USCA1 Opinion
July 22, 1992 ____________________
July 22, 1992 ____________________
No. 92-1152
No. 92-1152
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
BRIAN K. SCHULTZ,
BRIAN K. SCHULTZ,
Defendant, Appellant.
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Nicholas Tsoucalas,* Judge]
[Hon. Nicholas Tsoucalas,* Judge]
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____________________
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Before
Before
Torruella, Selya and Cyr,
Torruella, Selya and Cyr,
Circuit Judges.
Circuit Judges.
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Warren C. Nighswander and Sulloway, Hollis & Soden, on brief for
Warren C. Nighswander and Sulloway, Hollis & Soden, on brief for
_____________________ _________________________
appellant.
appellant.
Jeffrey R. Howard, United States Attorney, and Peter E. Papps,
Jeffrey R. Howard, United States Attorney, and Peter E. Papps,
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First Assistant United States Attorney, on brief for appellee.
First Assistant United States Attorney, on brief for appellee.
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*Of the United States Court of International Trade, sitting by
*Of the United States Court of International Trade, sitting by
designation.
designation.
CYR, Circuit Judge. Appellant Brian Schultz pled guilty to one
CYR, Circuit Judge.
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count of distributing child pornography, see 18 U.S.C. 2252(a)(2),
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and one count of conspiring to (1) transport child pornography in
interstate commerce (18 U.S.C. 2252(a)(1)), (2) transport obscene
matter in interstate commerce (18 U.S.C. 1465), (3) use a common
carrier to transport obscene matter (18 U.S.C. 1462(a)), and (4)
receive and possess obscene matter while engaged in the business of
transferring obscene matter (18 U.S.C. 1466(a)), in violation of 18
U.S.C. 371. Schultz challenges the offense level enhancements
imposed on account of his involvement with obscene material depicting
adult sadomasochism, see U.S.S.G. 2G2.2(b)(3), and for his
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aggravating role in the conspiracy offense, see id. 3B1.1(c). We
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affirm.
I
I
BACKGROUND
BACKGROUND
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Following an investigation which began in November 1990, Schultz
and two coconspirators were charged with various violations of federal
law relating to the possession, transportation, and distribution of
child pornography and of obscene matter depicting adult sadomasochism.
Count I charged that Schultz conspired to sell (and sold) a videotape
entitled "CESC," depicting adult sadomasochism and violence. Count IX
charged Schultz with the substantive offense of distributing a
videotape entitled "JUDO," portraying a child engaged in sexually
2
explicit conduct involving neither violence nor sadomasochism.*
II
II
DISCUSSION
DISCUSSION
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The parties agree that the district court properly "grouped" the
conspiracy and substantive counts under U.S.S.G. 3D1.2(b). The
"common scheme or plan" that warranted the grouping of all counts of
conviction, see id., included conduct involving not only child
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pornography (counts I and IX), see id. 2G2.2,** but obscene matter
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*The district court determined Schultz's guideline sentence as
*The district court determined Schultz's guideline sentence as
follows: (1) base offense level 13, see U.S.S.G. 2G2.2(a); (2) two-
follows: (1) base offense level 13, see U.S.S.G. 2G2.2(a); (2) two-
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level enhancement because pornographic materials involved minors under
level enhancement because pornographic materials involved minors under
age 12, see id. 2G2.2(b)(1); (3) five-level enhancement because
age 12, see id. 2G2.2(b)(1); (3) five-level enhancement because
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materials were distributed for pecuniary gain, see id. 2G2.2(b)(2);
materials were distributed for pecuniary gain, see id. 2G2.2(b)(2);
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(4) four-level enhancement because materials contained depictions of
(4) four-level enhancement because materials contained depictions of
sadomasochistic conduct or other violence, see id. 2G2.2(b)(3); (5)
sadomasochistic conduct or other violence, see id. 2G2.2(b)(3); (5)
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two-level enhancement for Schultz's aggravated role in the offense,
two-level enhancement for Schultz's aggravated role in the offense,
see id. 3B1.1(c); and (6) a two-level reduction for acceptance of
see id. 3B1.1(c); and (6) a two-level reduction for acceptance of
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responsibility. The resultant total offense level was 24 and the
responsibility. The resultant total offense level was 24 and the
guideline sentencing range 51-63 months. The court sentenced Schultz
guideline sentencing range 51-63 months. The court sentenced Schultz
to a 60-month prison term.
to a 60-month prison term.
