United States v. Peter Groce , 784 F.3d 291 ( 2015 )


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  •      Case: 14-50272   Document: 00513023558     Page: 1    Date Filed: 04/28/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 14-50272                         April 28, 2015
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                 Clerk
    Plaintiff - Appellee
    v.
    PETER ABRAHAM GROCE,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before JONES, BARKSDALE, and PRADO, Circuit Judges.
    EDITH H. JONES, Circuit Judge:
    Peter Groce pleaded guilty to one count of receiving child pornography
    in violation of 
    18 U.S.C. § 2252
    (a)(2). In calculating Groce’s guidelines range,
    the district court applied enhancements for distributing child pornography for
    the receipt of a non-pecuniary thing of value under U.S.S.G. § 2G2.2(b)(3)(B)
    and engaging in a pattern of activity involving sexual abuse or exploitation of
    a minor under U.S.S.G. § 2G2.2(b)(5). As calculated by the PSR, Groce’s
    guidelines range was 360 months to life imprisonment. The district court
    sentenced Groce to 240 months imprisonment—the statutory maximum.
    On appeal, Groce argues that the district court incorrectly applied the
    distribution and pattern-of-activity enhancements.        He also contends his
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    sentence is substantively unreasonable.       Because Groce’s arguments are
    meritless and any error was harmless, we AFFIRM.
    BACKGROUND
    The arguments Groce makes on appeal require briefly examining the
    graphic details of his crime. On July 16, 2011, law enforcement in Converse,
    Texas received information that Groce had exposed himself to two underage
    girls while they were playing video games at his house. Groce then began
    touching himself and asked the girls if they wanted to touch his genitals. A
    few minutes later, Groce stood up while still exposed, approached the girls, and
    began jumping up and down.
    When the police confronted Groce, he admitted that the incident had
    occurred. Groce had been watching child pornography, when one of the girls
    entered the room. Groce did not attempt to pull his pants up or cover himself.
    Instead, he invited the child to touch his genitals, which she did momentarily
    before backing away. Groce made similar advances on the second girl when
    she entered the room a few minutes later. The second child, however, did not
    touch Groce’s genitals.
    After Groce described these events, police confiscated his computer and
    five CDs. A search of the electronic media revealed forty-three images and
    twenty-three videos depicting adults engaging in sexual acts with minors.
    Some of the minors depicted were as young as eighteen months old. The
    computer also contained a peer-to-peer file sharing program called “Frostwire.”
    Groce admitted that he often installed and uninstalled file sharing programs
    like Frostwire to view child pornography. When asked about the program,
    Groce said: “I was always careful not to allow anybody to download much off of
    me. To be honest about it, it doesn’t have anything to do with my feelings of
    distribution, it just has to do with I didn’t want to get caught.” Groce’s search
    history further revealed that he actively sought child pornography. Groce
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    explained that he would enter terms like “lolita,” and “pthc, which stands for
    preteen hardcore,” into Frostwire or Google to find his desired content. In
    addition to seeking child pornography, Groce also searched for information on
    “how to convince girls to have sex” and “how they convince kids to have sex.”
    Nearly a year later, in May 2012, Converse police again received a report
    that Groce had exposed himself to a minor. This time, Groce lured the eleven
    year old victim behind a shed in his backyard. Groce then unzipped his pants,
    exposed his genitals, and rubbed and squeezed them. Disturbingly, the child
    indicated that similar incidents had occurred at least ten times in 2012, and
    forty times in 2011.
    Converse police referred Groce’s case to federal prosecutors. A grand jury
    indicted Groce on one count of receiving child pornography in violation of
    
    18 U.S.C. § 2252
    (a)(2) and two counts of possessing child pornography in
    violation of 
    18 U.S.C. § 2252
    (a)(4)(B). In exchange for dismissing the two
    possession counts, Groce pleaded guilty to one count of receiving child
    pornography. Groce’s guideline range, according to the PSR, was 360 months
    to life imprisonment.    After hearing arguments on Groce’s objections, the
    district court sentenced Groce to the statutory maximum of 240 months. Groce
    now appeals his sentence.
