U.S. v. Wright

• Decision Date: 15 June 2004
• Docket Number: No. 03-30142.,No. 03-30158.,03-30142.,03-30158.
• Citation: 373 F.3d 935
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Lee WRIGHT, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tracey Lynn Wright, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

373 F.3d 935

UNITED STATES of America, Plaintiff-Appellee, v. James Lee WRIGHT, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Tracey Lynn Wright, Defendant-Appellant.

No. 03-30142.

No. 03-30158.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2004.

Filed June 15, 2004.

COPYRIGHT MATERIAL OMITTED

Omodare Jupiter, Federal Public Defender's Office, Seattle, WA, for defendant-appellant James Wright.

Zenon P. Olbertz, Law Office of Zenon Peter Olbertz, Tacoma, WA, for defendant-appellant Tracey Wright.

John McKay, United States Attorney, Seattle, WA, for the plaintiff-appellee.

Kathryn A. Warma, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. Nos. CR-02-00275-TSZ-001, CR-02-00275-TSZ.

Before: D.W. NELSON, KLEINFELD, and FISHER, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:

Defendant James Wright appeals his 15-year sentence for the production of material involving the sexual exploitation of his 11-month old son. His wife Tracey Wright appeals her 20-year sentence for the possession and receipt of material involving the sexual exploitation of children. They both challenge the district court's 4-level upward departure under U.S.S.G. § 5K2.8 for extreme conduct. They also challenge the district court's application of the 2-level vulnerable victim adjustment, U.S.S.G. § 3A1.1. Tracey Wright separately claims that the court improperly used her relevant conduct — which includes the production of images of her husband engaging in sexually explicit conduct with their 3-year old son, a 17-month old girl, a 3-year old girl, and a 13-year old girl — to apply U.S.S.G. § 2G2.2(c)'s cross-reference to U.S.S.G. § 2G2.1. We hold that the district court did not err in calculating the Wrights' sentences.¹

FACTUAL AND PROCEDURAL BACKGROUND

Both of the Wrights were indicted for crimes involving the sexual exploitation of children in August 2002. With the government's agreement to drop related receipt and possession charges, James ultimately pleaded guilty to one count of production of material involving the sexual exploitation of children, in violation of 18 U.S.C § 2251. The offense conduct that supports this count consists of James's production of images of himself engaging in sexually explicit conduct with his 11-month old son. According to the pre-sentence report, "[t]he depictions consisted of actual and simulated sexual intercourse, including genital-genital, oral-genital, and anal-genital actual and simulated sexual intercourse." The images produced show James inserting his erect penis into the rectum and mouth of his 11-month old son.

At the sentencing hearing, the district court applied U.S.S.G. § 2G2.1 (2002) to reach a base offense level of 27 for James. The court then applied a 4-level increase under § 2G2.1(b)(1)(A), because the victim was under 12 years old. The court applied a 2-level increase under § 2G2.1(b)(2) because James was the parent of the minor victim. The court also applied a 2-level vulnerable victim adjustment under U.S.S.G. § 3A1.1(b)(1), and a 4-level upward departure under U.S.S.G. § 5K2.8 for extreme conduct. After decreasing James's offense level by 3 points because of his early acceptance of responsibility, and further reducing his sentence under U.S.S.G. § 5K1.1 by 5 years because of his substantial cooperation, the court sentenced James to 15 years.

Tracey pleaded guilty to two counts for the receipt and possession of material involving the sexual exploitation of minor children, in violation of 18 U.S.C. § 2252. Tracey admitted in her plea agreement that she had received numerous computer files that had traveled in interstate commerce depicting minor children engaging in sexually explicit conduct. Her revised pre-sentence report and plea agreement indicate that she possessed on the hard drive of her computer over 4,000 ".jpg" files containing these sexually explicit images. Authorities also found that Tracey's hard drive contained visual depictions of her sons, at the time 11-months and 3-years old, engaging in sexually explicit conduct with her husband James and co-defendant Donald Keffler.

The district court selected U.S.S.G. § 2G2.2 (2002) as Tracey's starting guideline provision. On the basis of her relevant conduct, including the undisputed fact that Tracey took photographs of her husband engaged in sexually explicit conduct with at least one of their two minor sons and at least three minor females between the ages of 17 months and 13 years, the court then applied § 2G2.2(c)'s cross-reference to § 2G2.1.² Tracey's sentence was therefore computed, like her husband's, using § 2G2.1's base offense level of 27.

