United States v. Michael Dashem

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1799
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UNITED STATES OF AMERICA
v.
MICHAEL ANTHONY DASHEM,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 4-19-cr-00195-001)
District Judge: Honorable Matthew W. Brann
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Submitted Under Third Circuit L.A.R. 34.1(a):
March 17, 2022
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Before: JORDAN, KRAUSE, and PORTER,
Circuit Judges
(Filed: June 7, 2022)
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OPINION
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
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PORTER, Circuit Judge.
Michael Dashem pleaded guilty to receiving visual depictions of minors engaging
in sexually explicit conduct under 18 U.S.C. § 2252(a)(2). The District Court sentenced
him to 240 months’ imprisonment. Dashem challenges the District Court’s application of
two sentence enhancements under the U.S. Sentencing Guidelines (“U.S.S.G.” or “the
Guidelines”). First, he challenges an obstruction of justice enhancement under section
3C1.1 of the Guidelines. Second, he challenges an enhancement for possession of
materials depicting sadistic or masochistic conduct under section 2G2.2(b)(4) of the
Guidelines. The District Court was right to apply both enhancements, so we will affirm.
I
Pennsylvania state police responded to reports of a domestic dispute between
Michael Dashem and his father. Dashem’s father told the officer he saw child
pornography on his son’s tablet device “[j]ust the other day.” J.A. 84.
Dashem admitted to the officer that he possessed child pornography on his tablet
device but, according to the officer, claimed he could not remember the password. The
officer seized the device, applied for a search warrant, and submitted the device to state
police computer forensic analysts. The analysts could not access the device without the
password. Nor could a private contractor. The state police transferred the device to the
FBI, which obtained a federal search warrant. FBI forensic analysts accessed the device’s
contents.
The device contained several child pornography images and at least one child
pornography video. Materials depicted female toddlers, prepubescent teens, and other
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minors engaging in sex acts with adult males. The device’s internet browsing history
showed Dashem viewed pornographic websites involving teenagers just days before
police seized the device.
The United States indicted Dashem on one count of receipt of child pornography
under 18 U.S.C. § 2252(a)(2) and one count of possession of child pornography under 18
U.S.C. § 2252(a)(4)(B). Further to a plea agreement, Dashem pleaded guilty to receipt of
child pornography. The probation office prepared a presentence report with sentence
enhancements for obstruction of justice under U.S.S.G. § 3C1.1 and for possession of
materials portraying sadistic conduct under U.S.S.G. § 2G2.2(b)(4).
Dashem objected to these enhancements and re-urged the objections in a
sentencing memorandum and during the sentencing hearing. The District Court overruled
Dashem’s objections. The District Court fixed a final Guidelines range of 262 to 327
months, but the statutory maximum for the offense was 240 months. The District Court
sentenced Dashem to 240 months’ imprisonment. Dashem appeals.
II1
A
Dashem alleges the District Court was wrong to apply the obstruction of justice
sentence enhancement for two reasons. Both fail.
1
The Guidelines permit a two-level enhancement when “(1) the defendant willfully
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
3
obstructed or impeded, or attempted to obstruct or impede, the administration of justice
with respect to the investigation . . . of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s offense of conviction and any relevant
conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. It does not necessarily
matter which “level of law enforcement” a defendant obstructed. United States v. Jenkins,
275 F.3d 283, 289 (3d Cir. 2001). There must be only some “nexus between the
defendant’s conduct and the investigation, prosecution, or sentencing of the federal
offense.” Id. at 291.
In reviewing a District Court’s sentencing decision, we review its factual
determinations for clear error and its application of the Guidelines to the facts for abuse
of discretion. See United States v. Thung Van Huynh, 884 F.3d 160, 165 (3d Cir. 2018).
But the “two standards become indistinguishable” when the Guidelines state a fact-driven
rule. Id. That is “because we would find that the Court had abused its discretion in
applying the enhancement based on a particular set of facts only if those facts were
clearly erroneous.” Id. (quotation marks omitted). In that event, we review for clear error.
Whether Dashem’s statement that he did not remember his tablet’s password
willfully obstructed or impeded the investigation of his child pornography crimes is, in
essence, “a strictly factual test, such that once the test is stated[,] no legal reasoning is
necessary to the resolution of the issue.” Id. (alteration in original) (quoting United States
v. Richards, 674 F.3d 215, 221 (3d Cir. 2012)). We therefore review the District Court’s
application of the obstruction of justice enhancement for clear error.
First, it was reasonable for the District Court to find Dashem’s statement to a
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police officer that he forgot his tablet’s password was deceitful, and thus find the
resulting obstruction willful. When police responded to a domestic disturbance at
Dashem’s residence, his father told the officer he saw child pornography on Dashem’s
tablet. Dashem does not dispute that he told a state officer that he did not remember his
tablet’s password, which he admitted contained child pornography. Yet, as the District
Court reasonably inferred, “Mr. Dashem’s father would not have been able to view these
materials on Mr. Dashem’s tablet if the tablet had not already been unlocked or in use.”
J.A. 112. And according to browsing history, three days before police arrived at
Dashem’s residence, Dashem accessed child pornography. Based on the circumstances, it
was reasonable for the District Court to infer deceit in Dashem’s statement that he did not
remember his password, and thus conclude that the resulting obstruction was willful.
Next, it was reasonable for the District Court to find Dashem’s deceitful statement
obstructed the investigation of the child pornography crimes for which he was convicted.
