United States v. Dustin Randall

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 20-10339
AMERICA,
Plaintiff-Appellee, D.C. Nos.
2:18-cr-00303-JCM-EJY-1
v. 2:18-cr-00303-JCM-EJY
DUSTIN RANDALL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 10, 2021
San Francisco, California
Filed May 20, 2022
Before: Kim McLane Wardlaw, Daniel A. Bress, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay;
Dissent by Judge Wardlaw
2 UNITED STATES V. RANDALL
SUMMARY *
Criminal Law
Answering two questions of first impression in this
circuit, the panel affirmed a sentence imposed on Dustin
Randall for distributing and receiving child pornography in
violation of 18 U.S.C. § 2252A.
The panel held that to be eligible for a five-level
enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which
applies to offenders who distribute child pornography “in
exchange for any valuable consideration,” the defendant
need not actually receive the “valuable consideration,” and
that the district court therefore did not err in applying the
enhancement.
The panel held that the Justice for Victims of Trafficking
Act, 18 U.S.C. § 3014(a), mandates a $5,000 assessment for
each of a defendant’s counts of conviction—not a single
assessment per defendant in the case. The panel explained
that § 3014(a) works in conjunction with 18 U.S.C. § 3013,
to which § 3014 is closely related in terms of text, purpose,
and statutory structure; and observed that every circuit court
has interpreted § 3013’s assessment on a person “convicted
of an offense” to apply separately to each count of conviction
rather than to each offender. The panel wrote that the
ordinary meaning of § 3014’s “convicted of an offense” also
supports a separate assessment per conviction. The panel
concluded that the district court therefore did not err in
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RANDALL 3
assessing a fine of $5,000 for each of Randall’s two counts
of conviction.
Judge Wardlaw dissented from the portion of the
majority opinion concerning the § 3014(a) assessment. She
wrote that the majority’s conclusion that § 3014(a) imposes
a per-count assessment is based on a flawed reading of
§ 3013, an earlier enacted statute that differs markedly from
§ 3014 in both text and structure. She wrote that whether the
court should impose the § 3014 assessment turns on the
nature of the offense—not the number of offenses of
conviction.
The panel rejected Randall’s remaining objections to his
sentence in a concurrently filed memorandum disposition.
COUNSEL
Amy B. Cleary (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for
Defendant-Appellant.
Elham Roohani (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Christopher Chiou,
Acting United States Attorney; United States Attorney’s
Office, Las Vegas, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. RANDALL
OPINION
BUMATAY, Circuit Judge:
Dustin Randall was convicted of distributing and
receiving child pornography in violation of 18 U.S.C.
§ 2252A. He challenges the sentences imposed, raising two
questions of first impression:
First, U.S. Sentencing Guideline § 2G2.2(b)(3)(B)
provides for a five-level enhancement for offenders who
distribute child pornography “in exchange for any valuable
consideration.” While the enhancement requires that the
offender share pornographic material, we have never
answered whether the offender must also receive the
“valuable consideration.” Our sister circuit courts are
seemingly divided on this question. One circuit holds that
the enhancement does not depend on the receipt of valuable
consideration. See United States v. Oliver, 919 F.3d 393,
403–04 (6th Cir. 2019). Another circuit appears to hold the
opposite. See United States v. Halverson, 897 F.3d 645, 652
(5th Cir. 2018).
Second, the Justice for Victims of Trafficking Act,
18 U.S.C. § 3014(a), mandates a $5,000 special assessment
for defendants convicted of certain sex crime offenses,
including the distribution and receipt of child pornography.
We must decide whether the $5,000 assessment attaches to
each offense of conviction or whether the statute permits
only a single assessment of $5,000 for each defendant per
case. Once again, the circuit courts are split. One circuit
holds that a $5,000 assessment must be imposed for each
eligible conviction. See United States v. Johnman, 948 F.3d
612, 617 (3d Cir. 2020). Another concludes that a defendant
can only be assessed one time per case—no matter the
UNITED STATES V. RANDALL 5
number of convictions. See United States v. Haverkamp,
958 F.3d 145, 149 (2d Cir. 2020).
We answer both questions today. Based on the text of
the Guideline and the statute, we hold (1) that
§ 2G2.2(b)(3)(B) does not require the defendant to receive
any “valuable consideration”; and (2) that § 3014(a) requires
a $5,000 fine per offense. We thus affirm the district court’s
sentence. 1
I.
In 2017, Las Vegas Metropolitan Police Department
detectives assigned to the Internet Crimes Against Children
Task Force uncovered Randall’s criminal activity through
the investigation of David Proctor—a suspected trader of
child pornography. Detectives investigated Proctor’s use of
Kik, a free instant messaging mobile application, for
distribution of child pornography.
After securing a warrant for Proctor’s Kik account,
detectives discovered a June 2017 conversation between
Proctor and Randall. In relevant part, Proctor and Randall
discussed the following:
Proctor: Can I join group? How young
Randall: Young and send to join
Proctor: [sends a Dropbox link containing
child pornography]
1
In a concurrently filed memorandum disposition, we reject
Randall’s remaining objections to his sentence.
6 UNITED STATES V. RANDALL
Can I get one or join group
?
