like the bonds that connect family
members.
Mr. Franklin argues that no case has ever applied § 2251(d)(1)(A) to a
closed network like “GigaTribe,” which limits the sharing of files to individuals
accepted as “friends.” For the sake of argument, we can assume that is true. But
other courts have applied the statute to media that limit the sharing of files to
particular individuals. See United States v. Wayerski, 624 F.3d 1342, 1348 (11th
Cir. 2010) (45 members using complex encryption methods); United States v.
Rowe, 414 F.3d 271, 277 (2d Cir. 2005) (chat-room posting).
This application of the statute is hardly novel. Congress surely did not
intend to limit the statute’s reach to pedophiles who indiscriminately advertise
through traditional modes of communication like television or radio. Congress
was trying to capture all advertisements or notices targeting individuals interested
in obtaining or distributing child pornography, like Mr. Franklin and his
GigaTribe “friends.” See H.R. Rep. No. 99-910, at 6 (1986) (stating that in
adopting § 2251, Congress sought to criminalize new technological devices, like
“computer ‘bulletin boards,’” that contain offers of child pornography); S. Rep.
No. 99-537, at 13-14 (1986) (discussing the increasing danger from computer
bulletin boards, serving as “an electronic form” of classified ads for the exchange
of communications among pedophiles).
8
We conclude that a rational fact-finder could regard Mr. Franklin’s postings
of child pornography as advertisements or notices under § 2251(d)(1)(A).
II. Substantive Reasonableness of the Sentence
On each of the five counts, the district court imposed a separate,
consecutive term between 10 and 30 years. 2 These terms totaled 100 years. In Mr.
Franklin’s view, the 100-year sentence was substantively unreasonable. We
disagree.
We engage in limited scrutiny of the sentence, considering only whether the
district court acted within its discretion. United States v. Sanchez-Leon, 764 F.3d
1248, 1267 (10th Cir. 2014). The court acted within its discretion unless the
sentence was “‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” Id.(quoting United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)).
Mr. Franklin acknowledges that the sentence fell within the guideline
range, which called for life imprisonment. For sentences falling within the
2
These prison terms were
1. Advertisement or Notice of Child Pornography: 30 years
2. Receipt of Child Pornography: 20 years
3. Distribution of Child Pornography: 20 years
4. Distribution of Child Pornography: 20 years
5. Possession of Child Pornography: 10 years
9
guideline range, like this one, we apply a rebuttable presumption of
reasonableness. United States v. Castillo-Arellano, 777 F.3d 1100, 1104 (10th
Cir. 2015). Mr. Franklin argues that we should carve out an exception for the
applicable guideline (2G2.2) because it lacks an empirical basis and is overly
harsh. We disagree with both arguments.
We have already rejected an empirically based challenge to another
guideline (2G2.1) in United States v. Grigsby, 749 F.3d 908, 910-11 (10th Cir.
2014). There we relied on a Fifth Circuit case analyzing 2G2.2. Id. at 911 (citing
United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011)). Ultimately, both cases
reasoned that a guideline range deserves consideration whether it is
“‘[e]mpirically based or not.’” Id. (quoting United States v. Miller, 665 F.3d 114,
121 (5th Cir. 2011)). Under Grigsby, we apply the presumption of reasonableness
to sentences based on 2G2.2, regardless of its alleged lack of empirical support.
In Mr. Franklin’s view, the harshness of the guideline calls for a
presumption of unreasonableness. This view is unsupported. The Supreme Court
has stated that we cannot apply a “presumption of unreasonableness” even to
sentences outside the guideline range. E.g., Peugh v. United States, __ U.S. __,
133 S. Ct. 2072, 2080 (2013). When the sentence is within the guideline range,
there would be even less justification for a presumption of unreasonableness.
Mr. Franklin argues that even if the presumption of reasonableness applies,
the total prison term of 100 years remains too harsh because his actions
10
constituted “run-of-the-mill” crimes that are characteristic of any distributor of
child pornography. The district court viewed the crime differently, explaining that
! Mr. Franklin had downloaded hundreds of thousands of images
containing child pornography,
! the images showed child molestation, intercourse with children, and
inappropriate sexual activity with prepubescent minors,
! Mr. Franklin’s compilation of child pornography resulted in
continued danger, fear, trauma, anxiety, and stress to the children
being depicted, and
! there was a need to prevent Mr. Franklin from committing further
crimes.
