United States v. Williamson ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30150
Plaintiff-Appellee,
v.  D.C. No.
CR-02-60017-AI
LOREN SAMUEL WILLIAMSON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
January 12, 2006—Portland, Oregon
Filed March 13, 2006
Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, and
Susan P. Graber, Circuit Judges.
Opinion by Judge O’Scannlain
2529
UNITED STATES v. WILLIAMSON 2533
COUNSEL
Larry A. Roloff, Eugene Oregon, argued the cause and was on
the briefs for the appellant.
Jeffrey J. Kent, Assistant United States Attorney, Eugene,
Oregon, argued the cause for the appellee. Karin J. Immergut,
United States Attorney, was on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We consider whether federal agents and local police legally
seized a home computer and related equipment used in the
international transmission of child pornography.
I
In June, 2000, police in the European country of Croatia
discovered 19 child pornographic photographs that had been
posted to an internet site and, using publicly available infor-
mation, traced the source of the pictures to a computer in
Roseburg, Oregon, and thereafter notified the Federal Bureau
of Investigation (“FBI”). Further investigation led FBI agents
to suspect that the pictures originated from a computer used
at the home of Loren Williamson.
2534 UNITED STATES v. WILLIAMSON
A
FBI Agent Victor Nielsen, investigating the tip, submitted
an Affidavit in support of a search warrant, which claimed
probable cause to believe “evidence of violations of [18
U.S.C. §] 2252” could be found at Williamson’s residence.
Agent Nielsen averred that he had reviewed the 19 images
and that they depicted “ ‘minors’ engaged in ‘sexually explicit
conduct’ as defined in [18 U.S.C. §] 2256, and within the
meaning of [18 U.S.C. §] 2252.” The cited provisions are part
of the Child Pornography Prevention Act of 1996, 18 U.S.C.
§ 2251 et seq.
The search warrant sought permission to seize a wide range
of property. Paragraph (a) on the warrant’s Attachment B
listed the items to be seized, including computers and related
hardware and software “which may be or are used to visually
depict child pornography, child erotica, information pertain-
ing to the sexual interest in child pornography, sexual activity
with children or the distribution, possession or receipt of child
pornography, child erotica or information pertaining to an
interest in child pornography or child erotica.” Paragraph (b)
permits seizure of “correspondence pertaining to the posses-
sion, receipt or distribution of visual depictions of minors
engaged in sexually explicit conduct, as defined in [18 U.S.C.
§] 2256 attached hereto at Attachment B1.” Paragraph (c)
plainly states that “[t]he term minors as used in this list of
items to be seized means persons under the age of 18 years.”
Similarly, paragraphs (d) through (l) authorize the seizure of
books and magazines, motion pictures, pictures and negatives,
correspondence, receipts relating to shipment, address books,
diaries, notebooks, and other materials related to the “visual
depiction of minors engaged in sexually explicit conduct, as
defined in [18 U.S.C. § 2256].”
With respect to the original 19 images, the Affidavit con-
cluded:
UNITED STATES v. WILLIAMSON 2535
Your affiant’s review of the above referenced image
files revealed that all 19 photographs contain images
depicting “minors” engaged in “sexually explicit
conduct” as defined in [18 U.S.C. § 2256], and with-
ing [sic] the meaning of [18 U.S.C. § 2252]. Specifi-
cally, these images depict unclothed “minors” in
various states of sexual arousal and many of them
depict “minors” engaged in sexual acts as defined by
[18 U.S.C. § 2256]. Your affiant and other trained
agents have examined these images and concluded
that a majority of them depict individuals under the
age of 18 years engaging in actual or simulated sex-
ual acts . . . .
The statute defines a “minor” as “any person under the age of
eighteen years.” 18 U.S.C. § 2256(1). In 2001, the statute
defined “child pornography” to mean
any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated
image or picture, whether made or produced by elec-
tronic, mechanical, or other means, of sexually
explicit conduct where—
(A) the production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct;
(B) such visual depiction is, or appears to be, of
a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created,
adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that conveys the impression that the material is or
2536 UNITED STATES v. WILLIAMSON
contains a visual depiction of a minor engaging in
sexually explicit conduct[.]
18 U.S.C. § 2256(8) (2001). At the time the warrant was
drawn, we had already decided that subsections (B) and (D)
were unconstitutionally overbroad. Free Speech Coalition v.
Reno, 198 F.3d 1083 (9th Cir. 1999), aff’d Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002).
B
On July 5, 2001, FBI agents executed the search warrant.
At the outset of the search, the agents displayed the search
warrant and their official credentials to Williamson, then age
50, and his mother, who lived in different buildings on the
same property. Law enforcement officers present included
four FBI agents—with Agent Nielsen directing the search—
and two local police officers. After arriving at the main house,
Agent Nielsen showed Williamson’s mother the face page of
the warrant. Agent Nielsen then accompanied her to her son’s
residence behind the main house and retrieved him while the
FBI agents secured several weapons lying in plain sight.
Agent Nielsen then sat with Williamson and his mother on
the living room couch in the main house and explained that
the agents sought child pornography in Williamson’s posses-
sion. Agent Nielsen testified that he “explained to Mrs. Wil-
liamson and Loren [Williamson] that we were there to search
for child pornography and various things that go along with
child pornography.” Agent Nielsen also inquired as to where
Williamson’s possessions were, so that the agents could limit
the scope of their search and avoid searching Williamson’s
parents’ property. Agent Nielsen had a copy of the search
warrant on his lap during this conversation, but did not pro-
vide a copy to either Williamson or his mother, and neither
requested one.
