United States v. Brown , 843 F.3d 74 ( 2016 )

Judge SACK concurs in the result in a separate opinion. ■

judge POOLER dissents in a separate opinion.

DRONEY, Circuit Judge:

Nathan Brown pleaded guilty to three counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court (Sharpe, J.) imposed a sentence of 240 months for each of the three counts of production of child pornography (to be served consecutively) and 120 months for each of the two counts of possession of child pornography (to be served concurrently with the other sentences) for a total effective sentence of 60 years’ imprisonment. Brown challenges his sentence, arguing the district court miscalculated his Guidelines range and that his sentence is substantively unreasonable.

We AFFIRM the judgment of the district court.

BACKGROUND

Brown has never objected to the factual portions of his Pre-Sentence Report (“PSR”) prepared by the United States Probation Office. In addition, as part of his plea agreement, he expressly admitted certain details of his criminal conduct. The facts — undisputed by Brown — are the following.

In February 2012, the United States Department of Homeland Security Investigations (“HSI”) discovered eleven images on a child pornography website that appeared to have been uploaded by the same person. Several of the images depicted the same girl, referred to here as “Jane Doe 1.” It was later determined that Jane Doe 1 was eight years old at the time the images were taken. In one image, Jane Doe 1 was pictured with only a shirt on, with her vagina exposed, and with an open diaper next to each of her legs. In another, she was naked in a bathtub, again with her genitalia exposed. Additional pictures contained close-up images of her vagina, and one showed a male hand pulling aside her underwear. In several of the images, Jane Doe 1 was sleeping. Among these photographs was a picture of her hand holding an adult penis and two images of semen on her hand.

The pictures on the website also included images of another young girl, who was ten or eleven years old at the time the images were taken, (“Jane Doe 2”). The photographs showed Jane Doe 2 with her underwear pulled to the side and her vagina exposed; with her breast exposed; with an adult penis next to her mouth; and with an adult penis on her lips. Like Jane Doe 1, the images also included close-up pictures of her vagina. Jane Doe 2 was also sleeping in several of the pictures.

' By examining metadata¹ from one of the images, investigators were able to determine that the image had been taken using a Motorola Droid X cell phone. The metadata also revealed global positioning system (“GPS”) coordinates associated with the image. With assistance from the cell phone carrier in that region for the Motorola Droid X, investigators were able to determine the approximate area where the photograph was taken. Investigators then spoke with the superintendent for schools within that area, who identified a sanitized image of Jane Doe 1.

The HSI agents visited Jane Doe l’s home and spoke with her parents. Through these interviews, the HSI learned that Jane Doe 1 and Jane Doe 2 were cousins. Investigators then spoke to Jane Doe 2’s mother as well. The HSI" learned that Brown — the former boyfriend of Jane Doe 2’s mother — had frequently babysat both girls at Jane Doe 2’s trailer home, where the photographs were taken.

Jane Doe 1 and Jane Doe 2 were interviewed. The girls reported that while babysitting Brown would “play house” with them, and Jane Doe 1 would play the “baby” and wear a diaper. PSR ¶¶ 18, 20, 31-33. According to Jane Doe 1, Brown would periodically “change” the diaper as if it were soiled. PSR ¶33. Jane Doe 1 reported that, while doing so, Brown had touched her as he “clean[ed]” her vaginal area with a. baby wipe. PSR ¶ 33. Brown also took pictures of the girls as this was occurring.

Both girls were able to recognize themselves in the photographs that they were shown by investigators, and they remembered a number of the pictures which had been taken while they were awake. Jane Doe 1 told investigators that Brown had offered to buy her an iPad if she allowed him to take more pictures of her, which she refused.

Based on the information provided by the girls and their parents, the HSI agents obtained a search warrant for Brown’s residence and electronic devices. On March 9S 2012, law enforcement officers executed the warrant at Brown’s trailer home, and found him attempting to delete child pornography from his computer. Brown was arrested. Among the items seized from Brown’s apartment were multiple computers, cell phones, storage devices, and a pinhole camera.

After his arrest, Brown told investigators that he had been viewing child pornography online daily using software that hid his IP address. He admitted to taking nude photographs of children with his phone, including approximately 100 photographs of Jane Doe 1 and Jane Doe 2 that he uploaded from his phone to his computer. Brown told investigators that he had taken the pictures of Jane Doe 1 because the “opportunity was there.” PSR ¶26.

