United States v. Dotson ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4208
ROBERT MORRIS DOTSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-249)
Argued: February 25, 2003
Decided: March 28, 2003
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Luttig and Judge King joined.
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Clifton Thomas
Barrett, Assistant United States Attorney/Chief, Criminal Division,
Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina, for
Appellee.
2 UNITED STATES v. DOTSON
OPINION
TRAXLER, Circuit Judge:
Robert Morris Dotson, Jr., pled guilty to attempting to receive in
commerce a child pornography videotape, in violation of 18 U.S.C.A.
§ 2252A(a)(2)(B) and (b)(1) (West 2000). He now appeals the district
court’s application of the United States Sentencing Guidelines
("U.S.S.G."). In particular, he disputes a two-level increase under
U.S.S.G. § 2G2.2(b)(5) (2000) for the use of a computer in connec-
tion with the offense. He also appeals the imposition of potential
polygraph and penile plethysmograph testing for treatment during his
supervised release. For the reasons set forth below, we affirm.
I.
On November 30, 2000, a postal inspector in Ohio, posing as a por-
nography peddler, posted an advertisement on a predisposed Internet
newsgroup, soliciting individuals to buy videotapes depicting child
pornography. The next day, the inspector received an e-mail message
from Dotson requesting more information about this offer. On
December 21, 2000, Dotson sent an Internet message letting the
inspector know he was preparing to order tapes. Two days later, Dot-
son again used the Internet to contact the inspector. He ordered two
"custom" videotapes of girls between 9 and 12 years old, for which
he provided graphic details of his preferences. On January 16, 2001,
the Ohio postal inspector delivered to the postal inspector in North
Carolina a package of the pornographic materials ordered by Dotson,
plus Dotson’s money order for the purchase, as well as assorted gifts
Dotson had sent for the young participants in the video. The con-
trolled package was delivered on February 22, 2001, and agents
apprehended Dotson who later pled guilty to violations of 18
U.S.C.A. § 2252A(a)(2)(B) and (b)(1).
After the guilty plea, the probation officer prepared a presentence
report ("PSR"). At the sentencing hearing, there remained an unre-
solved objection to the PSR’s recommended two-level increase under
U.S.S.G. § 2G2.2(b)(5) for the use of a computer for the notice or
advertisement of the pornographic material. Dotson also objected to
a special condition of his supervised release, requiring his participa-
UNITED STATES v. DOTSON 3
tion "in an evaluation and a mental health program with emphasis on
sex offender treatment at the discretion of the probation officer." J.A.
53. The district court stated that such "[t]reatment may include physi-
ological testing such as the polygraph and penile plethysmograph,
[and] the use of prescribed medications. The results of any polygraph
or penile plethysmograph testing shall not be made public." Id. Dot-
son specifically objected to the potential use of these two types of
testing as part of his treatment program. The district court rejected
Dotson’s objection as to the guideline enhancement and the potential
use of the physiological tests during his supervised release. The court
also imposed another special condition on Dotson’s release, ordering
him not to form a romantic interest or sexual relationship with anyone
having custody of a child under age eighteen. Dotson now appeals the
increase in his sentence under U.S.S.G. § 2G2.2(b)(5) and the physio-
logical tests with which he may be confronted upon his release.*
II.
Legal determinations concerning a guideline application are subject
to de novo review. United States v. Blake, 81 F.3d 498, 503 (4th Cir.
1996). Special conditions of supervised release are reviewed for abuse
of discretion. United States v. Crandon, 173 F.3d 122, 127 (3d Cir.),
cert. denied, 528 U.S. 855 (1999).
A.
The first question is whether the court properly applied the Sen-
tencing Guidelines in finding that Dotson’s receipt of a notice or
advertisement for child pornography qualified for the two-point
enhancement under U.S.S.G. § 2G2.2(b)(5). Section 2G2.2(b)(5)
states that "[i]f a computer was used for the transmission of the mate-
rial or a notice or advertisement of the material, increase by 2 levels."
