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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15038
Non-Argument Calendar
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D.C. Docket No. 3:17-cr-00029-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY RAY MURPHY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 20, 2018)
Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Danny Murphy appeals his 480-month sentence imposed after being
convicted of conspiring to receive and possess child pornography in violation of 18
U.S.C. § 2252A(b)(1) and (b)(2) and receiving child pornography in violation of
18 U.S.C. § 2252A(a)(2) and (b)(1). Murphy challenges the district court’s
decision to apply U.S.S.G. § 2G2.2(c)(1)’s cross reference to U.S.S.G. § 2G2.1 in
his sentencing because he asserts he did not produce or cause the production of
child pornography. He also contends his sentence is substantively unreasonable
because of his lack of criminal history, his rough childhood, his history of public
service, and because his offenses were an aberration. After review, we affirm
Murphy’s sentence.
I. DISCUSSION
A. U.S.S.G. § 2G2.2(c)(1)
The Sentencing Guidelines ranges for child pornography offenses in
violation of 18 U.S.C. § 2252A are calculated under § 2G2.2. U.S.S.G. § 2G2.2 &
App. A. Section 2G2.2(c)(1) provides that when an offense “involved causing . . .
permitting . . . or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct
. . . apply § 2G2.1,” if § 2G2.1 will result in a higher offense level than under
§ 2G2.2. U.S.S.G. § 2G2.2(c)(1). This cross reference “is to be construed broadly
and includes all instances where the offense involved employing, using . . .
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permitting . . . or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing any visual depiction of such
conduct.” U.S.S.G. § 2G2.2, comment. (n.7). The government must prove factors
triggering § 2G2.2’s cross reference to § 2G2.1 by a preponderance of the
evidence. United States v. Whitesell,
314 F.3d 1251, 1255 (11th Cir. 2015).
We have concluded that “causing” in § 2G2.2(c)(1) means “producing an
effect, result, or consequence or being responsible for an action or result.”
Id.
(quotations and alterations omitted). We have not defined “seeking by notice or
advertisement” under § 2G2.2(c)(1). The Seventh Circuit concluded requesting
live performance child pornography videos from others on an internet chat room
could be expected to induce them to make such videos, and that conduct met the
definition of seeking, by notice or advertisement. United States v. Nicoson,
793
F.3d 761, 763-64 (7th Cir. 2015). Likewise, the Tenth Circuit held the cross
reference applies to “the active solicitation” of child pornography, and concluded
that asking someone to take pictures of children engaged in sexual acts was
seeking, by notice or advertisement under § 2G2.2(c)(1). United States v. Garcia,
411 F.3d 1173, 1179 (10th Cir. 2005).
The district court did not err in applying the cross reference in U.S.S.G.
§ 2G2.2(c)(1) because the facts support that Murphy actively sought the production
of child pornography. See
Whitesell, 314 F.3d at 1254 (reviewing de novo a
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district court’s interpretation and application of the Sentencing Guidelines and
reviewing findings of fact for clear error). In applying the cross reference, the
district court made the following findings:
[W]e have an ongoing conspiracy relationship between Mr.
McConnell and Mr. Murphy over the course of several months in
which there is not only active ongoing abuse, raping of this young
child, but also requests for images from Mr. McConnell.
And the key for my decision—to my decision is that Mr. Murphy was
well aware, based on his communications and the context of the
conspiracy that he’s been found guilty of, based on his
communications with Mr. McConnell, he knew the abuse was
ongoing and he continued to request photographs—or images, videos
or images, of the child and the abuse of the child, and so I think that
does trigger the cross reference in this case. Because I do believe that
the Sentencing Commission intended to punish more harshly someone
engaged in a conspiracy to receive child pornography who actively
solicits for images produced of that ongoing—from that ongoing
abuse. So, I’m going to apply it.
These findings support the imposition of the cross reference. Murphy’s requests of
additional pictures and video of McConnell sexually assaulting and raping his
three-year old son were “seeking by notice or advertisement, a minor to engage in
sexually explicit conduct for the purpose of producing a visual depiction of such
conduct.” See
Nicoson, 793 F.3d at 763-64,
Garcia, 411 F.3d at 1179.
Furthermore, Murphy’s requests for additional pictures over a period of three
months were soliciting McConnell to take more pornographic pictures of his son to
send to Murphy. Because Murphy was soliciting pornographic images from
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McConnell of the ongoing sexual abuse of his son, we affirm the application of the
cross reference.
B. Reasonableness
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Irey,
612 F.3d 1160, 1188-89 (11th Cir. 2010) (en
banc). When considering the substantive reasonableness of a sentence, we look to
the totality of the circumstances and the § 3553(a) factors. United States v.
Johnson,
803 F.3d 610, 618 (11th Cir. 2015). We will vacate a sentence only if
“we are left with the definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts of the case.”
Irey, 612 F.3d at 1190 (quotations omitted).
Murphy’s Guidelines range sentence was life imprisonment, but because the
statutory maximums for Murphy’s offenses were less than the Guidelines sentence,
the court sentenced Murphy to consecutive statutory maximums of 240 months for
Count 1 and 240 months for Count 2 for a total of 480 months’ imprisonment.
This 480-month sentence is substantively reasonable under the § 3553(a) factors.
Although Murphy had no criminal history, a rough childhood, and years of public
service, he actively encouraged the rape of a three-year old by his father by
requesting pictures and videos. In addition, Murphy stated that he wished he could
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also rape the victim. These actions were not an aberration as Murphy claims
because they took place repeatedly over a period of three months. Murphy’s
sentence reflects the seriousness of his offenses, provides just punishment for
them, affords adequate deterrence and protects the public against future similar
offenses, and promotes respect for the law. See 18 U.S.C. § 3553(a)(1)–(2).
II. CONCLUSION
The district court did not err in applying the cross reference and Murphy’s
sentence is substantively reasonable. Accordingly, we affirm.
AFFIRMED.
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