United States v. Cramer , 213 F. App'x 138 ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-10-2007
    USA v. Cramer
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-1004
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    Recommended Citation
    "USA v. Cramer" (2007). 2007 Decisions. Paper 1791.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1791
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 06-1004
    ____________
    UNITED STATES OF AMERICA
    v.
    COREY C. CRAMER,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. No. 05-cr-00184)
    District Judge: Honorable Yvette Kane
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    December 12, 2006
    Before: FISHER and CHAGARES, Circuit Judges,
    and BUCKWALTER,* District Judge.
    (Filed January 10, 2007)
    ____________
    OPINION OF THE COURT
    ____________
    *
    The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
    District of Pennsylvania, sitting by designation.
    BUCKWALTER, District Judge.
    Before the court is the appeal of Corey C. Cramer from the judgment imposed on
    December 19, 2005 by which he was sentenced to 192 months imprisonment to be
    followed by three (3) years of supervised release.
    I.
    The issues on appeal as framed by Cramer are
    1.     WHETHER A PLAIN READING OF SECTION 2251(b) OF TITLE
    18 OF THE UNITED STATES CODE, 18 U.S.C. §2251(b),
    EMPLOYING STANDARD STATUTORY AND
    GRAMMATICAL CONSTRUCTION, CONFIRMS AN ABSENCE
    OF FEDERAL JURISDICTION?
    2.     WHETHER THE INTRASTATE, NON-COMMERCIAL
    PRODUCTION OF CHILD PORNOGRAPHY FOR
    PERSONAL USE WITH MATERIALS TRANSPORTED IN
    INTERSTATE COMMERCE PROVIDES A SUFFICIENT
    AND PROPER BASIS FOR FEDERAL JURISDICTION
    UNDER THE COMMERCE CLAUSE?
    3.     WHETHER THE DISTRICT COURT ERRED IN
    APPLYING A VULNERABLE VICTIM ENHANCEMENT
    TO APPELLANT’S SENTENCING GUIDELINE RANGE
    WHEN THIS CIRCUMSTANCE WAS INCORPORATED
    INTO THE OFFENSE GUIDELINE?
    II.
    Cramer was indicted May 11, 2005, on four counts of knowingly permitting a
    minor to engage in sexually explicit conduct for purposes of producing a visual depiction
    of such conduct in violation of 18 U.S.C. § 2251(b). On September 12, 2005, he entered
    a conditional plea to Count One preserving for review the first two issues cited above.
    2
    The district court denied a motion to dismiss based on those two issues and at a
    sentencing hearing on December 19, 2005, also denied Cramer’s objection to the
    Presentence Report which assessed two extra points in applying a vulnerable victim
    enhancement.
    III.
    Our standard of review of the first two issues is plenary. Below is the statute
    under which Cramer was prosecuted (18 U.S.C. § 2251):
    (b)     Any parent, legal guardian, or person having custody or control of a
    minor who knowingly permits such minor to engage in, or to assist
    any other person to engage in, sexually explicit conduct for the
    purpose of producing any visual depiction of such conduct shall be
    punished as provided under subsection (e) of this section, if such
    parent, legal guardian, or person knows or has reason to know that
    such visual depiction will be transported in interstate or foreign
    commerce or mailed, if that visual depiction was produced using
    materials that have been mailed, shipped, or transported in interstate
    or foreign commerce by any means, including by computer, or if
    such visual depiction has actually been transported in interstate or
    foreign commerce or mailed.
    As the district court found with regard to the first issue, “Defendant’s reading of §
    2251(b) is strained and unsupported by law.” Thus, under the statute as interpreted by
    that court, any person, legal guardian or person having custody or control of a minor . . .
    shall be punished if just one of the following three conditions are met:
    (1)     if he knows or has reason to know that such visual depiction will be
    transported in interstate commerce or mailed; or
    (2)     if the visual transmission was produced using materials that have
    been mailed, shipped or transported in interstate or foreign
    commerce; or
    3
    (3)    if such visual depiction has actually been transported in interstate
    commerce or mailed.
    Cramer argues otherwise. His contention is that where the violation, as in 18
    U.S.C. § 2251(b), is premised on intrastate conduct involving a visual depiction produced
    using materials that have been mailed, shipped or transported in interstate or foreign
    commerce, the government must also demonstrate that either: (1) the parent, legal
    guardian or person knew or had reason to know that such visual depiction would be
    transported in interstate or foreign commerce or mailed; or (2) that the visual depiction
    was actually so transported or mailed. We disagree.
    The only opinion of this court which Cramer cites with respect to this issue is
    United States v. Hodge, 
    321 F.3d 429
    , 436 (3d Cir. 2003). In Hodge, the statute involved
    was clearly distinguishable from the one in this case. This court, before whom the
    interpretation of the statute was a matter of first impression (Hodge at 433), accepted the
    conjunctive reading of the statute as five district courts had concluded (Hodge at 436).
