U.S. v. Sromalski

• Decision Date: 07 February 2003
• Docket Number: No. 01-4236.,01-4236.
• Citation: 318 F.3d 748
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David SROMALSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

318 F.3d 748

UNITED STATES of America, Plaintiff-Appellee, v. David SROMALSKI, Defendant-Appellant.

No. 01-4236.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 2002.

Decided February 7, 2003.

Laura A. Przybylinski (argued), Office of the U.S. Atty., Madison, WI, for Plaintiff-Appellee.

James Geis (argued), Chicago, IL, for Defendant-Appellant.

Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Like a distressing number of others, David Sromalski kept images portraying child pornography on his computer. Authorities caught on to his activities, and in time Sromalski was prosecuted on a two-count information charging him with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and seeking forfeiture of his computer and related materials, pursuant to 18 U.S.C. § 2252. Sromalski pleaded guilty to the charges; his challenge on appeal relates solely to the sentence he received. The presentencing report (PSR) prepared after his plea recommended the application of a Sentencing Guidelines cross-reference from U.S.S.G. § 2G2.4(c)(2) to § 2G2.2, a more severe offense category. The district court accepted this recommendation, at least in part because it found that Sromalski's relevant conduct included a separate event of receipt and possession of child pornography that was not charged in the information. Sromalski contends that the district court erred in applying the cross-reference to his sentence because the prior conduct should not have been factored into his sentence. While the Government concedes that the move from § 2G2.4 to § 2G2.2 was not warranted by the relevant conduct, it suggests that it was otherwise appropriate and urges affirmance on an alternative ground. For the reasons stated in this opinion, we vacate the sentence imposed and remand for resentencing.

I

During a major bust of a large computer server in Texas, which appears to have been dedicated to facilitating the sharing of pornographic materials, evidence emerged that Sromalski was one of the users of the server's Napster-like services. (Napster was an Internet company that permitted users to trade files directly; it has now gone out of business because of the copyright implications of that practice. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1011 (9th Cir.2001).) The Texas computer records showed that on March 5, 1999, Sromalski transmitted to other computers (uploaded) seven images of child pornography and received from others (downloaded) 28 such images.

Based on the information gathered in Texas, customs agents searched Sromalski's residence on February 2, 2000. There they found some 300 images of child pornography on his computer. Sromalski admitted to the agents that he had downloaded the images from various sources on the Internet.

Even though Sromalski could have been charged with receipt of child pornography, which is prohibited by 18 U.S.C. § 2252A(a)(2), the information filed against him (after an original indictment was dismissed on the Government's motion) charged only a violation of 18 U.S.C. § 2252A(a)(5), which prohibits knowingly possessing child pornography that has traveled through interstate commerce, including by computer. The information made no reference to any trafficking activities in which Sromalski may have engaged — a fact that plays a central role in this case.

At the plea hearing, Sromalski conceded that he was guilty as charged with respect to the possession of the images the agents found during their February 2, 2000, search. He also admitted that the images had been transported in interstate commerce. He further admitted to having "downloaded" the images. The PSR indicated that between September 7, 1999, and January 13, 2000, Sromalski's computer had stored some 300 files in a subdirectory; those images had all been obtained through downloading. The PSR took note of the interactions between Sromalski's computer and the Texas server that had occurred on March 5, 1999.

II

All parties agree that the 1998 Guidelines apply to this case. Appendix A to that version provides that both § 2G2.2 and § 2G2.4 are appropriate guidelines to use for violations of 18 U.S.C. § 2252A, depending on what else can be shown. See United States v. Thompson, 281 F.3d 1088, 1097 (10th Cir.2002). The two guidelines are nonetheless aimed at different conduct that falls within the ambit of § 2252A. Section 2G2.2 covers "trafficking in material involving the sexual exploitation of a minor; receiving, transporting, shipping, or advertising material involving the sexual exploitation of a minor; possessing material involving the sexual exploitation of a minor with intent to traffic"; section 2G2.4, on the other hand, covers "possession of materials depicting a minor engaged in sexually explicit conduct." When more than one guideline potentially covers an offense defined in a single statute, the district court must select the most appropriate guideline based upon the nature of the conduct charged in the count for which the defendant was convicted. U.S.S.G. § 1B1.2 cmt. n. 1; see also United States v. Principe, 203 F.3d 849, 851 (5th Cir.2000).

