United States v. Robert Glassgow

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2611
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Robert Glassgow, *
*
Appellant. *
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Submitted: February 17, 2012
Filed: June 28, 2012
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Before GRUENDER, BENTON, and SHEPHERD Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Robert Eugene Glassgow of receipt of child pornography in
violation of 18 U.S.C. § 2252(a)(2). He was sentenced to 188 months’ imprisonment.
He appeals arguing that there was insufficient evidence for the conviction. He also
contends that the district court1 abused its discretion in allowing the government to
introduce into evidence images of child pornography and erred in imposing certain
enhancements and an unreasonable sentence. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
1
The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
I.
A law enforcement investigation of peer-to-peer file-sharing of child
pornography led to the seizure of a computer from Glassgow’s residence. Glassgow
had built the computer; the hard drive had 88 images of child pornography. Glassgow
admitted to investigators that he had actually viewed the child pornography found in
his shared folder. He used coded search terms to retrieve some of the pornography
through the peer-to-peer program “FrostWire.” The child pornography images, after
being downloaded, were modified and accessed. Later, Glasssgow tried to delete the
child-pornography files from the computer, but they remained in unallocated space on
his hard drive. These images were offered for distribution via a peer-to-peer network
about 84 times in a six-month period in 2008-2009.
II.
The sufficiency of the evidence is reviewed de novo. United States v. Moran,
612 F.3d 684, 690 (8th Cir. 2010). All reasonable inferences supporting the jury
verdict are accepted. Id. The verdict will be upheld if any interpretation of the
evidence could lead a reasonable jury to find guilt beyond a reasonable doubt. Id.Glassgow argues that the proof at trial was insufficient, stressing that three
other people had access to the computer (his then-girlfriend and her two daughters).
Although he recognizes that the evidence must be viewed most favorably to the
verdict, he asserts his conviction is based on speculation. He contends there was
insufficient evidence that he “knowingly” possessed the images of child pornography
found on his computer’s hard drive. He ignores that he confessed, that the child
pornography images were offered for distribution, and that 88 images of child
pornography were found in unallocated space on his computer (indicating he tried to
delete the images). The reasonable inferences and interpretation of the evidence
support the verdict of knowingly receiving child pornography.
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III.
The district court’s admission of evidence is reviewed for abuse of discretion.
United States v. Dorsey, 523 F.3d 878, 879 (8th Cir. 2008).
All the pornographic images on Glassgow’s computer were in thumbnail sketch
form. He alleges they were not expandable for viewing and that the government’s
exhibits were only “similar” to the thumbnail pictures. Glassgow claims that the
district court erred in admitting these exhibits. A government expert, however,
verified that the images in exhibits 3 through 17 were the actual enlarged images from
Glassgow’s computer. To the extent Glassgow is challenging the government’s
exhibit 1 (a DVD compilation of three video clips from a law enforcement database),
the SHA-1 values2 of these videos matched the SHA-1 values of the files offered for
distribution from Glassgow’s computer. According to the expert, there was a
99.9999% probability that exhibit 1 contained the same video clips that Glassgow
possessed. The admission of exhibit 1 (which was not published to the jury, only
described to it) was not unfairly prejudicial. Cf. United States v. McCourt, 468 F.3d
1088, 1092-93 (8th Cir. 2006) (published videos were not found to be unfairly
prejudicial).
The district court did not abuse its discretion in admitting the thumbnail
sketches or the video clips.
IV.
The district court applied enhancements for distribution, sadistic conduct,
number-of-images, and use-of-a-computer. The application of the sentencing
2
SHA-1 stands for Secure Hash Algorithm Version 1–a digital fingerprint of a
computer file. It is a 32-digit number that is calculated for a file and unique to it.
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guidelines is reviewed de novo. United States v. Mathijssen, 406 F.3d 496, 498 (8th
Cir. 2005).
Glassgow argues that he should not receive a distribution enhancement under
§ 2G2.2(b)(3)(F) because he did not widely distribute the child pornography, create
the images, or make any money by distributing them. True, an enhancement for
distribution should not be automatically imposed based on use of a file-sharing
program. United States v. Durham, 618 F.3d 921, 931-32 (8th Cir. 2010) (reversing
a distribution enhancement). Glassgow’s reliance on Durham is misplaced because
this court held that if a defendant uses a file-sharing program, a fact-finder may
reasonably infer he intended to distribute files, unless there is “concrete evidence of
ignorance.” Id. Glassgow claims ignorance, contending that he did not intend to
distribute the images and was not a sophisticated computer user. Unfortunately, there
is no “concrete evidence” of ignorance. Glassgow built the computer, and uploaded
and downloaded files and programs. He knowingly made files available for
distribution. The enhancement for distribution was not imposed merely because
Glassgow used a file-sharing program.
The district court imposed an enhancement for sadistic conduct under §
2G2.2(b)(4). Glassgow acknowledges that certain images on his computer were per
se sadistic. See United States v. Johnson, 450 F.3d 831, 834 (8th Cir. 2006). But
then he argues that he really didn’t seek out sadistic images and should not receive the
enhancement. This argument has no legal support. The district court properly applied
this enhancement.
Because the number of child pornography images was at least 300, but less than
600, the district court imposed a § 2G2.2(b)(7)(C) enhancement, and a § 2G2.2(b)(6)
enhancement for use-of-a-computer. Glassgow asserts that because computer
programs make it easy to access a large number of images, most offenders are unfairly
subject to high enhancements. He also contends that he was just a small-scale
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offender and should not be punished for the total number of images because he tried
to delete them. His generic argument that this enhancement is unfair and harsh lacks
any legal support. He emphasizes he tried to delete the images, arguing this should
bar the distribution enhancement. He relies on an unpublished case where the Third
Circuit upheld the district court’s decision not to apply two enhancements for use-of-
a-computer and number-of-images. United States v. Maguire, 436 Fed. Appx. 74, 78
(3d Cir. 2011). The district judge in Maguire refused to apply the two enhancements
merely because a computer was used. Maguire appealed his within-guidelines
sentence alleging unreasonableness (the government did not appeal). Id. The Third
Circuit, considering the totality of the circumstances, found that the sentence was
substantively reasonable. Id. at 77-78. Although the Maguire case upheld a refusal
to apply the enhancement, it does not require a sentencing court to withhold it in all
child pornography cases using a computer. The application of the number-of-images
and use-of-a-computer enhancements was proper.
V.
A district court’s sentence is reviewed for abuse of discretion. United States
v. Hill, 638 F.3d 589, 593 (8th Cir. 2011).
Glassgow’s offense level of 36 and criminal history category I, resulted in a
guideline range of 188 to 235 months. He was sentenced to 188 months. He argues
that the child pornography guidelines are unduly harsh, lack empirical support, and
produce sentences greater than necessary to serve the objectives of sentencing.
Glassgow repeatedly argues he is a “generic offender,” inferring his sentence is
substantively unreasonable.
A within-guidelines sentence is presumptively reasonable on appeal. United
States v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009). Glassgow makes no valid
appellate argument to rebut the presumption of reasonableness. Id.-5-
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The judgment of the district court is affirmed.
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