U.S. v. Fellows, 97-30320
| Decision Date | 15 October 1998 |
| Docket Number | No. 97-30320,97-30320 |
| Citation | 157 F.3d 1197 |
| Parties | 98 Daily Journal D.A.R. 10,829 UNITED STATES of America, Plaintiff-Appellee, v. Otis W. FELLOWS, III Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Filipovic, Assistant Federal Public Defender, Seattle, Washington, for defendant-appellant.
Helen J. Brunner, Assistant United States Attorney, Seattle, Washington, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-97-00241-1-TSZ.
Before: WRIGHT, SCHROEDER, and WIGGINS, Circuit Judges.
Otis Warner Fellows, III pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). After enhancing Fellows' sentence and denying a downward adjustment for acceptance of responsibility, the district court sentenced Fellows to 57 months of imprisonment to be followed by a three-year term of supervised release. Fellows appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
In 1992, Otis Fellows began his descent into the sordid world of child pornography. His legal troubles started when he purchased two child pornography video tapes from an undercover postal inspector. Following his arrest, Fellows pled guilty to Receiving Child Pornography Through the Mails as well as Use of the Mails for Unmailable Materials. The court sentenced him to five years probation and six months of home detention. Unfortunately, this initial brush with the law did not sate Fellows' aberrant desires.
Sometime in 1993, Fellows molested a thirteen-year-old boy. In June of 1996, he was charged in state court with second-degree rape of a child. Approximately one year later, Fellows pled guilty to second-degree child molestation and was sentenced to twenty-four months in prison. After being charged, but prior to entering his plea, Fellows made contact via the Internet with what he believed to be a fifteen-year-old male. 1 The two made arrangements to meet in public. Unbeknownst to Fellows, the Mercer Island Police Department dispatched a female officer in the minor's stead. When Fellows approached the decoy, the police arrested him for communicating with a minor for immoral purposes.
Following this arrest, the police obtained search warrants for Fellows' home and computer. The search of Fellows' computer resulted in the seizure of child pornography, specifically twenty visual depictions of young boys engaged in sexually explicit conduct, including one of a prepubescent boy. Each image was stored in a separate graphics file within Fellows' computer. He was charged with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
After being sentenced to two years in prison by the state court on the child molestation charge, Fellows was brought to federal court by writ of habeas corpus ad prosequendum. On July 21, 1997, he pled guilty to possession of child pornography. The government also filed a petition to revoke Fellows' probation After his plea, the government and the defendant filed sentencing memoranda. The defendant included a brief letter to the district court with his memorandum. In the letter, Fellows expressed remorse for his actions:
on the earlier receipt of child pornography charge. Fellows admitted to two violations referenced in that petition (his state court conviction for child molestation and possession of child pornography in his computer) and admitted to the conduct underlying the other alleged violation (his communication via the Internet with the minor).
As all of the parties agreed, the base offense level for a violation of 18 U.S.C. § 2252(a)(4) is 15. See U.S.S.G. § 2G2.4(a). At the sentencing hearing on October 3, 1997, the district court determined that several specific offense characteristic adjustments applied in this case. First, the court imposed a two-level enhancement under U.S.S.G. § 2G2.4(b)(1) because one of the images was of a prepubescent minor. Second, the court imposed a two-level enhancement under U.S.S.G. § 2G2.4(b)(2) because the defendant possessed more than ten "items" (i.e., graphics files) containing visual depictions of minors engaged in sexually explicit conduct. Finally, the court imposed a two-level enhancement under U.S.S.G. § 2G2.4(b)(3) because Fellows used a computer to obtain the child pornography. These enhancements resulted in a total offense level of 21. The district court then denied the defendant a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. In doing so, the court emphasized its belief that Fellows had not sufficiently expressed remorse and that his letter was merely "an effort to manipulate the system and say only as absolutely much as he thinks he needs to in order to gain acceptance" rather than an actual acceptance of responsibility for his criminal actions.