Brown told investigators that he had also taken sexually-explicit photographs and videos of a third victim (“Jane Doe 3”), who was nine years old at thé time. Jane Doe 3 was his ex-wife’s sister. Images and videos of Jane Doe 3 wére also found on Brown’s computers. One video showed Brown touching his penis to her hand and ejaculating on it. Another showed him ejaculating on her feet, and a third 'showed him pulling down her underwear and spreading her vagina with his fingers. Brown admitted to pulling down Jane Doe 3’s underwear and photographing her while she was sleeping during a family trip to Lake George in December 2011. Jane Doe 3 currently has no knowledge that the photographs were taken; she was asleep at the time.

After Brown’s arrest, investigators conducted a forensic analysis of his computers and phones. The eleven images that originally prompted the investigation were found on Brown’s computers. The search also revealed that Brown had produced pornographic images of at least five children — Jane Does 1, 2, and 3, and two additional unidentified victims. The unidentified victims were a young girl (age eight or nine) and an infant.² Investigators also discovered photographs that Brown had taken by hiding his pinhole camera (1) in the bathroom of a home where a pool party was being held and (2) in the bathroom of a public water park in Lake George. The pinhole camera had captured images of children changing their clothes.

Brown possessed an extraordinary quantity of other child pornography not involving these five victims. His computers collectively contained over 25,000 still images and 365 videos, including approximately 4 still images involving torture, 60 displaying bondage, 30 depicting bestiality, 1,873 involving sexual intercourse, 160 involving objects, and 18 involving infants. In total, 294 victims were identified in these images.

On March 21, 2012, Brown was indicted in the Northern District of New York on five counts: three counts of production of child pornography .in violation of 18 U.S.C. §§ 2251(a), (e) and 2256(8) (Counts One to Three), and two counts of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2) and 2256(8)(A) (Counts Four and Five).³ The three production counts were based on the separate conduct involving Jane Does 1, 2, and 3. Brown pled guilty to all counts of the indictment.

At sentencing, the district court accepted the PSR’s Guidelines calculation. In determining Brown’s Guideline range, the PSR grouped Counts 1, 4, and 5 pursuant to U-S.S.G. § 3D1.2. The base offense level for this group (“Group 1”) was calculated under U.S.S.G. § 2G2.1(a) to be 32. This base offense level was then increased by a total of 14 levels because of five sentencing enhancements: (1) a four-level enhancement pursuant to U.S.S.G. § 2G2.1(b)(l)(A) because Jane Doe 1 was under twelve years old, (2) a two-level enhancement pursuant to U.S.S.G. § 2G2.1(b)(2)(A) because the offense conduct “involved the commission of a sexual act or sexual contact,” (3) a four-level enhancement pursuant to ' U.S.S.G. § 2G2.2(b)(4) because “the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence,” (4) a two-level enhancement pursuant to U.S.S.G. § 2G2.1(b)(5) because Jane Doe 1 was in the “custody, care or supervisory control” of Brown, and (5) a two-level enhancement pursuant to U.S.S.G. § 3Al.l(b)(l) because Brown “knew or should have known” that the conduct involved a vulnerable victim. These enhancements amounted to an offense level of 46 for Group 1.

Counts 2 and 3 were placed in two separate groups because of the separate harm to Jane Does 2 and 3. The offense level calculated for Groups 2 and 3 was 42. The offense level calculations for these groups were identical to the calculation in Group 1, except that no enhancements for depictions of sadistic or masochistic conducted were applied, as the possession counts were not included in Groups 2 and 3, To combine the groups, the PSR took the greatest offense level of the groupings — 46 from Group. 1 — and increased that offense level by 3 pursuant to U.S.S.G. § 3D1.4. Brown’s combined adjusted offense level on all counts was 49, Brown received a final five-level enhancement pursuant to U.S.S.G. § 4B1.5(b) for having “engaged in a pattern of activity involving prohibited sexual conduct.” Finally, Brown received a three-level reduction for acceptance of responsibility. The total offense level was then “treated as level 43,” the maximum offense level under the Guidelines. See U.S.S.G. ch. 5, pt. A, application note 2 (“An offense level of more than 43 is to be treated as an offense level of 43.”).

