United States v. Gunderson, David J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1311
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID J. GUNDERSON, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-CR-70—John C. Shabaz, Judge.
____________
ARGUED FEBRUARY 11, 2003—DECIDED SEPTEMBER 26, 2003
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. While investigating child por-
nography on the internet, German police downloaded il-
legal images of children from a computer owned by David
Gunderson in Ortfordville, Wisconsin. German authorities
alerted Ortfordville police, who obtained a warrant and
searched Gunderson’s computer on which they found addi-
tional illegal images of children. Gunderson pleaded guilty
to possessing child pornography and was sentenced to 120
months’ imprisonment. He appeals his sentence, but we
affirm.
2 No. 01-1311
German police downloaded the images from Gunderson’s
computer in October 1999 after visiting an internet chat
room devoted to child pornography. While inside the chat
room, police obtained the password needed to access the
files on Gunderson’s computer over the internet. Using
this password, German police downloaded several sexually
explicit images of children from Gunderson’s computer.
Gunderson admitted that the images were his and alerted
officers to additional child pornography that he had trans-
ferred from his computer’s hard drive onto two compact
discs. He was indicted for possessing child pornography on a
computer hard drive, 18 U.S.C. § 2252A(a)(5)(B) (Count I);
shipping child pornography in interstate commerce, id.
§ 2252A(a)(1) (Count II); and criminal forfeiture, id. § 2253
(Count III).
Gunderson pleaded guilty to Count I, the possession
charge, and agreed to the forfeiture sought in Count III.
In exchange for his guilty plea, the government dropped
Count II. Prior to sentencing, the probation office submitted
a presentence report, which calculated a recommended
sentence under the Sentencing Guidelines. The report re-
counted Gunderson’s misdemeanor conviction in 1994 for
having “sex with a child age 16 or older”; when Gunderson
was 22, he had sex at least twice with his 17-year-old
girlfriend. As a result of that conviction, the report recom-
mended that Gunderson’s base offense level be increased by
five levels for engaging in a “pattern of activity involving
the sexual abuse or exploitation of a minor.” See U.S.S.G.
§ 2G2.2(b)(4). It also recommended that his base offense
level be increased by another five levels for distributing,
in addition to possessing, child pornography. See id.
§ 2G2.2(b)(2).
Gunderson objected to both enhancements. He argued
that the five-level enhancement for engaging in a pattern of
sexually exploiting children was inappropriate because
consensual sexual activity with someone over 16 is not a
No. 01-1311 3
crime under federal law. He also argued that the distribu-
tion enhancement was inappropriate because his computer
automatically swapped files with other computers and
because he never received money from the people accessing
his illegal images. The district court rejected Gunderson’s
objections and sua sponte denied him the three-level re-
duction for acceptance of responsibility recommended
in the presentence report. The court held that Gunderson
was ineligible for the acceptance-of-responsibility reduc-
tion because by objecting to the distribution enhancement,
he had denied relevant conduct. The sentence the court
imposed—120 months—was the maximum permitted by
statute. See 18 U.S.C. § 2252A(b)(2).
We review the district court’s decision to apply a sentenc-
ing enhancement under the Guidelines de novo, United
States v. Mabrook, 301 F.3d 503, 510 (7th Cir. 2002), and its
decision to deny a reduction for acceptance of responsibility
for clear error, United States v. Boos, 329 F.3d 907, 911 (7th
Cir. 2003).
Gunderson first argues that the district court misapplied
the Guidelines by assessing a five-level increase to his base
offense level for being involved in a “pattern of sexual abuse
or exploitation of a minor.” See U.S.S.G. § 2G2.2(b)(4).
Gunderson contends that under federal law consensual sex
is criminal only if it involves a minor under 16, see 18
U.S.C. § 2243(a), and therefore his state conviction for
having sex with his then 17-year-old girlfriend was not a
federal crime and does not fall under the Guideline’s defini-
tion of sexual abuse of a minor. But § 2G2.2 itself provides
the relevant definition of the word “minor,” which, “[f]or
purposes of this guideline[,] . . . means an individual who
had not attained the age of 18 years.” U.S.S.G. § 2G2.2,
comment (n.1). Furthermore, the Guideline reaches not only
conduct that constitutes a violation of federal law, but also
“similar offense[s] under state law.” Id. Gunderson’s
4 No. 01-1311
conviction for having sex with his 17-year-old girlfriend is
a state law offense sufficiently similar to the federal crime
of sexual abuse of a minor, and therefore the district court
did not err when it increased Gunderson’s base offense level
by five levels under § 2G2.2.
Next, Gunderson argues that the district court should not
have assessed a five-level increase in his base offense level
for distribution under § 2G2.2(b)(2) because he received no
money from the people who downloaded his child pornogra-
phy, and because he set up his computer to automatically
trade files even when he was not using the computer at
the time. Although Gunderson did not require other com-
puter users to pay to access his files, he did require them to
first upload files to his computer: for each megabyte of files
other users uploaded, Gunderson’s computer allowed them
to download three megabytes of files. These types of swaps,
barters, and in-kind transactions are covered under
§ 2G2.2(b)(2). United States v. Black, 116 F.3d 198, 202-03
(7th Cir. 1997). In Black, we concluded that the defendant
had not distributed child pornography based in part upon
the government’s stipulation that he did not require the
people who downloaded pornography from his computer
to give him anything in return. Id. at 200. In contrast,
Gunderson received valuable consideration from each of the
persons who downloaded his illegal images because they
could access his files only after they uploaded images to his
hard drive. As for his argument that he did not engage in
distribution because his computer automatically distributed
files, the fact that his computer traded files automatically
is irrelevant: Gunderson is the person who programmed his
computer to trade files in this manner.
Finally, Gunderson disputes the district court’s determi-
nation that he failed to accept responsibility for his conduct
and therefore was not entitled to a three-level reduction in
his base offense level. See U.S.S.G. § 3E1.1. The court con-
No. 01-1311 5
cluded that Gunderson did not accept responsibility for his
conduct when he challenged the presentence report’s rec-
ommendation that he be assessed a five-level increase for
distribution. See U.S.S.G. § 3E1.1. Gunderson contends that
he challenged only whether his conduct fell under the
Guideline definition of distribution, not the fact that he
programmed his computer to automatically exchange child
pornography. But his contention is not supported by the
record. In written objections to the presentence report,
Gunderson’s attorney maintained that Gunderson was
guilty only of downloading and possessing child pornogra-
phy, not of sharing it with others:
Beyond simple possession, there is no factual basis for
this [distribution] assertion. . . . [H]e pos-
sessed/downloaded images of child pornography—
period. He was not involved in any scheme or plan
which served to place these or other images back into
the global canals of e-commerce. His possession did not
involve distribution at any conceivable level. The single
transfer from his computer’s hard drive to his own
floppy disc or CD was the single and final destination of
these images.
Counsel’s objection went well beyond arguing that
programming a computer to automatically share files falls
outside the Guideline’s definition of distribution; it denies
that Gunderson shared files at all. Gunderson adopted his
counsel’s written objections at his sentencing hearing when
he told the court that he had read the objections and agreed
with them. By adopting the objections, Gunderson denied
relevant conduct—sharing his illegal images with oth-
ers—and therefore the court’s decision to deny him a three-
level reduction for acceptance of responsibility was not clear
error. See United States v. Tankersley, 296 F.3d 620, 622
(7th Cir. 2002) (defendant must admit both the conduct
comprising the offense as well as other conduct related to
the offense).
6 No. 01-1311
Accordingly, we AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-26-03