After Agent Nielsen explained the purpose of the search,
two FBI agents began searching Williamson’s room. While
UNITED STATES v. WILLIAMSON 2537
the two agents searched, Agent Nielsen remained with Wil-
liamson and his mother, conversing with them. At some point
near the conclusion of the four-hour search, Williamson’s
father came home. Williamson’s father was angry and unco-
operative. While the police attempted to explain the contents
of the warrant and the purpose of their search to Williamson’s
father, he refused to calm down. As the search neared comple-
tion, Williamson’s father requested a copy of the search war-
rant. An agent responded that “we’re about to give it to you,
along with a receipt which we’re now preparing of the items
that we’re taking, and that we will leave that in your custody.”
Before leaving, the agents provided Williamson with a
copy of the search warrant (with attachments) and a receipt
for the items taken. The police also offered to allow William-
son and his parents to inspect the items seized and compare
them to those listed on the receipt, but they declined to do so.
During the search, agents seized copies of the 19 photo-
graphs allegedly transmitted to Croatia, as well as computer
equipment, a digital camera, digital editing software, hard
drives, CD-ROMs, Zip disks, and a variety of pornographic
photographs. The FBI agents discovered thousands of addi-
tional child pornographic pictures on the seized digital media.
Williamson stipulated that the government could establish
that the 19 photographs were of “actual”1 minors engaged in
sexually explicit conduct. Further, Williamson stipulated that
FBI agents recovered “thousands of visual depictions of child
pornography as defined above [‘visual depictions of actual
minors under 18 years of age engaged in sexually explicit
conduct,’] and in [18 U.S.C. § 2256.]”
1
Relevant to this case, there are two types of child pornography.
Roughly speaking, “actual” child pornography depicts true minors
engaged in sexual conduct. In contrast, “virtual” child pornography
depicts those who appear to be minors, but are not. Virtual child pornogra-
phy is constitutionally protected, but actual child pornography is not. See
Ashcroft v. Free Speech Coalition, 535 U.S. at 234.
2538 UNITED STATES v. WILLIAMSON
C
Agent Nielsen testified that when he executed the search
warrant, he was unaware of our case law requiring him to pro-
vide a copy of the search warrant at the outset of the search.
The government concedes failure to do so was error. As
Agent Nielsen explained:
We always provide a copy of the search warrant and
receipt when we exit a residence. We always show
them a copy as we go in . . . .
In my mind-set, I was definitely going to leave
them a copy of the warrant at the end. And it was not
—it was not necessary to give them the warrant until
we were finished.
The district court denied the motion to suppress conclud-
ing:
Agent Nielsen testified that it was standard protocol
to leave a copy of the search warrant at the conclu-
sion of the search, and that is what the agents had
intended to do. . . .
I accept the testimony of Agent Nielsen. . . . I fur-
ther find that Nielsen’s actions evince no deliberate
disregard of [Federal Rule of Criminal Procedure]
41(d).
The district court noted that under United States v. Gantt,
194 F.3d 987, 1001 (9th Cir. 1999), the purpose for requiring
law enforcement officers to turn over a copy of the warrant
is “to give notice” of what they are entitled to seize and to
provide assurance of their lawful authority. Given the nature
of the search, the district court concluded that “an order of
suppression would elevate form over substance and would not
further the underlying purpose of Rule 41(d).”
UNITED STATES v. WILLIAMSON 2539
D
On June 17, 2003, the district court convicted Williamson
through a stipulated facts trial. On March 8, 2005, the district
court sentenced Williamson to 180 months in prison, the stat-
utory maximum.2 The district court derived the final Guide-
line sentence as follows:
§ 2G2.2 Base offense level: 17
§ 2G2.2(b)(5) (use of computer) +2
§ 2G2.2(b)(1) (minor under 12) +2
§ 2G2.2(b)(4) (pattern of sexual abuse) +5
§ 2G2.2 App. Note 2 (seriousness of abuse) +4
§ 5K2.0 (aggravating circumstances) +4
TOTAL OFFENSE LEVEL: 34
An offense level of 34 yields a sentencing range of 151 to 188
months.
At the sentencing hearing, Williamson’s son and daughter-
in-law—the parents of his granddaughter—as well as his ex-
wife’s sister, testified about Williamson’s history of sexually
abusing others. Additionally, a forensic analyst with the
Eugene, Oregon, police force testified regarding the content
of various photographs seized from Williamson’s residence.
Among other things, the evidence showed that Williamson
had sexually molested and photographed his granddaughter
while she was four to five years old and in his care.
2
Shortly after Williamson’s sentencing hearing, but before he was sen-
tenced, the Supreme Court handed down Blakely v. Washington, 542 U.S.
296 (2004). By the time a Blakely-compliant PSR was prepared, the
Supreme Court had heard oral argument in United States v. Booker, 543
U.S. 220 (2005). The district court deferred sentencing pending Booker.
Shortly after Booker was released, the district court sentenced Williamson,
treating the Sentencing Guidelines as advisory.
2540 UNITED STATES v. WILLIAMSON
While sentencing Williamson, the district court expressed
the view that 180 months, in addition to being the statutory
maximum, was also the “only reasonable sentence that is rea-
sonable under these facts.”
Williamson timely appeals both his conviction and sen-
tence.