Do you trade back
Randall: I trade back and yeah the group is
dead now it was going last night
[sends Dropbox link]
Proctor: Do you have babies
Or mega link
Have more. I sent two
Can you send from group
[sends three Dropbox links
containing child pornography]
Have any more or younger
...
Proctor: Can you send more or different
CAn you send more [sic]
?
Send more
UNITED STATES V. RANDALL 7
Randall: I don’t trade with impatient
mother fuckers
Proctor: Sorry I’ll wait
Send when you can no rush
I have baby to trade
Randall: [sends Dropbox link containing
child pornography]
So Proctor began the conversation by requesting to join
the Kik group Randall belonged to, and Randall responded
that he had to “send” child pornography “to join” the group.
Proctor then sent Randall a link to Dropbox, a cloud-based
virtual storage provider, that contained 272 videos and
34 images of child pornography. Later, Proctor asked
Randall if he “trade[s] back”—inquiring if Randall wanted
to send back pornography in return. Randall confirmed that
he “trade[s] back” and then sent Proctor a Dropbox link,
which the government asserted contained child
pornography. Proctor later sent three more Dropbox links to
Randall, presumably also containing child pornography. In
return, Proctor repeatedly asked Randall to “[s]end more.”
After some back and forth, Randall eventually sent Proctor
another Dropbox link containing child pornography.
After identifying Randall in December 2017, detectives
executed a search warrant on his home. Randall waived his
Miranda rights and agreed to speak with the investigators.
Randall admitted to trading child pornography on his Kik
account. He expressed remorse and stated that he knew his
actions were wrong.
8 UNITED STATES V. RANDALL
In January 2018, detectives received information from
Randall’s Dropbox account. The account contained
92 videos and 24 images of child pornography. Between
Randall’s own Dropbox account and the link sent to him by
Proctor, Randall had 364 videos of child pornography and
75 images involving the sexual exploitation of children.
In August 2018, Las Vegas detectives arrested Randall
on state charges. A federal criminal complaint was then filed
against him in September 2018, and he was arraigned in
federal court. Without a plea agreement, Randall pleaded
guilty to one count of receipt of child pornography and one
count of distribution of child pornography, both in violation
of 18 U.S.C. § 2252A(a)(2), (b).
At sentencing, the district court determined that Randall
had a total offense level of 37, with a Sentencing Guidelines
range of 210 to 262 months. The statutory maximum term
of imprisonment for each of Randall’s offenses was
240 months. In calculating Randall’s offense level, the
district court applied a five-level enhancement for the
exchange of child pornography for valuable consideration.
See U.S.S.G. § 2G2.2(b)(3)(B). The district court sentenced
Randall to 96 months’ imprisonment and a lifetime term of
supervised release. Under the Justice for Victims of
Trafficking Act, the district court also imposed a $5,000 fine
on each of Randall’s two offenses—for a total of $10,000.
Randall now appeals his sentence and fine. We review a
district court’s interpretation of the Guidelines de novo, its
application of the Guidelines to the facts of the case for abuse
of discretion, and its factual findings for clear error. United
States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019). We
review a district court’s interpretation of a statute de novo.
United States v. Harris, 983 F.3d 1125, 1126 (9th Cir. 2020).
UNITED STATES V. RANDALL 9
II.
We confront two important questions in this case:
(1) whether a defendant must receive “valuable
consideration” to be eligible for the five-level enhancement
under U.S.S.G. § 2G2.2(b)(3)(B); and (2) whether
assessments under the Justice for Victims of Trafficking Act,
18 U.S.C. § 3014(a), should be imposed on a per-count or a
per-defendant basis. We answer the first question in the
negative—the defendant need not actually receive the
“valuable consideration” to receive the § 2G2.2(b)(3)(B)
enhancement. As to the second question, we conclude that
§ 3014(a) mandates a $5,000 assessment for each of a
defendant’s counts of conviction—not a single assessment
per defendant in the case.
A The Valuable Consideration Enhancement
We first turn to the valuable consideration enhancement
under § 2G2.2(b)(3)(B). Randall challenges two aspects of
the district court’s application of the valuable consideration
enhancement—first on legal and second on factual grounds.
We disagree with Randall on both.
1.
As amended in 2016, § 2G2.2(b)(3)(B) provides for a
five-level enhancement when a defendant exchanges child
pornography for “valuable consideration.” U.S.S.G.
§ 2G2.2(b)(3)(B). “Valuable consideration” refers to the
exchange of “something of valu[e],” such as “other child
pornographic material, preferential access to child
pornographic material, or access to a child.” U.S.S.G.
§ 2G2.2 cmt. n.1. As the Sentencing Commission explained,
the enhancement accounts for the “higher level of
culpability” when a defendant has a “specific purpose” to
10 UNITED STATES V. RANDALL
distribute child pornographic material to another person in
“exchange for valuable consideration.” U.S.S.G. Supp. to
App. C at 136–37. Without the exchange for “valuable
consideration,” unless another enumerated enhancement
applies, offenses involving only distribution generally lead
to a two-level increase. U.S.S.G. § 2G2.2(b)(3)(F).
