United States v. Bopp

Case: 22-10267 Document: 00516869485 Page: 1 Date Filed: 08/23/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 23, 2023
No. 22-10267 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Adam Rey Bopp,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-40-1
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
Adam Rey Bopp was indicted for knowingly possessing “material”—
a cell phone—that contained child pornography. Even though the phone had
thousands of such images, the indictment specifically described only four.
Bopp pleaded guilty under a plea agreement. After sentencing, the district
court ordered Bopp to pay restitution to several individual victims whose
likenesses appeared in some images from Bopp’s phone. But these images
were among those that the indictment did not specifically describe. Bopp
argues that restitution is available only to victims who appeared in the four
images specified in the indictment. We disagree and AFFIRM.
Case: 22-10267 Document: 00516869485 Page: 2 Date Filed: 08/23/2023
No. 22-10267
I
In July 2020, the FBI began tracking a file-sharing network that
hosted child pornography. Agents soon identified a device that had accessed
the network over 60 times and had downloaded tens of thousands of images
and videos of child pornography. They tracked the device to a group home
where several registered sex offenders lived in Fort Worth, Texas. One of the
residents was Adam Rey Bopp. Officers found an Android smartphone on
Bopp’s person when they searched the home. Bopp volunteered the phone’s
passcode to the FBI. He also admitted to previously serving time for having
child pornography on his computer. Still, Bopp insisted that he had not
looked at child pornography for “decades.” He also said that the phone
contained no such images. The phone said otherwise. A forensic examination
revealed 28,166 images and 6 videos of child pornography.
Bopp was indicted on two related counts. Count One charged Bopp
with knowingly possessing “material” containing an image of child
pornography involving a prepubescent minor in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). The indictment specifically charged possession
of “one Motorola Moto G Stylus android cellular phone that contained the
following described image files visually depicting [pornographic images of a
prepubescent minor].” And the count listed and described four specific
images found on Bopp’s phone. Count Two correspondingly charged Bopp
with receiving child pornography under 18 U.S.C. § 2252A(a)(2) and (b)(1).
Bopp pleaded guilty to Count One under a plea agreement. His plea
waived most of his appellate rights:
The Defendant waives his rights, conferred by 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, to appeal the conviction,
sentence, fine, order of restitution, and any order of forfeiture.
The Defendant further waives his right to contest the
conviction, sentence, fine, order of restitution, and order of
2
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forfeiture in any collateral proceeding, including proceedings
under 28 U.S.C. § 2241 and 28 U.S.C. § 2255.
The Defendant, however, reserves the rights to bring (a) a
direct appeal of (i) a sentence exceeding the statutory
maximum punishment, or (ii) an arithmetic error at
sentencing; (b) to challenge the voluntariness of this plea of
guilty or this waiver; and (c) to bring a claim of ineffective
assistance of counsel.
In exchange, the Government agreed to drop Count Two and to not bring
“additional charges . . . based upon the conduct underlying and related to”
Count One.
The parties produced a factual resume to accompany the plea
agreement. The resume’s language tracked the indictment’s language. But
the resume also included the elements of the Count One offense:
First: That the defendant knowingly possessed an item that
contains an image of child pornography, as alleged in the
indictment;
Second: That the material was produced using materials that
had been mailed, shipped or transported in or affecting
interstate or foreign commerce by any means, including by
computer;
Third: That when the defendant possessed the material, the
defendant knew the material contained child pornography; and
Fourth: One of the child pornography images the defendant
possessed depicted a prepubescent minor engaged in sexually
explicit conduct.
Additionally Paragraphs 2 and 3 included the following factual admissions:
2. On or about January 28, 2021, FBI agents served a search
warrant at his home in Fort Worth, Texas. Bopp was in
possession of a Motorola Moto G Stylus android cellular phone
3
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No. 22-10267
that contained the child pornography images described in
paragraph one [the same prepubescent images described in the
indictment].
3. Bopp admits that he knowingly possessed child
pornography, and that he knew . . . that some of the images he
possessed depicted a prepubescent minor engaged in sexually
explicit conduct.
The district court accepted Bopp’s plea. And Probation got to work
preparing the Presentence Investigation Report (PSR).