**Section 2G2.2 (Transporting, Receiving, or Trafficking in Material
**Section 2G2.2 (Transporting, Receiving, or Trafficking in Material
Involving the Sexual Exploitation of a Minor) reads, in relevant part:
Involving the Sexual Exploitation of a Minor) reads, in relevant part:
(a)Base Offense Level: 13
(a)Base Offense Level: 13
(b)Specific Offense Characteristics
(b)Specific Offense Characteristics
. . .
. . .
(3) If the offense involved material that portrays sadistic
(3) If the offense involved material that portrays sadistic
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or masochistic conduct or other depictions of violence,
or masochistic conduct or other depictions of violence,
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increase by 4 levels.
increase by 4 levels.
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portraying sadomasochism (count I), see id. 2G3.1.*** Although
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the precise manner in which the district court grouped the offenses is
not entirely clear, the particulars are unimportant to the issues
raised on appeal, as Schultz remains "otherwise accountable," see id.
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1B1.3(a)(1), for all "relevant conduct" in furtherance of the common
scheme. Id.
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The cross reference in U.S.S.G. 2G3.1(c)(1) directs the
application of U.S.S.G. 2G2.2 where "the offense involved . . .
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material [depicting] the sexual exploitation of a minor," id.
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2G3.1(c)(1) (emphasis added). Accordingly, U.S.S.G. 2G2.2 the
child pornography guideline controlled the sentencing guideline
determination as to the "acts . . . for which [Schultz] would be
otherwise accountable" as provided in U.S.S.G. 1B1.3(a)
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***Section 2G3.1 (Importing, Mailing, or Transporting Obscene Matter)
***Section 2G3.1 (Importing, Mailing, or Transporting Obscene Matter)
reads, in relevant part:
reads, in relevant part:
(a)Base Offense Level: 6
(a)Base Offense Level: 6
(b)Specific Offense Characteristics
(b)Specific Offense Characteristics
. . .
. . .
(2) If the offense involved material that portrays sadistic
(2) If the offense involved material that portrays sadistic
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or masochistic conduct or other depictions of violence,
or masochistic conduct or other depictions of violence,
increase by 4 levels.
increase by 4 levels.
(c)Cross Reference
(c)Cross Reference
(1) If the offense involved transporting, distributing,
(1) If the offense involved transporting, distributing,
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receiving, possessing, or advertising to receive material
receiving, possessing, or advertising to receive material
involving the sexual exploitation of a minor, apply 2G2.2
involving the sexual exploitation of a minor, apply 2G2.2
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. . . .
. . . .
(Emphasis added).
(Emphasis added).
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(ii),(iii),(1).****
The dispute relates to the proper application of the enhancement
authorized under U.S.S.G. 2G2.2(b)(3): "If the offense involved
material that portrays sadistic or masochistic conduct or other
depictions of violence, increase by four levels." The district court
imposed the four-level enhancement on the theory that three of the
objectives of the criminal conspiracy charged in count I involved
"obscene matter" depicting adult sadomasochism and constituted
"relevant conduct" for which Schultz was "otherwise accountable"
within the meaning of U.S.S.G. 1B1.3, comment. (n.1). Schultz
contends that the word "offense" in U.S.S.G. 2G2.2(b)(3) encompasses
only the child pornography offense and that the district court erred
in considering adult obscene matter depicting sadomasochism. Schultz
cites to no authority, but urges that the Commission's placement of
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****Relevant Conduct (Factors that Determine the Guideline Range)
****Relevant Conduct (Factors that Determine the Guideline Range)
_____________________________________________________________
( a )
( a )
Chapters Two (Offense Conduct) and Three (Adjustments).
Chapters Two (Offense Conduct) and Three (Adjustments).
