FILED United States Court of Appeals Tenth Circuit
February 14, 2014 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6235 (D.C. No. 5:96-CR-00129-L-1) JAMES S. ANDERSON, (W.D. Okla.)
Defendant-Appellant.
ORDER
Before KELLY, BALDOCK, and LUCERO, Circuit Judges.
This matter is before the court on the government’s motion to recall the mandate in
this appeal and to issue an amended Order and Judgment. The motion is granted with this
order to supplement the mandate. The Clerk of Court is hereby ordered to re-issue the
Amended Order and Judgment attached to this order. The Amended Order and Judgment
shall be issued nunc pro tunc to the original filing date, December 13, 2001. In addition,
a copy of this order shall be forwarded to the court’s electronic-database subscribers with
a request to replace the originally issued Order and Judgment with the Amended Order and Judgment, to the extent such replacement is possible. A copy of this order shall stand
as a supplement to the mandate issued originally on January 4, 2002.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-2- FILED United States Court of Appeals Tenth Circuit
December 13, 2001 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT
v. No. 00-6235 (D.C. No. 5:96-CR-00129-L-1) JAMES S. ANDERSON, (W.D. Okla.)
ORDER AND JUDGMENT *
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
James A. Anderson was convicted of conspiring to receive and distribute
child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); transporting
child pornography in interstate commerce via delivery service in violation of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. § 2252(a)(1); and electronically transporting child pornography in interstate
commerce in violation of § 2252(a)(1). The district court sentenced him to
104 months and to a three-year term of supervised release on each count, to be
served concurrently. The district court also ordered him to pay $60,000 in
restitution to an exploited child’s family and imposed $300.00 in special
assessments. Mr. Anderson appeals from that part of his sentence that was
enhanced based on relevant conduct of one of his co-conspirators. We affirm.
I.
The facts are undisputed. Mr. Anderson was a member of a nationwide
group called the Orchid Club, the purpose of which was to exchange new and rare
child pornography, including private pictures produced by group members with
access to children. Mr. Anderson participated in an online chat room discussion
in February 1996 when Ronald Riva, one of the members, announced that Jane
Doe 1, his daughter’s ten-year-old friend, was spending the night at his house.
He stated that she had volunteered to participate in a sexual video but that he did
not have a camera at that time. Before he left the chat room, Mr. Anderson
stated, “I didn’t want to miss [Jane Doe 1].” R. Vol. 6, at 611 (quoting Ex. 59 at
8). In March 1996, Mr. Anderson was again online when Mr. Riva stated that
Jane Doe 1 would again be spending the night and that he was excited about it.
On April 2, 1996, Riva sexually molested Jane Doe 1, recording it by video live
-2- and on-line for club members’ benefit. While Mr. Anderson was not on-line the
night the video was created and transmitted, he later received still pictures of Jane
Doe 1’s molestation that he stored on a private drive with the files labeled “[Jane
Doe 1] 1” through “[Jane Doe 1] 9.” Id. at 621.
After conviction, the United States proposed calculating Mr. Anderson’s
base offense level using USSG § 2G2.1 because Mr. Anderson’s offense of
conviction involved causing a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of that conduct. Even though
Mr. Anderson had not himself physically engaged in the child’s sexual
exploitation, under the Guidelines he could be held accountable for Mr. Riva’s
conduct if it was a “reasonably foreseeable act . . . of [another] in furtherance of
the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). The district
court agreed, noting that it could consider “any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and others.”
R. Vol. 1, Doc. 168 at 8 (quoting § 1B1.3(a) cmt.2).
The court noted that the government had proved that: “[Mr. Anderson] had
notice of [the molestation] prior to its occurrence” and that he “received a still
picture [of the child] after the incident.” Id. at 9. The court further cited the trial
exhibits and testimony presented at the sentencing hearing that specifically
demonstrated Mr. Anderson’s knowledge of Mr. Riva’s intended conduct and the
purpose of the Orchid Club. The court stated,
-3- Based on the government’s proffer of evidence at the sentencing hearing and the exhibits that were admitted, the court finds that use of the cross-reference [to U.S.S. G. § 1B1.3(a)] is warranted. The conduct of defendant’s co-conspirators was reasonably foreseeable given the purpose of the Orchid Club and the on-line conversations that occurred regarding this conduct. See Government’s Exhibit 59 at 7-8; Government’s Exhibit 60 at 171-72, 176. Furthermore, given the purpose of the Orchid Club, such conduct was also in furtherance of the jointly undertaken activity.