Because Sromalski's offense of conviction was 18 U.S.C. § 2252A(a)(5)(B) — which, as we noted earlier, deals with possession, in contrast to § 2252A(a)(2), which explicitly addresses "receipt" of these materials — the district court correctly started by looking at § 2G2.4, which is entitled "Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct," and which establishes a base offense level of 15. That section contains a cross-reference that is at the heart of the present dispute. Section 2G2.4(c)(2) instructs that "[i]f the offense involved trafficking in material involving the sexual exploitation of a minor (including receiving, transporting, shipping, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic), apply § 2G2.2." The latter guideline's title makes it clear that it is directed at trafficking offenses, such as receiving, transporting, shipping, or advertising the prohibited materials; it provides for a base offense level of 17, reflecting the more serious harms inflicted by child pornography traffickers. At the government's urging, the district court decided to accept the recommendation in the PSR to apply this cross-reference, and thus it sentenced Sromalski using the stricter rules found in § 2G2.2. It did so based in part on the evidence about Sromalski's downloads from the Texas server.

Sromalski properly objected to the application of the cross-reference. He argued first that the March 1999 conduct should not be counted as "relevant conduct" for purposes of the application of the cross-reference. When pressed, the government conceded that this was correct. In light of this concession, the correctness of which we do not address here, we are left with a simple possession offense and no evidence of trafficking. The government argues that it was nonetheless still proper to apply the cross-reference of § 2G2.4(c)(2) and sentence on the basis of § 2G2.2; Sromalski argues otherwise. We agree with him that the interpretation of the guidelines for which the government is arguing is too strained, and that under the particular facts of this case as they are now presented to us, the district court should not have applied the cross-reference.

III

The decision to apply a specific guideline is reviewed de novo, United States v. Ellison, 113 F.3d 77, 79 (7th Cir.1997), as is a district court's application of a cross-reference under the Sentencing Guidelines and a legal interpretation of the language of the Guidelines. We defer to the court's findings of fact unless they are clearly erroneous. United States v. McGiffen, 267 F.3d 581, 586 (7th Cir.2001).

Had the Government not conceded that the March 1999 conduct was out of the picture, we would have a very different case. There is no doubt that the use of a "trading" server like the one in Texas, coupled with actions of both uploading and downloading files, is the kind of trafficking activity to which the cross-reference found in § 2G2.4(c)(2) refers. Thus, had this activity been part of Sromalski's relevant conduct, we have no doubt that our prior cases would have required the application of the cross-reference. See Ellison, 113 F.3d at 81-82; United States v. Richardson, 238 F.3d 837, 839 (7th Cir.2001). But the question of what conduct should be considered as "relevant conduct" for purposes of U.S.S.G. § 1B1.3 is normally regarded as a question of fact; we routinely review these determinations under the clear error standard. See, e.g., United States v. Anderson, 259 F.3d 853, 858 (7th Cir.2001); United States v. Ofcky, 237 F.3d 904, 907 (7th Cir.2001); United States v. Polichemi, 201 F.3d 858, 866 (7th Cir. 2000). Like other factual issues, this one may be subject to a stipulation by the parties, which is what the government appears to have done here.

As the case has finally reached us, therefore, we must decide whether the cross-reference provision of § 2G2.4(c) can be used if the facts show only simple possession of child pornography on a computer. To answer this, we must look at the language of all relevant guidelines; in addition, we must also consider whether, even if the district court erred in applying the cross-reference, any such error was harmless because it was correct for some other reason to use § 2G2.2. See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) ("[O]nce the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed."); see also United States v. Benitez, 92 F.3d 528, 538 (7th Cir.1996) (a...