PUBLISH
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 13 2000 ______________________________ THOMAS K. KAHN CLERK No. 99-4123 _____________________________ D.C. Docket No. 98-08113-CR-WDF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC SCOTT PROBEL,
Defendant-Appellant.
____________________________________________
Appeal from the United States District Court for the Southern District of Florida ____________________________________________ (June 13, 2000)
Before COX, Circuit Judge, HILL and MESKILL*, Senior Circuit Judges.
MESKILL, Senior Circuit Judge:
* Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for the Second Circuit, sitting by designation. Defendant-appellant Eric Scott Probel pled guilty to one count of
transporting or shipping child pornography in violation of 18 U.S.C.
§ 2252A(a)(1). At sentencing, he objected to the application of a five-level
sentence enhancement for "distribution" of child pornography pursuant to U.S.S.G.
§ 2G2.2(b)(2). The United States District Court for the Southern District of
Florida, Ferguson, J., overruled the objection, finding that the plain language of the
guideline did not, as Probel argued, require that the defendant receive pecuniary or
other gain. On appeal, Probel renews his contention that application of the
enhancement must be predicated on a finding that he received some pecuniary or
other benefit. For the reasons that follow, we disagree. Probel, who does not
contest that he "distributed" child pornography in the ordinary sense of the term,
was appropriately sentenced.
BACKGROUND
On June 15, 1998, a law enforcement officer using the name "suzyQ17" was
patrolling an Internet chat room entitled "#0!!!!!!!13yearoldgirlsex." "suzyQ17"
entered into a private discussion with Probel, who was using the screen name
"sophie^^." Probel asked if "suzyQ17" wanted to trade personal pictures.
"suzyQ17" responded that, due to a computer malfunction, "she" would not be able
to send any pictures, but was interested in receiving some. Probel responded by
2 asking if "suzyQ17" "like[d] young." The officer responded affirmatively and
Probel sent some pictures. The pictures depicted young boys and girls engaged in
various sexual acts. Probel continued to send more pictures despite "suzyQ17"'s
inability to reciprocate. The discussion lasted approximately two hours and
became very sexual in nature.
Based on the Internet discussion and Probel's pictures, law enforcement
officers obtained a warrant to search Probel's computer and home. The search took
place on July 14, 1998. It turned up over 800 pornographic pictures stored on
floppy disks and on the hard drive of Probel's computer. According to an expert,
approximately 200 of these pictures involved persons under the age of 18 and
sixteen involved children under the age of 12. After being advised of his rights,
Probel admitted that he owned the pictures and that he had sent pictures via the
Internet on ten to twenty previous occasions.
On August 25, 1998, a grand jury indicted Probel on five counts of
transporting or shipping child pornography in interstate commerce, in violation of
18 U.S.C. § 2252A(a)(1), and one count of possessing a computer disk with three
or more images of child pornography that had been transported in interstate
commerce by computer, in violation of 18 U.S.C. § 2252A(a)(5)(B). Probel was
arrested three days later. On October 28, 1998, pursuant to a written plea
3 agreement, Probel pled guilty to one count of transporting or shipping child
pornography.1
On January 8, 1999, the district court held a sentencing hearing. Probel
objected to the Pre-Sentence Investigation Report's determination that he should
receive a five-level enhancement for "distribution" of child pornography. He
argued that the enhancement was not applicable because he did not receive any
pecuniary or other benefit in return for the pictures. He did not dispute that he
"distributed" pictures in the ordinary sense of the term. At the close of the hearing,
the district court determined that the enhancement did not require a finding of
pecuniary or other benefit. It did not make any factual findings as to whether
Probel received any benefit, pecuniary or otherwise. It interpreted "distribution" to
mean "to disseminate, or circulate or to send." Accordingly, the district court
applied the five-level sentence enhancement. This enhancement, and other
adjustments which are not at issue here,2 raised Probel's offense level from a base
1 18 U.S.C. § 2252A(a)(1), to which Probel pled guilty, provides penalties for: "(a) Any person who – (1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography." 18 U.S.C.A. § 2252A(a)(1) (Supp. 2000). 2 Specifically, Probel received a two-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(1), because the material involved minors under the age of 12, a four-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3), because the material portrayed sadistic or masochistic conduct, and a two-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4), because a computer was used in the transmission of the material. These enhancements, coupled with the five-level enhancement for "distribution" at issue here, and a three-level reduction for acceptance of responsibility, resulted in an offense level of 27.
