United States v. Tillmon , 195 F.3d 640 ( 1999 )

[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ 11/10/99
THOMAS K. KAHN
No. 99-10037 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 98-00229-CR-PT-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE A. TILLMON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Alabama
_________________________
(November 10, 1999)
Before BIRCH, BARKETT and HULL, Circuit Judges
PER CURIAM:
Defendant, Willie A. Tillmon, appeals his 87-months’ sentence imposed
following his guilty plea to three counts of transporting a depiction of a minor
engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1), and
one count of soliciting a minor for a sex act, in violation of 18 U.S.C. § 2422(b).
On appeal, Defendant contends that the first three counts of transporting child
pornography involved only one victim—society in general—and that therefore the
district court erred in refusing to group them for sentencing purposes.1 After
review, we follow the majority of circuits who have decided this issue and hold
that the primary victims of these offenses were the multiple minors depicted and
that therefore the district court did not err in refusing to group. Thus, we affirm
Defendant’s sentence.
I. BACKGROUND
In June of 1998, Defendant engaged in a series of e-mail and “real time”
conversations on the Internet with a person using the screen name
“TAMIJOANN.” Defendant believed “TAMIJOANN” to be a fourteen year old
girl, however, she was actually a government informant. During these
conversations, Defendant repeatedly attempted to persuade “TAMIJOANN” to
1
The grouping of these offenses would lower Defendant’s offense level, after
adjustment for acceptance of responsibility, from 28 to 25. This would reduce his
sentencing range from 87 to 108 months to a range of 63 to 78 months’ imprisonment.
2
meet him in a motel room in order to engage in various sexual acts. In addition, on
June 30, 1998, on three separate occasions, Defendant transmitted three different
images of minors involved in sexually explicit conduct to “TAMIJOANN” via
computer. Specifically, at 6:09 a.m., Defendant sent an image entitled
“10YOSLUT.JPG” that depicts a young prepubescent female having her genitalia
penetrated by a white male adult subject. Then, at 6:10 a.m., Defendant sent an
image labeled “10YRWHOR.JPG.” This is a compilation of seven pictures, five
of which depict a prepubescent female having oral and anal sex with an adult male
subject, one depicting the same prepubescent female displaying her genitalia while
lying on top of an adult male, and one depicting two adult males and one
prepubescent male urinating on the prepubescent female. Finally, at 6:14 a.m,
Defendant sent an image entitled “12YOFFUK.JPG” which depicts a prepubescent
female having sexual intercourse with a male subject.
After Defendant’s guilty plea to all counts in the indictment, the probation
officer filed a presentence report in which she recommended that the first three
offenses not be grouped for the purposes of sentencing. After receiving that report,
Defendant filed written objections, including an objection to the Probation
Officer’s failure to group the first three charges. Defendant objected to the failure
to group solely on the ground that “[t]here are no victims under Counts One, Two
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and Three. All three counts . . . involve the transmission of visual depictions of
minors engaged in sexual activities. Contrary to what the Probation office states,
the children depicted in the photos are not ‘victims.’” At the sentencing hearing,
the court explicitly relied upon United States v. Norris, 159 F.3d 926 (5th Cir.
1998), cert. denied, 119 S. Ct. 1153 (1999), in finding that the children in the
photographs were the victims and therefore the counts should not be grouped.
Consequently, the district court overruled Defendant’s objection and sentenced him
to concurrent terms of eighty-seven months’ incarceration on each count.
Defendant appeals this sentence.
II. STANDARD OF REVIEW
In sentencing appeals, this Court reviews the district court’s findings of fact
for clear error and reviews the application of the sentencing guidelines de novo.
United States v. Bagwell, 30 F.3d 1454, 1458 (11th Cir. 1994). Further, this court
views the district court’s refusal to group multiple counts under United States
Sentencing Guidelines section 3D1.2 with due deference. United States v. Bonner,
85 F.3d 522, 525 (11th Cir. 1996).
III. DISCUSSION
A. Grouping Under the Sentencing Guidelines
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Section 3D1.1 of the Sentencing Guidelines provides that the first step in the
process of determining the sentence of a defendant convicted of more than one
count is for the court to group the counts of conviction into groups of “Closely
Related Counts” pursuant to section 3D1.2. U.S.S.G. § 3D1.1.2 Section 3D1.2, in
turn, provides that all counts “involving substantially the same harm” shall be
grouped together, and describes four situations in which counts are considered to
involve substantially the same harm.3 The Defendant relies on only the first
2
This Guidelines section provides, in relevant part, that:
(a) When a defendant has been convicted of more than one count,
the court shall:
(1) Group the counts resulting in conviction into
distinct Groups of Closely Related Counts
(“Groups”) by applying the rules specified in §
3D1.2. . . .
U.S.S.G. § 3D1.1(a) (Nov. 1997).