    Hodge is helpful because following its analysis demonstrates why Cramer’s
    argument is misplaced. The statute in Hodge provided in brief that a controlled substance
    analogue shall be treated as a controlled substance. The issue in this case was whether
    the mixture of candle wax and flour was a controlled substance analogue, which was
    defined as follows:
    [With certain exceptions not relevant here,] the term “controlled substance
    analogue” means a substance –
    4
    (i)     the chemical structure of which is substantially similar to the
    chemical structure of a controlled substance in schedule I or
    II;
    (ii)    which has a stimulant, depressant, or hallucinogenic effect on
    the central nervous system that is substantially similar to or
    greater than the stimulant, depressant, or hallucinogenic effect
    on the central nervous system of a controlled substance in
    schedule I or II; or
    (iii)   with respect to a particular person, which such person
    represents or intends to have a stimulant, depressant, or
    hallucinogenic effect on the central nervous system that is
    substantially similar to or greater than the stimulant,
    depressant, or hallucinogenic effect on the central nervous
    system of a controlled substance in schedule I or II.
    21 U.S.C. § 802(32)(A).
    The government argued for a disjunctive interpretation so that a substance would
    be a controlled substance analogue if it satisfied any one of clauses (i), (ii) or (iii). We
    held, however, that clause (i) states an independent requirement and clauses (ii) and (iii)
    read in parallel and are more subordinate to clause (i) because the functional language in
    each begins with the relative pronoun “which.” In this regard, we said:
    The doctrine of the last antecedent teaches that “qualifying words, phrases,
    and clauses are to be applied to the words or phrase immediately preceding”
    and not to “others more remote.” See Resolution Trust Corp. v. Nernberg, 
    3 F.3d 62
    , 65 (3d Cir. 1993) (quoting Azure v. Morton, 
    514 F.2d 897
    , 900
    (9th Cir. 1975)). That suggests that clauses (ii) and (iii) more likely modify
    clause (i)’s phrase “controlled substance in schedule I or II” than the word
    “substance” in the main clause. See also 2A Norman J. Singer, Sutherland
    Statutory Construction, § 47.33 (6th ed.2000).
    Following that doctrine, the statute before us cannot be read, as Cramer suggests,
    to set forth an independent requirement of intrastate conduct involving a visual depiction
    using materials that have been mailed, shipped, or transported in interstate or foreign
    5
    commerce as to which the remaining clauses (1 and 3 on pages 3 and 4 of this opinion)
    involving either reason to know of actual transportation in interstate or foreign commerce
    are subordinate. Instead, all three clauses (1, 2 and 3 on pages 3 and 4 of this opinion) are
    applied to the words or phrases immediately preceding them in the opening clause of 18
    U.S.C. § 2251 (b), [any parent, legal guardian or person having custody or control of a
    minor who knowingly permits such minor to engage in, or to assist any other person to
    engage in, sexually explicit conduct for the purpose of producing any visual depiction of
    such conduct shall be punished as provided under subsection (e) of this section, . . . .] and
    qualify the independent conditions, for which the violation of any one will result in
    punishment. In addition, Hodge reiterates that “cannons of construction ordinarily
    suggest that terms connected by a disjunctive be given separate meaning unless the
    context dictates otherwise,” Hodge at 436. The context here, unlike Hodge, does not
    dictate otherwise.
    IV.
    As to the second issue, Cramer concedes that this court has upheld the
    constitutionality of the same jurisdictional language in United States v. Galo, 
    239 F.3d 572
    , 575 (3d Cir. 2001) citing United States v. Rodia, 
    194 F.3d 465
    , 473 (3d Cir. 1999).
    Nevertheless, he urges us to revisit those two decisions in light of United States v.
    Morrison, 
    529 U.S. 598
    , 
    120 S. Ct. 740
    (2000) and Gonzales v. Raich, 
    545 U.S. 1
    , 125 S.
    Ct. 2195 (2005). Neither of those cases, however, would effect our analysis in either
    Galo or Rodia.
    6
    Morrison, decided May 15, 2000, six days after our argument on May 9, 2000 in
    Galo, dealt with a statute, 42 U.S.C. § 13981, that provided a federal civil remedy for
    gender motivated violence. The victim in Morrison alleged she had been raped by the
    two respondents while the three were students at Virginal Polytechnic Institute.
    After referring to its principles underlying Commerce Clause jurisprudence, the
    Court in Morrison found that gender motivated crimes of violence are not economic
    activity.
    The Court’s analysis in Morrison discussed at length the Commerce Clause
    interpretation set forth in United States v. Lopez, 
    514 U.S. 549
    , 
    115 S. Ct. 1624
    (1995) in
    which the Court identified the three broad categories of activities that Congress may
    regulate under its commerce power. In brief, they are:
    1.     The use of channels of interstate activity;
    2.     The instrumentalities of interstate commerce, or persons or things in
    interstate commerce even though the threat may come only from
    intrastate commerce; and
    3.     Those activities having a substantial relation to interstate commerce,
    i.e., those activities that substantially affect interstate commerce.
    This court in Rodia discussed the three categories above and concluded that
    Congress had a rational basis for concluding that the intrastate possession of pornography
    has a substantial effect on interstate commerce. There is nothing in Morrison to suggest
    that this analysis was not correct.