II
Williamson first argues that the manner in which the agents
executed the search warrant violated Rule 41(d) and that evi-
dence from the search should have been suppressed.3
A
At the time of the search, Rule 41(d) read:
The officer taking property under the warrant shall
give to the person from whom or from whose prem-
ises the property was taken a copy of the warrant and
a receipt for the property taken or shall leave the
copy and receipt at the place from which the prop-
erty was taken.
Fed. R. Crim. P. 41(d) (2001) (now 41(f)(3)).
We construed Rule 41(d) in Gantt, 194 F.3d at 996, in
which we recounted how the police had callously executed a
search warrant:
Upon entering Gantt’s residence, the agents did
3
The district court’s denial of a motion to exclude evidence is reviewed
de novo. United States v. Bautista, 362 F.3d 584, 588-89 (9th Cir. 2004).
The district court’s factual findings are reviewed for clear error. United
States v. Martinez-Garcia, 397 F.3d 1205, 1211 n.1 (9th Cir.) cert. denied,
126 S. Ct. 241 (2005).
UNITED STATES v. WILLIAMSON 2541
not present her with a copy of the warrant. Instead,
they directed her to sit in the hallway while they con-
ducted a three-hour search. The agents did not show
Gantt the warrant under the authority of which they
had invaded her privacy until Gantt herself asked to
see the search warrant. The agents responded by
showing her the face of the warrant but not Attach-
ment A [which listed items to be seized]. . . . After
concluding their search, the agents gave Gantt an
inventory of items seized and left a copy of the war-
rant with Attachment A behind in the hotel room.
Before Gantt could examine the copy of the warrant
left in the hotel room, however, the agents arrested
her and took her to an FBI office. Only at the FBI
office was Gantt shown the entire warrant . . . .
[1] We reasoned that “[t]he Supreme Court has repeatedly
held that an essential function of the warrant is to ‘assure[ ]
the individual whose property is searched or seized of the
lawful authority of the executing officer, his need to search,
and the limits of his power to search.’ ” Id. at 1001 (brackets
in original) (quoting United States v. Chadwick, 433 U.S. 1,
9 (1977), abrogated on other grounds, California v. Acevedo,
500 U.S. 565 (1991)). Further, the warrant “give[s] notice to
the person subject to the search what the officers are entitled
to seize.” Id. (internal quotation marks omitted). Based on
notice and assurance concerns, we held that, “[a]bsent exigent
circumstances, Rule 41(d) requires service of the warrant at
the outset of the search on persons present at the search of
their premises.” Id. at 1000; see also United States v. Smith,
424 F.3d 992, 1006-07 (9th Cir. 2005).4
4
The government contends, with some force, that several post-Gantt
cases cast doubt on Gantt’s status as good law. First, in Groh v. Ramirez,
540 U.S. 551, 562 n.5 (2004), the Supreme Court stated that “neither the
Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Proce-
dure requires the executing officer to serve the warrant on the owner
before commencing the search.” However, in United States v. Mann, 389
2542 UNITED STATES v. WILLIAMSON
[2] The district court concluded that there was no Rule
41(d) violation because the officers explained the search to
Williamson and took other steps to mitigate and to limit their
intrusion. In light of Gantt, such a legal conclusion was erro-
neous. While the officers may have narrowly and reasonably
executed the search warrant, such efforts would not trump
Gantt. We must conclude, therefore, that under our current
jurisprudence the search violated Rule 41(d) because the
agents did not provide a copy of the warrant at the outset of
the search.
B
[3] Because the search violated Rule 41(d), Williamson
then asks us to suppress the seized evidence although we have
repeatedly held—and have been instructed by the Supreme
Court—that suppression is rarely the proper remedy for a
Rule 41 violation. The Supreme Court has stated that the Fed-
eral Rules of Criminal Procedure do “not constitute a statu-
tory expansion of the exclusionary rule.” United States v.
Calandra, 414 U.S. 338, 348 n.6 (1974); see also, e.g., United
States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981) (noting
that “[o]nly a ‘fundamental’ violation of Rule 41 requires
automatic suppression, and a violation is ‘fundamental’ only
where it, in effect, renders the search unconstitutional under
traditional fourth amendment standards” (emphasis added)
(internal quotation marks omitted)). Even Gantt, upon which
Williamson relies, enunciated the same familiar principle:
“Violations of Rule 41(d) do not usually demand suppression
F.3d 869, 875 n.1 (9th Cir. 2004), we stated that, while “[dictum] in . . .
Groh v. Ramirez casts serious doubt both on our interpretation of Rule 41
and our reasoning in Gantt, it fails definitively to abrogate our holding.”
See also Smith, 424 F.3d at 1007 (assuming that Gantt applies and distin-
guishing it). We likewise must conclude that Martinez-Garcia, 397 F.3d
at 1208-10, which did not even reach the Rule 41 question, did not over-
rule Gantt. Thus, we will assume that Gantt remains good law in this Cir-
cuit.
UNITED STATES v. WILLIAMSON 2543
. . . .” 194 F.3d at 1005; see also United States v. Hornick,
815 F.2d 1156, 1158 (7th Cir. 1987) (“[I]t is difficult to antic-
ipate any violation of Rule 41, short of a defect that also
offends the Warrant Clause of the fourth amendment, that
would call for suppression.”).
There are three circumstances under which evidence
obtained in violation of Federal Rule of Criminal Procedure
41 requires suppression:
1) the violation rises to a “constitutional magnitude;”
2) the defendant was prejudiced, in the sense that the
search would not have occurred or would not have
been so abrasive if law enforcement had followed
the Rule; or 3) officers acted in “intentional and
deliberate disregard” of a provision in the Rule.