Here, the parties disagree about whether the
§ 2G2.2(b)(3)(B) enhancement requires the completion of
the exchange for “valuable consideration.” Randall asserts
that a defendant must actually receive the “valuable
consideration” for the enhancement to apply. But the
government contends that a defendant must only complete
his end of the bargain; it is unnecessary for the defendant to
receive valuable consideration. As we note below, Randall
could not prevail even if receipt of valuable consideration
were required; Randall did, in fact, receive valuable
consideration in the form of child pornography. But because
the legal question is squarely presented here, and because
there is value in providing clarity on the scope of criminal
law and punishment, we proceed to address whether Randall
must have received valuable consideration in order for the
§ 2G2.2(b)(3)(B) enhancement to be imposed.
To resolve the parties’ competing interpretations, we
turn to the Guideline’s text and any accompanying
Application Notes. See United States v. Prien-Pinto,
917 F.3d 1155, 1157 (9th Cir. 2019) (observing that
Application Notes are the “authoritative” interpretation and
explanation of the Guidelines, unless they are “inconsistent
with, or a plainly erroneous reading of,” the Guidelines
(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).
Section 2G2.2(b)(3)(B) provides that “[i]f the defendant
distributed [child pornography] in exchange for any valuable
consideration, but not for pecuniary gain, increase
UNITED STATES V. RANDALL 11
by 5 levels.” Application Note 1 to § 2G2.2 further explains
that the phrase “‘[t]he defendant distributed in exchange for
any valuable consideration’ means the defendant agreed to
an exchange with another person under which the defendant
knowingly distributed to that other person for the specific
purpose of obtaining something of valuable consideration
from that other person[.]” U.S.S.G. § 2G2.2 cmt. n.1.
Based on the text of the Guideline and commentary,
§ 2G2.2(b)(3)(B) has three elements: (1) the defendant
agreed to an exchange with another person; (2) the defendant
knowingly distributed child pornography to the other person;
and (3) the defendant’s distribution was for the specific
purpose of obtaining something of valuable consideration
from the other person.
But we can’t find a requirement that the defendant must
also receive the valuable consideration from the other
person. Look at the text. An “exchange” means the
“action,” “act,” or “process” of “reciprocal giving and
receiving.” Oxford English Dictionary Online. An
“exchange” then involves two actions—giving and
receiving—that can occur in either order. So a defendant can
distribute pornographic material in “exchange” for valuable
consideration by sending first or receiving first—the
sequence doesn’t matter.
For example, a defendant can send pornography after
receiving pornography from another person or can send the
pornography in expectation of receiving pornography from
the other person. In both cases, the defendant has acted as
part of an exchange or trade for pornography. And nothing
in the text of the Guideline or the Application Note requires
the completion of the two-step process of giving and
receiving. Indeed, the commentary focuses on the
defendant’s agreement to the exchange and the defendant’s
12 UNITED STATES V. RANDALL
completion of his part of the bargain (distributing the child
pornography)—not the completion of the transaction. See
U.S.S.G. § 2G2.2 cmt. n.1. So whether the defendant
ultimately receives the valuable consideration in return is
immaterial.
With that interpretation, we align ourselves with the
Sixth Circuit. It too rejected a requirement that the
“defendant actually receive the thing of value” for the
§ 2G2.2(b)(3)(B) enhancement to apply. See Oliver,
919 F.3d at 403–04. The Sixth Circuit looked to the
Guideline’s text and held that “the plain language of the
enhancement and application Note fail to support such an
element.” Id. It also viewed such a requirement as
hamstringing law enforcement because undercover officers
cannot comply with a defendant’s request to send child
pornography. Id. Randall criticizes this rationale. In his
view, cases involving undercover law enforcement officers
should warrant a lesser enhancement. Contrary to Randall’s
view, however, the Guideline’s commentary makes clear
that the critical factors are the defendant’s state of mind and
actions—not the other person’s state of mind, actions, or
status as an undercover police officer.
To be sure, the Fifth Circuit has potentially adopted the
position that Randall now takes. See Halverson, 897 F.3d at
652. In describing the “test” for the valuable consideration
enhancement, the Fifth Circuit held that a court must find
that “the valuable consideration came from th[e] person”
with whom the defendant agreed to an exchange. Id. The
Fifth Circuit purportedly derived this element from the
Application Note. Id. But for the reasons stated above, we
think the better textual argument is that § 2G2.2(b)(3)(B)
requires no such element.
UNITED STATES V. RANDALL 13
Randall lastly points to the pre-2016 Guidelines to show
that § 2G2.2(b)(3)(B) requires a defendant to receive
valuable consideration. Before 2016, § 2G2.2(b)(3)(B)
stated, “Distribution for the receipt, or expectation of
receipt, of a thing of value, but not for pecuniary gain,
increase by 5 levels.” U.S.S.G. § 2G2.2(b)(3)(B) (2015)
(emphasis added). Randall contends that, since the
Guideline now excludes the phrase “expectation of receipt,”
anticipation of receiving pornography and the like is not
enough; the trade must be consummated. The Commission,
however, stated that the amendment to § 2G2.2(b)(3)(B) was
meant to clarify the “mental state required for distribution.”
U.S.S.G. Supp. to App. C at 137. So according to the
Commission, the amendment focused on the defendant’s
state of mind, not whether the transaction was completed.
Id. Without further textual evidence, we will not read a new
element into § 2G2.2(b)(3)(B) based on pre-2016
considerations.
