United States v. Lee , 321 F. App'x 298 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4499
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNY RAY LEE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00152-D-1)
Argued: January 29, 2009 Decided: March 27, 2009
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Shedd wrote a
separate concurring opinion.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Ethan A.
Ontjes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
Banumathi Rangarajan, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Defendant Johnny Ray Lee appeals the district court’s
imposition of a 420-month sentence upon his conviction of
transmitting child pornography and transporting obscene
materials over the Internet. Lee argues that, in calculating
the advisory guidelines range, the district court erred by
applying a four-level enhancement on the ground that Lee’s
“offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence.” U.S.S.G.
§ 2G2.2(b)(4). The district court based this enhancement upon
five images possessed by defendant. We conclude that the
district court did not commit clear error in its findings that
Exhibit 5, one of the images possessed by defendant, was
sexually explicit child pornography portraying sadistic,
masochistic, or other violent conduct. As such, it qualifies
for the enhancement under any definition. We therefore affirm
defendant’s sentence without reaching defendant’s arguments
regarding the scope of section 2G2.2(b)(4)’s meaning or the
section’s constitutionality.
I.
In early 2006, Lee, a resident of North Carolina,
transmitted child pornography images to an undercover police
officer in Keene, New Hampshire. Investigators in Keene
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contacted the North Carolina State Bureau of Investigation,
which began its own investigation. An undercover officer made
online contact with Lee, and determined that he was involved in
exchanging child pornography. After communicating with the
officer online, Lee agreed to meet the officer in person for the
purpose of exchanging child pornography images. Lee came to the
meeting with disks containing child pornography, and subsequent
searches of several online accounts revealed more image files.
In total, Lee’s collection contained between 275 and 295 child
pornography images.
A federal grand jury indicted Lee on five counts related to
transmitting and possessing child pornography. Lee subsequently
pled guilty to two of the counts: one count of transmitting
child pornography in violation of 18 U.S.C. § 2252(a)(1), and
one count of transporting obscene matters over the internet in
violation of 18 U.S.C. § 1462. Lee waived his right to appeal a
sentence of 293 months or fewer, but preserved his right to
appeal a longer sentence.
Lee’s presentence report determined that the advisory
guidelines range for Lee’s offense was 360 to 480 months of
imprisonment on the count for transmission of child pornography.
This calculation included a four-level enhancement resulting
from five images “portray[ing] sadistic or masochistic conduct
or other depictions of violence.” U.S.S.G § 2G2.2(b)(4).
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Without this enhancement, Lee’s guideline range on the first
count would have been 235 to 293 months. The report also
concluded that the guidelines advised the maximum penalty
authorized by statute, 60 months of imprisonment, on the count
for transportation of obscene materials over the internet.
At sentencing, defendant objected to the application of the
enhancement based on the five images. First, defendant argued
that four of the images did not depict sexually explicit
content, and that the section can only apply to pornographic
images when used to enhance a guidelines range for the offense
of transmitting child pornography. Second, defendant argued
that Exhibit 5, while sexually explicit, did not appear to
depict an individual under 18 years of age, and that the image
was not sadistic, masochistic, or violent.
The district court rejected defendant’s arguments, holding
that section 2G2.2(b)(4) applies to images that are sadistic,
masochistic, or violent, even if not sexually explicit. The
court made several holdings in the alternative: first, that the
third and fifth images were sexually explicit; second, that the
fifth image alone would support the enhancement, and that the
individual depicted in the image was a minor; and third, that
the fifth image would support the enhancement even if the
individual depicted was an adult.
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The district court thus calculated Lee’s advisory guideline
range to be 360 to 480 months of imprisonment on the
transmission of child pornography count, as had the presentence
report. The district court then, after considering the
sentencing factors enumerated in 18 U.S.C. § 3553(a), sentenced
defendant to a term of imprisonment of 420 months on the first
count of the indictment, to be served concurrently with a term
of 60 months on the second count. The court also observed that,
if the four-level enhancement under section 2G2.2(b)(4) were
improperly applied, the court would have sentenced defendant to
the same sentence in light of the “unique nature and
circumstances of this offense, the uniquely troubling history
and characteristics of this defendant, and the unique need to
protect the public from further crime of this defendant.” J.A.
114. Defendant now appeals his sentence on the ground that the
district court procedurally erred when computing defendant’s
advisory guidelines range.
II.
United States v. Booker, 543 U.S. 220 (2005), found the
federal sentencing guidelines unconstitutional and remedied the
unconstitutionality by declaring them to be merely advisory for
sentencing judges. Sentences are now reviewed for
reasonableness, an inquiry that “includes both procedural and
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substantive components.” United States v. Abu Ali, 528 F.3d
210, 260 (4th Cir. 2008). However, the guidelines are not
without legal significance after Booker. The sentencing
procedure mandated by the reasonableness inquiry requires
district judges to calculate the proper guidelines range for a
defendant at the outset of sentencing. See Gall v. United
States, 128 S. Ct. 586, 596 (2007). “A sentence based on an
improperly calculated guidelines range will be found
unreasonable and vacated.” Abu Ali, 528 F.3d at 260.
