United States v. Hill

Opinion

Revised August 29, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-41259 ____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ROBERT HILL

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________

July 11, 2001

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL, District Judge.*

KING, Chief Judge:

Defendant-Appellant Robert Hill appeals his sentence imposed

following a guilty plea to two counts of distributing child

pornography and two counts of receiving child pornography, in

violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). Hill

appeals the application of a five-level sentence enhancement for

* District Judge of the Eastern District of Texas, sitting by designation. “distribution” of child pornography, contending that his conduct

did not involve “distribution” within the meaning of

§ 2G2.2(b)(2) of the United States Sentencing Guidelines. For

the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 1999, Defendant-Appellant Robert Hill used

his America Online account to forward a computer graphic image

file containing child pornography to 108 recipients, including an

undercover law enforcement officer. The graphic image was

forwarded to the United States Customs Service, which obtained a

federal search warrant for Hill’s residence on February 3, 2000.

The search of Hill’s home revealed a computer, scanner, tape

drive, floppy discs, and approximately 545 images of child

pornography. Legal pornographic material was also recovered in

the search. All of the pornographic material had been

categorized and cataloged by Hill.

On February 10, 2000, Hill, a correctional officer, was

interviewed at his place of employment, the Texas Department of

Criminal Justice in Beeville, Texas. Hill admitted that he had

received computer images containing child pornography through

chat rooms on the Internet and that he had knowingly both printed

and retained hard copies of the images and transmitted the images

to other anonymous people who logged into the chat rooms. Hill

2 denied maintaining any “buddy lists” of the anonymous people he

had met in the chat rooms, and claimed to have stopped sending

and receiving child pornography after his America Online account

was terminated.

Hill was charged in a seven-count indictment, including

three counts of distributing visual depictions of child

pornography (Counts One, Two, and Three) and four counts of

receiving visual depictions of child pornography (Counts Four,

Five, Six, and Seven), in violation of 18 U.S.C. § 2252(a)(2).

On July 31, 2000, Hill entered into a written plea agreement with

the government, pleading guilty to Counts One, Two, Five, and

Seven.

The Presentence Investigation Report (“PSR”) prepared by the

probation department calculated Hill’s sentence based on the 1998

version of the United States Sentencing Guidelines (the

“Guidelines”).1 Pursuant to § 2G2.2(a) of the Guidelines, each

count received a base offense level of 17. Pursuant to

§ 2G2.2(b)(1), a two-level upward adjustment was recommended for

all counts because material in the offense involved prepubescent

minors. Pursuant to § 2G2.2(b)(5), a two-level upward adjustment

was also recommended for all counts because a computer was used

1 Because Hill was sentenced on October 20, 2000, before the November 1, 2000 effective date of the 2000 Guidelines, the 1998 version was the appropriate version of the Guidelines to apply in his case. See 18 U.S.C. § 3553(a)(4)(A) (requiring that the sentence be determined by the Guidelines in effect on the date of sentencing).

3 to transmit the images involved in the offense. In connection

with Counts One, Two, and Seven, the PSR recommended a four-level

upward adjustment based on § 2G2.2(b)(3) because the images

involved portrayed masochistic or violent behavior. In

connection with Counts One and Two, the PSR recommended a five-

level upward adjustment based on § 2G2.2(b)(2) because the

offense involved “distribution.” It is this last adjustment that

gives rise to the present appeal.

The PSR concluded that Hill’s total adjusted offense level

for Counts One and Two was 30, that his adjusted offense level

for Count Five was 21, and that his adjusted offense level for

Count Seven was 25. Based on the grouping rules under § 3D1.4,

Hill’s combined adjusted offense level was 33. The probation

department recommended a three-level reduction under § 3E1.1 for

acceptance of responsibility, resulting in a total offense level

of 30. Because Hill did not have any prior criminal history, his

“criminal history score” was determined to be I, subjecting him

to a guideline range of 97 to 121 months imprisonment.

Hill objected to the PSR’s inclusion of the five-level

increase for distribution as applied to Counts One and Two,

arguing that the 1998 Application Notes to § 2G2.2(b)(2) defined

“distribution” as “any act related to distribution for pecuniary

gain,” see U.S. SENTENCING GUIDELINES MANUAL § 2G2.2, Application Note

1 (1998), and that the government had presented no proof that he

had transmitted the images for pecuniary gain.

4 The district court adopted the PSR at the sentencing

hearing. At the hearing, Hill renewed his objection to the

recommended upward adjustment for distribution under

§ 2G2.2(b)(2). The district court overruled the objection and

applied the five-level sentence enhancement to Counts One and

Two. The district court sentenced Hill to 110-months

imprisonment, followed by a three-year term of supervised

release, and ordered Hill to pay a $50 fine. Hill timely appeals

his sentence.

II. STANDARD OF REVIEW

“In examining sentences imposed under the federal sentencing

guidelines, ‘we review the trial court’s findings of fact for

clear error and review purely legal conclusions or

interpretations of the meaning of a guideline de novo.’” United

States v. Canada, 110 F.3d 260, 262-63 (5th Cir. 1997) (quoting

United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995)).