United States v. Martinez-Garcia, 397 F.3d 1205, 1213 (9th
Cir.) cert. denied, 126 S. Ct. 241 (2005).
1
[4] Williamson does not contend that the violation rises to
a “constitutional magnitude.” The error, therefore, is a “mere
technical error,” and suppression is only appropriate if Wil-
liamson suffered prejudice or if the violation was deliberate.
United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th
Cir. 1992) (citing Johnson, 660 F.2d at 753); see also United
States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002).
2
[5] Williamson concedes that there was no prejudice here.
“Prejudice” means that the “the search would not have
occurred or would not have been so abrasive if law enforce-
ment had followed the Rule.” Martinez-Garcia, 397 F.3d at
1213; United States v. Crawford, 657 F.2d 1041, 1047 (9th
Cir. 1981). Williamson does not contend that no search would
2544 UNITED STATES v. WILLIAMSON
have occurred or that the search would have been less abra-
sive had the government followed Rule 41(d).5
3
Williamson argues that Agent Nielsen acted with “inten-
tional and deliberate disregard” of Rule 41(d), and suppres-
sion is therefore necessary. During the suppression hearing,
Agent Nielsen admitted that he “intentionally”—but not
“deliberately”—failed to provide a copy of the search warrant
to Williamson before beginning the search.
Both parties believe that Agent Nielsen’s mistaken under-
standing of the law cuts in their favor. On the one hand, Wil-
liamson argues that Agent Nielsen intended to serve the
warrant at the end of the search, meaning that his failure was
volitional, and therefore “intentional and deliberate.” On the
other hand, the government argues that Agent Nielsen
intended to satisfy what he mistakenly believed to be the
Rule, meaning that the violation was not deliberate, even if
his actions were intentional.
[6] Recently, in Smith, we concluded that the violation of
Rule 41 was neither deliberate nor prejudicial where the agent
executing the warrant, much like Agent Nielsen here, testified
that “he did not know of an obligation to show the warrant at
5
Had Williamson argued that he was prejudiced, the manner in which
the agents executed the warrant—which the district court factored into its
analysis of whether Rule 41(d) had been violated—would be relevant. In
this case, however, there is no question that the search would not have
been appreciably different had the agents followed Rule 41(d): Here, the
agents introduced themselves, displayed their identification and a copy of
the search warrant, discussed the purpose and scope of the search, nar-
rowed their search based on Williamson’s feedback, and offered William-
son an opportunity to examine the seized items. This search is clearly
distinguishable from the one in Gantt, where the suspect was denied
access to the searched area, had her request for a copy of the warrant
rebuffed, and had no idea what items were seized.
UNITED STATES v. WILLIAMSON 2545
the outset of the search—[the agent] ‘never’ before had pre-
sented a warrant at the time of entry.” 424 F.3d at 1007.6 We
concluded in Smith that, while the officer did not know of the
relevant Rule 41 requirement, his actions were not in “inten-
tional and deliberate disregard” of the Rule.
Other cases have equated “deliberate and intentional disre-
gard” with “bad faith.” For example, in Crawford, 657 F.2d
at 1048, we refused to invoke the exclusionary rule without
evidence of “bad faith.” See also United States v. Luk, 859
F.2d 667, 673 (9th Cir. 1988). Along similar lines, in United
States v. Radlick, 581 F.2d 225, 228-29 (9th Cir. 1978), we
concluded that whether there was “intentional and deliberate
disregard” turns on whether there was an “intent to flout the
Rule.” See also Gantt, 194 F.3d at 1005 (concluding that the
agents acted with intentional and deliberate disregard of the
Rule where they showed bad faith).7
[7] Our cases show, therefore, that where the agent execut-
ing the warrant is unaware of the Rule but acts in good faith
in executing what he or she believes to be the Rule, he or she
has not acted in deliberate disregard of it; thus suppression is
6
In Smith, the search warrant was served in 1997, while Gantt was
decided in 1999. However, Gantt did not create new law—it merely
restated the law. See United States v. Tekle, 329 F.3d 1108, 1112 (9th Cir.
2003). Therefore, the fact that the agent in Smith was unaware of Gantt
does not resolve whether his actions were in “intentional and deliberate
disregard” of the Rule.
7
Two other considerations support the government’s understanding of
“deliberate.” First, linguistically, one cannot “deliberately disregard” a
Rule of which one is unaware, as Williamson suggests. Second, and more
fundamentally, if “deliberate and intentional disregard” includes innocent
mistakes, then any intentional act (in the volitional sense) justifies sup-
pression. If this were the case, the doctrine of technical errors would be
hollow—all mistakes would be intentional and deliberate and would
require suppression (as long as the underlying action was undertaken voli-
tionally). This would run counter to the concept that suppression is gener-
ally not the appropriate remedy for a Rule 41 violation. See, e.g.,
Calandra, 414 U.S. at 348 n.6; Gantt, 194 F.3d at 1005.
2546 UNITED STATES v. WILLIAMSON
not appropriate, assuming that the officer’s actions result in
no prejudice to the defendant and that the error does not rise
to the level of a constitutional violation. Williamson argues
that refusing to suppress rewards ignorance of the law. How-
ever, we do not condone an officer’s ignorance of established
law. We simply recognize here that a legal error does not
merit suppression where the mistake has no material effect on
the defendant’s rights. See, e.g., Chapman v. California, 386
U.S. 18 (1967). Here, Agent Nielsen acted in good faith, Wil-
liamson suffered no prejudice, and the error was not of a con-
stitutional magnitude. The district court quite properly denied
the motion to suppress.