The advisory guidelines range calculated by the district
court in this case included a four-level enhancement under
section 2G2.2(b)(4). The district court’s first justification
for applying the enhancement was that section 2G2.2(b)(4)
applies to material that is sadistic, masochistic, or violent,
even if not sexually explicit. Defendant argues that this
interpretation is inconsistent with the text of section
2G2.2(b)(4), which states that “[i]f the offense involved
material that portrays sadistic or masochistic conduct or other
depictions of violence, increase [the base offense level] by 4
levels.” U.S.S.G. § 2G2.2(b)(4). Defendant contends that the
provision’s text requires that the sadistic, masochistic or
otherwise violent material triggering the enhancement must be
part of “the offense” -- here, transmitting child pornography.
Thus, defendant contends that only sexually explicit images of
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children depicting sadism, masochism, or other violence can be
used to enhance defendant’s sentence under section 2G2.2(b)(4).
In the alternative, defendant argues that that a reading of
section 2G2.2(b)(4) that allows an enhancement for non-
pornographic material that is sadistic, masochistic, or violent
is unconstitutionally overbroad, because it would increase a
defendant’s advisory guidelines sentencing range for possessing
films and images representing constitutionally protected speech.
We need not address whether section 2G2.2(b)(4) applies to
material that is not sexually explicit, or whether such a
reading would implicate the First Amendment. The district court
provided an alternate ground for its application of the four-
level enhancement: it found that Exhibit 5 depicts a minor, is
sexually explicit, and is sadistic, masochistic, or otherwise
violent. Both sides agree that section 2G2.2(b)(4) can be
properly triggered by an image that depicts a minor and is both
sexually explicit and that portrays sadism, masochism, or other
violent conduct. Defendant never contested that Exhibit 5 is
sexually explicit, and on appeal now concedes that the
individual depicted therein is a minor. Defendant thus only
disputes the district court’s factual finding that the image
“portrays sadistic or masochistic conduct or other depictions of
violence.” U.S.S.G. § 2G2.2(b)(4). While we review a district
court’s legal conclusions de novo, the court’s findings of fact
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at sentencing will be overturned only if clearly erroneous.
United States v. Hampton 441 F.3d 284, 287 (4th Cir. 2006); see
also Gall, 128 S. Ct. at 597.
We hold that the district court did not clearly err in
finding that Exhibit 5 portrays sadistic, masochistic, or other
violent conduct. Pornographic images depicting the bondage of
children are sadistic within the meaning of section 2G2.2(b)(4).
See, e.g., United States v. Hoey, 508 F.3d 687, 692 n.3 (1st
Cir. 2007). Exhibit 5 depicts a boy wearing a leather strap
around his torso and holding his hands behind his back.
Defendant argues that the boy is not bound, and does not appear
to be in pain. However, both the leather strap and the placement
of the boy’s hands behind his back -- an unusual position for
someone to place his unbound hands -- give rise to an inference
that the boy’s hands are bound. This inference is at the very
least not clearly erroneous. We thus cannot say that the
district court, in finding the image sadistic, masochistic, or
violent, clearly erred.
Because we conclude that the district court’s finding that
Exhibit 5 was sadistic was not clearly erroneous, and because
defendant concedes that the Exhibit was sexually explicit and
depicted a minor, section 2G2.2(b)(4) clearly applies to it,
even on the interpretation of the guideline advanced by
defendant. The district court therefore calculated the advisory
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guidelines range correctly. Thus, there was no procedural error
in defendant’s sentencing. *
III.
Defendant’s sentence is therefore affirmed.
AFFIRMED
*
Defendant does not argue that, if the advisory guidelines
range calculated by the court was in fact correct, the sentence
was nonetheless substantively unreasonable.
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SHEDD, Circuit Judge, concurring:
I am pleased to concur in the per curiam opinion. I write
separately to note that, in my view, the sentence could also be
affirmed on the alternate reasoning given by the district court.
The district court calculated Lee’s sentencing guidelines
range and overruled his objection to the four-level enhancement.
The court then sentenced Lee using the enhancement, but it also
explained why it would sentence Lee to the same term of
imprisonment even if the enhancement does not apply. Although
Lee argues on appeal that the court erred in using the
enhancement, he does not argue that the court committed any
other error in the guidelines calculation.
In imposing the alternate sentence, the district court
followed the reasoning of United States v. Keene, 470 F.3d 1347(11th Cir. 2006). In Keene, the district court sentenced the
defendant using a contested sentencing enhancement, but it also
stated that even if the enhancement did not apply it would
impose the same sentence. On appeal, the Eleventh Circuit
affirmed without deciding the enhancement issue because it found
that the alternate sentence was reasonable. As the court
explained: “[I]t would make no sense to set aside this
reasonable sentence and send the case back to the district court
since it has already told us that it would impose exactly the
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same sentence, a sentence we would be compelled to affirm.” Id.
at 1350.
This case is strikingly similar to Keene. Even if we
agreed with Lee regarding the enhancement, a remand to the
district court would lead to imposition of the same sentence.
In this circumstance, where we are presented with a single
disputed guideline calculation, the question that we could have
addressed in lieu of the propriety of the enhancement is whether
the sentence imposed (without the enhancement) is nonetheless
reasonable. For the reasons set forth by the district court, I
believe that the alternate sentence is reasonable. Therefore,
this case could have been affirmed simply on the alternate
sentence. See United States v. Shatley, 448 F.3d 264 (4th Cir.
2006) (affirming an alternate sentence that was identical to a
sentence that violated United States v. Booker, 543 U.S. 220(2005), because the Booker error was harmless).
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