The district court applied the same adjustments under § 2G2.1 and § 3A1.1(b)(1) to Tracey's sentence as it did to James's. The court also applied a 4-level § 5K2.8 upward departure for extreme conduct, decreased Tracey's base offense level by 3 for her early acceptance of responsibility, and sentenced her to 20 years.

STANDARD OF REVIEW

Before the enactment of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650 (2003), we reviewed guideline departures for an abuse of discretion. Section 401(d) of the PROTECT Act now requires that we review de novo the propriety of the district court's departures. See 18 U.S.C. § 3742(e) (2003). The PROTECT Act applies retroactively to the Wrights' appeals even though they were pending on the date of the Act's enactment. See United States v. Phillips, 356 F.3d 1086, 1098-99 (9th Cir.2004), amended by, 367 F.3d 846 (9th Cir.2004).

While the district court's construction and interpretation of the sentencing guidelines is reviewed de novo, we review the "application of the Guidelines to the facts of a particular case ... for an abuse of discretion." United States v. Rearden, 349 F.3d 608, 615 (9th Cir.2003). The application of the vulnerable victim adjustment is therefore reviewed for abuse of discretion. See United States v. Mendoza, 262 F.3d 957, 960(9th Cir.2001); United States v. Weischedel, 201 F.3d 1250, 1255 (9th Cir.2000). We review the district court's findings of fact for clear error. See United States v. Peters, 962 F.2d 1410, 1416 (9th Cir.1992).

DISCUSSION

I. UPWARD DEPARTURE: EXTREME CONDUCT

The Wrights challenge the district court's decision to depart upward under U.S.S.G. § 5K2.8. They argue that their offense conduct was well within the heartland of the applicable guideline and was not extreme enough to warrant departure. The district court properly concluded otherwise.

A. The district court decision

While "[t]he district court's understandable desire to spare the ... victim[s] resulted in an articulation of reasons that were perhaps less specific than they might have been had the court spelled [them] out in graphic terms," United States v. Hampton, 260 F.3d 832, 836 (8th Cir.2001), the court indicated that it had viewed the visual depictions of the sexually explicit conduct in order to understand the extent and severity of the crimes. As in Hampton, the court confirmed that those images supplied "ample evidence" of the extreme nature of the defendants' conduct. See id.

The district court determined that James's conduct, excluding that learned of during his proffer, fell out of the heartland of the production offense and supported a finding of extreme conduct involving "unusually heinous, cruel, brutal, or degrading" conduct. U.S.S.G. § 5K2.8. Despite its reluctance to publicly elaborate on the full details of the crimes, the district court's decision was clearly based on the specific facts presented.

The district court also determined that Tracey's conduct merited an upward departure under § 5K2.8. It based its decision on the recommendations in the revised pre-sentence report, stating that "[t]he defendant actively participated in all of these [sic] very troubling sexual conduct, and actually filmed — took pictures of much of what was happening. I'm satisfied that the ... 5K2.8 guideline applies."

Although the district court did not explicitly include in its heartland analysis the finding that defendants' conduct differed from other offenders, the pre-sentence reports for both defendants specifically state that, "According to the investigating case agent, the instant offense is one of the worst child pornography cases she has ever seen in terms of the volume and nature of the pornography." Cf. United States v. Thompson, 315 F.3d 1071, 1074-75 (9th Cir.2002) (vacating sentence where district court did not make a comparison and there was little in the record to show that Thompson's conduct differed from other offenders).

B. Defendants' conduct falls outside of the heartland

In reviewing the district court's upward departure, we must first determine whether the basis for the departure was already accounted for by the offense guideline. See 18 U.S.C. § 3553(b)(2)(A)(i) (authorizing a departure where the "court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described"); see also United States v. Sablan, 114 F.3d 913, 916-17(9th Cir.1997). In order to consider a factor accounted for in the guidelines, it must be "present to an exceptional degree or in some other way make[ ] the case different from the ordinary case where the factor is present." United States v. Semsak, 336 F.3d 1123, 1126 (9th Cir.2003) (quoting Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)).

The Wrights' argument is premised on the assertion that crimes involving the production of material involving the sexual exploitation of...