    STANDARD OF REVIEW
    This court reviews a sentencing decision for reasonableness using a two-
    step process. Gall v. United States, 
    552 U.S. 38
    , 51, 
    128 S. Ct. 586
    , 597 (2007).
    First, the court determines whether the district court committed any
    significant procedural error. 
    Id.
     Under the first step, this court reviews “the
    district court’s interpretation or application of the sentencing guidelines de
    novo, and its factual findings for clear error.” United States v. Scott, 
    654 F.3d 552
    , 555 (5th Cir. 2011). If there is no procedural error or the error is harmless,
    this court then reviews the substantive reasonableness of the sentence imposed
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    for abuse of discretion. United States v. Delgado-Martinez, 
    564 F.3d 750
    , 754
    (5th Cir. 2009); see also Gall, 
    552 U.S. at 51
    , 
    128 S. Ct. at 597
    .
    DISCUSSION
    Groce raises three major issues on appeal. First, Groce contends that
    § 2G2.2(b)(3)(B) does not apply because he never distributed the pornography
    or expected something of value in return.            Second, Groce argues that
    § 2G2.2(b)(5) is inapplicable because he never abused or exploited children.
    Finally, Groce complains that his sentence is substantively unreasonable. We
    will discuss each contention.
    I.
    Groce first challenges the applicability of § 2G2.2(b)(3)(B). That section
    imposes a five-level enhancement if the offense involved “[d]istribution for the
    receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.”
    U.S.S.G. § 2G2.2(b)(3)(B).      This includes any “bartering or other in-kind
    transaction, that is conducted for a thing of value, but not for profit.” Id. cmt.
    n.1. The archetypal example involves the “bartering of child pornographic
    material . . . in exchange for other child pornographic material[.]” Id. Groce
    contends the enhancement does not apply because there is no evidence Groce
    distributed any child pornography and Groce never expected anything in
    return for sharing his files.
    Generally, when a defendant knowingly uses peer-to-peer file sharing
    software, however, he engages in the kind of distribution contemplated by
    § 2G2.2(b)(3)(B). A peer-to-peer file sharing program “lets users exchange
    digital files through a network of linked computers.”            United States v.
    Richardson, 
    713 F.3d 232
    , 233 (5th Cir. 2013), cert. denied, 
    134 S. Ct. 230
    (2013). By using this software as Groce has, the user agrees to distribute the
    child pornography on his computer in exchange for additional child
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    pornography.    This is precisely the kind of exchange contemplated by
    § 2G2.2(b)(3)(B).
    This conclusion is nothing new. Although this court has often held that
    knowing use of peer-to-peer file sharing software triggers § 2G2.2(b)(3)(B), we
    have not done so in a published opinion. See United States v. Flores, 540 F.
    App’x 405, 405 (5th Cir. 2013) (unpublished) (applying § 2G2.2(b)(3)(B) because
    “[t]he undisputed evidence shows that Flores had the necessary technological
    understanding of the peer-to-peer file sharing software to use the software to
    obtain images of child pornography”); United States v. Desadier, 495 F. App’x
    501, 503 (5th Cir. 2012) (unpublished) (same); United States v. Onken, 440 F.
    App’x 304, 305 (5th Cir. 2011) (unpublished) (same); United States v. Moore,
    328 F. App’x 308, 309 (5th Cir. 2009) (unpublished) (applying § 2G2.2(b)(3)(B)
    because “[w]here . . . the defendant uses file-sharing software to obtain images
    of child pornography, 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”)
    (internal quotation marks omitted)).       Based on § 2G2.2(b)(3)(B) itself, its
    accompanying comments, and these persuasive cases, we now formally adopt
    this longstanding interpretation.
    Groce knowingly used Frostwire, a type of peer-to-peer file sharing
    software, to download and distribute child pornography.         Groce admitted
    installing and uninstalling peer-to-peer software numerous times. Groce was
    familiar with search terms that return images of child pornography. Groce
    knew that other users could download his files and that, by allowing users to
    do so, he would be distributing child pornography. Finally, Groce admitted
    that he “was always careful not to allow anybody to download much off of me,”
    implying that he knowingly let some users download from him. The district
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    court thus correctly concluded that Groce distributed child pornography in
    exchange for a non-pecuniary thing value. 1
    II.