The PSR noted that Bopp’s phone had 28,166 images and 6 videos of
child pornography. Each video counted as 75 images. For purposes of the
Sentencing Guidelines, the PSR recommended holding Bopp accountable
for 28,616 images of child pornography. Probation submitted the PSR to the
court. Bopp did not file any written objections to the PSR.
Meanwhile, Probation sent all the images from Bopp’s phone to the
National Center for Missing and Exploited Children for victim identification.
That Center identified four individuals, but only after Probation had already
submitted the PSR. Probation then included an addendum to the PSR to
identify these victims, and it recommend that Bopp pay $3,000 in restitution
to each. Both the Government and Bopp objected to the addendum. The
Government sought larger restitution amounts for some victims. Bopp
objected to any restitution, arguing that it exceeded the statutory maximum
penalty.
The district court overruled both the Government’s and Bopp’s
objections. First, the court declined to institute steeper restitution given the
circumstances of the offense, the resources necessary to collect larger
amounts, and Bopp’s ability to pay. The court then heard argument on
Bopp’s objection. Bopp argued, “Because the victims [identified in the
addendum] were not alleged in the count to which Mr. Bopp has pleaded
4
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guilty, any order of restitution would be inappropriate and would constitute
a sentence in excess of the statutory maximum . . . .” The Government
responded that the indictment’s images were examples of the images found
on the phone and did not bear on the extent of the charged conduct—
possession of the phone. The district court agreed with the Government. It
sentenced Bopp to 151 months’ imprisonment and lifetime supervised
release. It also ordered Bopp to pay $3,000 in restitution to each of the
victims whom the Center had identified.
Bopp timely appealed.
II
Bopp challenges the district court’s restitution award. He argues that
restitution was available only for those victims who appeared in the four
images that Count One described. We “review the legality of the district
court’s order of restitution de novo.” 1 If we conclude “that an award of
restitution is permitted by the appropriate law,” we then review “the
propriety of a particular award for an abuse of discretion.” 2
The Government moved to dismiss Bopp’s appeal, citing the plea
agreement’s appeal waiver. We express no view on that motion. Instead, we
exercise our discretion to decide the case on the merits. 3 Accordingly, we
DENY AS MOOT the Government’s motion to dismiss.
Victims of certain crimes involving child pornography are entitled to
an “order of restitution . . . direct[ing] the defendant to pay the victim . . . the
_____________________
1
United States v. Norris, 217 F.3d 262, 271 (5th Cir. 2000) (citation omitted).
2
Id. (citation omitted).
3
See United States v. Graves, 908 F.3d 137, 140 (5th Cir. 2018).
5
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full amount of the victim’s losses.” 4 That amount “includes any costs
incurred . . . as a proximate result of all trafficking in child pornography
offenses involving the same victim.” 5 A “victim” is an “individual harmed
as a result of a commission of a crime under [18 U.S.C. §§ 2251–2560a].” 6
Finally, “the term ‘a crime’ refers to the offense of conviction.” 7
Bopp pleaded to the “crime” of knowingly possessing a phone that
contained child pornography, including that of prepubescent minors in
violation of § 2252A(a)(5)(B) and (b)(2). Section 2252A(a)(5)(B)
criminalizes possessing “material” containing pornographic images—no
matter how many images the material contains. That is why “each ‘material,’
or medium, containing an image of child pornography” is a separate offense. 8
Bopp admitted possessing material (a phone) that contained child
pornography. Bopp’s “victims” are the individuals who appear in the images
from his phone. Bopp’s crime (possessing the phone) plainly “involves”
these victims (whose images appeared on the phone). 9 Under the statute,
then, all of the victims are therefore entitled to restitution—whether or not
the indictment included images depicting them.
The indictment charged Bopp with a crime, but Bopp has identified
no rule or statute that would require the indictment to also include
_____________________
4
18 U.S.C. § 2259(b)(1).
5
Id. § 2259(c)(2).
6
Id. § 2259(c)(4).
7
Paroline v. United States, 572 U.S. 434, 445 (2014).
