United States v. Guilford Watson, III , 179 F. App'x 663 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 8, 2006
No. 05-13555 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00345-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILFORD WATSON, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 8, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Guilford Watson, III appeals his 262-month sentence for interstate
enticement of a minor to engage in illegal sexual activity and distribution of child
pornography, in violation of 18 U.S.C. §§ 2422(b) and 2252A(a)(2)(A). On
appeal, Watson argues that the five-level enhancement for 600 or more images of
material involving the sexual exploitation of children was improperly applied
because the government failed to prove that 600 or more of the images were of
actual children. He asserts that he does not know whether the images are real or
computer-generated. Watson contends that mere submission of the images to and
review of the images by the district court does not satisfy the government’s burden
of proving that the images depicted actual children.
“Post-Booker,1 we continue to review the district court’s application of the
Guidelines just as we did pre-Booker: The district court’s interpretation of the
sentencing guidelines is subject to de novo review on appeal, while its factual
findings must be accepted unless clearly erroneous.” United States v. Ellis, 419
F.3d 1189, 1192 (11th Cir. 2005) (quotation marks omitted). “When a defendant
objects to a factual finding that is used in calculating his guideline sentence, such
as drug amount, the government bears the burden of establishing the disputed fact
by a preponderance of the evidence.” United States v. Rodriguez, 398 F.3d 1291,
1296 (11th Cir.), cert. denied, (U.S. June 20, 2005) (No. 04-1148).
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
2
The sentencing guidelines prescribe a five-level enhancement for trafficking
or possessing with intent to traffic 600 or more images involving the sexual
exploitation of a minor. U.S.S.G. § 2G2.2(b)(6)(D) (2003). The Supreme Court
has established that in order to prosecute someone criminally for the possession of
child pornography, the government must prove that the images at issue are actual
children. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255-56, 122 S.Ct.
1389, 1404-05, 152 L.Ed.2d 403 (2002). Courts addressing the issue have held
that Ashcroft does not require the government to prove by expert testimony that the
prohibited images are of real, not virtual, children. See United States v. Irving, 432
F.3d 401, 411-13 (2d Cir. 2005) (citing cases). In the context of reviewing a
challenge to jury instructions, we have stated post-Ashcroft that visual inspection
of images of child pornography was sufficient to determine whether the children
depicted were real. See United States v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002)
(holding that no reasonable jury could have found that the images were virtual
children created by computer technology as opposed to actual children); United
States v. Richardson, 304 F.3d 1061, 1064 (11th Cir. 2002) (same).
The district court did not clearly err by determining that the images used to
enhance Watson’s sentence depicted real children. As an initial matter, the
government’s submission of the images to the district court for visual inspection
3
alone was sufficient to meet its burden of establishing by a preponderance of the
evidence that the images depicted real children. The district court visually
inspected the images as well as heard testimony that the 595 still images had been
compared one-by-one to a database of known real children and found to depict real
children. Testimony also indicated that the videos appeared to depict real children,
and visual inspection of the videos reveals that they depict real children.
Additionally, Watson does not demonstrate in his brief how the district court
clearly erred in its determination. Therefore, the district court did not clearly err by
determining that at least 600 of the images depicted real children.
To the extent Watson asserts that some of the images used to enhance his
sentence were “legal erotica” rather than “child pornography,” we do not address
his argument. Watson failed to properly raise the argument in his initial brief and,
thus, has waived it. See United States v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th
Cir.) (“an issue not raised in a party’s initial appellate brief is considered waived,
and the party is prohibited from raising the issue later in the appeal.”), cert. denied,
(U.S. Nov. 28, 2005) (No. 05-7149).
AFFIRMED.2
2
Watson’s motion to extension to file reply brief is granted; his request for oral
argument is denied.
4