    Next, Groce challenges the application of § 2G2.2(b)(5), which imposes a
    five-level enhancement if the defendant “engag[ed] in a pattern of activity
    involving the sexual abuse or exploitation of a minor.” This enhancement does
    not apply, according to Groce, because his conduct only involved exposure, “and
    never involved contact of any kind.”                Therefore, Groce never abused or
    exploited a minor within the meaning of § 2G2.2(b)(5).
    The guidelines define sexual abuse or exploitation of a minor as:
    (A) conduct described in various federal statutes, (B) an offense under state
    law that would violate the same federal statutes if the offense occurred in the
    territorial jurisdiction of the United States, or (C) an attempt or conspiracy to
    commit any of the offenses under (A) or (B). U.S.S.G. § 2G2.2 cmt. n.1. One of
    the federal statutes referenced in subsection (A) is 
    18 U.S.C. § 2241
    , which
    among other things prohibits knowingly engaging in a sexual act with a person
    under the age of 12. 
    18 U.S.C. § 2241
    (c). Consequently, § 2G2.2(b)(5) applies
    if Groce engaged or attempted to engage in a sexual act with a minor on two or
    more occasions.
    Although Groce did not engage in a sexual act with a minor, the district
    court found that in June 2011 and May 2012 Groce attempted to engage in
    1 On appeal, Groce also contends that he is entitled to a two-level decrease under
    § 2G2.2(b)(1). But § 2G2.2(b)(1) and § 2G2.2(b)(3) are opposite sides of the same coin. A
    finding that (b)(3) applies requires finding that the defendant distributed child pornography.
    See U.S.S.G. § 2G2.2(b)(3). On the other hand, a finding that (b)(1) applies requires the
    opposite—a finding that the defendant did not distribute child pornography. See U.S.S.G.
    § 2G2.2(b)(1) (“If . . . the defendant's conduct was limited to the receipt or solicitation of
    material involving the sexual exploitation of a minor . . . decrease by 2 levels”). Accordingly,
    a finding that (b)(3) applies necessarily precludes a finding that (b)(1) applies. That the
    district court here properly applied § 2G2.2(b)(3)(B) disposes of Groce’s claim that
    § 2G2.2(b)(1) applies.
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    sexual acts with minors in the incidents described above. The court was also
    aware of Groce’s longstanding interest in child pornography and in
    investigating topics like “how to convince girls to have sex.”
    Whether all of the perverse conduct together amounted to a pattern of
    activity involving the sexual abuse or exploitation of a minor under
    § 2G2.2(b)(5) is not entirely clear. We need not resolve the question, however,
    because even were we to agree with Groce that the district court erroneously
    applied § 2G2.2(b)(5), any error was harmless. 2 See United States v. Ibarra-
    Luna, 
    628 F.3d 712
    , 713-14 (5th Cir. 2010) (holding that an error in the
    calculation of the applicable Guidelines range is subject to harmless error
    analysis). An erroneous guidelines range calculation is harmless if “(1) [ ] the
    district court would have imposed the same sentence had it not made the error,
    and (2) [ ] it would have done so for the same reasons it gave at the prior
    sentencing.” 
    Id. at 714
    .
    To satisfy these requirements, there must be “evidence in the record that
    will convince [this court] that the district court had a particular sentence in
    mind and would have imposed it, notwithstanding the error.”                       
    Id. at 718
    (footnote and quotation marks omitted). That the actual sentence fell within
    the properly calculated Guidelines range is relevant to the harmless-error
    inquiry, but not dispositive. United States v. Harris, 
    597 F.3d 242
    , 261-62 (5th
    Cir. 2010).      Whether the district court applied the maximum allowable
    sentence is likewise relevant to the harmless-error inquiry. See United States
    2 Although the Government has not argued harmless error, “[t]his court can, in its
    discretion, consider the harmless error [argument] sua sponte.” Jones v. Cain, 
    600 F.3d 527
    ,
    541 (5th Cir. 2010) (citing United States v. Vontsteen, 
    950 F.2d 1086
    , 1091-92 (5th Cir. 1992)).