Id.
II.
On appeal, Mr. Anderson raises a single legal issue: whether the
above-described statements of the district court constitute sufficient factual
findings to support its conclusion that Riva’s conduct was foreseeable to
Mr. Anderson. Mr. Anderson asserts that the court’s statements were only legal
conclusions and that “[t]here were no factual findings . . . of what conduct the
defendant engaged in to make the acts of the Orchid Club foreseeable to him.”
Appellant’s Br. at 5.
We review questions of law regarding the application of the sentencing
guidelines de novo. United States v. Tagore, 158 F.3d 1124, 1127 (10th Cir.
1998). When basing an offense level upon the conduct of co-conspirators,
“[p]roper attribution at sentencing requires the district court to analyze, and make
‘particularized findings’ about, the scope of the specific agreement the individual
defendant joined in relation to the conspiracy as a whole.” United States v.
Melton, 131 F.3d 1400, 1404 (10th Cir. 1997) (citing United States v. Thomas,
-4-
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals Tenth Circuit
February 14, 2014 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6235 (D.C. No. 5:96-CR-00129-L-1) JAMES S. ANDERSON, (W.D. Okla.)
Defendant-Appellant.
ORDER
Before KELLY, BALDOCK, and LUCERO, Circuit Judges.
This matter is before the court on the government’s motion to recall the mandate in
this appeal and to issue an amended Order and Judgment. The motion is granted with this
order to supplement the mandate. The Clerk of Court is hereby ordered to re-issue the
Amended Order and Judgment attached to this order. The Amended Order and Judgment
shall be issued nunc pro tunc to the original filing date, December 13, 2001. In addition,
a copy of this order shall be forwarded to the court’s electronic-database subscribers with
a request to replace the originally issued Order and Judgment with the Amended Order and Judgment, to the extent such replacement is possible. A copy of this order shall stand
as a supplement to the mandate issued originally on January 4, 2002.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-2- FILED United States Court of Appeals Tenth Circuit
December 13, 2001 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT
v. No. 00-6235 (D.C. No. 5:96-CR-00129-L-1) JAMES S. ANDERSON, (W.D. Okla.)
ORDER AND JUDGMENT *
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
James A. Anderson was convicted of conspiring to receive and distribute
child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); transporting
child pornography in interstate commerce via delivery service in violation of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. § 2252(a)(1); and electronically transporting child pornography in interstate
commerce in violation of § 2252(a)(1). The district court sentenced him to
104 months and to a three-year term of supervised release on each count, to be
served concurrently. The district court also ordered him to pay $60,000 in
restitution to an exploited child’s family and imposed $300.00 in special
assessments. Mr. Anderson appeals from that part of his sentence that was
enhanced based on relevant conduct of one of his co-conspirators. We affirm.
I.
The facts are undisputed. Mr. Anderson was a member of a nationwide
group called the Orchid Club, the purpose of which was to exchange new and rare
child pornography, including private pictures produced by group members with
access to children. Mr. Anderson participated in an online chat room discussion
in February 1996 when Ronald Riva, one of the members, announced that Jane
Doe 1, his daughter’s ten-year-old friend, was spending the night at his house.
He stated that she had volunteered to participate in a sexual video but that he did
not have a camera at that time. Before he left the chat room, Mr. Anderson
stated, “I didn’t want to miss [Jane Doe 1].” R. Vol. 6, at 611 (quoting Ex. 59 at
8). In March 1996, Mr. Anderson was again online when Mr. Riva stated that
Jane Doe 1 would again be spending the night and that he was excited about it.