We thus join the Sixth Circuit in rejecting the
requirement that a defendant receive valuable consideration
in return for distributing child pornography for
§ 2G2.2(b)(3)(B) to apply.
2.
Randall next argues, regardless of the legal
interpretation, that § 2G2.2(b)(3)(B) doesn’t apply to the
facts of his case. We disagree. That’s because the Kik
thread between Randall and Proctor readily supports
application of § 2G2.2(b)(3)(B). To recap, the elements of
§ 2G2.2(b)(3)(B) are: (1) the defendant agreed to an
exchange with another person; (2) the defendant knowingly
distributed child pornography to the other person; and (3) the
defendant’s distribution was for the specific purpose of
14 UNITED STATES V. RANDALL
obtaining something of valuable consideration from the
other person.
First, Randall and Proctor agreed to an exchange for
valuable consideration. Proctor initially asked to join the
Kik group and Randall responded, “send to join”—meaning
send child pornography to be added to the group. In
response, Proctor sent a link containing child pornography.
Proctor then asked, “Do you trade back[?]”—inviting
Randall to trade pornographic material with him. Randall
agreed to barter by replying, “I trade back,” and by sending
a Dropbox link containing child pornography. Later on,
Proctor asked Randall, “Have any more or younger[?]”
Randall eventually responded by sending another link of
child pornography. This conversation easily satisfies the
first element of § 2G2.2(b)(3)(B).
Second, Randall distributed child pornography to
Proctor. Two times during the Kik conversation, Randall
sent Proctor a Dropbox link, which the government
contended contained child pornography. From the context
of the conversation, Randall meant to send child
pornography in the Dropbox links. Randall sent the first
Dropbox link after Proctor sent him child pornography and
agreed to “trade back.” Randall then sent the second
Dropbox link after Proctor sent him three more links of child
pornography and implored him to “[s]end when you can[.]” 2
On appeal, Randall doesn’t seriously contest that he sent
2
Because Randall received pornographic material from Proctor in
return for sending child pornography, the valuable consideration
enhancement would apply even under the test articulated by the Fifth
Circuit in Halverson.
UNITED STATES V. RANDALL 15
child pornography during the conversation; so the second
element of § 2G2.2(b)(3)(B) is satisfied.
Finally, Randall acted with the specific purpose of
obtaining valuable consideration in return for sending the
child pornography to Proctor. As the conversation above
establishes, Randall expected to (and did) receive
pornographic material from Proctor in exchange for sending
him child pornography. To the extent Randall argues that
the district court failed to make sufficient findings to support
this element, we disagree. The district court stated that
Randall was “trading” images of child pornography.
Moreover, at sentencing, the government explained that the
Kik messages showed that “Randall was trading child
pornography for child pornography.” The government also
stated that the chat established that Randall was telling
Proctor to “send child pornography to get in [the group]” and
that they then “discussed trading child pornography.” The
government contended that this was sufficient to show
“intent there[.]” The district court agreed and overruled the
defense’s objection to the enhancement. We thus see no
abuse of discretion and affirm the district court’s application
of the five-level enhancement under § 2G2.2(b)(3)(B).
B. The Justice for Victims of Trafficking Act
We next discuss whether the Justice for Victims of
Trafficking Act, 18 U.S.C. § 3014(a), mandates an
assessment on a per-count or per-offender basis. The district
court imposed a $5,000 special assessment under § 3014(a)
for each of Randall’s two convictions—totaling $10,000.
Randall argues that the Act permits only one $5,000
assessment per defendant per case—no matter the number of
qualifying convictions. The government instead argues that
the statute authorizes a $5,000 assessment for each eligible
conviction. As mentioned, our sister courts are divided on
16 UNITED STATES V. RANDALL
the issue. The Third Circuit agrees with the government, see
United States v. Johnman, 948 F.3d 612, 616–20 (3d Cir.
2020), while the Second Circuit concurs with Randall, see
United States v. Haverkamp, 958 F.3d 145, 149 (2d Cir.
2020). Based on the text and the relevant statutory scheme,
we hold that § 3014(a) requires an assessment of $5,000 for
each qualifying conviction.
As always, we begin with the text. See United States v.
Herrera, 974 F.3d 1040, 1047 (9th Cir. 2020). The Act
provides:
(a) In General.—Beginning on the date of
enactment of the Justice for Victims of
Trafficking Act of 2015 and ending on
September 11, 2022, in addition to the
assessment imposed under section 3013, the
court shall assess an amount of $5,000 on any
non-indigent person or entity convicted of an
offense under—
(1) chapter 77 (relating to peonage,
slavery, and trafficking in persons);
(2) chapter 109A (relating to sexual
abuse);
(3) chapter 110 (relating to sexual
exploitation and other abuse of children);
(4) chapter 117 (relating to transportation
for illegal sexual activity and related
crimes); or
UNITED STATES V. RANDALL 17
(5) section 274 of the Immigration and
Nationality Act (8 U.S.C. 1324) (relating
to human smuggling) . . . .
18 U.S.C. § 3014(a). Put simply, § 3014(a) requires that
courts: “(1) assess (2) an amount of $5,000 (3) on any non-
exempt person or entity (4) convicted of an offense (5) under
certain enumerated chapters of the criminal code.”
Johnman, 948 F.3d at 617.
