United States v. Ramos

• Decision Date: 27 August 2012
• Docket Number: No. 11–3126.,11–3126.
• Citation: 695 F.3d 1035
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Armando L. RAMOS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

695 F.3d 1035

UNITED STATES of America, Plaintiff–Appellee,

v.Armando L. RAMOS, Defendant–Appellant.

No. 11–3126.

United States Court of Appeals, Tenth Circuit.

Aug. 27, 2012.

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant–Appellant.

James A. Brown, Assistant U.S. Attorney (Barry R. Grissom, U.S. Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before HARTZ, HOLLOWAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Armando Ramos attacks in this appeal the legal validity of his sentence for receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). For the reasons that follow, we affirm in part and dismiss the appeal in part for lack of subject-matter jurisdiction.

I

Mr. Ramos was indicted by a federal grand jury in Kansas on two counts relating to the receipt and possession of child pornography. The charges arose out of an investigation that began with a tip from German authorities who were “policing the [e]Donkey peer-to-peer file sharing network and observed a known child pornography file available for download” at an IP address that was later traced by Immigrations and Customs Enforcement (“ICE”) to Mr. Ramos. R., Vol. 3, at 24 (Plea Hr'g, held Dec. 6, 2010). ICE executed a search warrant at Mr. Ramos's home; they seized multiple computers, hard drives, DVDs, and CDs containing thousands of images and videos of child pornography.

During the search, an investigator interviewed Mr. