U.S. v. Stoterau

Decision Date29 April 2008
Docket NumberNo. 07-50124.,07-50124.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph STOTERAU, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Jonathan Libby, Deputy Federal Public Defender, Los Angeles, CA (argued); Kathryn A. Young, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Anne C. Gannon, Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Andrew J. Guilford, District Judge, Presiding. D.C. No. CR-06-00190-AG.

Before: J. CLIFFORD WALLACE, RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

Joseph Stoterau pleaded guilty to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). In this appeal, he challenges several aspects of his sentence, including the length of his term of imprisonment and several special conditions of his supervised release. We affirm in part, vacate in part, and remand.

I

In December 2005, Joseph Stoterau, then 26, met John Doe at a gay and lesbian support group. Doe was 14 at the time.

In July 2006, Stoterau introduced Doe to the website "rentboy.com." Stoterau explained that the site was an opportunity for the two of them to make some money. Doe agreed to allow Stoterau to take nude pictures of him. Stoterau then uploaded the photos to rentboy.com and included his own cell phone number as Doe's contact information.

When rentboy.com customers would call, Stoterau would pretend to be Doe. Stoterau would tell customers that he (Doe) would engage in whatever type of sex they wanted for $250 per hour. Stoterau would then get in contact with Doe and provide him with the customers' details. On at least two occasions Stoterau drove Doe to locations where customers paid Doe $250 for various sex acts. After these meetings, Doe would give part of the $250 to Stoterau. Stoterau would give Doe alcoholic beverages before each meeting.

On August 4, 2006, officers from Immigration and Customs Enforcement executed a search warrant at Stoterau's residence. During the search, officers seized Stoterau's personal computer. A subsequent search of the hard drive revealed images depicting child pornography, that is, visual depictions 4612 of a minor child engaged in sexually explicit conduct. On October 30, 2006, Joseph Stoterau pleaded guilty to a one-count information charging him with transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1).1

Following Stoterau's guilty plea, the probation office prepared a Presentence Investigation Report ("PSR"), which included the following calculation of Stoterau's indicated Guidelines range. First, the PSR noted that the applicable Guidelines provision for violations of 18 U.S.C. § 2252A(a)(1) is U.S.S.G. § 2G2.2 (base offense level 22). Second, the PSR applied the cross-reference to U.S.S.G. § 2G2.1 (sexually exploiting a minor by production of sexually explicit material) pursuant to U.S.S.G. § 2G2.2(c) because Stoterau's offense conduct involved posing and photographing Doe as he engaged in sexually explicit conduct under 18 U.S.C. § 2256 (sexually explicit conduct includes "lascivious exhibition of the genitals or pubic area of any person"). This cross-reference had the effect of increasing Stoterau's base offense level from 22 (per § 2G2.2) to 32 (per § 2G2.1). Third, the PSR applied a two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for an offense involving "the commission of a sexual act or sexual contact." Fourth, the PSR applied a two-level enhancement under U.S.S.G. § 2G2.1(b)(3) because Stoterau's "offense involved distribution" of pornographic materials. Fifth, the PSR applied a three-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). These computations resulted in a total offense level of 33. Stoterau's base offense level was then combined with his criminal history category of II.2 This resulted in an indicated Guidelines range of 151-188 months.

As is customary, the PSR also provided a synopsis of Stoterau's offense conduct. Some of the information used in this synopsis was drawn from several law enforcement reports on Stoterau's case. In his sentencing brief, Stoterau objected to the use of this information, arguing that it was unreliable hearsay. Stoterau also argued for a "no more than 87 month sentence," challenged the two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A), and lodged objections against several of the proposed conditions of supervised release.

