United States v. Terry McVey , 752 F.3d 606 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY DAVID MCVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Robert C. Chambers,
Chief District Judge. (6:12-cr-00179-1)
Argued: January 30, 2014 Decided: April 23, 2014
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Jennifer
Lynn Rada, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger,
Federal Public Defender, George H. Lancaster, Jr., Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
NIEMEYER, Circuit Judge:
Terry David McVey pleaded guilty to knowingly possessing
300 to 600 images of child pornography, including images and
videos of prepubescent minors, in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2252A(b)(2). After applying several
enhancements, including a two-level enhancement under U.S.S.G. §
2G2.2(b)(3)(F) for distribution of child pornography, and
crediting McVey for acceptance of responsibility and cooperation
with authorities, the district court entered a downward variance
sentence of 78 months’ imprisonment. McVey now challenges his
distribution enhancement, arguing that his only documented
instance of distribution “occurred more than two years prior to
his offense of conviction” and thus was not relevant conduct
under U.S.S.G. § 1B1.3.
We reject McVey’s challenge, concluding that the district
court did not clearly err in applying the enhancement, and
affirm his sentence.
I
On December 12, 2010, McVey sent an email to an individual
he believed to be the stepfather of three girls, ages 8, 11, and
14. The email recipient was actually an undercover police
officer assigned to the Internet Crimes Against Children Task
Force in Birmingham, Alabama. McVey and the undercover officer
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communicated for several months about sexual acts that McVey
wanted to perform with the daughters. At one point, the officer
told McVey that the price for sexual intercourse with the two
older daughters was $150 per hour per girl with a minimum two-
hour charge, and McVey stated that he thought that price would
be well worth it.
On February 4, 2011, McVey asked the undercover officer if
he had videos of the three girls and, if so, how McVey could
obtain them. The officer offered to sell McVey a DVD for $10.
On May 31, 2011, the officer received (in his undercover post
office box) an envelope containing a $10 bill with a return
address for McVey’s residence in Parkersburg, West Virginia.
The officer prepared a DVD containing child pornography and
mailed it to McVey at the address he gave. The DVD was
delivered on July 28, 2011, and, later that day, police obtained
and executed a federal search warrant for McVey’s residence,
seizing McVey’s computer and several CDs. Soon afterward, McVey
returned home and agreed to be interviewed. McVey admitted to
purchasing the pornographic DVD from the undercover officer,
explaining that he had been interested in having sex with the
purported eight-year-old daughter, but that he could not afford
the $1,000 fee.
McVey also admitted that he had possessed and distributed
child pornography over the course of the previous ten years and
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that, during that time, he had uploaded child pornography to
various Yahoo! Groups on “at least six occasions.”
The CDs seized from McVey’s residence contained
approximately fourteen image files and two video files, and the
computer contained approximately seventeen image files and four
videos. The images and videos included known child victims and
prepubescent minors.
During the course of the investigation, detectives also
learned of a “CyberTipline Report” from the National Center for
Missing and Exploited Children, which indicated that McVey had
previously uploaded a video to a child pornography website. The
upload took place on December 31, 2008. A detective viewed the
video and confirmed that it contained child pornography. That
video, however, did not appear on the hard drive of McVey’s
computer. Although McVey did not specifically remember
uploading the video, he explained that his hard drive had
crashed in September 2010 and that he had lost all of its
contents.
McVey was subsequently indicted on one count of knowingly
possessing images and videos of child pornography on July 28,
2011, that had been shipped and transported in and affected
interstate commerce, in violation of 18 U.S.C. §§ 2252A(a)(5)(B)
and 2252A(b)(2). McVey pleaded guilty to the charge under a
plea agreement, in which he accepted sentencing enhancements for
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using a computer (U.S.S.G. § 2G2.2(b)(6)); for possessing images
depicting prepubescent minors (U.S.S.G. § 2G2.2(b)(2)); and for
possessing 300 to 600 images (U.S.S.G. § 2G2.2(b)(7)(C)). The
agreement indicated a final offense level of 26 but noted that
the sentencing court would not be bound by its terms.