III
Williamson next argues that the search warrant itself is
invalid.8 First, Williamson contends that the warrant lacked
probable cause because the Affidavit supporting it did not
specify whether the 19 original pornographic images were
legal or illegal images—that is, whether the images fell under
18 U.S.C. § 2256(8)’s valid subsections (A) and (C), rather
than under the unconstitutional subsections (B) and (D). See
Free Speech Coalition, 535 U.S. 234. Second, Williamson
contends that, even if there were probable cause to support the
search warrant, it was still invalid because it was overly broad
and failed to distinguish between prohibited child pornogra-
phy and constitutionally protected “virtual child pornogra-
phy.” See id.
8
A finding of probable cause is reviewed de novo, but findings of fact
are reviewed for clear error. United States v. Vesikuru, 314 F.3d 1116,
1122 (9th Cir. 2002). The appropriate probable cause standard embodies
“a practical, nontechnical conception that deals with the factual and practi-
cal considerations of everyday life on which reasonable and prudent men,
not legal technicians, act,” Maryland v. Pringle, 540 U.S. 366, 370 (2003)
(internal quotation marks omitted), and focuses on “common sense con-
clusions about human behavior,” United States v. Cortez, 449 U.S. 411,
418 (1981).
UNITED STATES v. WILLIAMSON 2547
A
[8] Williamson claims that the Affidavit failed to provide
the magistrate with an adequate basis to determine whether
the child pornography sought fell within the constitutionally
valid portions of 18 U.S.C. § 2256(8). After Free Speech
Coalition, the possession of “sexually explicit materials”
involving “minors” remains illegal. It is only the possession
of “child pornography” depicting those who are not minors
but appear to be so that is constitutionally protected.
This distinction was dispositive in United States v. Hay,
231 F.3d 630, 639 (9th Cir. 2000), where we considered and
rejected an analogous overbreadth challenge. Hay had been
convicted under § 2256 before we decided Free Speech
Coalition, but challenged his conviction shortly after our deci-
sion in that case. We rejected his challenge, reasoning:
[T]he jury was specifically instructed that the term
“child pornography” means any visual depiction of
sexually explicit conduct where “the production”
involves the “use of a minor [defined as ‘any person
under the age of eighteen years’] engaging in sexu-
ally explicit conduct” and “such visual depiction is
of [a person under the age of eighteen years] engag-
ing in sexually explicit conduct.” A production using
a child is very different from morphing, and Hay
does not suggest how there could be anything uncon-
stitutional about this definition. We see no error,
plain or otherwise.
Id. (alterations in original). In Hay, we considered it determi-
native that the jury instructions specifically excluded virtual
child pornography.
Here, with respect to the 19 images transmitted to Croatia,
the Affidavit stated:
2548 UNITED STATES v. WILLIAMSON
Your affiant’s review of the above referenced
image files revealed that all 19 photographs contain
images depicting “minors” engaged in “sexually
explicit conduct” as defined in [18 U.S.C. § 2256]
. . . . Specifically, these images depicted unclothed
“minors” . . . engaged in sexual acts . . . [A] majority
of them depict individuals under the age of 18 years
engaging in actual or simulated sexual acts . . . .
(Emphasis added.)
[9] The Affidavit states that all 19 photographs are of “mi-
nors” who are “individuals under the age of 18 years.” There-
fore, the same limiting language exists in the Affidavit here
as was in the jury instruction in Hay. By defining the illegal
materials as photographs depicting “minors” engaged in “sex-
ually explicit conduct,” the Affidavit excludes virtual child
pornography—which by definition does not depict minors—
and alleviates any constitutional concern by focusing only on
materials that remain illegal after Free Speech Coalition.9
9
Further, there is no hint in the Affidavit that the pictures were virtual
child pornography—rather, the Affidavit explicitly states that the search
was for actual child pornography. Indeed, Williamson stipulated that the
government could show that the pictures were of actual children.
Moreover, even if the Affidavit had failed to restrict the search to mate-
rials involving “minors,” the warrant would not necessarily lack probable
cause. The First Circuit rejected the argument that a warrant lacks proba-
ble cause when it fails to distinguish between actual and virtual child por-
nography. United States v. Syphers, 426 F.3d 461 (1st Cir. 2005). Syphers
reasoned that Free Speech Coalition concerned the elements of the crime
of possession of child pornography. In contrast, an affidavit supporting a
search warrant must only establish probable cause to believe that, under
a totality of the circumstances, pictures of actual children would be found.
Syphers, 426 F.3d at 466. The same is true here: even if the Affidavit had
not specified that the pictures were of “minors,” the information averred
would still be sufficient to establish probable cause to believe that actual
child pornography would likely be found.
UNITED STATES v. WILLIAMSON 2549
[10] Contrary to Williamson’s argument, the Supreme
Court has specifically rejected the contention that there is a
heightened standard for the seizure of materials that might
implicate the First Amendment.10 “[A]n application for a war-
rant authorizing the seizure of materials presumptively pro-
tected by the First Amendment should be evaluated under the
same standard of probable cause used to review warrant appli-
cations generally.” New York v. P.J. Video, Inc., 475 U.S.