At Criminal History Category I and offense level 43, Brown’s recommended sentence under the Guidelines was initially life imprisonment. However, because each count was subject to a statutory maximum, Brown’s recommended Guidelines sentence became 110 years.

Many of the victims identified in the images that related to the two possession counts provided Victim Impact Letters to the district court -prior to sentencing. In those letters, the victims recounted feelings of helplessness, depression, shame, and fear. In the words of one victim,

My privacy and myself ha[ve] been violated and my pictures are on the internet all over the world.... Even though I’ve tried so hard to forget there’s not a day that goes by that it doesn’t affect me.... I break down into tears all of a sudden, I don’t talk for a d.ay, I get random flashbacks, I have horrible nightmares.... Now the pictures are spread all over the internet, and unfortunately it’s beyond my control.

PSR at 36-37. In the words of another victim, “[b]eing sexually abused is something you never forget,.... [b]ut when you have photographs of your abuse on the Internet,_it makes it even more impossible to keep it in your past and move on from it. It is like the abuse is still happening.” PSR at 41.

As to the three counts of the indictment which charged production of child pornography, the families of Jane Doe 1 and Jane Doe 2 spoke at Brown’s sentencing. They described the significant behavioral issues that these girls suffer, and how the girls struggle to. maintain relationships with family and friends. For example, Jane Doe 1⅛ family explained that Jane Doe 1 blames herself for what happened.. She experiences frequent nightmares in which Brown “chas[es] her with [his] phone and camera,” App. 84. Jane Doe l’s grandmother recounted witnessing these nightmares and hearing Jane Doe 1 scream, “Get him off me, get him off me.” App. 84, Jane Doe 1 was nearly held back in school and required one-on-one tutoring and counseling services. Jane Doe 2’s family similarly described how Jane Doe 2 suffers from guilt and nightmares, has difficulty trusting other people, and has required extensive treatment, including medication and counseling. The families told the . district court that both they and the girls “feel violated in the worst imaginable way” and that the girls “live in fear” and continue to “struggle[] with what happened.” App. 83. Jane Doe 3, Brown’s ex-wife’s sister, PSR ¶ 61, did not submit a Victim Impact Statement or speak at sentencing.

Brown did not object to the Guidelines calculations or to the factual matters set forth, in the PSR, but asked for a non-Guidelines sentence of fifteen years’ imprisonment". The district' court sentenced Brown to 60 years’ imprisonment, imposing 20-year consecutive terms on Counts One through Three (the production counts related to victims Jane Does 1 through 3), and 10-year terms on Counts Four and Five (the possession counts) to be served concurrently with one another and with its sentence on the production counts.⁴

DISCUSSION

“Our review of criminal sentences includes both procedural and substantive components and amounts to review for abuse of discretion.” United, States v. McIntosh, 753 F.3d 388, 393-94 (2d Cir. 2014) (per curiam) (internal quotation marks omitted). We “must first ensure that the district court committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 61, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Procedural error occurs in situations where “the district court miscalculates the Guidelines; treats them as mandatory; does not adequately explain the sentence imposed; does not properly consider the § 3553(a) factors; bases its sentence on clearly erroneous facts; or deviates from the Guidelines without explanation.” McIntosh, 753 F.3d at 394. “Once we have determined that the sentence is procedurally sound, we then review the substantive reasonableness of the sentence, reversing only when the trial court’s sentence ‘cannot be located within the range of permissible decisions.’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quoting United States v. Cavern, 550 F.3d 180,189 (2d Cir. 2008)).

A sentence is substantively unreasonable if, for instance, it would “damage the administration of justice because the sentence imposed was shockingly high.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Upon review for substantive unreasonableness, we “take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Cavera, 550 F.3d at 190.

I first address Brown’s argument that the district court miscalculated his Guidelines range, and then turn to whether Brown’s sentence was substantively reasonable.

I. Procedural Reasonableness

On appeal, Brown raises — for the first time — two challenges to his Guidelines calculation: (1) that the district court misapplied the Guidelines’ grouping and stacking provisions and (2) that the court erroneously applied an enhancement for material depicting sadistic or masochistic conduct.⁵ The government argues that Brown has waived these objections to the district court’s Guidelines calculations by failing to object to the PSR.