The key issue here is how to interpret “convicted of an
offense.” Does it mean a $5,000 assessment for each time
the person is “convicted of [a discrete enumerated] offense”?
If that’s the case, then Randall’s assessment of $10,000 was
proper since he was twice “convicted of an offense.” Or
does it mean a single $5,000 assessment when a person is
“convicted of [any one of the enumerated] offense[s]?” If
so, then Randall could be fined only $5,000 for his two child
pornography convictions.
Lucikly, we do not operate on a blank slate in unpacking
this tricky textual question. That’s because Congress
enacted the Justice for Victims of Trafficking Act against the
backdrop of the phrase’s settled meaning. As expressly
mentioned in the statute, § 3014(a) works in conjunction
with 18 U.S.C. § 3013. See 18 U.S.C. § 3014(a) (imposing
the special assessment “in addition to the assessment
imposed under [18 U.S.C.] section 3013”). Section 3013, in
turn, provides:
(a) The court shall assess on any person
convicted of an offense against the United
States—
(1) in the case of an infraction or a
misdemeanor—
18 UNITED STATES V. RANDALL
(A) if the defendant is an individual—
[an amount ranging from $5 to $25]
...
(2) in the case of a felony—
(A) the amount of $100 if the
defendant is an individual[.]
18 U.S.C. § 3013(a).
As you can see, the special assessments in both § 3013(a)
and § 3014(a) apply to any person “convicted of an offense.”
And that wasn’t accidental. By way of background,
Congress enacted § 3013 in 1984 to fund the Crime Victims
Fund. See Victims of Crime Act of 1984, Pub. L. No. 98-
473, §§ 1402, 1405(a) (1984). The Crime Victims Fund
provides, among other things, funding resources to programs
supporting crime victims. 34 U.S.C. § 20101. In 2015,
Congress established a similar Domestic Trafficking
Victims’ Fund to provide financial support to victims of
human trafficking and child exploitation. Justice for Victims
of Trafficking Act of 2015, Pub. L. No. 114-22, § 101
(2015). Congress simultaneously enacted the special
assessment in § 3014(a) to fund the Domestic Trafficking
Victims’ Fund. 18 U.S.C. § 3014(c), (e), (h). In sum, § 3014
is closely related to § 3013 in terms of text, purpose, and
statutory structure.
How courts have interpreted the phrase “convicted of an
offense” under § 3013 provides important guidance. That’s
because when a phrase is “obviously transplanted from
another legal source,” such as other legislation, “it brings the
old soil with it.” Sekhar v. United States, 570 U.S. 729, 733
UNITED STATES V. RANDALL 19
(2013) (quoting Felix Frankfurter, Some Reflections on the
Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). In
other words, when Congress adopts a phrase with a settled
judicial interpretation, absent some indication to the
contrary, we presume that Congress chose to give the phrase
its established meaning. Shirk v. U.S. ex rel. Dep’t of
Interior, 773 F.3d 999, 1004 (9th Cir. 2014); see also United
States v. Prasad, 18 F.4th 313, 322–23 (9th Cir. 2021)
(observing that the “prior construction canon” applies “to
interpretations of the same wording in related statutes”).
In this case, we have buckets of “soil” to help us give
meaning to the phrase “convicted of an offense.” Every
circuit court has interpreted § 3013’s assessment on a person
“convicted of an offense” to apply separately to each count
of conviction rather than to each offender. See United States
v. Pagan, 785 F.2d 378, 381 (2d Cir. 1986); United States v.
Donaldson, 797 F.2d 125, 128 (3d Cir. 1986); United States
v. Dobbins, 807 F.2d 130, 132 (8th Cir. 1986); United States
v. Smith, 857 F.2d 682, 686 (10th Cir. 1988); United States
v. Nguyen, 916 F.2d 1016, 1020 (5th Cir. 1990); United
States v. McGuire, 909 F.2d 440, 441–42 (11th Cir. 1990)
(per curiam); United States v. Luongo, 11 F.3d 7, 10 (1st Cir.
1993).
Most significantly, the Supreme Court formally settled
the question in Rutledge v. United States, 517 U.S. 292(1996). In that case, the Court held that “[Section] 3013
requires a federal district court to impose a [then-]$50
special assessment for every conviction.” Id. at 301(emphasis added). The Court further blessed an assessment
on “both convictions” in the case and held that § 3013
“required” it. Id. at 301–02. So under § 3013, the Court
said, “a second conviction will amount to a second
punishment.” Id.
20 UNITED STATES V. RANDALL
We think the fact that the meaning of § 3013’s text is
settled is not just persuasive, it’s all but conclusive.
Congress sought to accomplish similar goals in enacting
§ 3013 and § 3014; it created a statutory framework where
the two provisions work together and employed nearly
identical language for the two. By doing so, Congress
endorsed the long-settled interpretation of § 3013’s
“convicted of an offense” phrase.
Even without the prior construction canon, the ordinary
meaning of § 3014’s “convicted of an offense” supports a
separate assessment per conviction. In another federal
statute, we’ve accepted that “offense” means a “discrete
criminal violation.” Miranda v. Anchondo, 684 F.3d 844,
851 (9th Cir. 2012); see also Johnman, 948 F.3d at 617
(reaching a similar meaning for “offense” through dictionary
definitions).
