281 F.3d 1088 (10th Cir. 2002), 00-5206, United States v. Thompson

Docket Nº:00-5206, 00-5237.
Citation:281 F.3d 1088
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne THOMPSON; Robert John Naus, Defendants-Appellants.
Case Date:February 14, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1088

281 F.3d 1088 (10th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,


Larry Wayne THOMPSON; Robert John Naus, Defendants-Appellants.

Nos. 00-5206, 00-5237.

United States Court of Appeals, Tenth Circuit.

Feb. 14, 2002

Page 1089

Jack Schisler, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Tulsa, OK, for Defendants-Appellants.

Neal B. Kirkpatrick, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY, Circuit Judge.

PAUL KELLY, JR., Circuit Judge.

This decision consolidates two cases from the Northern District of Oklahoma. Larry Wayne Thompson and Robert John Naus appeal their sentences for knowingly possessing "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography...." 18 U.S.C. § 2252A(a)(5)(B). The sole issue on appeal is whether the district court erred in sentencing by applying a two-level enhancement for possession of ten or more "items" pursuant to § 2G2.4(b)(2) of the 1998 United States Sentencing Guidelines, which provides: "If 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, increase by 2 levels." United States Sentencing Commission, Guidelines Manual, § 2G2.4(b)(2) (Nov.1998). The district court interpreted the term "items" to include computer files on the disks rather than the disks themselves. We affirm.


Mr. Thompson was found in possession of child pornography after a South Carolina customs agent informed an Oklahoma City customs agent that Mr. Thompson had sent 17 child pornography images to a South Carolina target. Hundreds of visual depictions of minors engaged in sexually explicit activity were found on Mr. Thompson's computer with more such depictions on compact disks and floppy disks. Notwithstanding the hundreds of files, the prohibited material was contained on fewer than ten computer hard disks, compact disks, or floppy disks. On April 20, 2000, Mr. Thompson pled guilty to eight counts of violating 18 U.S.C. § 2252A(a)(5)(B). He was sentenced to thirty months imprisonment based in part on a two-level enhancement under U.S.S.G. § 2G2.4(b)(2) for possessing ten or more computer files containing child pornography.

Mr. Naus was found in possession of child pornography as well. Western Union records obtained by customs showed that Mr. Naus sent $100 to persons in Moscow, Russia who were trafficking in child pornography. During an initial search, Mr. Naus indicated that he believed he had downloaded approximately 500 images of child pornography. Four disks were discovered with 136 images of children engaged in sexually explicit conduct with other children, adults or both. After seizure of Mr. Naus's computer system and floppy disks, an agent discovered an additional three images of child pornography on another disk. Two super floppy disks (which can store 120 MB of data, in contrast to a regular floppy disk that can store 1.44 MB) contained 284 and 72 images of child pornography. Thus, 495 visual depictions of minors engaged in sexually explicit conduct were found on five floppy disks and two "super floppy" disks.

On June 26, 2000, Mr. Naus entered a guilty plea to one count of violating § 2252A(a)(5)(B). He was sentenced to twenty-seven months imprisonment as a result of a two-level enhancement under § 2G2.4(b)(2). Both Mr. Thompson and

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Mr. Naus were also sentenced to three years supervised release following imprisonment. On appeal, Messrs. Thompson and Naus contend that neither of them possessed more than ten "items" as prescribed by § 2G2.4(b)(2), if that term is understood to refer to the media on which images of child pornography were stored rather than the files themselves. The government responds that in § 2G2.4(b)(2) each computer graphics file maintained on a computer hard drive, floppy disk, or other storage medium constitutes a separate "item."