“[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v, Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). “[C]ourts applying [the] waiver doctrine have focused on strategic, deliberate decisions that litigants consciously make.” United States v. Dantzler, 771 F.3d 137, 146 n.5 (2d Cir. 2014). A true waiver will “extinguish” an error in the district court, precluding appellate review. Olano, 507 U.S. at 733, 113 S.Ct. 1770. By contrast, “[i]f a party’s failure to [object] is simply a matter of oversight, then such oversight qualifies as a correctable ‘forfeiture’ .... ” United States v, Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995). If a party forfeits an argument, we review for plain error. Id. Under the plain error standard, an appellant must demonstrate that “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (internal alteration and quotation marks omitted).

There is some tension in our case law concerning the application of plain error review and waiver in the sentencing context. Compare United States v. McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (“The plain error doctrine should not be applied stringently in the sentencing context, where the cost of correcting an unpreserved error is not as great as in the trial context.” (alteration and internal quotation marks omitted)), United States v. Wemick, 691 F.3d 108,113 (2d Cir. 2012) (same), ivith United States v. Jass, 569 F.3d 47, 66 (2d Cir. 2009) (concluding that failure to object to sentencing enhancement constituted forfeiture), and United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008) (same). It is riot necessary to decide whether Brown’s challenges to the Guidelines calculation were waived or forfeited, or whether the plain error doctrine should be applied stringently, however, because, for the reasons discussed below, he fails to demonstrate any error whatsoever.

A. Grouping and Stacking

Brown first argues that the district court erred in its application of the Guidelines’ grouping and stacking provisions.

Chapter 3, Part D of the Sentencing Guidelines Manual provides rules for determining a single offense level when-a defendant is convicted of multiple counts. See generally United States v. Feola, 275 F.3d 216, 219 (2d Cir. 2001). First, under the Guidelines, “[a]ll counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule ... [w]hen counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” U.S.S.G. § 3D1.2(b). Next, an offense level for each group is determined by using the offense level, enhanced by relevant conduct, for the most serious offense within the group. Id. § 3D1.3(a). The combined offense level is then determined by using the offense level of the group with the highest offense level, adjusting that level upward based on the offense levels of the other groups, and finally decreasing the offense level as appropriate if the defendant accepts responsibility for his offenses. Id. §§ 3D1.4, 3E1.1.

The district court correctly applied these provisions. As noted, the district court combined Counts 1, 4, and 5 (Group 1). The court was required to group Counts 2 and 3 separately because Section 3D1.2(d) specifically prohibits counts charging production of child pornography to be grouped together. The court then determined a combined offense level by using the offense level for Group 1 — the group with the highest level — increasing that offense level based on the levels of Groups 2 and 3, and decreasing the offense level based on Brown’s acceptance of responsibility, There is no error, much less plain error, in how the district court grouped Brown’s convictions counts.

Nor is there any error in the district court’s' application of the stacking provisions in Chapter 5 of the Guidelines Manual. Section 5G1.2(d) provides, “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.” The district court correctly determined that, the Guidelines range was 110 years based on the stacking máximums for the three production counts, which each carried a statutory maximum of 30 years, and the two possession counts, which each carried a statutory maximum of 10 years. The district court also appropriately applied Section 5G1.2 in arriving at the sentence imposed.

B. Enhancement for Violent and Sadomasochistic Conduct

Brown next argues that the district court erred by applying a four-level sen-fencing enhancement' to Group 1 for an “offense involving] material that portrays sadistic or masochistic conduct or other depictions of violence,” U.S.S.G. § 2G2.2(b)(4), despite the fact that Brown did not produce any sadistic images. Brown apparently contends that although the materials underlying the possession counts contained such images, that enhancement should not apply because the possession counts were not relevant conduct for the production counts.⁶

It is not necessary to address Brown’s argument because any error would necessarily be harmless. Because Brown’s total offense level exceeded the highest offense level listed in the sentencing table by more than four levels, Brown’s Guidelines range would have been identical even absent this enhancement. Any misapplication was therefore harmless. United States v. Cramer, 777 F.3d 597, 603 (2d Cir. 2015) (“An error in Guidelines calculation is harmless if correcting the error would result in no change to the Guidelines offense level and sentencing range.”).