The district court held Stoterau's sentencing hearing on March 5, 2007. After hearing from the parties and consulting Stoterau's PSR, the district court adopted the Guidelines range calculated in the PSR (151-188 months) and sentenced Stoterau to a term of imprisonment of 151 months. The court considered and rejected Stoterau's argument that the two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) was inappropriate. Additionally, as part of its sentencing decision, the district court explicitly referenced the sentencing factors of 18 U.S.C. § 3553(a) and explained why it believed the sentence was consistent with those factors.

The district court also sentenced Stoterau to a five-year term of supervised release. As part of this term of supervised release, the district court imposed a number of special conditions. The district court did not rule on Stoterau's contention, raised in his sentencing brief, that the PSR contained unreliable hearsay. Stoterau timely appealed.

Stoterau's appeal raises the following five general issues, which we discuss in turn: (1) whether the district court erred in imposing the two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A); (2) whether Stoterau's overall sentence was unreasonable; (3) whether the district court abused its discretion in imposing eight special conditions on Stoterau's five-year term of supervised release; (4) whether the district court erred in failing to rule on Stoterau's allegation that the PSR contained unreliable hearsay; and (5) whether this disposition should be filed under seal or alternatively, whether we should identify Stoterau by a pseudonym in place of his true name.

II

Stoterau first argues that the district court erred in imposing a two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for offenses involving "the commission of a sexual act or sexual contact."3 "This court reviews the district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the district court's factual findings for clear error." United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

U.S.S.G. § 2G2.1(b) directs the district court to apply specified enhancements for six different "[s]pecific [o]ffense [c]haracteristics." The specific offense characteristic at issue here is identified in U.S.S.G. § 2G2.1(b)(2)(A), which states, "[i]f the offense involved—(A) the commission of a sexual act or sexual contact, increase by 2 levels." Stoterau contends that he pleaded guilty only to transporting child pornography, and that the sexual contacts between Doe and the rentboy.com customers were not part of the offense to which he pleaded guilty. Accordingly, Stoterau argues, it was inappropriate for the district court to use § 2G2.1(b)(2)(A) to enhance his sentence.

Stoterau's argument fails in light of the Guidelines' definition of "offense" and its directions regarding the determination of specific offense characteristics for offense conduct under Chapter 2 of the Guidelines (which includes § 2G2.1(b)(2)(A)). As defined in U.S.S.G. § 1B1.1, "`[o]ffense' means the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context." U.S.S.G. § 1B1.1 cmt. n. 1(H) (emphasis added). Because nothing in U.S.S.G. § 2G2.1(b)(2)(A) specifies that the definition of "offense" in that section has a different meaning than the definition provided in U.S.S.G. § 1B1.1, nor is a different meaning evident from the context, we conclude that "offense" for purposes of § 2G2.1(b)(2)(A) includes the relevant conduct listed in § 1B1.3. U.S.S.G. § 1B1.3, in turn, provides that specific offense characteristics under Chapter 2 of the Guidelines are to be determined on the basis of the relevant conduct set forth in § 1B1.3(a).

As defined in § 1B1.3(a)(1), "relevant conduct" includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1). "Relevant conduct" also includes "all harm that resulted from the acts and omissions specified in subsection[ ](a)(1) ... and all harm that was the object of such acts and omissions." U.S.S.G. § 1B1.3(a)(3); see United States v. Hicks, 217 F.3d 1038, 1048 (9th Cir.2000) (explaining that the phrase "resulted from" in § 1B1.3(a)(3) establishes a causation requirement which other circuits have held is satisfied when the harm was a "direct result" or "flowed naturally" from the defendant's criminal misconduct). Therefore, if a defendant's relevant conduct under § 1B1.3(a) (including all acts caused by the defendant during commission of the offense of conviction and all harm resulting from such acts) involved "the commission of a sexual act or sexual contact," then such sexual act or contact is part of the defendant's "offense" and must be considered when determining the specific offense characteristics under § 2G2.1(b)(2)(A).

As noted above, U.S.S.G. § 1B1.1 defines "offense" as "the offense of conviction and all relevant...

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