4 offense level of 17 to 27. Probel was sentenced to 70 months in prison, at the low
end of the Guidelines range, followed by three years of supervised release and a
$100 special assessment.
DISCUSSION
The only issue on appeal is whether the application of U.S.S.G.
§ 2G2.2(b)(2) requires that the defendant receive some pecuniary or other benefit.
In United States v. Garrett, 190 F.3d 1220 (11th Cir. 1999), this court held that the
application of U.S.S.G. § 2G2.2(b)(2) was proper after finding that the defendant
had received "what he considered to be another `valuable gain.'" Id. at 1223. The
court did not address whether the enhancement would have been proper in the
absence of a finding that the defendant received a benefit. In that respect, this is a
case of first impression in this Circuit. Whether U.S.S.G. § 2G2.2(b)(2) requires
pecuniary gain has created a split among the Circuits with the Seventh and Ninth
Circuits holding that pecuniary gain, albeit defined broadly, is required, while the
Second, Fifth, Sixth and Eighth Circuits have stated that pecuniary or other gain is
not required. We now join the majority of courts to consider the issue and hold
that, based on the plain language of the Guidelines and the application notes,
pecuniary or other gain is not required for the enhancement to apply.
5 The district court did not make any findings as to any benefit to Probel,
instead basing its decision on the plain language of the Guidelines and the ordinary
meaning of the term "distribution." We must determine whether the court correctly
interpreted the Guidelines. We review its interpretation de novo. See United
States v. Miller, 166 F.3d 1153, 1155 (11th Cir. 1999).
We begin our analysis with the Guidelines language. U.S.S.G. § 2G2.2 is
entitled "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," and provides for a base offense level of 17. Under
"Specific Offense Characteristics," U.S.S.G. § 2G2.2(b)(2) provides: "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." The table in § 2F1.1 provides for increased offense levels
dependent on the loss due to fraud. According to the table, the retail value of child
pornography must exceed $70,000 to warrant an enhancement greater than the
threshold five-level enhancement prescribed in U.S.S.G. § 2G2.2(b)(2). Although
the term "distribution" is undefined, Application Note 1 to U.S.S.G. § 2G2.2
provides: "`Distribution' includes any act related to distribution for pecuniary gain,
6 including production, transportation, and possession with intent to distribute."
Significantly, Application Note 2 to U.S.S.G. § 1B1.1, providing for general
application principles, provides: "The term `includes' is not exhaustive."
Application notes are binding on this court. See Stinson v. United States, 508 U.S.
36, 38 (1993).
Because the term "includes" is not exhaustive, it is clear that "the definition
of `distribution' in Section 2G2.2(b)(2) is not limited by Application Note 1 thereof
to acts for `pecuniary gain.'" United States v. Lorge, 166 F.3d 516, 518 (2d Cir.),
cert. denied, 119 S.Ct. 1372 (1999). Giving Application Note 1 its most natural
reading, it actually enlarges, rather than limits, the applicability of the
enhancement. In addition to defendants who distribute child pornography,
Application Note 1 makes clear that individuals who are indirectly involved in
distribution for profit, such as producers and transporters, are also subject to the
enhancement. It was drafted to expand liability to cover these other individuals and
should not be understood to limit the application of the enhancement to exclude
individuals like Probel. See id. ("Application Note 1 . . . is most easily read as
intended to avoid an overly narrow reading of distribution."). Thus, the term
"distribution" should be given its ordinary meaning of "to dispense" or "to give out
or deliver." See Webster's Third New International Dictionary 660 (1981).