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Unless otherwise specified, (i) the base offense level where
Unless otherwise specified, (i) the base offense level where
the guideline specifies more than one base offense level,
the guideline specifies more than one base offense level,
(ii) specific offense characteristics and (iii) cross
(ii) specific offense characteristics and (iii) cross
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references in Chapter Two, and (iv) adjustments in Chapter
references in Chapter Two, and (iv) adjustments in Chapter
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Three, shall be determined on the basis of the following:
Three, shall be determined on the basis of the following:
( 1 )
( 1 )
all acts and omissions committed or aided and abetted by the
all acts and omissions committed or aided and abetted by the
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defendants, or for which the defendant would be otherwise
defendants, or for which the defendant would be otherwise
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accountable, that occurred during the commission of the
accountable, that occurred during the commission of the
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offense of conviction, in preparation for that offense, or in
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
the course of attempting to avoid detection or responsibility
for that offense, or that otherwise were in furtherance of
for that offense, or that otherwise were in furtherance of
that offense . . . .
that offense . . . .
U.S.S.G. 1B1.3(a)(1) (emphasis added).
U.S.S.G. 1B1.3(a)(1) (emphasis added).
5
the sadomasochism "specific offense characteristic" within
2G2.2(b)(3) (child pornography guideline) indicates that obscene
matter involving adult sadomasochism only was not within the
contemplation of the Commission.*****
The legal determination as to the proper interplay among related
guidelines is subject to plenary review. United States v. Phillips,
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952 F.2d 591, 594 (1st Cir.), petition for cert. filed, U.S. App.
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LEXIS 30, 120 (May 12, 1992); United States v. Veilleux, 949 F.2d 522,
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528 (1st Cir. 1991). We start with U.S.S.G. 2G3.1 (adult obscene
matter), which expressly requires reference to U.S.S.G. 2G2.2 (child
pornography). Thus, materials which contain both adult obscene matter
and child pornography are controlled by U.S.S.G. 2G2.2. Section
2G2.2 neither states nor intimates that sentencing courts are to
exclude from consideration the specific offense characteristics
relating to adult obscene matter made subject to 2G2.2(b)(3) through
the cross reference in 2G3.1. Moreover, 2G3.1(b)(2) authorizes
the identical four-level enhancement set forth in 2G2.2(b)(3),
suggesting that the Commission intended that the specific offense
characteristics of sadomasochism and violence be dealt with in
identical fashion whether depicted in adult obscene matter or child
pornography. Under the interpretation urged by Schultz, each time a
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*****Schultz concedes that he would have been held responsible, under
*****Schultz concedes that he would have been held responsible, under
2G3.1 (adult obscene matter), for the criminal conduct relating to
2G3.1 (adult obscene matter), for the criminal conduct relating to
obscene matter depicting adult sadomasochism, but insists that this is
obscene matter depicting adult sadomasochism, but insists that this is
not relevant conduct under 2G2.2 as it "has no relation to the
not relevant conduct under 2G2.2 as it "has no relation to the
offense of child pornography and provides no basis for an upward
offense of child pornography and provides no basis for an upward
adjustment pursuant to 2G2.2(b)(3)."
adjustment pursuant to 2G2.2(b)(3)."
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criminal offense involves adult obscene matter depicting sadomasochism
or other violence, as well as nonviolent child pornography, the
violence in the adult materials would be ignored as a specific offense
characteristic under 2G2.2. We believe the more sensible
interpretation requires the court to consider violence or sadomaso-
chism as a specific offense characteristic warranting a four-level
enhancement under either U.S.S.G. 2G2.2 or U.S.S.G. 2G3.1.
The Sentencing Guidelines expressly prescribe the factors to be
utilized in determining specific offense characteristics. U.S.S.G.
1B1.3, entitled "Relevant Conduct (Factors that Determine the
Guideline Range)," provides in relevant part:
(a) Chapter[] Two (Offense Conduct) . . . . Unless otherwise
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specified, . . . specific offense characteristics . . . shall
be determined on the basis of the following:
(1) all acts and omissions committed or aided and abetted by
the defendant, or for which the defendant would be otherwise
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accountable, that occurred during the commission of the
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offense of conviction . . . or that otherwise were in
furtherance of that offense . . . .