We review de novo a district court's legal interpretation of the guidelines. United States v. Gacnik, 50 F.3d 848, 852 (10th Cir.1995). The guidelines are interpreted as though they were a statute or court rule, with ordinary rules of statutory construction. United States v. Tagore, 158 F.3d 1124, 1128 (10th Cir.1998). Adopting a narrower interpretation is at odds with our precedent:

While we apply the rule of strict construction to criminal statutes, and by extension to the Guidelines, that does not mean the Guidelines must be given their narrowest possible meaning. Rather, the rule of strict construction is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.

United States v. Reaves, 253 F.3d 1201, 1203 (10th Cir.2001) (quotations and citations omitted).

As noted, the statute, § 2252A(5)(B) speaks of knowing possession of "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography" and the guideline speaks of possession of "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).

While it is true that the two are largely symmetrical, "computer disk" stands alone in the statute, as does "items" in the guideline. Although the issue is one of first impression in this circuit, 1 two courts considering convictions under § 2252A(a)(5)(B) have determined that the term "items" in § 2G2.4(b)(2) means computer files, not the entire disk. See United States v. Harper, 218 F.3d 1285, 1287 (11th Cir.2000) (per curiam); United States v. Perreault, 195 F.3d 1133, 1134-35 (9th Cir.1999). Other courts have reached the same conclusion under a similar statute. United States v. Fellows, 157 F.3d 1197, 1200-02 (9th Cir.1998) (conviction under § 2252(a)(4)(B)); United States v. Demerritt, 196 F.3d 138, 141-42 (2d Cir.1999) (same); United States v. Hall, 142 F.3d 988, 997-99 (7th Cir.1998) (same); United States v. Wind, 128 F.3d 1276, 1278 (8th Cir.1997) (conviction under § 2252(a)(4)).

Merely because the statute includes the term "disk" and the guideline includes the term "items" does not necessarily mean that the two must be equated. As the panel observed in Perreault, the statute may criminalize knowing possession of a computer disk, while the guideline addresses culpable conduct in connection with that possession of the disk, here the number of files on the disks. Perreault, 195 F.3d at 1134-35. Stated another way, the fact the statute criminalizes certain conduct has never meant that a court is restricted to the offense of conviction when deciding the appropriate sentence. United States v. Watts, 519 U.S. 148, 151-154, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)

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(per curiam); Witte v. United States, 515 U.S. 389, 397-98, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). Thus, the guidelines employ the concepts of relevant conduct, and offense levels under the applicable offense guideline are determined in part based upon specific offense characteristics, including relevant conduct. U.S.S.G. §§ 1B1.1(a) & (b); 1B1.2(b); 1B1.3(a)(1)(A) (specific offense characteristics to be determined based upon "all acts and omissions committed ... by the defendant"); 1B1.3, cmt (n.2) ( "With respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved....") (Nov.1998).

We turn next to the placement and purpose of the words "other items" in the scheme envisioned by the guidelines. See Reaves, 253 F.3d at 1203. Defendants argue that although "other items" is not defined in the 1998 version of the guidelines, the context of § 2G2.4(b)(2) makes it clear that it refers to containers beyond those specifically listed (books, magazines, periodicals, films, and video tapes, containing visual depiction). They correctly point out that each of the listed containers can contain multiple images, just as computer disks, compact disks, and zip disks can. According to the Defendants, "[t]o say that a graphic image file is the container holding the image would be the equivalent of saying that the square of cardboard that makes up the Polaroid is the container for the photograph, or even the piece of canvas upon which DaVinci painted was merely the container for the Mona Lisa." Aplts. Br. at 15. We think this argument underestimates the importance of a file when it comes to computers. A file is a collection of information (such as text, numbers, graphics, sound or video) stored on a particular medium. A file is always in a particular format. A graphic image does not exist without a file--the format of the file defines the image. A file extension after the name of the file tells the computer which program or application is required to utilize the information.

In Fellows, the court concluded that the nearest computer analogue to "books, magazines, periodicals, films, [and] videotapes" was files because "[v]isual 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." Fellows, 157 F.3d at 1201. It might appear that by this logic, each page or individual piece of paper in a...

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