United States v. Sistrunk

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2002
• Docket: 01-30974
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30974 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

versus

VIRGIL WAYNE SISTRUNK,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of Louisiana (No. 00-CR-50078-ALL)

May 3, 2002

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Virgil Sistrunk was convicted on his

plea on a single count of having knowingly received and

distributed child pornography using a computer in violation of 18

U.S.C. § 2252A(a)(2)(A). The district court sentenced him to 70

months’ imprisonment. In so doing, it concluded that a five-

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. level enhancement was warranted based on its finding that

Sistrunk distributed child pornography in expectation of

receiving a non-pecuniary thing of value. At sentencing,

Sistrunk admitted to distributing the offending images but denied

that he did so to receive images in return. Instead, he claimed

that he sent them because he was “just being a good guy.”

Sistrunk appeals the enhancement only. We affirm.

We review for clear error findings of fact made for

sentencing and de novo interpretations of the sentencing

guidelines. See United States v. Hill, 258 F.3d 355, 357 (5th

Cir. 2001). Section 2G2.2 is the applicable sentencing guideline

for violation of 18 U.S.C. § 2252A(a)(2)(A). It provides that

for offenses involving the “[d]istribution for the receipt, or

the expectation of receipt, of a thing of value, but not for

pecuniary gain, increase by 5 levels.” UNITED STATES SENTENCING

GUIDELINES MANUAL (“U.S.S.G.”) § 2G2.2(b)(2)(B)(2001). We have not

before construed this provision. The application notes to §

2G2.2 elaborate on the kind of distribution to which subdivision

(b)(2)(B) was intended to apply: “[A]ny transaction, including

bartering or other in-kind transaction, that is conducted for a

thing of value, but not for profit.” Id. § 2G2.2 cmt. n.1. They

define “thing of value” as “anything of valuable consideration,”

which includes “child pornographic material received in exchange

for other child pornographic material bartered in consideration

-2- for the material received.” Id.

We conclude that the district court did not err in finding

that Sistrunk expect to receive a thing of value. A distribution

that qualifies for enhancement under U.S.S.G. § 2G2.2(b)(2)(B)

need not have been made on a strict, quid pro quo basis. Stated

differently, it is not necessary that the offending image be

transmitted for promise that the recipient would promptly send an

image of his own in return. Instead, it is enough that an image

was distributed in hope that such a gesture would facilitate a

continuing relationship with the recipient. Where the recipient

also deals in pornographic material, as was the case here, there

is a natural expectation that he will do his bit for the

relationship by sending or continuing to send his own images in

return. (This is what Sistrunk calls “just being a good guy.”)

Of course, to not send a return image would make any future

distributions less likely.

It has not escaped us that U.S.S.G. § 2G2.2 and its

application notes rely heavily on the language of contract law.

If by “valuable consideration” the sentencing commission meant

“something of value (such as an act, a forbearance, or a return

promise) received by a promisor from a promisee,”1 it would be

difficult to conclude that Sistrunk’s distributions warrant an

enhancement under subdivision (b)(2)(B). We do not think,

1 BLACK’S LAW DICTIONARY 131 (2d pocket ed. 2001).

-3- however, that the commission intended that the sentencing court

first find a bargained-for agreement between two apparent brokers

in child pornography before applying that subdivision.

Furthermore, construing subdivision (b)(2)(B) as we do today does

not make its companion subdivision, (b)(2)(E), superfluous. The

latter provision states that for a distribution other than one

“described in subdivisions (A) through (D), increase by 2

levels.” U.S.S.G. § 2G2.2(b)(2)(E). That provision would still

be applicable, for example, had Sistrunk distributed pornographic

images by accident or without the expectation of ever getting

images in return. Indeed, this is exactly what he contends he

did, though we see no clear error in the district court finding

otherwise.

AFFIRMED.

-4-