On April 2, 1996, Riva sexually molested Jane Doe 1, recording it by video live
-2- and on-line for club members’ benefit. While Mr. Anderson was not on-line the
night the video was created and transmitted, he later received still pictures of Jane
Doe 1’s molestation that he stored on a private drive with the files labeled “[Jane
Doe 1] 1” through “[Jane Doe 1] 9.” Id. at 621.
After conviction, the United States proposed calculating Mr. Anderson’s
base offense level using USSG § 2G2.1 because Mr. Anderson’s offense of
conviction involved causing a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of that conduct. Even though
Mr. Anderson had not himself physically engaged in the child’s sexual
exploitation, under the Guidelines he could be held accountable for Mr. Riva’s
conduct if it was a “reasonably foreseeable act . . . of [another] in furtherance of
the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). The district
court agreed, noting that it could consider “any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and others.”
R. Vol. 1, Doc. 168 at 8 (quoting § 1B1.3(a) cmt.2).
The court noted that the government had proved that: “[Mr. Anderson] had
notice of [the molestation] prior to its occurrence” and that he “received a still
picture [of the child] after the incident.” Id. at 9. The court further cited the trial
exhibits and testimony presented at the sentencing hearing that specifically
demonstrated Mr. Anderson’s knowledge of Mr. Riva’s intended conduct and the
purpose of the Orchid Club. The court stated,
-3- Based on the government’s proffer of evidence at the sentencing hearing and the exhibits that were admitted, the court finds that use of the cross-reference [to U.S.S. G. § 1B1.3(a)] is warranted. The conduct of defendant’s co-conspirators was reasonably foreseeable given the purpose of the Orchid Club and the on-line conversations that occurred regarding this conduct. See Government’s Exhibit 59 at 7-8; Government’s Exhibit 60 at 171-72, 176. Furthermore, given the purpose of the Orchid Club, such conduct was also in furtherance of the jointly undertaken activity.
Id.
II.
On appeal, Mr. Anderson raises a single legal issue: whether the
above-described statements of the district court constitute sufficient factual
findings to support its conclusion that Riva’s conduct was foreseeable to
Mr. Anderson. Mr. Anderson asserts that the court’s statements were only legal
conclusions and that “[t]here were no factual findings . . . of what conduct the
defendant engaged in to make the acts of the Orchid Club foreseeable to him.”
Appellant’s Br. at 5.
We review questions of law regarding the application of the sentencing
guidelines de novo. United States v. Tagore, 158 F.3d 1124, 1127 (10th Cir.
1998). When basing an offense level upon the conduct of co-conspirators,
“[p]roper attribution at sentencing requires the district court to analyze, and make
‘particularized findings’ about, the scope of the specific agreement the individual
defendant joined in relation to the conspiracy as a whole.” United States v.
Melton, 131 F.3d 1400, 1404 (10th Cir. 1997) (citing United States v. Thomas,
-4- 114 F.3d 228, 324 (D.C. Cir. 1997)). “[E]ven a ‘brief’ finding can be sufficient
if, when viewed in context, it is more than simply a generalized or conclusory
finding that [the defendant] was involved in the conspiracy.” Thomas, 114 F.3d
at 255 (quotation omitted) (alteration in original) (disagreed with on other
grounds in United States v. Delatorre, 157 F.3d 1205 (10th Cir. 1998)).
We read the court’s statement that it “[b]ased” its legal conclusions on the
government’s proffered evidence as indicative that the court adopted the
government’s position and found that (1) Mr. Anderson “had notice of [Rivas’
intent to molest and exploit Jane Doe 1] prior to its occurrence” and (2) he had
“received a still picture of [Jane Doe 1] after the incident.” R. Vol. 1, Doc. 168
at 9. Reading these findings in context with the court’s reference to specific
exhibits and testimony establishing Mr. Anderson’s individual knowledge and
conduct regarding Jane Doe 1’s molestation and exploitation, we hold that the
district court made sufficiently particularized findings to support its conclusion.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Paul J. Kelly, Jr. Circuit Judge
-5-