The phrasing “an offense” is also significant. Its singular
construction tells us that each “offense” requires a separate
assessment. See Luongo, 11 F.3d at 10 (“[B]ecause the
statute is phrased in the singular, its terms imply that each
offense . . . calls for a separate special assessment, even
when a single defendant is simultaneously convicted of
multiple charges.”); see also Villavicencio-Rojas v. Lynch,
811 F.3d 1216, 1220 (9th Cir. 2016) (Berzon, J., concurring)
(interpreting “an offense” in the context of another statute to
refer to “each offense of the kind covered”).
We also agree that “convicted” is “normally understood
[a]s an offense-specific term.” Johnman, 948 F.3d at 617
(explaining that “convicted” is the past participle of
“convict,” which means “to find or declare guilty of an
offense or crime” or “to find (a person) guilty of a criminal
offense” under dictionary definitions).
UNITED STATES V. RANDALL 21
So taken together, “convicted of an offense” is best read
as applying to each separate conviction for a statutory
violation. We are also persuaded by the Third Circuit’s
reasoning that “it is illogical to read § 3014’s application to
depend not upon the number of offenses of which [the
defendant] was convicted, but on the happenstance of
whether she was tried for those offenses in one or more
proceedings.” Id. at 619 (simplified).
We acknowledge that the Second Circuit reached the
opposite conclusion. That circuit held that “[a]s a matter of
grammar and common understanding, ‘an amount’ on any
person convicted means the amount is assessed one time.”
Haverkamp, 958 F.3d at 149. While we agree that the
$5,000 amount is “assessed one time,” that doesn’t answer
whether it is one time per defendant or per count.
The Second Circuit also relied on post-enactment
legislative history—specifically, a single statement from the
lead House sponsor of the Justice for Victims of Trafficking
Act on the two-year anniversary of its passage. Id. at 150
(quoting 163 Cong. Rec. H4564 (daily ed. May 24, 2017)
(statement of Rep. Poe)). But we side with most judges that
find “[p]ost-enactment legislative history (a contradiction in
terms)” a questionable tool of statutory interpretation.
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011).
Finally, the Second Circuit focused on differences
between § 3013 and § 3014 to conclude that the two
provisions should be interpreted differently:
• § 3013 imposes a varying assessment
amount based on the severity of the
offense (e.g., infraction, misdemeanor, or
felony), while § 3014 requires only a
22 UNITED STATES V. RANDALL
“single assessment” of $5,000 for
conviction of an eligible offense;
• § 3013 provides for a “nominal” amount
(ranging from $5 to $100), while
§ 3014’s assessment is $5,000; and
• § 3013 does not include an indigency
exception, while § 3014 does.
Haverkamp, 958 F.3d at 149–50 & n.3. The Second Circuit
considered these differences “too pronounced” to interpret
the two statutes in “lockstep.” Id. at 150 n.3. But none of
these distinctions are significant enough to overcome the
plain and settled meaning of “convicted of an offense.” That
Congress sought to create an assessment program for all
victims of federal crimes with more “nominal” amounts is
not inconsistent with Congress also seeking to create a
similar scheme focused on victims of trafficking and child
exploitation with a heftier amount. 3
3
We therefore respectfully disagree with our dissenting colleague,
who finds the Second Circuit’s approach more persuasive. The dissent
makes one additional point that the Second Circuit does not appear to
have advanced: that the durational provision in § 3014(g) refers to “an
assessment” and “the assessment” in the singular, whereas the durational
provision in § 3013(c) refers to “all assessments” in the plural. Dissent
at 29. The dissent reasons that “[i]f Congress intended multiple
assessments for multiple counts, it would have used the plural
‘assessments’” in § 3014. Dissent at 29. But § 3014(a) itself refers to
“the assessment imposed under section 3013,” using the singular to the
describe “the assessment” that we know is imposed per count of
conviction. Rutledge, 517 U.S. at 301. And § 3013(c) earlier refers to
“an assessment.” The dissent thus reads too much into Congress’s use
of the words “assessment” and “assessments.”
UNITED STATES V. RANDALL 23
So, considering the text and relevant statutory scheme,
we conclude that Congress intended that assessments under
§ 3014 be imposed on a per-count basis. Section 3014
requires a $5,000 assessment for each of a defendant’s
eligible convictions. The district court thus properly
imposed a $10,000 assessment for Randall’s two counts of
conviction. 4
III.
The district court did not err in applying the five-level
sentence enhancement under U.S.S.G. § 2G2.2(b)(3)(B) or
in assessing a fine of $5,000 for each of Randall’s two counts
of conviction under 18 U.S.C. § 3014(a).
AFFIRMED.
WARDLAW, Circuit Judge, dissenting in part:
The Justice for Victims of Trafficking Act of 2015
(JVTA) provides that “the court shall assess an amount of
$5,000 on any non-indigent person or entity” convicted of
certain federal sexual offenses. 18 U.S.C. § 3014(a)
(emphasis added). The majority interprets this fine to apply
4
Randall asks us to apply the rule of lenity in rendering our
interpretations of U.S.S.G. § 2G2.2(b)(3)(B) and 18 U.S.C. § 3014. But
the rule of lenity is a tool of last resort—“only [to be] applie[d] where
there is grievous ambiguity or uncertainty[.]” United States v. D.M.,
869 F.3d 1133, 1144 (9th Cir. 2017). Such an ambiguity does not exist
“merely because there is a division of judicial authority over [a statute’s]
proper construction.” Reno v. Koray, 515 U.S. 50, 64–65 (1995)
(simplified). As the above shows, after consulting the traditional tools
of interpretation, we see no grievous ambiguity and so the rule of lenity
has no place here.