There is no dispute that a computer was used to transmit notice and
advertisement of the material from the inspector to Dotson, and that
Dotson replied to the advertisement and made arrangements for the
purchase and receipt of the materials advertised by way of computer.
*Dotson’s appeal initially included an objection to the court-imposed
limitations on his ability to form romantic attachments, but because of a
change in circumstances he withdrew this objection at oral argument.
4 UNITED STATES v. DOTSON
Dotson argues that the enhancement should not apply, however,
because it should be read as offender, rather than offense, specific.
That is to say, he contends that it should only apply if he sent out the
notice or advertisement. However, the plain language of the guideline
reads otherwise. Had the Sentencing Commission intended to limit
the scope of the enhancement to defendants who forwarded notices or
advertisements, it could have easily done so by referring to the defen-
dant in the text of the guideline. For example, U.S.S.G. § 2G2.2(b)(4),
which immediately preceeds the provision at issue, inserts the word
"defendant" into the text to describe patterns of activity involving
abuse or exploitation of a minor that merit a five-level increase. By
contrast, U.S.S.G. § 2G2.2(b)(5) makes no mention of the defendant,
but focuses on the mechanism involved in the offense — the com-
puter itself — as a ground for a two-level increase. In wording the
guideline as it did, the Commission addressed not only the solicitor,
but also the recipient of such solicitation — here, Dotson interacting
with a predisposed Internet news group — who purposely avails him-
self of a discreet way to access illicit material. The guideline also cap-
tures those who first obtain notice of the material by way of
computer, but later adopt other methods (e.g., via telephone or mail)
for consummating their illegal transactions.
In a similar case, where a defendant downloaded child pornography
onto his computer in response to an advertisement, the Seventh Cir-
cuit Court of Appeals determined that the U.S.S.G. § 2G2.2(b)(5)
enhancement was applicable even though the defendant had not him-
self sent out notice or advertisement of the offending material. See
United States v. Richardson, 238 F.3d 837, 841-42 (7th Cir.), cert.
denied, 532 U.S. 1057 (2001). There, the court found that the phrase
"computer . . . used for the transmission" did not mean "computer . . .
used by the defendant for transmission." Id. at 841 (internal quotation
marks omitted). Rather, the court explained, the
[u]se of the Internet enhances the dangers that child pornog-
raphy poses, because it is a more discreet and efficient
method of distribution; but if this makes the sender more
dangerous, it likewise makes the receiver more dangerous.
A market has two sides, supply and demand; without both,
the market collapses. The senders of child pornography sup-
ply it; the demanders receive it. The guideline is acknowl-
UNITED STATES v. DOTSON 5
edged to treat both sides of the market symmetrically when
any method of transmission other than the Internet is used;
it would make no sense to treat them differently when the
more ominous method is used.
Id. at 842. This rationale rings just as true in the present case. Dotson
used his computer to access a predisposed Internet news group, where
he found the advertisement and initiated a course of correspondence
that culminated in his decision to place a special order for a custom-
ized pornographic video involving two young girls engaged in a vari-
ety of illegal sexual acts that Dotson specifically requested that they
be made to undertake. As the Richardson court acknowledged, the
very nature of the Internet provides an "ominous method" for anony-
mous predatory criminal conduct. Id. Under the guideline, those who
seek out and respond to notice and advertisement of such materials
are as culpable as those who initially send out the notice and adver-
tisement. Thus, we conclude that the district court acted appropriately
in applying section 2G2.2(b)(5) to increase the punishment for Dot-
son’s crime.
Dotson also argues that the Sentencing Commission exceeded its
authority in implementing the enhancement under U.S.S.G.
§ 2G2.2(b)(5), Congress having directed that only two statutes, nei-
ther of which is involved in this case, result in a two-level enhance-
ment for the use of a computer. However, the government notes that
the offense of conviction, 18 U.S.C.A. § 2252A, could not have
formed part of the legislative history behind the enhancement because
it had yet to be enacted when the enhancement was devised. More-
over, Congress has afforded considerable discretion to the Commis-
sion in formulating and revising the guidelines. See Mistretta v.