    In Raich, decided June 6, 2005, the respondents (Raich, et al.), California residents
    who both used doctor recommended marijuana, relied heavily on Lopez and Morrison in
    7
    seeking to enjoin the Federal Drug Enforcement Administration (DEA) from enforcing
    the Federal Controlled Substance Act (CSA) to the extent it prevents them from the
    manufacture, possession or use of marijuana for personal medical care because it would
    violate the Commerce Clause.
    The Court held initially that Lopez and Morrison had nothing to do with
    commerce. It concluded that even though the case for exemption in Raich was that a
    locally cultivated product that was used domestically rather than sold on the open market
    is not subject to federal regulation, given the findings in the CSA and the undisputed
    magnitude of the commercial market for marijuana, such a claim for exemption is
    foreclosed.
    Analytically, the same conclusion was reached in Rodia where we held after an
    exhaustive analysis by the late Chief Judge Becker “that Congress rationally could have
    believed that child pornography that did not itself travel in interstate commerce has a
    substantial effect on interstate commerce, and is thus subject to regulation under the
    Commerce Clause.” Rodia at 479. We see no reason to disturb that ruling.
    V.
    The third issue argued by Cramer is that the circumstance which the court found in
    applying a vulnerable victim enhancement (paragraph 24 of the presentence report) was
    already incorporated into the specific offense characteristics and thus resulted in double
    counting. The net effect of this alleged error is that Cramer would have had a total
    offense level of 28 instead of 30 for a guideline range of 78-97 months rather than 97-121
    8
    months. In any event, with the mandatory 10-year sentence, the effective guideline range
    under a total offense level of 28 would be 120 months.
    Specifically, the presentence report, which the court adopted, provided as follows:
    20.    Base Offense Level: The guideline for an 18 U.S.C. § 2251(b)
    offense is U.S.S.G. § 2G2.1. That section provides a base offense
    level of twenty-seven.                                        27
    21.    Specific Offense Characteristics: Because the offense involved a
    victim who had attained the age of twelve years, but not attained the
    age of sixteen years, a two-level increase is required pursuant to
    U.S.S.G. § 2G2.1(b)(1)(B).                                      +2
    22.    Because the minor victim was in the custody, care or supervisory
    control of the defendant, a two-level increase is required pursuant to
    U.S.S.G. § 2G2.1(b)(2).                                         +2
    23.    Adjustment for Role in the Offense: None.                       0
    24.    Victim-Related Adjustments: Pursuant to U.S.S.G. § 3A1.1(b)(1),
    because the defendant knew or should have known that his
    “stepdaughter” was a vulnerable victim, a two-level increase is
    required.                                                      +2
    25.    Adjustment for Obstruction of Justice: None.                    0
    26.    Adjusted Offense Level: Thirty-three.                           33
    27.    Adjustment for Acceptance of Responsibility: Based on the
    defendant’s guilty plea and his admissions to the Court and probation
    officer, a two-level reduction appears warranted under U.S.S.G.
    § 3E1.1(a). It appears that the defendant provided complete
    information to the Government concerning his involvement in the
    offense. Accordingly, the additional one-level reduction under
    U.S.S.G. § 3E1.1(b) seems warranted.                          -3
    28.    Chapter Four Enhancements: None.                                0
    29.    Total Offense Level: Thirty.                                    30
    9
    From reading the court’s statement at sentencing and its statement of reasons in its
    criminal judgment order, it is clear that in adding two points pursuant to U.S.S.G.
    § 3A1.1(b)(1), the court found that the victim was unusually vulnerable for reasons
    unrelated to those already accounted for in the specific offense characteristics.
    Specifically, in its written statement of reasons about Cramer, who was not the biological
    father of the victim but had been romantically involved with the victim’s mother for
    twelve years, the court said:
    His conduct spanned years, not months. Defendant’s conduct was
    unusually cruel and depraved. Defendant was not a parent or care giver in
    name only. He enjoyed a strong emotional bond and a long history with the
    child victim, who since the age of three looked to him as the only father she
    had known, even during the course of the rapes, calling him “Daddy.”
    Although a sexual offender with parental authority enjoys the ability to
    subtly coerce, and the guidelines account for this, Defendant’s parental
    coercion exceeded the ordinary case. He deliberately used his position as a
    parent and caretaker to overcome the victim’s will. Defendant lauded his
    parental power over the victim, specifically threatening the victim with
    punishment and the withdrawal of financial support if she refused to
    comply. When she attempted to resist his advances, Defendant used force
    and violence. Defendant’s conduct was unusually cruel and depraved in
    that Defendant psychologically manipulated the victim to submit to his
    unlawful requests. Defendant induced the victim to submit to lewd
    photographs by promising to refrain from raping her. All of the
    circumstances cause the Court to conclude that the offense is unusually
    aggravated, even for an offense of this nature, and that by virtue of the
    particular facts, the victim was unusually vulnerable and thus subject to
    unusual psychological harm.
    We find no error in the Court’s conclusion (See App. 125, lines 81.14) that an
    enhancement under U.S.S.G. § 3A1.1(b)(1) was warranted.
    VI.
    10
    Based upon the foregoing, we will affirm the judgment entered in this case on
    December 23, 2005.
    11