8
See United States v. Woerner, 709 F.3d 527, 540 (5th Cir. 2013); cf. United States
v. Planck, 493 F.3d 501, 503–05 (5th Cir. 2007) (“Through different transactions, Planck
possessed child pornography in three separate places—a laptop and desktop computer and
diskettes—and, therefore, committed three separate crimes.”).
9
18 U.S.C. § 2259(c)(2).
6
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descriptions of all the images or all the victims. On the contrary, the
indictment tracks the statute’s language: “Specifically, Bopp possessed one
Motorola Moto G Stylus android cellular phone that contained the following
described image files visually depicting a prepubescent minor engaged in
sexually explicit conduct . . . .” The object of the possession in the
indictment is clearly the “Motorola Moto G Stylus,” not any of the images.
The indictment’s reference to the four images does not change the operative
action for conviction—possession of the phone containing the images.
The factual resume confirms this understanding. It lists the elements
of the crime as focused on Bopp possessing an “item” or “material” that
contained child pornography. There is no element of possession of specific
images. Indeed, if there were, we would be talking about a different offense. 10
To be sure, the enhancement in § 2252A(b)(2) requires there be at least one
image of a prepubescent minor. But that does not change the elements of
§ 2252A(a)(5)(B). The only logical reading of the factual resume is that the
specific images were included as examples for the enhancement. The resume
states, “Bopp admits that he knowingly possessed child pornography, and
that he knew the files depicted real minors engaged in sexually explicit
conduct. Bopp also knew that some of the images he possessed depicted a
prepubescent minor engaged in sexually explicit conduct.” (emphasis
added). If the indictment targeted only the four images containing the
prepubescent minors, then the factual resume would not refer to only
“some” images having that characteristic.
Bopp’s contrary contentions confuse the elements of the offense that
he pleaded to. He argues that the indictment’s four images merely
_____________________
10
See, e.g., 18 U.S.C. § 2252A(a)(2)(A) (making it a crime to knowingly receive the
child pornography itself).
7
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“particularized the real-world facts underlying one of the charged crime’s
elements.” (emphasis added). He continues that the indictment’s reference
to “the following described image files” as limiting the scope of the
indictment to the four specified images because “the following”
communicates exclusivity. These arguments misconstrue the elements
of § 2252A(a)(5)(B). That statute criminalizes possession of material
containing child pornography. The phone was that “material,” no matter
whether it contained one image or twenty thousand. Bopp’s appears to
suggest that Government thought the images were an element of the crime.
We disagree. The indictment’s reference to the specific images does not
create any new elements of the offense. And no element of § 2252A(a)(5)(B)
focuses on possession of specific images. 11 Factual allegations cannot limit
the scope of an offense if they do not go to an element of that offense.
Bopp points to United States v. Reasor 12 as a case exemplifying and
supporting his position. But again, he incorrectly assumes that possessing
specific images is an element of the offense. In Reasor, the prosecution tried
to substitute a different entity as the victim of the crime to satisfy a crime’s
interstate commerce element. 13 Reasor is thus inapplicable here. The images
are not an element of the crime; only the “material” is. Our cases on whether
an indictment’s temporal language limits the scope of restitution for
fraudulent schemes which Bopp cites are also irrelevant for the same reason.
In those cases, as in Reasor, allegations about the length of that scheme go to
an element of the offense (the fraudulent scheme). Not so here. The
_____________________
11
See United States v. Terrell, 700 F.3d 755, 764 (5th Cir. 2012) (listing the elements
as “(1) knowingly possessed material that contained an image of child pornography and (2)
a jurisdictional nexus” (citation and internal quotation marks omitted)).
12
418 F.3d 466 (5th Cir. 2005).
13
See id. at 474.
8
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allegations about the required elements begin and end with possession of the
phone. Allegations about the images are not allegations that go to any element
of the offense.
Bopp does not otherwise challenge the restitution order. He does not
deny that his phone had images of the victims identified in the restitution
order. And he does not deny that the victims were harmed by his possessing
a phone containing their images as stated in their victim statements. We also
see no error with the district court’s finding and amount of restitution.
Accordingly, the district court did not err.
AFFIRMED.
9