United States v. Ralph Fox

FILED
NOT FOR PUBLICATION NOV 19 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30387
Plaintiff - Appellee, D.C. No. 9:07-CR-00047-DWM-1
v.
MEMORANDUM *
RALPH LEON FOX,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted November 3, 2009
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
Ralph Leon Fox appeals from his convictions for child sexual exploitation in
violation of 18 U.S.C. § 2251(a), receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2), and possession of child pornography in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 2252A(a)(5)(B), and from the imposition of consecutive sentences
totaling 110 years.
1. Fox contends that his conviction for both receiving and possessing child
pornography violates double jeopardy under United States v. Davenport, 519 F.3d
940, 947 (9th Cir. 2008). In light of the conduct proven on the child sexual
exploitation count, the trier of fact necessarily found at trial that Fox engaged in
conduct supporting a possession conviction that was distinct from the conduct
underlying the conviction for receiving child pornography. The allegations in the
possession count of the indictment were sufficient to support Fox’s possession
conviction on the basis of this separate conduct. Cf. United States v. Overton, 573
F.3d 679, 696 n.16 (9th Cir. 2009). Possession is not a lesser included offense of
exploitation, so there was no double jeopardy violation. Given the district court’s
implicit factual determinations at trial, we need not address Fox’s argument that
the district court engaged in impermissible post-verdict fact-finding.
2. Fox next argues that Congress may not criminalize his non-commercial
intrastate production of child pornography under its Commerce Clause power.
This argument is foreclosed by United States v. McCalla, 545 F.3d 750, 753–56
(9th Cir. 2008).
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3. Fox also challenges his § 2251(a) conviction on the ground that the
government failed to present sufficient evidence that the cameras Fox used to
produce child pornography had traveled in interstate or foreign commerce.
Introducing the cameras’ country-of-origin labels, which indicated they had been
manufactured overseas, sufficed to prove the cameras had moved in foreign
commerce. See United States v. Patterson, 820 F.2d 1524, 1526 (9th Cir. 1987).
4. Finally, Fox challenges his 110-year sentence as unreasonable. We reject
his arguments. First, the district court did not abuse its discretion in concluding
that a longer-than-life sentence was necessary to serve the purposes of sentencing
listed in 18 U.S.C. § 3553(a); such a sentence can “reflect the seriousness of the
offense,” “promote respect for the law,” and “afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3553(a)(2)(A), (B).
Second, contrary to Fox’s contentions, the district court did not
impermissibly focus on punishment to the exclusion of other § 3553(a) factors. In
setting Fox’s sentence, the district court also discussed the need to protect the
public, to deter similar crimes, and to provide Fox appropriate treatment.
Third, the district court did not fail to account adequately for Fox’s mental
health problems and abuse as a child. The district court acknowledged Fox’s
mental health problems but concluded it was nevertheless appropriate to sentence
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Fox to the statutory maximums in light of Fox’s pattern of similar conduct and
admission that he could not be stopped. This was not an abuse of discretion.
Finally, Fox does not have standing to challenge any applicable mandatory
minimum sentence; he was sentenced to a statutory maximum, not minimum. See
United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir. 1989).
AFFIRMED.
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