II. Substantive Reasonableness

Brown argues his sentence of 720 months is unreasonable because it results in a de facto life sentence. He also argues the district court abused its discretion in concluding Brown lacked remorse.

This Court will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting U.S. v. Rigas, 490 F.3d 208, 238 (2nd Cir. 2007)). Brown has not shown that the district court’s decision is such an exceptional case. Given the seriousness of the crimes involved here, a 60 year sentence — which was below the Guidelines range — is within the realm of punishments that this Court has. upheld as reasonable for production of child pornography, even considering that there may be, as Brown argues, “more serious” crimes such as intentional murder. See, e.g., United States v. Hamilton, 548 Fed.Appx. 728, 730 (2d Cir. 2013) (summary order) (“Insofar as Hamilton argues that ... [life] sentences should be ‘reserved [for] intentional murder,’ we find such an argument unavailing. Nor are we persuaded that a life sentence, in the case at bar overstates the ‘seriousness of the offense,’ see 18 U.S.C. § 3553(a)(2)(A), given Hamilton’s role in producing graphic child pornography by filming himself sexually abusing children as young as four years old.”).

Additionally, the district court did not abuse its discretion in determining Brown had not demonstrated remorse. First, the district court, having adopted the Guidelines calculation in the PSR, accepted a three-level reduction in Brown’s offense level for acceptance of responsibility. Second, the district court based its conclusion that Brown showed “no true serious remorse,” App. 101, on Brown’s behavior at sentencing as well as his statements to the Probation Office contained in the PSR.

As to the substantive reasonableness of the sentence, this case is not, as Brown argues and the dissent maintains, United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). In Dorvee, the defendant was sentenced to the statutory maximum of 240 months’ imprisonment after pleading guilty to one count of distribution of child pornography. See id. at 176. Dorvee’s conviction arose from sexually-explicit conversations that he had online with two undercover police officers that he believed to be teenage boys. Id. Dorvee was arrested when he arrived at a meeting with one of the “boys,” after indicating that he wanted to photograph and engage in sexual conduct with the “boy.” Id. A search of Dorvee’s computers revealed several thousand still images and approximately 100 to 125 videos of minors engaging in sexually explicit .conduct. Id.

We found Dorvee’s within-Guidelines sentence to be substantively unreasonable. Id. at 188. The district court had “apparently] assum[ed] that Dorvee was likely to actually sexually assault a child,” but this assumption was “unsupported by the record evidence,” which demonstrated that Dorvee had never had any actual, sexual contact with children. Id. at 183-84. The record also contained medical and psychiatric expert reports that Dorvee was unlikely to initiate a relationship with a child. Id. at 183. We found that application of the Guidelines in Dorvee’s case led to an irrational result, observing that the Guidelines resulted in a greater sentence than had he been convicted of “actually engaging] in sexual conduct with a minor.” Id. at 187.

Brown did have actual sexual contact— repeatedly — with multiple young victims, and Brown engaged in the production of child pornography during the course of this abuse. We have repeatedly upheld lengthy sentences in production cases post-Dorvee, recognizing a distinction between production and possession, particularly in production cases involving sexual contact with victims. See United States v. Oehne, 698 F.3d 119, 125 (2d Cir. 2012) (per curiam) (“Dorvee is readily distin-guisháble.... Unlike the" defendant in Dorvee, Oehne actually sexually assaulted a child.... He photographed the abuse and distributed the images over the internet, where they have been viewed by thousands worldwide.”); United States v. Broxmeyer, 699 F.3d 265, 291 (2d Cir. 2012) (“[T]his case is distinguishable [from Dor-vee] in presenting ample record evidence of Broxmeyer actively engaging minors in sexual conduct, for purposes of both photographing it and participating in it.”).

Moreover, the fact that the victims were asleep when some of the photographs and videos were taken of them does not, as the dissent suggests, make Brown’s conduct any less serious. See Dissenting Op., post at 90, 91, 92. Simply because they did not know of Brown’s actions when they were sleeping does not diminish the harm they suffered. As to Jane Doe 3, the fact that she was asleep for all of the sexual abuse does not mean that she will never learn of it, or that she will not suffer the emotional and psychological harm described by the other victims.⁷

Given the seriousness of Brown’s offenses and the need to protect the public from further crimes of this defendant and others, as well as the' application by the district court of the other sentencing factors set forth in 18 U.S.C. § 3553(a), the sentence imposed in this case was “within the range of permissible decisions.” Cavera, 550 F.3d at 191.