Appellant’s App., vol. 4, at 1699-1702.
Criticizing this explanation, Mr. Franklin argues that the district court
failed to take into account the Sentencing Commission’s policy statements. 3 But
the policy statements would not have rendered the sentence arbitrary, capricious,
whimsical, or manifestly unreasonable.
3
This contention arguably relates to procedural reasonableness rather than
substantive reasonableness. See United States v. Sanchez, 517 F.3d 651, 661 (2d
Cir. 2008) (“A sentence would be procedurally unreasonable if, for example, the
sentencing judge failed to consider the factors listed in § 3553(a), including the
relevant . . . policy statements.”); see also United States v. Sanchez-Leon, 764
F.3d 1248, 1268 n.15 (10th Cir. 2014) (stating that procedural reasonableness is
implicated when the contention involves a failure to consider relevant factors).
But Mr. Franklin couched this contention as one involving substantive
reasonableness. We will address the contention in the way it was framed by Mr.
Franklin. See United States v. Smart, 518 F.3d 800, 804 (10th Cir. 2008) (“A
challenge to the sufficiency of the § 3553(a) justifications relied on by the district
court implicates the substantive reasonableness of the resulting sentence.”).
11
Finally, Mr. Franklin argues that the sentence is disproportionate to other
sentences for similar conduct. This argument is unsupported. 4
The purpose of the sentencing guidelines is “to eliminate disparities among
sentences nationwide.” United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir.
2008); see United States v. Garza, 1 F.3d 1098, 1100 (10th Cir. 1993) (“Congress
chose to avoid unwarranted disparities through a guideline system which
considered various facts concerning the offense and the offender.”). Thus, when
the district court “correctly calculated and carefully reviewed the Guidelines
range, [it] necessarily gave significant weight and consideration to the need to
avoid unwarranted disparities.” Gall v. United States, 552 U.S. 38, 59 (2007).
Neither the Supreme Court nor our court has ever suggested that use of the
guidelines can create a nationwide disparity in sentences involving similarly
situated offenders. Cf. United States v. Bartlett, 567 F.3d 901, 908 (7th Cir. 2009)
4
Though nationwide disparities are appropriate considerations, they are not
always dispositive. Even when national disparities exist, the sentence may remain
substantively reasonable if other factors justify the sentence or the disparity is
explainable on the existing record. See United States v. Martinez, 610 F.3d 1216,
1228 (10th Cir. 2010) (stating that consideration of unwarranted disparities is
only one of the relevant factors and that sentence disparities may be allowed
when explainable under the record). Thus, the sentence may be substantively
reasonable even when disparities are unwarranted. See United States v. Morales-
Chaires, 430 F.3d 1124, 1131 (10th Cir. 2005) (declining to decide if sentencing
disparities were unwarranted because the sentence would be substantively
reasonable in light of the other factors in § 3553(a)).
12
(“A sentence within a Guideline range ‘necessarily’ complies with
§ 3553(a)(6).”).
Mr. Franklin suggests that his sentence is “unprecedented,” pointing to
sixteen cases in which the defendant obtained a total sentence of less than 100
years. 5 These citations do not justify reversal.
None of these citations were given to the district court. Instead, in district
court, defense counsel said only that he was “unaware of anybody who [had] been
charged with these offenses, without any charges for hands-on offenses, that [had]
received a life sentence.” Appellant’s App. at 1679. Thus, the district court had
no actual cases to suggest disparities between a 100-year sentence and other
sentences for similar offenders.
5
Appellant’s Second Amended Opening Br. at 32-37 (citing United States v.
Lucero, 747 F.3d 1242 (10th Cir. 2014); United States v. Huffman, 531 F. App’x
876 (10th Cir. 2013) (unpublished); United States v. Slinkard, 530 F. App’x 759
(10th Cir. 2013) (unpublished); United States v. Ray, 704 F.3d 1307 (10th Cir.