Based upon a criminal history category of III and an offense level of 21, the applicable guideline range for Fellows' sentence was 46 to 57 months. The district court imposed a 57-month sentence of imprisonment and a three-year term of supervised release. One of the conditions of supervised release was that Fellows "follow all other lifestyle restrictions or treatment requirements" imposed by his therapist. The court also revoked the probation given Fellows for his earlier crime of receipt of child pornography and imposed an 18-month sentence on that charge.
Fellows now appeals the district court's sentencing decisions.
This court reviews the district court's interpretation and application of the Sentencing Guidelines de novo. See United States v. Newland, 116 F.3d 400, 402 (9th Cir.1997).
The first issue in this appeal concerns the district court's two-level enhancement under U.S.S.G. § 2G2.4(b)(2) for the defendant's possession of ten or more items containing a visual depiction of child pornography. Specifically, the court concluded that a graphics file in a computer counts as an "item" under U.S.S.G. § 2G2.4(b)(2). Fellows argues that the court's ruling contravenes the plain meaning of the guideline. We disagree and affirm the district court's enhancement of Fellows' sentence.
U.S.S.G § 2G2.4(b)(2) provides for a two-level enhancement "[i]f the offense involved possessing ten or more books, magazines, periodicals, films, video tapes, or other items, containing a visual depiction involving the sexual exploitation of a minor." U.S.S.G. § 2G2.4(b)(2). This court applies the rules of statutory construction when interpreting the Sentencing Guidelines. See United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.1996). Thus, if the language of the guideline is unambiguous, the plain meaning controls. Id. Ultimately, the goal is to ascertain the intent of the drafters. See United States v. Butler, 74 F.3d 916, 922 (9th Cir.1996).
U.S.S.G. § 2G2.4(b)(2) applies where a defendant possesses at least ten "items" containing "a visual depiction." The clear focus of this section is on the number of items possessed by the defendant that contain at least one visual depiction of child pornography. The focus is not, as Fellows seems to suggest, on the number of visual depictions that an item may contain. Thus, a book or magazine with only one illicit photograph qualifies as an "item" under U.S.S.G. § 2G2.4(b)(2). The commonality between the "items" specifically enumerated in the section is that they are all discrete containers for visual depictions capable of being separately manipulated and distributed.
The closest cousin to "books, magazines, periodicals, films, [or] video tapes" in the computer is a computer file. Visual depictions in a computer are compiled and stored in graphics files, much like photographs are compiled and stored in books or magazines. As the district court recognized, the computer user can separately view, copy, delete, or transmit each discrete graphics file. Like the other "items" listed in the guideline section, a graphics file can store one or more visual depictions. The similarities between computer graphics files and the other "items" are manifest. Because the graphics file is the container used for compiling and storing visual depictions in a computer, it qualifies as an "item" under the plain language of U.S.S.G. § 2G2.4(b)(2).
This interpretation is in accord with that of the other circuits which have examined this issue. In United States v. Wind, 128 F.3d 1276 (8th Cir.1997), the Eighth Circuit concluded that U.S.S.G. § 2G2.4(b)(2)'s two-level enhancement applied to a defendant who pled guilty to possessing fifteen computer files containing child-pornographic visual depictions. 128 F.3d at 1278. In doing so, the court rejected the district court's downward departure because "the amount of child pornography possessed by Wind cannot be deemed less than typical for cases to which section 2G2.4 applies." Id.
In United States v. Hall, 142 F.3d 988 (7th Cir.1998), the Seventh Circuit concluded that "computer files are the equivalent of 'items' " under U.S.S.G. § 2G2.4(b)(2). 142 F.3d at 999. In doing so, the court rejected the defendant's argument that the only "items" he possessed were the three individual disks containing the separate graphics files. Id. at 997-999.
Fellows' arguments are equally unconvincing. 2 First, Fellows contends that an "item" in the computer context is properly defined as a computer hard drive, not a graphics file. In support of this contention, Fellows points out that most graphics files contain only one visual depiction, while a hard drive can store many...
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