“A sentence will be upheld unless it was imposed in violation of

law, was an incorrect application of the sentencing guidelines,

or is outside the range of the applicable sentencing guideline.”

United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). The

government must prove factors for enhancement of sentencing by a

preponderance of the evidence. See Canada, 110 F.3d at 263.

5 III. SENTENCING ENHANCEMENT FOR DISTRIBUTION

This case turns on the interpretation of the term

“distribution” found in § 2G2.2(b)(2) of the Guidelines. See

U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(2) (1998). Under the

heading “Trafficking in Material Involving the Sexual

Exploitation of a Minor; Receiving, Transporting, Shipping, or

Advertising Material Involving the Sexual Exploitation of a

Minor; Possessing Material Involving the Sexual Exploitation of a

Minor with Intent to Traffic,” the 1998 version of § 2G2.2(b)(2)

provided:

If the offense involved distribution, increase by the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels.

Id. The 1998 Application Note to § 2G2.2 further defined

“distribution” as “includ[ing] any act related to distribution

for pecuniary gain, including production, transportation, and

possession with intent to distribute.” Id. § 2G2.2(b)(2),

Application Note 1 (1998).

As will be discussed infra in more detail, the district

court made no findings at the sentencing hearing regarding

whether Hill “distributed” the illegal material for pecuniary

gain or some non-pecuniary valuable consideration, and instead,

found in effect that a gratuitous transfer satisfied the

definition of “distribution” contained in § 2G2.2(b)(2). It is

this finding that Hill challenges.

6 In United States v. Canada, this court held that the term

distribution was not limited to pecuniary gain and that it also

included distribution based on non-monetary gains. See 110 F.3d

260, 263 (5th Cir. 1997) (“[T]he intended definition of

‘distribution’ for the sake of the guideline is meant to be

inclusive of pecuniary gain purposes, but not exclusive of all

other purposes.”). Therefore, we held that because Canada’s

distribution “was accompanied by an additional element,” namely

the potential gain of enticing a minor to have sexual relations

with him, the five-level enhancement was warranted. See id.; see

also United States v. Fowler, 216 F.3d 459, 460 (5th Cir. 2000)

(holding that distribution of child pornography to encourage a

meeting to engage in sex was sufficient to warrant enhancement).2

2 This reasoning is in accord with the majority of circuit courts of appeals. Every circuit court of appeals that has interpreted “distribution” in the 1998 version of the Guidelines has held that pecuniary gain includes monetary gain but is not limited to monetary gain. See United States v. Williams, No. 99- 4882, -- F.3d ---, 2001 WL 672049, at *3 (4th Cir. June 15, 2001); United States v. Probel, 214 F.3d 1285, 1288 (11th Cir. 2000); United States v. Imgrund, 208 F.3d 1070, 1072 (8th Cir. 2000); United States v. Laney, 189 F.3d 954, 959 (9th Cir. 1999); United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999); United States v. Lorge, 166 F.3d 516, 518 (2d Cir. 1999); United States v. Hibbler, 159 F.3d 233, 238 (6th Cir. 1998); United States v. Black, 116 F.3d 198, 202 (7th Cir. 1997). As such, courts have upheld the enhancement for distribution when proof of barter, trade, or in-kind transactions has been demonstrated. Within this general consensus, however, some difference emerges regarding whether “distribution for pecuniary gain” can also encompass gain that cannot be considered within a broad definition of valuable consideration, i.e., pecuniary or non- pecuniary gain without a monetary equivalent. See Imgrund, 208 F.3d at 1072; Laney, 189 F.3d at 959; Black, 116 F.3d at 202.

7 However, Canada and subsequent cases have left open the question

Hill purportedly raises: whether the enhancement for

distribution can be applied without the finding of an additional

element of pecuniary gain or non-pecuniary thing of value (i.e.,

whether the five-level enhancement is allowed for gratuitous

dissemination of child pornography). See Canada, 110 F.3d at 263

n.4 (“[W]e do not address the issue of whether such additional

element must be present in order for the court to enhance

sentencing under § 2G2.2(b)(2).”).

Specifically, Hill argues that the government submitted no

evidence that he transmitted the images for monetary gain, or to

entice minors to have sex with him, or in return for images sent

to him by others, or for any reason other than his own

gratification. Hill asserts that the gratuitous transfer of

images without an additional element of valuable consideration or

gain cannot lead to application of the five-level enhancement.

In so arguing, Hill relies on United States v. Imgrund, in which

the Court of Appeals for the Eighth Circuit stated, in

interpreting § 2G2.2(b)(2), that “[p]urely gratuitous

dissemination . . . will not trigger the § 2G2.2(b) enhancement

for distribution.” 208 F.3d 1070, 1072 (8th Cir. 2000).3

3 Hill also cites to two decisions from other circuit courts that implicitly support his argument. See Laney, 189 F.3d at 959-61; Black, 116 F.3d at 202-03.

