USA v. Demerritt
Decision Date | 01 August 1999 |
Docket Number | Docket No. 99-1066 |
Citation | 196 F.3d 138 |
Parties | (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. GEOFFREY DEMERRITT, Defendant-Appellant |
Court | U.S. Court of Appeals — Second Circuit |
Appeal from a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) following appellant's plea of guilty to possessing child pornography.
Affirmed.
WILLIAM M. SCHRIER, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, and Cathy Siebel, Assistant United States Attorney for the Southern District of New York, of counsel), for Appellee.
HENRIETTE D. HOFFMAN, Federal Defender Division Appeals Bureau, Legal Aid Society, New York, NY, for Defendant-Appellant.
Before: OAKES, KEARSE, and CABRANES, Circuit Judges.
The question presented, as a matter of first impression for this Court, is whether a computer graphics file is an "item" within the meaning of U.S.S.G. 2G2.4(b)(2), so that a defendant who possesses ten computer files depicting images of child pornography receives a two-level upward enhancement in his base offense level for sentencing purposes. Defendant-Appellant Geoffrey Demerritt appeals from a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) following his plea of guilty to possessing child pornography in violation of 18 U.S.C. 2252(a)(4)(B). The District Court sentenced Demerritt to 33 months' imprisonment, followed by three years of supervised release; fined him $6000; and imposed a special assessment of $100. On appeal, Demerritt argues that the District Court improperly enhanced his base offense level pursuant to U.S.S.G. 2G2.4(b)(2) for possessing more than ten "items" of child pornography. We affirm.
Demerritt was arrested on January 22, 1998, following a controlled delivery by the U.S. Customs Service of a videotape containing child pornography. Demerritt had ordered the videotape from a catalogue that he obtained through an Internet web site secretly operated by the Customs Service. At the time of his arrest, Customs agents seized the videotape as well as two computers and "several" pornographic magazines depicting "apparently underage males." Thereafter, agents found approximately 700 computer files depicting child pornography saved on the hard drives of Demerritt's computers.
On August 5, 1998, Demerritt pleaded guilty before Magistrate Judge Lisa Margaret Smith to one count of possessing child pornography in violation of 18 U.S.C. 2252(a)(4)(B). 1 During his plea allocution, Demerritt acknowledged, inter alia, that he had used a computer from October 1996 to January 1998 to "download" from the Internet and otherwise receive images of children in sexually explicit poses. 2
Following Demerritt's guilty plea, the Probation Office prepared a Pre-Sentence Investigative Report recommending a guideline range of 27 to 33 months' imprisonment. In calculating the applicable range, the Probation Office began with a base offense level of 15 under U.S.S.G. 2G2.4(a), and made three upward adjustments of two levels each because (1) "the material involved a prepubescent minor or a minor under the age of twelve years," id. 2G2.4(b)(1); (2) "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," id. 2G2.4(b)(2); and (3) "the defendant's possession of the material resulted from the defendant's use of a computer," id. 2G2.4(b)(3). In addition, the Probation Office adjusted Demerritt's base offense level downward for acceptance of responsibility, and identified his Criminal History Category as
I.
Demerritt objected to the two-level enhancement under U.S.S.G. 2G2.4(b)(2) for possession of ten or more "items[] containing" child pornography. Specifically, Demerritt argued that the computers, rather than the computer files, should be treated as the relevant "items" under 2G2.4(b)(2) because it would constitute "double counting" to enhance his sentence under both 2G2.4(b)(2), for possession of more than ten computer files, and 2G2.4(b)(3), for use of a computer. At sentencing on January 21, 1999, Judge McMahon rejected this contention and, after denying several arguments for downward departure, sentenced Demerritt principally to 33 months' imprisonment. This appeal followed.