United States, 488 U.S. 361, 377-78 (1989). Specifically included is
the power to identify "circumstances under which the offense was
committed which mitigate or aggravate [its] seriousness." See 28
U.S.C.A. § 994(c)(2) (West 1993 & Supp. 2002). Section 2G2.2(b)(5)
falls within that grant of discretionary authority and, as explained
above, the enhancement itself is reasonable in that it focuses on the
use of computers, which provide criminals with an effective method
of communicating with a broad audience in connection with the spe-
cific crime of conviction.
6 UNITED STATES v. DOTSON
B.
Dotson next argues that the court abused its discretion in providing
for the possible use of physiological testing by devices such as a poly-
graph or penile plethysmograph test in conjunction with his treatment.
District courts have broad latitude to impose conditions on super-
vised release. Crandon, 173 F.3d at 127. In addition to a number of
mandatory conditions, see 18 U.S.C.A. § 3583(d) (West 2000 &
Supp. 2002), the sentencing court may impose any other condition it
considers to be appropriate, as long as that condition is "reasonably
related" to statutory factors referred to in § 3583(d)(1). These factors
are: "the nature and circumstances of the offenses and the history and
characteristics of the defendant," 18 U.S.C.A. § 3553(a)(1) (West
2000); providing adequate deterrence, see § 3553(a)(2)(B); protecting
the public from further crimes, see § 3553(a)(2)(C); and providing the
defendant with training, medical care, or treatment, see
§ 3553(a)(2)(D). Conditions imposed in connection with these factors
must "involve[ ] no greater deprivation of liberty than is reasonably
necessary" for achieving the specified goals, 18 U.S.C.A.
§ 3583(d)(2), and they must be consistent with Sentencing Commis-
sion policy statements on supervised release, see § 3583(d)(3).
Because we have already noted that the plethysmograph test is
"useful for treatment of sex offenders," United States v. Powers, 59
F.3d 1460, 1471 (4th Cir. 1995), the district court clearly acted within
its discretion in imposing this condition on Dotson’s release. The test
also meets the "reasonably related" requirement in that it is aimed at
providing Dotson with treatment, fostering deterrence, and protecting
the public. See Berthiaume v. Caron, 142 F.3d 12, 17 (1st Cir. 1998)
(describing this usage of the plethysmograph as "an accepted tool"
and "a standard practice" in the field of sex offender treatment); see
also Walrath v. United States, 830 F.Supp. 444 (N.D. Ill. 1993), aff’d,
35 F.3d 277 (7th Cir. 1994) (holding that the use of the plethysmo-
graph for treatment as a condition of parole is valid).
As for the polygraph test, it is undisputed such evidence is inadmis-
sible in nearly every circumstance at trial. See, e.g., United States v.
Porter, 821 F.2d 968, 974 (4th Cir. 1987); United States v. Brevard,
739 F.2d 180, 182 (4th Cir. 1984). Obviously, however, evidentiary
UNITED STATES v. DOTSON 7
cases do not govern our evaluation of the use of polygraphs in con-
nection with the treatment of an offender. The use of a polygraph test
here is not aimed at gathering evidence to inculpate or exculpate Dot-
son. Rather, the test is contemplated as a potential treatment tool upon
Dotson’s release from prison — as witnessed by the district court’s
direction that the results of any polygraph testing not be made public.
See J.A. 53; see also United States v. Zinn, ___ F.3d ___, 2003 WL
328925, at *6 (11th Cir. Feb. 14, 2003) (holding that the court did not
err in requiring the defendant to submit to polygraph testing as a con-
dition of his supervised release); United States v. Lee, 315 F.3d 206,
217 (3d Cir. 2003) (polygraphs may be imposed for treatment and
deterrence purposes); cf. United States v. Sines, 303 F.3d 793, 799-
800 (7th Cir. 2002) (district court may delegate to a probation officer
details of treatment for an offender, including the use of a polygraph
test).
For these reasons, we agree that the court acted within its discretion
in providing for the possible use of the plethysmograph and polygraph
tests in connection with Dotson’s treatment as special conditions of
his release.
III.
For the reasons set forth above, we affirm.
AFFIRMED