8 The government conceded at the sentencing hearing that there

was no evidence that Hill traded for the particular images he

disseminated or that he received any images in return for the 108

copies of the image he was convicted of transmitting in Count

One.4 Further, there was no evidence adduced regarding whether

Hill received any pecuniary gain from the transactions. Instead,

the government relies on the fact that Hill’s extensive

collection of child pornography, which he obtained over the

Internet, demonstrates that he was actively collecting and

trading images with other like-minded individuals. The

government asserts that Hill discriminated in sending his child

pornography to only those people logged on in certain Internet

chat rooms and, thus, must have been trading images. The

government argues, therefore, that the element of valuable

consideration required under Canada has been demonstrated to

support the enhancement.5 The government also relies on cases

arising from the Courts of Appeals for the Second and Eleventh

Circuits, which have found that all dissemination of child

4 The PSR did not provide information regarding the number of copies of the image underlying Count Two that were disseminated or information regarding to whom that image was sent. 5 In an addendum to the PSR, the probation department posited another non-monetary “gain” or “thing of value” that Hill may have received. The probation department argued that the enhancement was warranted under Canada because Hill sent the materials for his own “gratification,” and this personal gratification was the thing of value received. The district court did not rely on this recommendation.

9 pornography, gratuitous or for some thing of value, warrants the

enhancement for distribution. See United States v. Probel, 214

F.3d 1285, 1288 (11th Cir. 2000); United States v. Lorge, 166

F.3d 516, 518 (2d Cir. 1999).

As mentioned above, the district court in the instant case

explicitly relied on the reasoning of the Eleventh and Second

Circuits, holding that even if Hill disseminated the images

gratuitously, the action warranted the five-level distribution

enhancement. The district court stated:

[A]nd for the same reasons that the Second and the Eleventh Circuit[s] have found, I do not find it necessary to make a finding of pecuniary gain, because in the language of the Second Circuit any distribution of child pornography gratuitously or for profit, results in a continued exploitation of the victims depicted in the images.

In so holding, the district court failed to determine whether

Hill had received any non-pecuniary valuable consideration for

disseminating the materials, e.g., whether he had been involved

in any in-kind barter or quid-pro-quo exchanges of child

pornography.

In resolving the question left open by Canada — whether

gratuitous transfers of child pornography warrant the five-level

distribution enhancement — we also adopt the reasoning of the

Courts of Appeals for the Second and Eleventh Circuits. In

Probel, the Eleventh Circuit determined that “the plain language

of the guideline does not limit ‘distribution’ to instances of

pecuniary or other gain.” 214 F.3d at 1289-90. Because

10 distribution “includes any act related to distribution for

pecuniary gain, including production, transportation, and

possession with the intent to distribute,” a natural reading of

the guideline demonstrates an expansive rather than limiting

application. See id. at 1288 (emphasis added); see also Lorge,

166 F.3d at 518 (“Application Note 1 . . . is most easily read as

intended to avoid an overly narrow reading of distribution.”).

This conclusion supports our earlier interpretation in Canada,

which recognized a broad definition of the term “distribution” in

§ 2G2.2(b)(2). See Canada, 110 F.3d at 263.

We agree that a plain reading of the term “distribution” in

§ 2G2.2(b)(2) includes purely gratuitous distribution of child

pornography. See Probel, 214 F.3d at 1288 (“[T]he term

distribution should be given its ordinary meaning of to dispense

or to give out or deliver.” (citations and internal quotations

omitted)); Lorge, 166 F.3d at 518 (“The ordinary meaning of

distribution involves an act or series of acts without regard to

the actor’s motive.”). As such, we hold that the threshold five-

level enhancement is appropriate in circumstances that do not

include the receipt of monetary or other valuable gain.6 Because

6 This conclusion does not result in an automatic application of the distribution enhancement under § 2G2.2(b)(2). As we recognized in Canada, receipt of child pornography with the intent to traffic in those materials is covered under the base offense level of § 2G2.2. See 110 F.3d at 264. This receipt may not necessarily warrant a five-level distribution enhancement. As the Court of Appeals for the Fourth Circuit stated in United States v. Williams:

11 Hill’s act of dissemination of child pornography fits this plain

reading of the term “distribution,” we conclude that the district

court did not err in its application of the Guidelines.

We note that § 2G2.2(b)(2) has been amended effective

November 1, 2000. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(2)

(2000). Hill’s counsel brings the amendment to our attention,

but concludes that because Hill’s offense was committed before

November 1, 2000, the amended guideline is not applicable to

Hill’s case. Accordingly, because neither party has briefed the

amended guideline, we do not consider it.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM Hill’s sentence.

The [§ 2G2.2(b)(2)] enhancement would not apply to those in the trafficking chain who are convicted under the applicable statutes of merely receiving or advertising child pornography. . . . The difference in treatment makes sense . . . because those who dispense child pornography ought to be punished more severely than those who do not.

--- F.3d ---, No. 99-4882, 2001 WL 672049, at *3 (4th Cir. June 15, 2001).

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