24 UNITED STATES V. RANDALL
on a per-count basis, based on its reading of an earlier
enacted, entirely different, statute that plainly assesses fines
for each count of conviction, 18 U.S.C. § 3013. But § 3014
was written to impose an additional amount of $5,000 on top
of the fines assessed under § 3013 for offenders convicted of
sexual exploitation and trafficking, particularly of children,
and differs markedly from § 3013 in both text and structure;
differences we can’t ignore when interpreting the meaning
of § 3014. Recognizing the existing circuit split on this
question, the majority chooses to follow the Third Circuit’s
approach in United States v. Johnman, 948 F.3d 612 (3d Cir.
2020), and holds that § 3014 applies on a per-count basis like
§ 3013. However, the Second Circuit in United States v.
Haverkamp, 958 F.3d 145 (2d Cir. 2020), explains how
thoroughly flawed that reading is and concludes that § 3014
applies on a per-offender basis. I think the Second Circuit
has the better side of this split, so I respectfully dissent from
that portion of the majority opinion.
We begin with the text of § 3014. See Flo & Eddie, Inc.
v. Sirius XM Radio, Inc., 9 F.4th 1167, 1172 (9th Cir. 2021).
“We interpret statutory terms in accordance with their
ordinary meaning, unless the statute clearly expresses an
intention to the contrary.” United States v. Neal, 776 F.3d
645, 652 (9th Cir. 2015) (citation omitted). And we
“interpret the statute as a whole, giving effect to each word
and making every effort not to interpret a provision in a
manner that renders other provisions of the same statute
inconsistent, meaningless or superfluous.” Id. (international
quotations and citation omitted). Section 3014 provides:
(a) In general. – Beginning on the date of
enactment of the Justice for Victims of
Trafficking Act of 2015 and ending on
September 11, 2022, in addition to the
UNITED STATES V. RANDALL 25
assessment imposed under section 3013,
the court shall assess an amount of $5,000
on any non-indigent person or entity
convicted of an offense under—
(1) chapter 77 (relating to peonage,
slavery, and trafficking in persons);
(2) chapter 109A (relating to sexual
abuse);
(3) chapter 110 (relating to sexual
exploitation and other abuse of
children);
(4) chapter 117 (relating to transportation
for illegal sexual activity and related
crimes); or
(5) section 274 of the Immigration and
Nationality Act (8 U.S.C. § 1324)
(relating to human smuggling), unless
the person induced, assisted, abetted,
or aided only an individual who at the
time of such action was the alien’s
spouse, parent, son, or daughter (and
no other individual) to enter the
United States in violation of law.
18 U.S.C. § 3014(a).
The plain text of the statute directs the district court to
“assess an amount of $5,000 on any non-indigent person or
entity convicted of [a qualifying] offense . . . .” As the
Second Circuit explained, “[a]s a matter of grammar and
26 UNITED STATES V. RANDALL
common understanding ‘an amount’ on any person
convicted means the amount is assessed one time.”
Haverkamp, 958 F.3d at 149. When, as here, “amount” is
followed by “of” and a numerical value, that numerical
value, in this case $5,000, represents a “precise sum, total,
or quantity amounting to the specified figure.” Amount,
Oxford English Dictionary Online,
https://tinyurl.com/3jjhrkd9 (last visited May 10, 2022).
Congress could have included language that assessed an
amount of $5,000 for each qualifying count of conviction,
but it chose not to do so. In other words, “the text of § 3014,
taken as a whole and in its context, is straightforwardly
meant to be applied on a per-offender, not a per-count,
basis.” Haverkamp, 958 F.3d at 149. This should be the end
of the matter.
In holding that § 3014 applies on a per-count basis, the
majority adopts the Third Circuit’s analysis in Johnman,
948 F.3d 612. Maj. Op. at 15–23. The Third Circuit in
Johnman locked on to the phrase “convicted of an offense,”
Johnman, 948 F.3d at 616–20, and determined that, “how
many assessments a court must impose turns on the meaning
of the phrase ‘convicted of an offense.’” Id. at 617. But both
the Third Circuit and the majority go astray by laser-
focusing on a phrase that is not determinative of the key
issue: whether the district court should impose the additional
assessment. Rather, whether the court should impose the
assessment turns on the nature of the offense—not the
number of offenses of conviction. If one offense is a
qualifying offense under the statute, the defendant is subject
to the $5,000 assessment. Therefore, delving into the
meaning of the phrase “convicted of an offense” sheds no
light on whether Congress intended the assessment to apply
on a per-count or per-offender basis. See United States v.
Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995) (“Particular
UNITED STATES V. RANDALL 27
phrases must be construed in light of the overall purpose and
structure of the whole statutory scheme.”) (citation omitted).