CONCLUSION

For the foregoing reasons, Brown’s 720 month sentence was procedurally and substantively reasonable. Accordingly, we AFFIRM the judgment of the district court.

1 . Metadata is "[d]ata typically stored electronically that describes characteristics of [electronically stored information (‘ESI’) ],.... [such as] how, when, and by whom ESI was collected, created, accessed, modified, and how it is formatted,” The Sedo-na Conference, The Sedona Conference Glossary: E-Discovery■ & Digital Information Management 34 (Sherry B. Harris & Paul H. McVoy, eds., 3d ed. 2010). Here, the metadata associated with the image that the HSI found online consisted of the date, time, and GPS coordinates registered by the recording device at the time the image was captured and the type of recording device (i.ea Motorola Droid X cell phone) that was used.

2 . There was some confusion at sentencing as to the content of the images of the unidentified victims. At sentencing, the government provided that the nature of the images of Victims #4 and 5 “were different” as "they involved a hidden camera where the images may not be considered sexually explicit, but they captured two minors changing in and out of their clothing.” App. 80-81. The government continued, stating “there were two additional victims, Jane Doe VI and VII” who were "also secretly filmed with a hidden camera changing in and out of their clothes.” App, 81. The government appears to have made this statement in error as the PSR states that “images of Victim #4 depicted a female approximately eight to nine years old with black hair opening her vagina and wearing a cartoon t-shirt”' and that images of Victim #5 "depict an unknown infant.” PSR ¶ 37. The PSR goes on to provide that "(i]mages were also located.of unknowing victims obtained by the defendant hiding a pinhole camera at various locations.” PSR ¶ 38 (emphasis added). The PSR provides that four children were .filmed by the pinhole camera; an identified minor female who was unaware she was a victim, Brown’s son, and two unidentified children who were taped changing out of their swimwear. PSR ¶ 38. Victims #4 and 5 are not those children, identified by the government at sentencing as Victims #6 and 7, depicted in images and videos obtained by Brown of the pinhole cameras. Rather they are victims depicted similarly to Jane Does 1, 2, and 3.

3 . There were two counts for possession of child pornography because images were found on two computers. App. 11-13.

4 . A supervised release term of life was also imposed, as well as a restitution award of $10,416.

5 . The dissent suggests a third problem with Brown's Guidelines calculation — raised neither here nor below — that the conduct underlying certain sentencing enhancements "cannot justify such a dramatic departure from the sentence that would have been recommended based solely on the offense itself.” Dissenting Op., post at 90. However, each of the three enhancements highlighted in the dissent arose from distinct harms inflicted by Brown’s criminal conduct, specifically: (1) that the victims were in Brown's care at the time of the abuse, U.S.S.G, § 2G2.1(b)(5); (2) that the victims were asleep during some of the abuse and therefore especially vulnerable, U.S.S.G. § 3A1.1(b)(1); and (3) that the victims were of a particularly young age, U.S.S.G, § 2G2.1(b)(1). These enhancements increased Brown’s Guidelines range, but the resulting increase is not error — even if it were properly before us — because each enhancement accounted for separate harms. See United States v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000) (”[M]ultiple adjustments may properly be imposed when they aim at different harms emanating from the same conduct.”).

6 . Brown also claims that the district court misunderstood that this type of material was only involved in the possession counts, not the production counts. The transcript of the sentencing reflects that the district court understood this distinction, however.

7 . In fact, under the Guidelines, an offense is more serious when the victim is “unusually vulnerable due to ... physical or mental condition” or “otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2, Other circuits have specifically upheld applying this' enhancement in child pornography and sexual abuse cases where victims were vulnerable because they were asleep at the time of the abuse. See United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009); United States v. Newsom, 402 F.3d 780, 785 (7th Cir. 2005); United States v. Wetchie, 207 F.3d 632, 633-36 (9th Cir. 2000); see also United States v. Finley, 726 F.3d 483, 495 (3d Cir. 2013) (noting that sleeping children are “considerably more vulnerable” in context of child pornography production offenses).