In the presentence investigation report, the probation
officer recommended applying the enhancements accepted by McVey
in the plea agreement, as well as two additional enhancements --
one for possessing images portraying sadistic or masochistic
conduct (U.S.S.G. § 2G2.2(b)(4)) and one for distribution of
child pornography (U.S.S.G. § 2G2.2(b)(3)(F)). The probation
officer also recommended reductions for acceptance of
responsibility and cooperation with authorities.
At the sentencing hearing, McVey contested the enhancement
for distribution of child pornography under U.S.S.G. §
2G2.2(b)(3)(F), arguing that his distribution activities were
too remote in time and did not amount to “relevant conduct” to
his possession offense. He argued that the only documented
instance of his distribution was on December 31, 2008, which was
23 months before McVey first contacted the undercover police
officer and over two years before the offense of conviction for
possession. The government, however, noted that McVey had also
admitted to uploading child pornography on at least six
different occasions.
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The district court overruled McVey’s objection. While the
court acknowledged that there had been “a significant passage of
time” between the documented December 2008 distribution activity
and the July 2011 offense of conviction for possession, it
nonetheless saw the distribution and the possession as “the same
crime, the same sort of activity, the same sort of conduct
continuing over the entire period.” Ultimately, the court
applied five enhancements -- the three that McVey had accepted
in his plea agreement and the two additional ones recommended by
the probation officer. It also credited McVey with acceptance
of responsibility and cooperation with authorities, thus
reaching an overall offense level of 29. Together with McVey’s
criminal history category of I, the resulting recommended
Guidelines sentencing range was 87 to 108 months’ imprisonment.
For various reasons not related to this appeal, the court
entered a downward variance sentence of 78 months’ imprisonment,
followed by 15 years of supervised release.
McVey noticed this appeal, challenging only the two-level
enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for the distribution
of child pornography.
II
As an initial matter, McVey contends that we should review
the district court’s application of the distribution enhancement
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de novo. The government responds that the court’s ruling that
the prior distribution activity was relevant conduct was a
factual finding that we review for clear error.
The resolution of the parties’ difference on the standard
of review depends on whether the issue “turns primarily on a
factual determination,” in which case we should review the
district court’s findings for clear error or whether it “turns
primarily on the legal interpretation of a guideline term,” in
which case our review “moves closer to de novo review.” United
States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (quoting
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989)).
Consequently, we must focus more closely on the nature of the
district court’s decision.
Sentencing under the Sentencing Guidelines involves
consideration of the actual conduct in which a defendant
engaged, “regardless of the charges for which he was indicted or
convicted.” U.S.S.G. § 1A1.4(a); see also id. § 1B1.3(a).
Thus, despite the limited scope of conduct for which the
defendant was convicted, he may nonetheless be sentenced more
broadly for relevant conduct -- i.e., the conduct of other
offenses insofar as they were “part of the same course of
conduct . . . as the offense of conviction.” Id. § 1B1.3(a)(2).
The Application Notes to § 1B1.3 instruct that the “[f]actors
that are appropriate to the determination of whether offenses
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are sufficiently connected or related to each other to be
considered as part of the same course of conduct include the
degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the
offenses.” Id. § 1B1.3 cmt. n.9(B) (emphasis added); see also
United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir. 1992)
(identifying “similarity, regularity, and temporal proximity” as
the “significant elements” in the course-of-conduct inquiry).
“When one of the above factors is absent, a stronger presence of
at least one of the other factors is required.” U.S.S.G. §
1B1.3 cmt. n.9(B); see also Mullins, 971 F.2d at 1144.
When a district court interprets the meaning and legal
components of the term “relevant conduct,” it makes a legal
determination that we review de novo. See, e.g., United States
v. Fullilove, 388 F.3d 104, 106 (4th Cir. 2004). But the
application of the relevant conduct standard typically involves
consideration of factual circumstances, such as whether acts or
omissions are sufficiently similar; whether they are
sufficiently regular; whether they are sufficiently close in
time; and whether, when one factor is particularly weak or even
lacking, another factor compensates to satisfy the factual
requirements of relevant conduct. Such analysis constitutes
factfinding that we review for clear error.