7 Our conclusion that "distribution" should be given its ordinary meaning
based on the plain language of the guideline accords with the majority of circuits to
consider the issue. In Lorge, the Second Circuit held that "it is irrelevant that the
district court did not find that Lorge sought a pecuniary gain," because "a motive
of pecuniary gain need not be shown." Lorge, 166 F.3d at 518. The court applied
the ordinary meaning of "distribution" "without regard to the actor's motive" and
expressly declined to follow contrary authority. Id. at 518-19. It refused to look
beyond the plain meaning of the guideline, because if a requirement of pecuniary
gain was intended, "Section 2G2.2(b)(2) need only have provided for enhancement
if the crime involved `distribution for pecuniary gain.'" Id. at 519. We are
likewise persuaded that it is unnecessary to look beyond the plain meaning of the
guideline. If the Sentencing Commission had intended pecuniary gain to be
required, it could easily have substituted "means" for "includes" in Application
Note 1 to limit the term "distribution." See United States v. Horn, 187 F.3d 781,
791 (8th Cir. 1999) ("If Congress had intended § 2G2.2(b)(2) to apply only to
distribution for pecuniary gain, it could easily have said so directly.").
In addition to Lorge, the Fifth, Sixth, Eighth and Eleventh Circuits, in dicta,
have stated that pecuniary gain is not required for the enhancement to apply. In
each of those cases the district courts found that the defendant had received some
8 benefit. From this fact, Probel argues, contrary to the stated dicta, that such a
finding is a prerequisite to the five-level enhancement. However, these decisions
were not compelled by the finding of a benefit to the defendant. Instead, each case
was based on the plain meaning of the guideline. Simply because there was an
additional element present in the case does not mean that that element was
required.
In the leading case, United States v. Canada, 110 F.3d 260 (5th Cir. 1997),
the Fifth Circuit held that "[t]he plain meaning of [Application Note 1]
unambiguously indicates that the 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." Id. at 263. Because the district court had found
that the defendant had "distributed the material for the purpose of enticing the
thirteen-year-old minor to have sex with him," the court did not need to decide
whether the enhancement would be appropriate in the absence of some form of
benefit. Id. at 263 n.4.
Similarly, in United States v. Hibbler, 159 F.3d 233 (6th Cir. 1998), cert.
denied, 119 S.Ct. 1278 (1999), the Sixth Circuit held that "the enhancement . . . is
not limited to instances involving distribution for pecuniary gain." Id. at 237-38.
The court followed Canada's reasoning that the plain language of the guideline
9 dictated its result. Id. at 237 (quoting Canada, 110 F.3d at 263). Hibbler, like
Canada, involved evidence that the defendant had received a benefit for his
distribution of the child pornography. This court, in Garrett, also agreed with the
approach taken in Canada that the enhancement "is not limited to transactions for
pecuniary gain." Garrett, 190 F.3d at 1223 (discussing Canada). It was
unnecessary to decide whether the enhancement would have been appropriate in
the absence of any benefit because the defendant had distributed child pornography
"in order to receive what he considered to be another `valuable gain,'" namely, for
the purpose of enticing another to have sexual relations with him. Id. Finally, in
Horn, the Eighth Circuit gave "the word `distribution' . . . its usual meaning in
ordinary language," finding that "`distribution' includes, but is not limited to,
transactions for pecuniary gain." Horn, 187 F.3d at 791 (citing Lorge, Hibbler and
Canada). In Horn, the defendant had been found to have engaged in trade or barter
and the enhancement was affirmed.
We agree with the reasoning of these decisions and the holding of Lorge that
the plain language of the guideline does not limit "distribution" to instances of
pecuniary or other gain. Nevertheless, Probel asks us to look beyond the plain
language of the guideline to find that the enhancement requires pecuniary or other
gain. He presents two arguments. First, he argues that the reference to the fraud
10 table in U.S.S.G. § 2F1.1 demonstrates that the Sentencing Commission intended
the enhancement to be limited to situations involving pecuniary gain. A contrary
finding, according to Probel, would mean that an individual who gratuitously gave
his neighbor a single, valueless item of child pornography would be punished the
same (a five-level increase) as a commercial distributor responsible for $69,999 of
child pornography. He finds this result to be untenable. Second, he argues that
"distribution" is already taken into account in determining the base offense level.
Thus, it would be inappropriate to further enhance his sentence where the
enhancement follows automatically from the offense.