2013); United States v. Dayton, 485 F. App’x 937 (10th Cir. 2012) (unpublished);
United States v. Freerksen, 457 F. App’x 769 (10th Cir. 2012) (unpublished);
United States v. Ilgen, 417 F. App’x 728 (10th Cir. 2011) (unpublished); United
States v. Regan, 627 F.3d 1348 (10th Cir. 2010); United States v. Byrum, 567 F.3d
1255 (10th Cir. 2009); United States v. Gay, 265 F. App’x 688 (10th Cir. 2007)
(unpublished)); Appellant’s Reply Br. at 30 (citing six more cases: United States
v. Nance, 767 F.3d 1037 (10th Cir. 2014); Jameson v. Samuels, 555 F. App’x 743
(10th Cir. 2014) (unpublished); United States v. Baum, 542 F. App’x 724 (10th
Cir. 2013) (unpublished); United States v. Ramos, 695 F.3d 1035 (10th Cir.
2012); United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007); United States v.
Shaffer, 472 F.3d 1219 (10th Cir. 2007)).
13
Even now, we have little to gauge the similarities and differences between
Mr. Franklin and the defendants in the sixteen cases. “No two cases are
identical,” 6 and comparison of “an individual sentence with a few counsel-
selected cases involving other defendants sentenced by other judges is almost
always useless.” United States v. Scherrer, 444 F.3d 91, 95 (1st Cir. 2006).
Even if we wanted to compare Mr. Franklin’s sentence to the sentences in
the sixteen cases he cites, they are difficult to compare:
! Mr. Franklin’s conviction included notice or advertisement of child
pornography; none of the sixteen cited cases involved a conviction
under this statute.
! Mr. Franklin’s charges carried a statutory maximum of 100 years; in
only two of the sixteen cited cases were the defendants guilty of
charges carrying a statutory maximum of at least 100 years. 7
6
United States v. Lente, 759 F.3d 1149, 1171 (10th Cir. 2014).
7
These two cases were United States v. Freerksen and United States v.
Nance.
In Freerksen, the defendant was convicted on five counts of producing
child pornography. United States v. Freerksen, 457 F. App’x 769, 770 (10th Cir.
2012) (unpublished). The statutory maximum was 150 years. See 18 U.S.C.
§ 2251(e) (2006); Presentence Investigation Report at 18, United States v.
Freerksen, Case No. CR-10-188-R (W.D. Okla. Feb. 4, 2011). The district court
sentenced Mr. Freerksen to 50 years, which would render him eligible for release
at the age of 78. Sent. Tr. at 22, United States v. Freerksen, Case No. CR-10-188-
R (W.D. Okla. Aug. 16, 2010). In imposing this sentence, the district court
considered the codefendant’s sentence, which had been only ten years. See id. at
16 (statement by the sentencing judge that he would consider the codefendant’s
sentence); Judgment, United States v. Freerksen, Case No. CR-10-188-R (W.D.
Okla. Feb. 8, 2011) (sentence of the codefendant for ten years).
In Nance, the defendant was convicted of 57 counts. United States v.
14
! Under the guidelines, Mr. Franklin’s sentence was calculated at life
imprisonment while in fourteen of the sixteen cited cases, the
guideline ranges had peaked at 300 or fewer months. 8
! Mr. Franklin was convicted on five counts related to child
pornography; only three of the sixteen cited cases involved five or
more counts. 9
Nance, 767 F.3d 1037, 1039 (10th Cir. 2014). The statutory maximum was 1,140
years. See 18 U.S.C. § 2252(a)(1)-(2) (2012) (20-year maximums for both of the
statutes involved). Notwithstanding the high statutory maximum, the guideline
range was only 210-262 months. Presentence Investigation Report at 20, United
States v. Nance, Case No. CR-12-267 (W.D. Okla. revised June 11, 2013);
Statement of Reasons, United States v. Nance, Case No. CR-12-267 (W.D. Okla.
Aug. 5, 2013) (adopting the presentence investigation report). The probation
officer suggested that the guideline range might be overly harsh based on the
defendant’s steady employment, difficult childhood, youth, and lack of criminal
history. Presentence Investigation Report at 24-25, United States v. Nance, Case
No. CR-12-267 (W.D. Okla. revised June 11, 2013). The district judge agreed that
the guideline range was too harsh; thus, he varied downward and imposed
concurrent terms of 64 months. Judgment at 2, United Sates v. Nance, Case No.
CR-12-267 (W.D. Okla. Aug. 5, 2013).
8
The two exceptions were United States v. Byrum and United States v.
Freerksen.
