U.S.A. v. Richardson

• Decision Date: 25 January 2001
• Docket Number: No. 99-4309,99-4309
• Citation: 238 F.3d 837
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Thomas C. Richardson, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 837

238 F.3d 837 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Thomas C. Richardson, Defendant-Appellant.

No. 99-4309

In the United States Court of Appeals For the Seventh Circuit

Argued October 23, 2000

Decided January 25, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No 99 CR 339--Suzanne B. Conlon, Judge.

Before Posner, Diane P. Wood, and Williams, Circuit Judges.

Posner, Circuit Judge.

The defendant pleaded guilty to receiving and possessing child pornography (including visual depictions) in violation of 18 U.S.C. sec.sec. 2252(a)(2) and (a)(4)(B) and was sentenced to 108 months in prison. He had downloaded more than 70,000 pornographic images from Internet-accessed newsgroups with such names as "alt.binaries.pictures.erotica.lolita." The FBI examined a random sample of 1,300 of these images and discovered that 77 depicted bondage and torture of children. The sentencing judge raised Richardson's base offense level by four levels under U.S.S.G. sec. 2G2.2(b)(3) because the bondage and torture pictures "portray[ed] sadistic or masochistic conduct or other depictions of violence" and by two levels under U.S.S.G. sec. 2G2.2(b)(5) because "a computer was used for the transmission" of the illegal material. The appeal challenges the two punishment enhancements.

An initial puzzle unilluminated by the briefs is the confusing overlap between the guideline under which Richardson was sentenced, 2G2.2, and a closely related guideline, 2G2.4. The first of these is captioned "Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving [such exploitation]; Possessing Material Involving [such exploitation] with Intent to Traffic." The second guideline is captioned "Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct." The first guideline specifies a base offense level of 17, the second one of 15. The second also provides a two-level enhancement for use of a computer, but expresses it differently: "if the defendant's possession of the material resulted from the defendant's use of a computer, increase by 2 levels," rather than "if a computer was used for the transmission" of the material. The second guideline, however, contains no enhancement for sadistic, masochistic, or violent material. The first guideline, we are told in the Sentencing Commission's commentary on it, is applicable to defendants convicted of (among other offenses) receiving visual images of child pornography, 18 U.S.C. sec. 2252(a)(2), a statute that carries a maximum penalty of 15 years in prison, see sec. 2252(b)(1), while the second guideline is applicable to defendants convicted of possession of such images, sec. 2252(a)(4), which carries a maximum penalty of only 5 years. sec. 2252(b)(2). Richardson was convicted under both statutes but sentenced under the guideline applicable to the one carrying the heavier maximum penalty. That was proper under the guidelines' grouping rules, U.S.S.G. sec.sec. 3D1.1, 3D1.3(a), and anyway is not challenged; if he were punished only for his less grave offense, he would be escaping punishment for committing the graver one.

The puzzle is why receiving, which under the first guideline and the statute that it implements is punished as severely as sending, United States v. Ellison, 113 F.3d 77, 81 (7th Cir. 1997), should be punished more severely than possessing, since possessors, unless they fabricate their own pornography, are also receivers. The explanation may be that receivers increase the market for child pornography and hence the demand for children to pose as models for pornographic photographs; possessors, at least qua possessors, as distinct from receivers, though most of them are that too, do not. United States v. Johnson, 221 F.3d 83, 98 (2d Cir. 2000). The possessor who creates his own pornography strictly for his personal use is not part of the interstate and international traffic in child pornography, a traffic that not only increases the demand for the production of such pornography but, by virtue of its far-flung scope, makes it extremely difficult to locate, let alone protect, the children exploited by it. Concern with the welfare of the children who are used to create pornography is part of the public concern over child pornography, United States v. Saylor, 959 F.2d 198, 200 (11th Cir. 1992), and this makes the receiver a greater malefactor than the possessor.

We grant that the distinction is rather tenuous. The possessor who creates his own child pornography has presumably used a child as his model; and it is uncertain whether Richardson paid for any of the images he downloaded. But these are doubts for another day, since he makes no issue of the fact that the two statutes, and the guidelines implementing them, specify different penalties.

Against the four-level enhancement for receiving visual images of bondage or torture, however, Richardson argues with support from several decisions by other circuits that the enhancement requires proof that he received these images deliberately. United States v. Tucker, 136 F.3d 763 (11th Cir. 1998) (per curiam); United States v. Kimbrough, 69 F.3d 723, 734 (5th Cir. 1995); United States v. Cole, 61 F.3d 24 (11th Cir. 1995) (per curiam); United States v. Saylor, supra, 959 F.2d at 200-01. There is no evidence that Richardson ordered such images or wanted to receive them. He downloaded child pornography from newsgroups that did not indicate whether any of their images contained scenes of bondage or torture. If the sample that the government examined is representative, about 5 percent of the images he received did contain such scenes.

One of the decisions on which Richardson relies (Saylor) is distinguishable as involving "sentencing entrapment." Id. at 200. With no reason to think Saylor desired sadomasochistic pornography, the government shipped it to him in order to create a predicate for enhanced punishment. Cole is distinguishable from our case for a different reason, that the defendant exercised reasonable care to avoid receiving sadomasochistic pornography. Richardson did not. On the contrary, by downloading in bulk from sources that did not indicate the range of sexual practices depicted in their inventory of pornographic images, he assumed a substantial risk of receiving some bondage and torture images. Tucker and Kimbrough do not require proof of reasonable care to avoid the receipt of violent images, but in Kimbrough a requirement of intent is assumed rather than discussed, and in Tucker the court, while explicit that intent to receive violent images must be shown, found the requisite intent on evidence no stronger than is present in this case.

Setting aside cases of sentencing entrapment, we think that the government is correct that liability for receiving violent child pornography is strict. Sentencing enhancements generally are imposed on the basis of strict liability rather than of the defendant's...