U.S.S.G. 1B1.3(a)(1) (emphasis in subsection (1) added). Applica-
tion note 1 to 1B1.3(a)(1) states: "In the case of criminal
activity undertaken in concert with others, whether or not charged as
a conspiracy, the conduct for which the defendant 'would be otherwise
accountable' . . . includes conduct of others in furtherance of the
execution of the jointly-undertaken criminal activity that was
reasonably foreseeable by the defendant." U.S.S.G. 1B1.3(a)(1),
comment. (n.1). The application note thus counsels a broad
7
interpretation of the term "offense" in applying specific offense
characteristics under Chapter 2 of the Guidelines. The sale of the
"CESC" videotape depicting adult sadomasochism was properly considered
"relevant conduct" for which Schultz was "otherwise account-
able."******
"Role in the Offense" Enhancement
"Role in the Offense" Enhancement
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Schultz contends that the district court improperly imposed a
two-level enhancement for his leadership role in the offense, see
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U.S.S.G. 3B1.1(c), and failed to make the requisite findings
contemplated by 18 U.S.C. 3553(c).******* As "role in the
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******The interpretation urged by Schultz is further undercut by a
******The interpretation urged by Schultz is further undercut by a
recent clarifying amendment to U.S.S.G. 1B1.1 ("Application
recent clarifying amendment to U.S.S.G. 1B1.1 ("Application
Instructions"), which states as follows: "'Offense' means the offense
Instructions"), which states as follows: "'Offense' means the offense
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of conviction and all relevant conduct under 1B1.3 (Relevant
of conviction and all relevant conduct under 1B1.3 (Relevant
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Conduct) unless a different meaning is specified or is otherwise clear
Conduct) unless a different meaning is specified or is otherwise clear
from the context." U.S.S.G. 1B1.3, comment. (n.1(l)) (Nov. 1,
from the context." U.S.S.G. 1B1.3, comment. (n.1(l)) (Nov. 1,
1991). As the Sentencing Commission explained, its recent definition
1991). As the Sentencing Commission explained, its recent definition
did not alter preexisting practice under the Sentencing Guidelines,
did not alter preexisting practice under the Sentencing Guidelines,
but merely "describe[d] how the term 'offense' is used in the guide-
but merely "describe[d] how the term 'offense' is used in the guide-
lines." U.S.S.G. App. C, amendment 388 (Nov. 1991).
lines." U.S.S.G. App. C, amendment 388 (Nov. 1991).
*******Section 3553(c) requires the sentencing judge to "state in open
*******Section 3553(c) requires the sentencing judge to "state in open
court the reasons for [the] imposition of the particular sentence."
court the reasons for [the] imposition of the particular sentence."
See also United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.
See also United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir.
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1990) (requiring "reasonably specific findings"). The district court
1990) (requiring "reasonably specific findings"). The district court
managed minimal compliance with 18 U.S.C. 3553(c). The court heard
managed minimal compliance with 18 U.S.C. 3553(c). The court heard
counsel on Schultz's leadership role in the conspiracy. In imposing
counsel on Schultz's leadership role in the conspiracy. In imposing
sentence, the court denoted each element in its determination of the
sentence, the court denoted each element in its determination of the
guideline sentencing range, including the two-level enhancement of the
guideline sentencing range, including the two-level enhancement of the
base offense level for Schultz's role in the offense: "The . . . two-
base offense level for Schultz's role in the offense: "The . . . two-
level adjustment for being the leader, or prime mover in this matter
level adjustment for being the leader, or prime mover in this matter
is also agreed upon by this court." (emphasis added). Thus, the court
is also agreed upon by this court." (emphasis added). Thus, the court
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not only determined that Schultz was a leader but impliedly adverted
not only determined that Schultz was a leader but impliedly adverted
to the presentence report ("PSR") and its characterization of
to the presentence report ("PSR") and its characterization of
Schultz's role in the offense. The PSR was the central focus of the
Schultz's role in the offense. The PSR was the central focus of the
issues presented at sentencing. Moreover, the PSR provides a
issues presented at sentencing. Moreover, the PSR provides a
8
offense" determinations are fact intensive, United States v. Akitoye,
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923 F.2d 221, 227 (1st Cir. 1991); United States v. McDowell, 918 F.2d
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1004, 1011 (1st Cir. 1990), we normally review for clear error.
