United States v. Dennis Hodge

805 F.3d 675, 2015 FED App. 0249P, 2015 U.S. App. LEXIS 18141, 2015 WL 6143958
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 20, 2015
Docket14-5256
StatusPublished
Cited by32 cases

This text of 805 F.3d 675 (United States v. Dennis Hodge) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Dennis Hodge, 805 F.3d 675, 2015 FED App. 0249P, 2015 U.S. App. LEXIS 18141, 2015 WL 6143958 (6th Cir. 2015).

Opinions

SILER, J., delivered the opinion of the court in which MOORE and STRANCH, JJ., joined. STRANCH, J. (pp. 684-85), delivered a separate concurring opinion.

OPINION

SILER, Circuit Judge.

Dennis Hodge pleaded guilty to one count of receipt of child pornography. 18 [677]*677U.S.C. § 2252(a)(2). At sentencing, the district court declined to give him a two-point base-offense-level reduction under USSG § 2G2.2(b)(l). This reduction applies when “the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor” with no intent “to traffic in, or distribute, such material.” Because Hodge was also secretly recording videos of his fifteen-year-old stepdaughter naked, the district court found that his “conduct” was not “limited to” the receipt or solicitation of child pornography. Hodge argues that his video voyeurism was not .conduct that was “relevant” to his “offense conduct” under USSG § 1B1.3. We AFFIRM his sentence.

I.

In October 2011, Hodge’s stepdaughter (“TA”), stepped out of the shower and noticed something unusual: the door on the bathroom cabinet, which hung from the wall directly across from the shower, was open. Inside the cabinet, TA found a micro video recording device. According to the presentence report:

TA rewound the video and viewed footage of herself exiting the shower naked and wrapping a towel around herself. The video then went dark for a few seconds, then began playing again. She then saw [Hodge] setting up the camera on one of her bedroom shelves. The video showed him turning out the light and leaving the room. The video contained images of TA walking into her bedroom wearing only a towel and then taking the towel off to get dressed. TA placed the camera back in its location and phoned her mother, who instructed her to obtain the tape from the camera; however, when she returned to the eam-era the [storage medium] had already been removed.

When Hodge’s wife, TA’s mother, came home, Hodge told her he had destroyed the recording. TA’s mother called the police, who obtained a search warrant. A police forensic investigation of Hodge’s laptop computer uncovered multiple child pornography images.

A federal grand jury indicted Hodge on two counts: one for receipt of child pornography, 18 U.S.C. § 2252(a)(2),1 and one for possession of child pornography, 18 U.S.C. § 2252(a)(4)(B). Both counts were based on the images he had downloaded from the internet. Hodge pleaded guilty to receipt of child pornography, and the possession count was dismissed. At the time of his federal indictment, Hodge also had two pending state charges, one of which related to the voyeurism toward his stepdaughter. Hodge has not been prosecuted for either of these state charges.

Hodge’s presentence report recommended a two-point base-offense-level reduction under USSG § 2G2.2(b)(l) “because the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor and the defendant did not intend to traffic in, or distribute, such material.” The government objected to this reduction. The government noted that in United States v. Fore, 507 F.3d 412, 415 (6th Cir.2007), we held that three facts must be proven for the § 2G2.2(b)(l) reduction to apply: (1) the defendant’s base offense level must be 22; (2) the defendant’s conduct must be “limited” in scope to the mere receipt or solicitation of child pornography; and (3) [678]*678the defendant did not intend to traffic in or distribute the child pornography. The government argued the second factor was not met because Hodge’s conduct “included the production or attempted production of child pornography,” i.e., the secret recordings of TA.

At sentencing, Hodge’s counsel argued that the court should not consider the voyeur videos because they did not qualify as “relevant conduct” under USSG § lB1.3(a)(l). Hodge claimed that under United States v. Fowler, 216 F.3d 459, 460-61 (5th Cir.2000), receipt — in this case, downloading — of pornography happens at a discrete moment in time. He argued that because § lB1.3(a)(1) requires, that relevant conduct must have “occurred during the commission of the offense of conviction,” to qualify, the video recording had to have occurred simultaneously to the downloading.

In response, the government noted that the indictment specified that the offense conduct occurred “in or around October, 2011,” and that the plea agreement referred to multiple “downloads.” The government argued that Hodge’s possession of the pornography (a lesser-included offense of receipt) continued through the entire period that he was both receiving (downloading) child pornography and creating the videos of TA.

The district court sustained the government’s objection to the offense level reduction. The court reasoned:

I don’t think you can actually conclude that the defendant’s conduct was [“limited” under § 2G2.2(b)(l)(B) ]. There is this other conduct, and I think to determine whether or not it’s appropriately considered, you do look at the relevant conduct guideline, which is Section IB 1.3(a), which defines relevant conduct and says, you know, conduct that occurs during the commission of the offense of conviction. So this is all going on at the same time. I’m not persuaded that [Fowler ] necessarily supports the conclusion that there has to be this absolute precise temporal connection, that the [voyeur video recording] has to have occurred exactly at the moment that a web site is downloaded. I think as [the government] points out in terms of the time period in the indictment and the multiple accessing of the web sites and what we know about the timing of the video, that it falls within the definition of relevant conduct^ Therefore, I don’t think it’s actually appropriate in the end to provide for the two-level reduction for those reasons.

II.

We review a district court’s findings of fact at sentencing for clear error and its legal conclusions regarding the Sentencing Guidelines de novo. United States v. Maken, 510 F.3d 654, 656-57 (6th Cir.2007). The applicability of USSG § 2G2.2(b)(l) to Hodge’s sentence is one such legal question.

III.

Under USSG § 2G2.2(b)(l),

(1) If (A) [the defendant’s base offense level is 22]; (B) the defendant’s conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease by 2 levels.

This appeal concerns subsection (b)(1)(B): was Hodge’s conduct “limited to the receipt or solicitation” of child pornography? The question can be answered only by considering what constitutes relevant conduct.

USSG § lB1.3(a) defines relevant conduct. This section explains that gener[679]

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Cite This Page — Counsel Stack

Bluebook (online)
805 F.3d 675, 2015 FED App. 0249P, 2015 U.S. App. LEXIS 18141, 2015 WL 6143958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dennis-hodge-ca6-2015.