    As the following discussion will show, the district court resolved to sentence Groce to the
    statutory maximum, notwithstanding the guidelines range, because of the “nastiness of this
    crime.” There is no doubt that it would impose the same sentence on remand. Therefore, we
    exercise our discretion to address the harmless error question sua sponte.
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    v. Self, 461 F. App’x 375, 378-79 (5th Cir. 2012) (unpublished); United States
    v. Jack, 352 F. App’x 919, 921 (5th Cir. 2009) (unpublished); 3 see also United
    States v. Jones, 
    435 F.3d 541
    , 543 (5th Cir. 2006) (holding the fact that the
    district court would have imposed the maximum sentence under either a
    mandatory or advisory guideline scheme rendered any Booker error harmless).
    Both harmless error elements are met here. At Groce’s sentencing, the
    district court asked what the guidelines range would be if it sustained all
    Groce’s objections. The probation officer reported that, under Groce’s preferred
    calculation, the guidelines range would be 33-60 months. The district court
    then considered the probation officer’s calculation (360 months to life) and
    Groce’s range (33-60 months) and said:
    [O]ut of an abundance of caution, if the appellate court should find
    that the objections should have been sustained, the Court finds
    that the guideline – the guidelines are advisory anyway. And given
    the nastiness of this crime, other than just the child pornography
    itself, which is bad enough -- but the Court is going to sentence,
    taking into account all of th[ese] particular considerations[.]
    Later, the district court reiterated that “the Court is going to impose a sentence
    because of the facts of this case,” not because of the sentencing guidelines
    range.    The court found Groce’s case “unique” because it had never seen
    someone convicted of receiving child pornography “act out” like Groce. Due to
    these factors, the district court sentenced Groce to the statutory maximum.
    The court’s imposition of the maximum allowable sentence also favors finding
    any error was harmless, particularly because we have concluded that at least
    one of the challenged enhancements was correctly applied. With only the
    § 2G2.2(3)(B) enhancement, Groce’s recommended guidelines range would be
    3 Although these cases are non-precedential, we find these cases persuasive. See
    Ballard v. Burton, 
    444 F.3d 391
    , 401 & n.7 (5th Cir. 2006).
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    235-240 months, and his 240-month sentence is within this potential
    guidelines range. See Harris, 
    597 F.3d at 261-62
    .     Were the court given the
    duty to resentence on remand, we have no doubt that it would impose the same
    240-month sentence. Therefore, any conceivable error was harmless.
    III.
    Groce’s last argument is that his sentence is substantively unreasonable.
    This court reviews the substantive reasonableness of a sentence for abuse of
    discretion. Gall, 
    552 U.S. at 51
    , 
    128 S. Ct. at 597
    . “A discretionary sentence
    imposed within a properly calculated guidelines range is presumptively
    reasonable.” United States v. Campos-Maldonado, 
    531 F.3d 337
    , 338 (5th Cir.
    2008) (internal citation omitted). “The presumption is rebutted only upon a
    showing that the sentence does not account for a factor that should receive
    significant weight, it gives significant weight to an irrelevant or improper
    factor, or it represents a clear error of judgment in balancing sentencing
    factors.” United States v. Cooks, 
    589 F.3d 173
    , 186 (5th Cir. 2009) (internal
    citation omitted).
    Here, the district court carefully considered the circumstances of the
    crime (including the number of photos and videos found, Groce’s prior conduct
    with minors, the youth of the victims depicted, and the abusive nature of the
    depictions); Groce’s attempts at reform while incarcerated pending sentencing;
    his familial support network, remorse, and potential for rehabilitation; and the
    danger to the public. It also reviewed the sentences imposed in other child
    pornography cases, acknowledged that Groce himself had been sexually abused
    as a child, and recognized the addictive nature of Groce’s conduct. As a result,
    Groce has failed to show that his sentence “does not account for a factor that
    should receive significant weight, [ ] gives significant weight to an irrelevant
    or improper factor, or [ ] represents a clear error of judgment in balancing
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    sentencing factors.” Cooks, 
    589 F.3d at 186
    . The district court did not abuse
    its discretion.
    For these reasons, we AFFIRM the sentence.
    10