United States v. David J. Gunderson, Jr.

345 F.3d 471, 2003 U.S. App. LEXIS 19806, 2003 WL 22220373
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 26, 2003
Docket01-1311
StatusPublished
Cited by6 cases

This text of 345 F.3d 471 (United States v. David J. Gunderson, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David J. Gunderson, Jr., 345 F.3d 471, 2003 U.S. App. LEXIS 19806, 2003 WL 22220373 (7th Cir. 2003).

Opinion

ILANA DIAMOND ROVNER, Circuit Judge.

While investigating child pornography-on the internet, German police downloaded illegal 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 additional 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.

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 transferred 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)(l) (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 presen-tence report, which calculated a recommended sentence under the Sentencing Guidelines. The report recounted Gun-derson’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 recommended 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 crime under federal law. He also argued that the distribution 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 reduction for acceptance of responsibility recommended in the presentence report. The court held that Gunderson was ineligible for the acceptance-of-responsibility reduction 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 sentencing 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 *473 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). Gun-derson 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 definition 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.l). 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 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 pornography, 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 computer 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, Gunder-son 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: Gunder-son is the person who programmed his computer to trade files in this manner.

? Gunderson disputes the district court’s determination 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 concluded that Gunderson did not accept responsibility for his conduct when he challenged the presentence report’s recommendation that he be assessed a five-level increase for distribution. See U.S.S.G. § 3E1.1.

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Bluebook (online)
345 F.3d 471, 2003 U.S. App. LEXIS 19806, 2003 WL 22220373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-j-gunderson-jr-ca7-2003.