868, 875 (1986). Therefore, no more is required in issuance
of a warrant than that the judge has made a “practical,
common-sense decision” that there was a “fair probability”
that actual child pornography would be found in the suspect’s
residence. Illinois v. Gates, 462 U.S. 213, 238 (1983).
[11] We are satisfied that the Affidavit focused only on
materials that were not constitutionally protected and was suf-
ficient to establish probable cause.
B
Williamson next claims that the search warrant was over-
broad because it did not distinguish between prohibited virtual
child pornography and constitutionally protected pornogra-
phy.
[12] Like the Affidavit that supported it, the search warrant
10
There are, however, additional restrictions on the seizure of materials
deemed to be obscene. See Marcus v. Search Warrants, 367 U.S. 717, 732
(1961) (requiring the magistrate to “focus searchingly on the question of
obscenity” in the context of a large-scale seizure that would constitute a
prior restraint); see also New York v. P.J. Video, Inc., 475 U.S. 868, 873
(1986). See also Heller v. New York, 413 U.S. 483, 494 (1973) (requiring
a “prompt postseizure judicial determination of obscenity”). Marcus and
Heller do not apply since the seizure here does not amount to a prior
restraint and the materials are flatly illegal, not allegedly obscene. Simi-
larly, Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 (1968) (per curiam),
applies to materials “presumptively protected by the First Amendment,”
which is not the case for the actual child pornography at issue here.
2550 UNITED STATES v. WILLIAMSON
specifically limited the seizure to “visual depictions of minors
engaged in sexually explicit conduct as defined in [18 U.S.C.
§ 2256]” (emphasis added). Again, § 2256 defined “minors”
as “any person under the age of eighteen.” The search war-
rant’s Attachment B, which listed the items to be seized,
referred to “minors . . . as defined in [§ 2256]” in paragraphs
(d), (e), (f), (g), (h), (i), (j), (k), and (l). The search warrant
did not authorize the blanket seizure of “child pornography,”
and therefore was limited to materials that remain illegal after
Free Speech Coalition. The definition of illegal materials
given to the jury in Hay is indistinguishable from that used
here.11 The search warrant was not overbroad.
IV
Williamson finally argues the district court committed three
errors in sentencing him.12 First, he notes a discrepancy
between the oral and written sentencing; second, he objects to
the use of “expanded relevant conduct,” which he argues was
not permitted under the 1998 Guidelines; third, he contends
that the sentence is unreasonable in any event.13
11
In contrast, the Fourth Circuit concluded that a jury instruction that
allowed a conviction for possession of visual depictions that “appear[ ] to
be[ ] of a minor engaging in sexually explicit conduct,” was overbroad.
United States v. Ellyson, 362 F.3d 522, 530 (4th Cir. 2003). The court rea-
soned that the instructions were impermissible because they included “ap-
pears to be” language, which tracked the unconstitutionally overbroad
§ 2256(8)(B). Id. at 531. There is no such problem here.
12
A sentence imposed pursuant to the Sentencing Reform Act, post-
Booker, is reviewed for reasonableness. Booker, 543 U.S. at 261-62);
United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc).
We review the interpretation and application of the Guidelines de novo.
United States v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004). Factual find-
ings in the sentencing phase are reviewed for clear error. Id. at 582.
13
Williamson also argues that a due process and ex post facto violation
exists because he was sentenced retroactively under Booker, but commis-
sion of the crime and conviction occurred under Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), and Blakely v. Washington, 542 U.S. 296
 UNITED STATES v. WILLIAMSON 2551
Williamson was charged with violating 18 U.S.C.
§ 2552A(a)(1), and the central Guideline governing the crimi-
nal conduct is U.S.S.G. § 2G2.2. The 1998 Guidelines apply
in this case.14 The district court found facts relevant to the sen-
tencing enhancements beyond a reasonable doubt. Though the
Sentencing Guidelines are no longer mandatory, we must
evaluate the district court’s sentencing analysis to determine
whether it was proper. See United States v. Menyweather, 431
F.3d 692, 696 (9th Cir. 2005) (“[T]o comply with Booker’s
mandate that district courts ‘take [the Guidelines] into account
when sentencing,’ courts normally must determine and con-
sider the correct Guidelines range.” (brackets in original)
(quoting Booker, 543 U.S. at 264)).
A
Williamson asserts the “clear error and disparity” between
the district court’s oral recitation of findings and sentencing
as compared to its written findings of fact. Williamson does
not cite any law, provide any legal theory, or request any par-
ticular relief with respect to such alleged error, but merely
recites it.
(2004). However, United States v. Dupas, 419 F.3d 916 (9th Cir. 2005),
forecloses this claim. Dupas concluded that “[f]air warning . . . is the
touch stone of the retroactivity analysis under the Due Process Clause.” Id.
at 921; see also United States v. Scroggins, 411 F.3d 572, 576 (5th Cir.
2005) (rejecting the same due process and ex post facto argument).
Here, Williamson could have consulted the U.S. Code at the time he
committed his crime and would have seen that the statutory maximum was
15 years; this alone supplies him with all the fair warning necessary under
Dupas. See 18 U.S.C. § 2252A(a)(1). Therefore, Williamson had fair
warning of the applicable statutory maximum, and there is no due process
or ex post facto violation.
14
The district court must apply the Guidelines in effect when the defen-
dant is sentenced, unless doing so creates ex post facto issues. United
States v. Warren, 980 F.2d 1300, 1304 (9th Cir. 1992).
