United States v. Mark Roszczipka

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK ROSZCZIPKA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:09-cr-00587-SB-1)
Submitted: April 24, 2012 Decided: May 8, 2012
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. William Nettles, United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Roszczipka pleaded guilty to possession of child
pornography, in violation of 18 U.S.C. 2256A(a)(5)(B) (West
Supp. 2011). The district court sentenced him to thirty-six
months’ imprisonment. The sole issue on appeal is whether the
district court erred in applying a four-level enhancement under
U.S. Sentencing Guidelines Manual § 2G2.2(b)(7)(C) (2009), based
on the relevant conduct of receiving child pornography that
included video fragments found in the temporary cache of
Roszczipka’s computer. Finding no error, we affirm.
In reviewing the district court’s application of the
Guidelines, we review findings of fact for clear error and
questions of law de novo. United States v. Layton, 564 F.3d
330, 334 (4th Cir. 2009). A defendant may “receive” child
pornography by viewing it online, regardless of whether he
downloads the material. See, e.g., United States v. Pruitt, 638
F.3d 763, 766 (11th Cir.) (“A person ‘knowingly receives’ child
pornography . . . when he intentionally views, acquires, or
accepts child pornography on a computer from an outside
source.”), cert. denied, 132 S. Ct. 113 (2011).
Here, the Government obtained evidence that Roszczipka
subscribed to multiple child pornography websites and that he
admitted he viewed the videos. Accordingly, the district court
did not err in enhancing Roszczipka’s sentence pursuant to USSG
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§ 2G2.2(b)(7)(C), notwithstanding the fact that Roszczipka was
not aware that viewing the videos would result in storage of
video fragments on his computer. Roszczipka’s arguments to the
contrary conflate knowing possession and knowing receipt.
Unlike the out-of-circuit authority Roszczipka advances, the
possibility that the video fragments appeared on his machine by
means other than his own intention to view the content is not in
issue. See United States v. Winkler, 639 F.3d 692, 699 (5th
Cir. 2011) (finding sufficient evidence for knowing receipt of
child pornography given evidence that defendant paid for
members-only child pornography sites and only way files could
have appeared in cache was by defendant’s decision to view
videos).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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