The sole issue on this appeal is whether the District Court erred in treating Demerritt's computer files as "items" under U.S.S.G. 2G2.4(b)(2) and, accordingly, in enhancing his base offense level by two levels. Because this issue involves a purely legal question, we review the District Court's decision de novo. See e.g., United States v. Kirvan, 86 F.3d 309, 311 (2d Cir. 1996).
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." Because the Sentencing Guidelines "have the force and effect of law," our interpretation of this provision is guided by basic rules of statutory construction. Kirvan, 86 F.3d at 311; accord United States v. Martinez-Santos, 184 F.3d 196, 204 (2d Cir. 1999). Therefore, we must give "the words used their common meaning, absent a clearly expressed manifestation of contrary intent." Kirvan, 86 F.3d at 311 (citing United States v. Turkette, 452 U.S. 576, 580 (1981)).
Although the question presented is one of first impression for this Court, the Seventh, Eighth, and Ninth Circuits all have held that an individual computer file is an "item" within the meaning of U.S.S.G. 2G2.4(b)(2). See United States v. Fellows, 157 F.3d 1197, 1200-02 (9th Cir. 1998), cert. denied, 120 S. Ct. 133 (1999); United States v. Hall, 142 F.3d 988, 997-99 (7th Cir. 1998); United States v. Wind, 128 F.3d 1276, 1278 (8th Cir. 1997); see also United States v. Lake, 53 F. Supp. 2d 771, 781 (D.N.J. 1999). In Fellows, a panel of the Ninth Circuit reasoned:
The closest cousin to "books, magazines, periodicals, films, [or] video tapes" in the computer [context] 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. ... [T]he 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.
157 F.3d at 1201. We agree with this analysis. Computer files, like books, magazines, and video tapes, are "discrete containers for visual depictions capable of being separately manipulated and distributed." Id. Thus, computer files, and not the disk or disks on which such files are stored, are "items" within the meaning of U.S.S.G. 2G2.4(b)(2).
The facts of this case demonstrate the soundness of treating computer files as "items" for purposes of U.S.S.G. 2G2.4(b)(2). As noted, Customs agents discovered approximately 700 discrete computer files depicting child pornography on Demerritt's computers. When he pleaded guilty, Demerritt acknowledged that he had obtained these files over a 15-month period stretching from October 1996 to January 1998. In other words, he downloaded most, if not all, of the files found on his computers in separate transactions over an extended period of time, much as one might purchase individual books or magazines in a series of separate trips to the bookstore. Especially in such circumstances, common sense dictates that the discrete computer files, and not the computer hard drives on which such files are stored, should count as "items" under U.S.S.G. 2G2.4(b)(2). 3
We are unpersuaded by Demerritt's argument that the term "containing" in U.S.S.G. 2G2.4(b)(2) requires a different result. Although the term "container" is usually used in reference to a physical object, see, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 491 (1976) ("WEBSTER'S"), and a computer "file" is, technically speaking, not a physical object, see, e.g. FREEDMAN, supra, at 97, 333 ( ), the word "containing" can also be used to mean "consist[ing] of wholly or in part: COMPRIS[ING], INCLUD[ING]," WEBSTER'S, supra, at 491. Defined in this manner, the term "containing" can be used in reference to computer files, as indeed it has been in both legal and nonlegal sources. See, e.g., United States v. Tagore, 158 F.3d 1124, 1127 (10th Cir. 1998) ; FREEDMAN, supra, at 377 ( ); ALAN SIMPSON, MASTERING WORDPERFECT 8, at 498 (2d ed. 1997) ; John Markoff, The Latest Technology Fuels the Oldest of Drives, N.Y. TIMES, Mar. 22, 1992, 4 (Week in Review), at 5 .4 Furthermore, using the term "containing" in reference to a computer disk, notwithstanding that a disk is a physical object, is no less awkward than using the term in reference to a computer file. Insofar as "containing" is used to mean "hav[ing] within," WEBSTER'S, supra, at 491, neither a computer file nor a computer disk actually "contains"...
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