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In this case, McVey does not contend that the district
court applied the incorrect legal rule. Rather, his challenge
centers on the factual analysis the district court conducted in
applying the relevant conduct Guideline. The court’s
application of U.S.S.G. § 1B1.3 depended on an evaluation and
weighing of the factual details, even though the details
themselves may have been undisputed. As such, we review the
court’s decision for clear error.
This conclusion is consistent with our decision in United
States v. Pauley, 289 F.3d 254 (4th Cir. 2002), as well as the
decisions of other courts. In Pauley, the district court found
that a series of four thefts were sufficiently connected to
constitute relevant conduct for purposes of a sentencing
enhancement, and we reviewed the court’s decision for clear
error because the inquiry was primarily factual, turning on the
purpose, timing, and modus operandi of the thefts, and the
weight that should be attached to those facts in the relevant
conduct analysis. See id. at 259-60; see also United States v.
Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (“We review an
application of [the relevant conduct] test . . . for clear
error”). Other courts have reached similar conclusions. See
United States v. Pica, 692 F.3d 79, 88 (2d Cir. 2012) (“Findings
of relevant conduct are reviewed for clear error”); United
States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011) (“We
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review a district court’s relevant-conduct determination for
clear error, remembering that such a determination is fact-
intensive and ‘well within the district court’s sentencing
expertise and greater familiarity with the factual record’”
(quoting United States v. Stone, 325 F.3d 1030, 1031 (8th Cir.
2003))); United States v. West, 643 F.3d 102, 105 (3d Cir. 2011)
(“We also review for clear error the District Court’s
determination of what constitutes ‘relevant conduct’ for the
purposes of sentencing”); United States v. Salem, 597 F.3d 877,
884 (7th Cir. 2010) (“[W]e review the district court’s relevant
conduct determinations for clear error”); United States v. Mann,
493 F.3d 484, 497 (5th Cir. 2007) (“A district court’s
determination of what constitutes relevant conduct is reviewed
for clear error”). But see United States v. Smith, 705 F.3d
1268, 1274 (10th Cir. 2013) (“We review the factual findings
supporting this determination for clear error, but review the
ultimate determination of relevant conduct de novo”); United
States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004)
(“Although findings as to the amount of loss from a money
laundering offense are reviewed for clear error, whether the
district court misapplied U.S.S.G. § 1B1.3 is a purely legal
question that we review de novo”).
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III
On the merits, McVey contends that the district court
erred -- or, necessarily, that the court clearly erred -- by
applying the enhancement for distribution of child pornography.
He argues that his “uploading of child pornography years before
his offense of conviction is not relevant conduct for that
offense,” reasoning that “[t]hat prior conduct is temporally
distant, was not engaged in with any regularity, and is not
sufficiently similar to the offense of conviction.”
The government argues in response that the “substantial
similarity between the distribution and the possession” and the
“number of times [McVey] engaged in distribution” support the
district court’s finding that McVey’s “prior distribution was
relevant conduct for purposes of determining his advisory
Guideline range.” Alternatively, the government argues that any
error on the part of the district court was harmless.
McVey pleaded guilty to possession of child pornography
under 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), and the base
offense level for his sentence was therefore governed by
U.S.S.G. § 2G2.2(a)(1). Because the base offense level was
subject to an enhancement for distribution, as stated in §
2G2.2(b)(3)(F), we must determine whether the district court
clearly erred in finding that McVey’s distribution conduct was
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part of the same “course of conduct . . . as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2).
The concept of “same course of conduct” does not require
that acts be connected together by common participants or by a
singular overall scheme. Rather, it requires only “that the
defendant [be] engaged in an identifiable pattern of certain
criminal activity.” Hodge, 354 F.3d at 312. To determine if
McVey’s distribution activities were sufficiently connected or
related to his possession offense to be part of the same course
of conduct, we evaluate, as noted above, the similarity of the
offenses, their regularity, and the time interval between them.
See U.S.S.G. § 1B1.3 cmt. n.9(B); Mullins, 971 F.2d at 1144.
And when one of those factors is absent, a stronger presence of
another must exist. Id.