2552 UNITED STATES v. WILLIAMSON
With no argument presented, we decline to address the
claim. Federal Rule of Appellate Procedure 28(a)(9)(A)
requires that the argument in an appellant’s brief contain the
“appellant’s contentions and the reasons for them.” In Leer v.
Murphy, 844 F.2d 628, 634 (9th Cir. 1988), we held that
“[i]ssues raised in a brief which are not supported by argu-
ment are deemed abandoned.” In Leer, the appellant
attempted to raise a due process claim on appeal merely by
stating that they were appealing the district court order, but
provided no argument for the court to evaluate. Id. Here, Wil-
liamson does even less. Williamson simply states that there
was a discrepancy, but provides no argument, no legal author-
ity, and no request for relief. “We will not manufacture argu-
ments for an appellant” who has failed “to present . . .
specific, cogent argument[s] for [the court’s] consideration,”
especially where “a host of other issues are presented for
review.” Entm’t Research Group, Inc. v. Genesis Creative
Group, Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (internal
quotation marks omitted). Any argument Williamson might
have made on this point is waived.
B
Williamson’s next—and more fully-developed—argument
is that the district court impermissibly considered “uncharged
and adjudicated behavior unrelated to the charge of convic-
tion” to imposing sentence. Though the district court con-
cluded that the 15-year sentence was the only reasonable
sentence, “[a]n error in determining the Guideline range, or in
understanding the authority to depart from that range, can pre-
vent district courts from properly considering the Guidelines.”
Menyweather, 431 F.3d at 696. Thus, to determine if the sen-
tence was reasonable, we must consider whether the district
court properly applied the Guidelines. Id.
[13] A sentencing judge may consider “uncharged and
unadjudicated” conduct for sentencing purposes if it is
deemed “relevant conduct.” See U.S.S.G. § 1B1.3(a)(1), (2).
UNITED STATES v. WILLIAMSON 2553
The Guidelines distinguish between two categories: “relevant
conduct” under § 1B1.3(a)(1) includes only acts that occurred
during the commission of the offense, while the broader cate-
gory of “expanded relevant conduct” under § 1B1.3(a)(2)
includes any conduct that is part of the same scheme or plan
as the offense of conviction. The broader category is used
“solely with respect to offenses” which require grouping
under § 3D1.2(d), unless otherwise specified. U.S.S.G.
§ 1B1.3(a)(2).
[14] Guideline § 3D1.2(d) does not list § 2G2.2 as a group-
able offense, so the narrower category of relevant conduct
presumptively applies to the sentencing. Therefore, “[u]nless
otherwise specified,” relevant conduct is limited to “all acts
and omissions committed . . . by the [appellant] . . . that
occurred during the commission of the offense of conviction.”
U.S.S.G. § 1B1.3(a)(1) (emphasis added); cf. U.S.S.G.
§ 1B1.3(a)(2). Williamson was sentenced under § 2G2.2,
“Trafficking in Material Involving the Sexual Exploitation of
a Minor . . . Possessing Materials Involving Sexual Exploita-
tion of a Minor with Intent to Traffic.” Thus, under the nar-
rower category of “relevant conduct,” the district court could
only consider the 19 pictures that were sent to Croatia.
Williamson contends that the Guidelines exclude consider-
ation of the possession of images of prepubescent minors as
the basis for a two-level enhancement, as well as the pattern
of sexual abuse of his granddaughter, as the basis for a five-
level increase.15 Specifically, Williamson urges that reference
to the images of prepubescent minors and the sexual abuse of
15
Presumably, though Williamson is not specific, his challenge to the
enhancement under subsection (b)(4) extends to the related four-level
enhancement under application note 2 as well. Williamson apparently does
not challenge the four-level enhancement under § 5K2.0, which the district
court determined based, in part, on Williamson’s possession of “thousands
of images depicting minors engaging in sexually explicit conduct,” as well
as based on “a psychiatric evaluation indicat[ing] that the defendant pre-
sents a high risk to the community.”
2554 UNITED STATES v. WILLIAMSON
his granddaughter fall into the category of “expanded relevant
conduct,” prohibited by the 1998 Guidelines.
1
[15] The district court enhanced Williamson’s sentence
because “the material involved includes images of prepubes-
cent children warranting a two-level increase under
§ 2G2(b)(1).” Because the narrower category of relevant con-
duct applies, however, only the pictures involved in the “com-
mission of the offense”—the transmission of pictures to
Croatia—are relevant. Our review of the record and discus-
sion with counsel during oral argument satisfies us that it was
the pictures sent to Croatia, not the pictures uncovered during
the search, which formed the basis of the enhancement. The
Pre-Sentence Report (“PSR”) notes that Williamson “posted
images to a site on the Internet depicting prepubescent minors
engaged in sexually explicit conduct,” and the district court
similarly concluded that these pictures depicted prepubescent
minors. Because the pictures that were sent internationally
(i.e., “trafficked in”) depicted prepubescent minors,
§ 1B1.3(a)(1) does not exclude their consideration for
enhancement purposes. We are satisfied that the pictures on
which the sentence was based were part of the conduct that
occurred during the offense of conviction.
2
[16] As to Williamson’s third contention that enhancement
based on a pattern of sexual abuse was improper, § 1B1.3 lim-
its relevant conduct to that which occurred during the com-
mission of the offense “[u]nless otherwise specified.”
