United States v. Tucker , 136 F.3d 763 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-2767
Non-Argument Calendar
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D.C. Docket No. 5:96-cr-35 LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY RAY TUCKER, JR.,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Florida
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(March 5, 1998)
Before RONEY, KRAVITCH and CLARK, Senior Circuit Judges.
PER CURIAM:
Bobby Ray Tucker appeals his sentence for transporting or shipping in
interstate commerce material depicting minors engaged in sexually explicit conduct
in violation of 18 U.S.C. § 2252(a)(1).
On appeal, Tucker contends that his sentence should be vacated and his
case remanded for resentencing because the district court improperly assessed him a
four-level enhancement under U.S.S.G. § 2G2.2(b)(3) for intending to possess
material involving the sexual exploitation of a minor depicting minors involved in
sadistic, masochistic, or other violent acts.
A sentencing court's findings of fact are reviewed for clear error. United
States v. Young, 115 F.3d 834, 836 (11th Cir. 1997)., cert. denied, 118 S.Ct. 727(1998). This Court reviews the application of the sentencing guidelines to the facts
de novo. United States v. Williams, 51 F.3d 1004, 1011 (11th Cir.), cert. denied, 116
S.Ct. 258 (1995).
Upon review of the parties' briefs, sentencing transcript, PSI, and other
relevant portions of the record, and consideration of the arguments of the parties, we
find no reversible error.
Although this court has not specifically addressed enhancement under
U.S.S.G. § 2G2.2(b)(3), it has held that an enhancement under U.S.S.G. § 2G2(b)(1)
for possession of material involving a minor who is prepubescent or under the age of
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material. United States v. Cole, 61 F.3d 24, 24 (11th Cir. 1995, quoting United States
v. Saylor, 959 F.2d 198, 200 (11th Cir. 1992).
The Fifth Circuit has found that enhancement under § 2G2(b)(3) has an
intent requirement. In United States v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995),
cert. denied, U.S. , 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996), the court found that
pictures of a minor female in bondage downloaded onto the defendant's computer
were sufficient evidence to conclude that the defendant had intentionally ordered and
possessed pornography that depicted sadistic or masochistic conduct. In United States
v. Canada, 110 F.3d 260, 264 (5th Cir. 1997), cert. denied, U.S. , 118 S.Ct. 195,
L.Ed.2d. (1997), the court found an enhancement under § 2G2(b)(1) was supported
by evidence of sadistic material and active trading in child pornography was found on
the hard drive of the defendant's computer.
We adopt the reasoning of the Fifth Circuit and find that intent is a
necessary requirement of a § 2G2(b)(1) enhancement, and find that there was
sufficient evidence that Tucker intended to possess material depicting minors involved
in sadistic, masochistic, or other violent acts. Tucker concedes that pictures of minors
in bondage were located on the hard drive of his computer. The government
introduced Internet conversations taken from Tucker's computer which showed that
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while he was looking for pictures he stated that he was into "young action" and would
"like to start trading . . ." and introduced a listing of Internet conversations
documenting Tucker's trading of such images.
We conclude that the district court properly assessed Tucker a four-level
enhancement for intending to possess material depicting minors involved in sadistic,
masochistic, or other violent acts.
AFFIRMED.
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