From start to finish, the investigation into Dashem’s device dealt with child pornography.
Dashem’s willful deceit required both the state police and the FBI to use forensic analysts
to eventually gain access to the child pornography on the device. At first, state forensic
analysts and a private contractor could not access the device’s contents. The state police
transferred the device to the FBI. Forensic analysts at the FBI, also without the password,
eventually accessed the device’s contents. After the FBI uncovered the child
pornography, Dashem was convicted of receipt of child pornography under 18 U.S.C.
§ 2252(a)(2). So it was reasonable for the District Court to find that Dashem’s statement
and refusal to disclose his password “caused a significant delay in the investigation”—a
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“material hinderance.” PSR 6, 8.
The District Court found that Dashem willfully obstructed his offense of
conviction. With no “definite and firm conviction” that the District Court made a mistake
based on the facts and the reasonable inferences from them, we find no clear error. Thung
Van Huynh, 884 F.3d at 168.
2
Dashem next contends that furnishing passcodes was testimonial and that he was
asserting his Fifth Amendment privilege against compelled self-incrimination by refusing
to disclose them. But Dashem affirmatively told state officers that he did not remember
his tablet’s password. And the District Court reasonably inferred that the statement was
false when it said that “Mr. Dashem’s father would not have been able to view these
materials on Mr. Dashem’s tablet if the tablet had not already been unlocked or in use.”
J.A. 112. Affirmative false statements are not protected by the Fifth Amendment. See
United States v. Beattie, 919 F.3d 1110, 1116 (8th Cir. 2019) (“There is no constitutional
right to lie.” (quoting United States v. Lange, 918 F.2d 707, 709 (8th Cir. 1990))).
Because Dashem never asserted his privilege, and affirmatively made a statement
that the District Court reasonably inferred was false, the Fifth Amendment privilege
against compelled self-incrimination does not apply. See id. at 1116. The District Court
thus made no error in overruling Dashem’s objections on Fifth Amendment grounds. See
United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971).
B
Dashem possessed material portraying “a female under the age of 12 exposing her
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vagina and performing fellatio and engaging in vaginal intercourse with an adult male”
and a video depicting “a female under the age of 12 performing oral sex on an adult
male.” J.A. 69. The District Court found that such “penetrative sexual conduct would
cause a prepubescent child pain,” and applied an enhancement under U.S.S.G.
§ 2G2.2(b)(4) for depictions of sadistic or masochistic conduct. J.A. 111. Dashem argues
that the District Court erred by applying the enhancement without considering whether
Dashem intended to possess those materials, and thus it improperly relied on the
Guidelines’ commentary which, Dashem says, expands the rule. The District Court did
not err.
Section 2G2.2(b)(4) provides an enhancement “[i]f the offense involved material
that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B)
sexual abuse or exploitation of an infant or toddler.” In United States v. Maurer, we
evaluated the ordinary meaning of “sadistic or masochistic conduct” and “depictions of
violence” in this enhancement. 639 F.3d 72, 77–78 (3d Cir. 2011). We held, “the
application of § 2G2.2(b)(4) is appropriate where an image depicts sexual activity
involving a prepubescent minor that would have caused pain to the minor.” Id. at 79. And
thus “a sentencing court need only find, by a preponderance of the evidence, that an
image depicts sexual activity involving a prepubescent minor and that the depicted
activity would have caused pain to the minor.” Id.
The Guidelines do not require a finding of defendant’s mens rea before applying
the enhancement. Id. at 80 (“Section 2G2.2(b)(4) is applied on the basis of strict
liability.”). Nor must a sentencing court “determine whether the people depicted in the
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image are deriving sexual pleasure from the infliction of pain; nor need it gauge whether
the viewer of the picture is likely to derive pleasure from the fact that the image displays
painful sexual acts.” Id. All the sentencing court must determine in this objective inquiry
is whether “an image depicts sexual activity involving a prepubescent minor that would
have caused pain to the minor, regardless of the means through which that pain would
result.” Id.
For that holding, the Maurer court cited both the Guidelines’ commentary and a
Seventh Circuit case conducting an original analysis of the enhancement. The
commentary states that the enhancement applies “regardless of whether the defendant
specifically intended to possess, access with intent to view, receive, or distribute such
materials.” U.S.S.G. § 2G2.2(b)(4) cmt. n.3. The Seventh Circuit said the same:
“[L]iability for receiving violent child pornography is strict.” United States v.
Richardson, 238 F.3d 837, 840 (7th Cir. 2001). The Seventh Circuit reasoned—without
relying on Guidelines’ commentary—that “[s]entencing enhancements generally are
imposed on the basis of strict liability rather than of the defendant’s intentions or even his
lack of care” and that “[t]he guidelines contain numerous provisions enhancing
punishment when the defendant causes more than the usual harm that the offense inflicts,
without regard to whether unusual harm was intended.” Id. “The punishment bonus for
receiving child pornography that depicts bondage and torture is simply another
illustration of the general principle.” Id.The Guidelines’ commentary was only persuasive authority to the Maurer court in
holding that the enhancement applies without establishing intent. Besides, the
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commentary does not expand the rule, but tracks the Seventh Circuit’s and our ultimate
interpretation. See United States v. Nasir, 17 F.4th 459, 471–72 (3d Cir. 2021) (en banc).
Thus, the District Court did not err when it found that the enhancement applied regardless
of Dashem’s intent.
* * *
For these reasons, we reject each of Dashem’s arguments. We will affirm the
District Court.
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