Probel finds support for his position from decisions of the Seventh and the
Ninth Circuits. In United States v. Black, 116 F.3d 198 (7th Cir. 1997), the
Seventh Circuit held that pecuniary gain was required before the enhancement
could be applied. The court found, "[m]ost importantly, § 2G2.2(b)(2) measures
the number of levels of an enhancement by the `retail value of the material,' which
implies a transaction for pecuniary gain." Id. at 202. The court noted that
"pecuniary gain is a broad concept itself, and it does not exclude the possibility of
swaps, barter, in-kind transactions, or other valuable consideration." Id. at 202-03.
In United States v. Laney, 189 F.3d 954 (9th Cir. 1999), the author, writing
for a divided Ninth Circuit panel, held that "`distribution' . . . requires an element
11 of pecuniary gain." Id. at 959. Like the Black Court, the opinion stated disbelief
that the Sentencing Commission would distinguish "between a commercial
pornographer who sells $40,000 worth of material and one who sells $80,000
worth, but not between a person who gives away a magazine and one who markets
$40,000 worth of magazines." Id. at 960. The opinion also found significant the
"overall punishment scheme laid out in section 2G2.2." Id. Section 2G2.2
encompasses six types of offenses: trafficking, receipt, transportation, shipping,
advertising, and possession with intent to traffic in material involving the sexual
exploitation of a minor. The opinion states, "only those offenders who merely
received or advertised child pornography could receive the base level offense; all
the other offenses covered by section 2G2.2 would qualify automatically for the
five-level increase." Id. at 960-61. The author apparently believed that an
additional element beyond mere distribution was required so that the enhancement
would not be automatic in most of the cases covered by the guideline. Based on
these arguments, the opinion concluded that pecuniary gain, albeit defined broadly,
was required for the five-level enhancement and affirmed the district court's
application of the enhancement based on the finding that the defendant had
distributed child pornography for pecuniary reasons. See id. at 961-62. One panel
member specially concurred in the result, but did not agree that pecuniary gain was
12 required for the application of the enhancement. See id. at 967-68 (Nelson, J.,
specially concurring). Another panel member agreed that pecuniary gain was
required, but dissented on the ground that pecuniary gain should be limited to
instances of economic benefit. See id. at 969 (Reinhardt, J., concurring in part and
dissenting in part).
We do not believe that it is necessary to look beyond the plain meaning of
the guideline. The arguments raised by Probel, drawn from Black and Laney, do
not convince us that "distribution" should be limited to instances of pecuniary or
other gain. The reference to the fraud table does not limit the application of the
enhancement to individuals who receive a pecuniary benefit from the distribution
of child pornography. The guideline itself makes clear that individuals who do not
distribute child pornography for gain are to be given the threshold five-level
increase. "The purpose of the reference to the table in Section 2F1.1 is clearly to
provide for increased distribution enhancements tied to the value of the distributed
material, not to modify the meaning of the term `distribution.'" Lorge, 166 F.3d at
519. The threshold five-level enhancement is appropriate, where, as here, "no
actual `sale' takes place and hence the value of the materials distributed is not
easily ascertainable." Hibbler, 159 F.3d at 238. Any distribution of child
pornography, gratuitously or for profit, results in the continued exploitation of the
13 victims depicted in the images. Therefore, we do not find problematic the
Sentencing Commission's decision to treat individuals like Probel in the same
manner as individuals who distribute $69,999 worth of child pornography. The
guideline distinguishes between larger retailers for the purpose of imposing stricter
sentences. This does not suggest that small retailers or gratuitous distributors
should not be subject to an enhancement.
We do not believe that the structure of the guideline compels a result
different from the one we reach. "The base offense level takes into account the
possession or receipt of child pornography," while the enhancement is only
available for "distribution." See Hibbler, 159 F.3d at 238. Individuals who only
receive or advertise child pornography, absent any distribution, would not receive
the enhancement. The enhancement, contrary to Probel's contention, is not
automatic.
We are required to apply the language employed by the Sentencing
Commission which compels the result we reach today. Probel "distributed" child
pornography within the ordinary meaning of the term. Nothing in the guidelines
suggests that the term should be limited to instances of pecuniary or other benefit.
Probel's sentence was correctly enhanced five levels pursuant to U.S.S.G.
§ 2G2.2(b)(2).
14 CONCLUSION
The district court's judgment is AFFIRMED.