3
Section 3D1.2 states:
§ 3D1.2. Groups of Closely Related Counts
All counts involving substantially the same harm shall be grouped
together into a single Group. Counts involve substantially the
same harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or
transaction.
(b) When counts involve the same victim and two or more acts
or transactions connected by a common criminal objective
or constituting part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as
a specific offense characteristic in, or other adjustment to,
the guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of
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situation described in subsection (a) of section 3D1.2. Specifically, subsection (a)
of section 3D1.2 provides that counts involve substantially the same harm and
should therefore be grouped “[w]hen counts involve the same victim and the same
act or transaction.” U.S.S.G. § 3D1.2(a). In addition, the application note
corresponding to this provision explains that the victim is the person “directly and
most seriously affected by the offense” as follows:
[t]he term “victim” is not intended to include indirect or secondary
victims. Generally there will be one person who is directly and most
seriously affected by the offense and is therefore identifiable as the
victim. For offenses in which there are no identifiable victims . . . the
“victim” for the purposes of subsections (a) and (b) is the societal
interest that is harmed.
U.S.S.G. § 3D1.2, comment. (n.2).
Our task in this case, therefore, is to decide whether society was the primary victim
of Defendant’s offenses, or whether the minors depicted were the primary victims.
B. Primary Victim
Although this Court has not addressed this precise issue, the majority of
circuits that have faced the question have held that the minor depicted in child
the total amount of harm or loss, the quantity of a substance
involved, or some other measure of aggregate harm, or if
the offense behavior is ongoing or continuous in nature and
the offense guideline is written to cover such behavior. . .
.
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pornography is the primary victim of the offense for the purposes of grouping. See
United States v. Hibbler, 159 F.3d 233 (6th Cir. 1998), cert. denied, 119 S. Ct.
1278 (1999); United States v. Norris, 159 F.3d 926 (5th Cir. 1998), cert. denied,
119 S. Ct. 1153 (1999); United States v. Boos, 127 F.3d 1207 (9th Cir. 1997);
United States v. Ketcham, 80 F.3d 789 (3rd Cir. 1996); United States v. Rugh, 968
F.2d 750 (8th Cir. 1992).
Specifically, these circuit courts concluded that the legislative history of 18
U.S.C. § 2252 made clear that the primary objective of the provision was to lessen
the harm suffered by children. See Hibbler, 159 F.3d at 237 (concluding that the
legislative history of 18 U.S.C. § 2252 makes it clear that the primary victims are
the children involved); Boos, 127 F.3d at 1213 (relying upon both the Senate’s
statement in Sen. Rep. No. 95-438, 95th Cong. 2d. Sess. (1978), that “[o]f deep
concern to the committee is the effect of child pornography . . . on the children
who become involved” and the fact that the report refers to child pornography as a
form of child abuse to find that children are the primary victims); Ketcham, 80
F.3d at 793 (relying upon Senate Report 95-438 and the fact that 18 U.S.C. § 2252was enacted as part of the Protection of Children Against Sexual Exploitation Act
to find that the children depicted are the primary victims); Rugh, 968 F.2d at
755(same). We agree with this majority position. See also Osborne v. Ohio, 495
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U.S. 103 (1990) (recognizing that children exploited in pornographic materials are
the victims of child-pornography offenses); United States v. Miller, 146 F.3d 1281,
1285 (11th Cir. 1998) (stating that Congress amended 18 U.S.C. § 2252 to include
those who received and redistributed pornography without commercial motive
because “the harm to the child exists regardless of the viewer’s motivation”), cert.
denied, 119 S. Ct. 915 (1999).
In urging a contrary conclusion, Defendant relies primarily upon the
minority view expressed in United States v. Toler, 901 F.2d 399 (4th Cir. 1990).
In Toler, the defendant was convicted of one count of interstate transportation of a
depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(1) and two counts of interstate transportation of a minor with the intent
to engage in prohibited sexual conduct in violation of 18 U.S.C. § 2423. The
Fourth Circuit also relied upon the legislative history of 18 U.S.C. § 2252 but
concluded that while the primary victim of the transportation of a minor charge
was the minor herself, the primary victim of the transportation of child
pornography count was society in general. Id. at 403. Based upon the reasoning
in Toler, Defendant argues that the primary victim of his three counts was society.
As stated above, the majority of courts have expressly rejected the Toler
court’s interpretation of the legislative history of 18 U.S.C. § 2252. Specifically,
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these courts concluded that while the Fourth Circuit was correct that the Senate
Report noted the effect of child pornography on society’s “moral fabric,” the report
as a whole made clear that the primary objective of the provision was to lessen the
harm suffered by children. See Boos, 127 F.3d at 1213; Ketcham, 80 F.3d at 793;
Rugh, 968 F.2d at 755. As noted above, we agree with this reading of the
legislative history.