Focusing on his December 31, 2008 upload of child
pornography, McVey argues that his prior distribution conduct
“did not occur close in time with his offense” -- i.e., his July
28, 2011 possession of child pornography. Taking that
proposition alone, we acknowledge that the roughly two-and-one-
half-year interval between the two offenses does exceed the six-
month interval that we found too long in Mullins. See 971 F.2d
at 1144. And indeed, the district court acknowledged that the
gap between those offenses was “significant.” But the court had
other evidence to support its conclusion that McVey’s
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distribution of child pornography was part of the same course of
conduct as his July 2011 possession of child pornography.
First, McVey admitted on the day of his arrest that he had
possessed and distributed child pornography during the last ten
years. This admission alone strongly suggests a single course
of conduct. McVey further admitted to distributing child
pornography to various Yahoo! Groups on at least six occasions,
and the CyberTipline Report documents him uploading child
pornography to yet a different website on an additional
occasion. Moreover, during conversations from late 2010 to
early 2011, McVey actively solicited images of prepubescent
children with whom he wished to have sex, constituting a further
extension of his course of conduct. Relying on all of these
facts, the district court found that McVey’s distribution and
possession of child pornography were closely related. Indeed,
the court found that they were “the same crime, the same sort of
activity, the same sort of conduct continuing over the entire
period.” We conclude that the court’s factual finding was
supported by the record and therefore was not clearly erroneous.
Bolstering the district court’s factual conclusion, we note
that, as a matter of logic, possession and distribution of child
pornography are tightly connected. Possession is a necessary
prerequisite for distribution, which means that every time McVey
uploaded pornographic material, he also possessed that
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pornographic material. This perfect overlap suggests a
substantial similarity between McVey’s distribution activities
and his possession of child pornography. Moreover, the Third
Circuit has observed that possession and distribution of child
pornography share many characteristics, as the activities have a
“commonality of purpose in the [defendant’s] prurient
interest[s].” United States v. Sullivan, 414 F. App’x 477, 480
(3d Cir. 2011). They also share a common offender (McVey) and a
common modus operandi (use of a computer), reinforcing the
conclusion that possession and distribution are highly similar.
See United States v Cote, 482 F. App’x 373, 375 (11th Cir. 2011)
(per curiam) (“Here, Cote’s possession of over 2,700 images of
child pornography on his computer and his sharing of almost 700
of these images . . . using the same peer-to-peer file sharing
program are relevant conduct . . . . These acts are similar in
degree to the charged offense and are substantially connected to
the charged offense given that one must first possess child
pornography before one can transport it”); Sullivan, 414 F.
App’x at 480-81 (finding that possession of pornographic images
was related to the offense of distribution of such images in
part because of the similarity of the two activities); United
States v. Gerow, 349 F. App’x 625, 627 (2d Cir. 2009) (per
curiam) (“[T]here was sufficient evidence from which the
District Court could conclude that defendant’s possession of
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child pornography was part of a common scheme or plan, or part
of the same course of conduct, as his distribution of the
same”). McVey’s admission that he had possessed and distributed
child pornography for the previous 10 years appears to confirm
these courts’ conclusions.
McVey nonetheless relies on United States v. Sykes, 7 F.3d
1331 (7th Cir. 1993), to argue that his distribution was not
sufficiently regular to support a finding that it was connected
to his ongoing possession. In Sykes, the court held that a
defendant who had committed credit card fraud four times over
the course of three years had not acted with regularity. Id. at
1337. But the circumstances in Sykes were substantially
different from those presented in this case. The Sykes court
concluded that the credit card fraud consisted of four distinct
offenses that did not occur at any fixed or certain intervals or
in accordance with any consistent or periodical rule or practice
and therefore were not connected. In this case, however, all of
McVey’s distribution activities were connected by his ongoing
possession of child pornography.
In sum, where an individual continually possesses child
pornography over a period of ten years and admits that he
distributed that pornography over the same period, it is
reasonable for a district court to conclude that seven specific
distributions during that period are closely connected with the
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ongoing offense of possession. Accordingly, we conclude that
the district court in this case did not clearly err in finding
that McVey’s distribution activity was part of the same course
of conduct as his offense of conviction.
The judgment of the district court is
AFFIRMED.
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