It is no real surprise that the meaning of “convicted of an
offense” in § 3013 is well-settled. See Rutledge v. United
States, 517 U.S. 292, 301 (1996). After all, § 3013 was
enacted some twenty-five years before Congress enacted the
JVTA and § 3014. But the majority’s determination that the
settled interpretation of § 3013 is “all but conclusive” as to
§ 3014’s application is incorrect. Maj. Op. at 20.
Congress’s choice to enact separate statutes with significant
structural differences demonstrates that, in fact, the exact
opposite is true. Section 3013 reads:
(a) The court shall assess on any person
convicted of an offense against the
United States—
(1) in the case of an infraction or a
misdemeanor—
(A) if the defendant is an individual—
(i) the amount of $5 in the
case of an infraction or a
class C misdemeanor;
(ii) the amount of $10 in the
case of a class B
misdemeanor; and
(iii) the amount of $25 in the
case of a class A
misdemeanor; and
28 UNITED STATES V. RANDALL
(B) if the defendant is a person other
than an individual—
(i) the amount of $25 in the
case of an infraction or a
class C misdemeanor;
(ii) the amount of $50 in the
case of a class B
misdemeanor; and
(iii) the amount of $125 in the
case of a class A
misdemeanor;
(2) in the case of a felony—
(A) the amount of $100 if the
defendant is an individual; and
(B) the amount of $400 if the
defendant is a person other than
an individual.
18 U.S.C. § 3013. “Comparing § 3014 to § 3013 reinforces
our conclusion that when Congress intended multiple
amounts to be assessed rather than ‘an amount’ it knew how
to do so.” Haverkamp, 958 F.3d at 149. By contrast to
§ 3014, Congress directed the courts in applying § 3013 to
impose varying amounts of assessments dependent on the
grade or classification of the specific offenses of which the
defendant is convicted. As the Second Circuit explained,
“Section 3013 specifically ties the amount of the special
assessment to the classification of the offense of conviction,
and therefore plainly authorizes multiple assessments where
UNITED STATES V. RANDALL 29
there are multiple counts of conviction.” Id. at 150.
Moreover, the special assessments in § 3013 range from $5
to $400 based on the classification of the offense as an
infraction, specific class of misdemeanor, or felony. By
contrast, § 3014 “authorizes a single assessment: $5,000 if a
defendant is convicted of an eligible offense. The
classification of the offense and the number of offenses is
not relevant to the assessment.” Id. Had Congress intended
the additional $5,000 assessment to apply on a per-count
basis, it could have simply amended § 3013 to include the
assessment there. Congress’s choice not to do so, and to
instead enact § 3014, setting forth a distinct textual structure,
is telling. See Univ. of Texas Sw. Med. Ctr. V. Nassar,
570 U.S. 338, 353 (2013) (“Just as Congress’ choice of
words is presumed to be deliberate, so too are its structural
choices.”) (citation omitted).
Comparing the duration sections of the two statutes
further supports a per-offender reading of § 3014. Section
3013(c) explains that “[t]he obligation to pay an assessment
ceases five years after the date of the judgment. This
subsection shall apply to all assessments irrespective of the
date of imposition.” (emphasis added). Congress used the
plural “all assessments” in § 3013, signaling its intent that
courts impose the assessments for each qualifying offense.
By contrast, Section 3014(g) provides that “the obligation to
pay an assessment imposed on or after the date of enactment
of the Justice for Victims of Trafficking Act of 2015 shall
not cease until the assessment is paid in full.” (emphasis
added). If Congress intended multiple assessments for
multiple counts, it would have used the plural “assessments”
here as well. That it did not do so further supports the
conclusion that the $5,000 assessment in § 3014 is applied
per-offender.
30 UNITED STATES V. RANDALL
This reading is also supported by the statement of
Representative Poe, the lead House sponsor of the JVTA, on
the two-year anniversary of the JVTA’s passage. He
confirmed that the Act “allows a federal judge to impose an
additional assessment of up to $5,000.” 163 Cong. Rec.
H4564 (daily ed. May 24, 2017) (statement of Rep. Poe). As
the Second Circuit explained, “[w]hile not conclusive in
itself, this remark lends further support to our conclusion that
the special assessment in § 3014 applies on a per-offender
basis.” Haverkamp, 958 F.3d at 150.
I agree with the Second Circuit’s criticism of the Third
Circuit’s conclusion in Johnman that § 3014 should be read
“lockstep” with § 3013 and interpreted the same way. The
two statutes are significantly different in both text and
structure. As the Second Circuit reasoned,
Section 3013 is a reticulated provision that
calibrates assessments according to the
severity of the offense(s)—from infractions
to felonies and then sub-classifies them
according to the class of misdemeanors. The
assessment of § 3014 is far larger (one
hundred to one thousand times greater) than
the assessments provided for in § 3013.
Section 3013 does not contain an indigency
exception, whereas § 3014 does. Most
importantly, the provision, “an amount,” that
underpins § 3014 differs sharply from
§ 3013, which specifies “the amount” for
each discrete category of offense. We believe
that these differences are too pronounced to
justify Johnman’s “lockstep’” approach.”
Id. at 150 n.3.
UNITED STATES V. RANDALL 31
For these reasons, I would reverse the district court on
the JVTA assessment, vacate the $10,000 assessment, and
remand with instructions to impose a $5,000 assessment.