Guideline § 2G2.2(b)(4) application note 1 discusses the evi-
dence that should be taken into account with respect to
enhancing a sentence under § 2G2.2(b)(4) for a pattern of sex-
ual abuse:
“Pattern of activity involving the sexual abuse or
exploitation of a minor” means any combination of
UNITED STATES v. WILLIAMSON 2555
two or more separate instances of the sexual abuse
or sexual exploitation of a minor by the defendant,
whether or not the abuse or exploitation (A)
occurred during the course of the offense . . . .
U.S.S.G. § 2G2.2, cmt. n. 1 (1998) (emphasis added). This
application note “specifie[s]” that expanded relevant conduct
may be considered under § 1B1.3(a)(2) for the purposes of
enhancing the sentence under § 2G2.2(b)(4).16
[17] We therefore join the Eighth and Eleventh Circuits in
concluding that U.S.S.G. § 2G2.2(b)(4) application note 1
allows for consideration of expanded relevant conduct.17
United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998)
(per curiam) (“the clarifying amendment clearly permits an
increased offense level for conduct unrelated to the offense of
conviction”); United States v. Ashley, 342 F.3d 850, 852 (8th
Cir. 2003) (“Note 1 makes U.S.S.G. § 2G2.2(b)(4) unambigu-
ous; the enhancement applies ‘whether or not the abuse . . .
16
We previously discussed § 2G2.2(b)(4) in United States v. Kemmish,
120 F.3d 937, 942 (9th Cir. 1997). In Kemmish, the defendant was arrested
for trafficking in child pornography. On appeal, the government argued
that the defendant’s sentence should have been enhanced under (b)(4)
because the child pornography at issue demonstrated a pattern of abuse or
exploitation of a minor, though there was no evidence that the defendant
himself was involved. The court rejected the government’s contention and
concluded that the enhancement under § 2G2.2(b)(4) was inappropriate
where the defendant merely trafficked in child pornography, but did not
personally participate in the pattern of abuse or exploitation. Kemmish
required a “showing of a more direct involvement . . . in the sexual abuse
or exploitation of minors.” 120 F.3d at 942. Kemmish did not, therefore,
address the question posed here: whether the application note allows the
consideration of expanded relevant conduct.
17
The Sentencing Commission added Application Note 1 to the Guide-
lines in 1996 after the First and Sixth Circuit Courts of Appeals held that
relevant conduct under § 2G2.2(b)(4) must relate to the offense of convic-
tion (as Williamson argues). See United States v. Surratt, 87 F.3d 814,
817-19 (6th Cir. 1996); United States v. Chapman, 60 F.3d 894, 900-01
(1st Cir. 1995), superseded by statute as stated in United States v. Wood-
ward, 277 F.3d 87, 91 (1st Cir. 2002).
2556 UNITED STATES v. WILLIAMSON
occurred during the course of the offense.’ ” (quoting
U.S.S.G. § 2G2.2 cmt. n. 1.)).
[18] We are satisfied that U.S.S.G. § 2G2.2(b)(4) falls
under the category of “unless otherwise specified,” and autho-
rizes the consideration of uncharged conduct. Thus, the five-
level enhancement under § 2G2.2(b)(4) was appropriate. It
follows, therefore, that the further enhancement under Appli-
cation Note 2, for seriousness of the § 2G2.2(b)(4) violation,
was also appropriate.
C
Williamson further contends that his sentence was “unrea-
sonable” because a judge rather than a jury decided the facts
used to increase it; rather than 15 years, it should have been
37 months.
Williamson’s argument is foreclosed by Booker, which
concluded that the sentencing judge could find additional
facts, so long as the judge treated the Guidelines as advisory.
125 S. Ct. at 750 (“[W]hen a trial judge exercises his discre-
tion to select a specific sentence within a defined range, the
defendant has no right to a jury determination of the facts that
the judge deems relevant.”); see also Ameline, 409 F.3d at
1077 (noting that, “if a particularly prescient sentencing
judge, pre-Booker, had made and used the same extra-verdict
findings . . . , but made clear that he was treating the Guide-
lines as advisory rather than binding, no Sixth Amendment
violation would have occurred under Booker”). It is clear that
the judge did not decide any of the relevant facts used to
enhance Williamson’s sentence under a mandatory Guidelines
regime. It follows that Williamson’s sentence was not unrea-
sonable under the Sixth Amendment.
D
[19] Williamson finally argues that his sentence was unrea-
sonable under 18 U.S.C. § 3553(a). But, the district court con-
UNITED STATES v. WILLIAMSON 2557
sidered the nature of circumstances of the offense, the need
for the sentence imposed given the seriousness of the offense,
the kinds of sentences available, and the range of sentences
available. The district court found that Williamson abused his
own granddaughter while he was in a position of authority
over her; created his own child pornography using his grand-
daughter; accused his son of the sexual abuse he committed
against his granddaughter; failed to show any remorse; and
collected thousands of images depicting minors engaging in
sexually explicit conduct, giving his entire life over to the col-
lection of sexually explicit images. Further, the psychiatric
evaluation of Williamson indicated that he presents a continu-
ing high risk to his community. The district court noted that
none of these factors was adequately considered under the
Guidelines, and concluded that “the maximum sentence is the
only reasonable sentence that is reasonable under these facts
and serves the purposes of § 3553.” Further, similar sentences
have been considered reasonable. See United States v. Wright,
373 F.3d 935 (9th Cir. 2004) (approving 15- and 20-year sen-
tences under similar facts). We are satisfied that the district
court’s sentencing decision is reasonable in light of the poli-
cies set forth in § 3553(a).
V
For the foregoing reasons, the decision of the district court
is AFFIRMED.