In Byrum, the guideline range was 324 to 405 months. Presentence
Investigation Report at 17, United States v. Byrum, No. CR-08-117-C (W.D. Okla.
Aug. 18, 2008). The government and the defendant agreed to a 15-year sentence,
and the court approved the agreement and imposed a 15-year sentence. Id. at 17;
United States v. Byrum, 567 F.3d 1255, 1258 (10th Cir. 2009).
Freerksen is discussed above. See note 7, above. The sentencing guidelines
called for life imprisonment. Id. But the district court imposed “only” 50 years,
reasoning that the codefendant had obtained a much lighter sentence and 50 years
would keep the defendant in prison until his 70s, when he would no longer pose a
threat. See id.9
These cases were United States v. Lucero, United States v. Nance, and
United States v. Freerksen. In Lucero and Nance, despite the multiple counts, the
guideline ranges were capped at only 97 and 262 months. See Statement of
15
None of the sixteen cases involved all of the same circumstances as Mr.
Franklin’s.
We addressed a similar issue in United States v. Lewis, 594 F.3d 1270 (10th
Cir. 2010). There the defendant provided the district court with a document
describing the sentences of 28 defendants convicted of similar crimes. Lewis, 594
F.3d at 1276. But we noted that § 3553(a)(6) requires consideration only if the
defendants had similar records and guideline calculations. Id. (quoting United
States v. Verdin-Garcia, 516 F.3d 884, 899 (10th Cir. 2008)). We concluded that
the defendant had failed to fulfill his burden in district court by omitting
information about the 28 defendants’ offense levels, criminal histories, and
specifics of the offenses. Id.Here the evidence is even weaker. Unlike the defendant in Lewis, Mr.
Franklin did not provide the district court with any evidence of nationwide
disparities. In his appeal, Mr. Franklin cited sixteen cases in arguing that his
sentence is unprecedented. But like the defendant in Lewis, Mr. Franklin failed to
Reasons, United States v. Lucero, Case No. CR-12-1662 (D. N.M. Apr. 4, 2013)
(guideline range of 78-97 months); note 7, above (noting that the guideline range
for the Nance defendant was 210-262 months). In Freerksen, the guidelines called
for life imprisonment, but the sentencing judge varied downward to 50 years,
reasoning that the defendant would be in his 70s when released and his
codefendant had obtained a sentence of only 10 years. See note 7, above
(discussing the circumstances leading to the sentence in Freerksen).
16
supply information about the defendants’ offense levels, criminal histories, or
specifics of the offenses. Without this information, we cannot ascertain
! whether the sixteen other sentences involved similar circumstances
or,
! if they did, whether the disparities were warranted.
See United States v. Boneshirt, 662 F.3d 509, 519 (8th Cir. 2011). 10
In our review of the sixteen cases, we conclude that the defendants did not
have “similar records and guidelines calculations.” In each case, a unique
combination of factors led to the sentence; and those circumstances differed from
Mr. Franklin’s.
In our view, Mr. Franklin’s arguments do not render his sentence arbitrary,
capricious, whimsical, or manifestly unreasonable. As a result, we conclude that
the district court acted within its discretion in imposing consecutive sentences
totaling 100 years.
III. Judge-Found Facts
In the alternative, Mr. Franklin argues that the sentence is substantively
reasonable only because the district court found facts triggering several
10
In Boneshirt, the defendant presented statistical data in district court to
show that his sentence was disproportionate with other sentences within the
Eighth Circuit. 662 F.3d at 519. The Eighth Circuit Court of Appeals held that the
district court had properly rejected the argument because the statistics involved
only similar convictions, not similar records or conduct, and failed to account for
enhancements that served to lengthen the sentence. Id.17
enhancements. 11 In Mr. Franklin’s view, the Sixth Amendment required
submission of these factual issues to a jury.
Mr. Franklin concedes that we must confine our review to the plain-error
standard. There was no error, plain or otherwise, for we rejected the same
argument in United States v. Redcorn, 528 F.3d 727, 745-46 (10th Cir. 2008). As
a result, we reject Mr. Franklin’s challenge.
IV. Conclusion
Accordingly, we affirm.
11
These facts involved distribution of child pornography for something of
value, a pattern of activity involving sexual abuse or exploitation of a minor, and
depiction of at least 600 images of child pornography. With these facts, the
offense level was increased by fifteen.
18