United States v. Dietz, 950 F.2d 50, 52 (1st Cir. 1991); see McDowell,
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918 F.2d at 1011 (cautioning that "'considerable respect be paid to
the views of the nisi prius court'") (quoting United States v. Ocasio,
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914 F.2d 330, 333 (1st Cir. 1990)).
A two-level enhancement is warranted under U.S.S.G. 3B1.1(c)
where the criminal enterprise involved at least two participants, and
"the defendant exercised control over, or was otherwise responsible
for organizing the activities of, at least one other individual in
committing the crime." United States v. Akitoye, 923 F.2d 221, 227
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(1st Cir. 1991). The conspiracy to which Schultz pled guilty involved
three participants. The largely uncontested facts set forth in the
PSR were sufficient as well to support the finding that Schultz "exer-
cised control over" at least one coconspirator.
According to the PSR, Schultz instructed coconspirator Mark Colen
to bring several videotapes, including "JUDO" and "CESC" to a
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sufficient basis for reasoned appellate review. See McDowell, 918
sufficient basis for reasoned appellate review. See McDowell, 918
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F.2d at 1012 ( 3553(c) requires findings sufficient to enable
F.2d at 1012 ( 3553(c) requires findings sufficient to enable
effective appellate review). In McDowell, we remanded because the
effective appellate review). In McDowell, we remanded because the
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sentencing court failed to make sufficient findings to support a four-
sentencing court failed to make sufficient findings to support a four-
level "role in the offense" enhancement pursuant to U.S.S.G.
level "role in the offense" enhancement pursuant to U.S.S.G.
3B1.1(a) (conspiracy "involving five or more participants"). The
3B1.1(a) (conspiracy "involving five or more participants"). The
McDowell PSR "neither suggested who the 'five or more participants'
McDowell PSR "neither suggested who the 'five or more participants'
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might have been, nor discussed why five or more participants were
might have been, nor discussed why five or more participants were
necessarily involved . . . ." Id. at 1011. Accordingly, we refused
necessarily involved . . . ." Id. at 1011. Accordingly, we refused
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to engage in the "substantial guesswork" required to conduct appellate
to engage in the "substantial guesswork" required to conduct appellate
review. Id. at 1012. The PSR in the present case suffers from no
review. Id. at 1012. The PSR in the present case suffers from no
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such deficiency.
such deficiency.
9
January 10, 1991 meeting with a government agent. Colen arrived with
the tapes, and remained while Schultz conducted the sale to the
informant. Although Schultz concedes that the meeting occurred as
represented, he disputes the PSR characterization that Colen delivered
the tapes on instructions from Schultz. Instead, Schultz argues,
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without testimonial or other evidentiary support, that Colen acted at
the behest of the agent. The district court was not required to
credit Schultz's unsubstantiated contention.
The district court finding that Schultz exercised a leadership
role over Colen is supported by undisputed evidence as well. First,
Schultz drew a diagram for the undercover agent, depicting himself at
the apex of the criminal enterprise. Second, Schultz possessed the
greater capacity to reproduce videotapes, rented the office space
where tapes were reproduced, and rented storage space for videotapes,
mailing lists, and other materials used to facilitate the illegal
enterprise. Third, the record indicates that "most" of the porno-
graphic materials involved in the conspiracy were turned over to
Schultz by his coconspirators. Fourth, when the coconspirators were
arrested, 420 tapes were seized from Schultz, 400 from Bailey, and 100
from Colen. Finally, "most" of the 96 videotapes made available to
the government operatives during the course of the conspiracy were
acquired from Schultz. There was sufficient evidence to support the
two-level enhancement under U.S.S.G. 3B1.1(c).
Affirmed.
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10