Defendant further contends that while the minor depicted was victimized
when the photographs were taken, the interstate transportation of the photograph
does not further harm that child. Rather, according to Defendant, such
dissemination of the photograph primarily offends society’s distaste for
pornographic materials. As a result, Defendant asserts that the minors depicted
were not “directly and most seriously affected” by his transmission of the pictures
as required by the Guidelines.
Like our sister circuits, we also reject Defendant’s argument distinguishing
between the victim of production of child pornography and the victim of the
dissemination of the images. Although an argument can be made that the
production of child pornography may be more immediately harmful to the child
involved, the dissemination of that material certainly exacerbates that harm, not
only by constituting a continuing invasion of privacy but by providing the very
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market that led to the creation of the images in the first place. See Norris, 159
F.3d at 929; Boos, 127 F.3d at 1211 n.1; Ketcham, 80 F3d at 793. Thus, the
children depicted remain the primary victims not only when the pictures are taken
or purchased, but also when they are subsequently transported or distributed from
one person to another. As stated by the Fifth Circuit in Norris, “the victimization
of the children involved does not end when the pornographer’s camera is put away
. . . ‘the pornography’s continued existence causes the child victims continuing
harm by haunting those children in future years.’” Norris, 159 F.3d at 930-931
(citing Osborne, 495 U.S. at 111).
C. Identifiable Victim
Defendant also asserts that there is no evidence from which the minors in the
pictures involved here can be identified. Consequently, he argues that there is no
“identifiable” victim as discussed in the application note to Guidelines section
3D1.2. As a result, according to Defendant, the victim should be deemed to be
society as a whole. We find this argument equally misguided. The application
note is not properly interpreted as requiring that the victim actually be named.
Rather, it is sufficient that a specific victim can be shown, whether or not the court
knows that victim’s actual identity. See Hibbler, 159 F.3d at 237. In this case, the
victims identified are the children portrayed in each of the three transmissions at
10
issue, and that victimization is not diminished by the fact that the actual names of
the minor victims are not known.
D. Number of Minors
Defendant also appears to argue that some of the minors involved in the
three transmissions charged could possibly be the same child, and therefore there
may not be three different minor victims. At sentencing, however, Defendant
objected to the failure to group solely on the ground that society was the primary
victim of all three counts.4 Accordingly, because Defendant did not object on the
4
The court specifically clarified what Defendant’s objection was by stating:
Court: Is your objection that as a matter of law that
regardless of whether they are or are not three
different victims, the Court should group
them?
Defense Counsel: That’s correct, Your Honor.
Court: That is the objection. It’s not that they are not
three different or it’s not that they are not
minors, the objection is as a matter of law that
they should be grouped.
Defense Counsel: Yes, sir.
Court: I am going to take the position that I find this
Fifth Circuit case of U.S. v. Norris to be
persuasive on the issue, and I am going to
overrule that objection.
Any other objection?
Defense Counsel: If you find that – I guess what you are saying is you
find that the children in each photograph are victims
and so the counts should not be grouped?
Court: Right. Separate victims.
Defense Counsel: Yes, sir. No other objections, Your Honor.
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ground that the minors were not three different individuals, we will review the
question only if failure to do so would result in manifest injustice. See United
States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993) (en banc); United
States v. Williams, 144 F.3d 1397 (11th Cir. 1998). This Court equates manifest
injustice with review for plain error. United States v. Newsome, 998 F.2d 1571,
1579 (11th Cir. 1993).
Paragraph fifty of the presentence report expressly states that the “minor
victim depicted is different in each count.” At sentencing, the district court
specifically stated that it adopted the factual statements contained in the pre-
sentence report. Defendant filed no written objection to that paragraph. At
sentencing, Defendant’s counsel initially conceded that the minors depicted were
different individuals. After further thought, however, Defendant’s counsel later
stated that “I’m not sure that we can concede that they are three different
individuals because we don’t know when these photographs were taken. . . . These
could have been taken at different times during the same child’s–.”
Despite this statement at sentencing, Defendant has not presented any
evidence to contest the district court’s finding that the minor victims in each count
were different. Thus, Defendant has not shown that a failure to review this point
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will result in a manifest injustice and we can not say that the district court plainly
erred refusing to group the three counts based upon a finding of multiple victims.
III. CONCLUSION
For the purpose of sentencing pursuant to Sentencing Guidelines section
3D1.2 for violations of 18 U.S.C. § 2252, we find that the primary identifiable
victim of the transportation of child pornography is the minor depicted in the
image. In addition, the district court did not plainly err in finding that the first
three counts involved different individuals. Accordingly, the district court did not
err in declining to group Defendant’s three counts of transportation of child
pornography for the purposes of sentencing.
AFFIRMED.
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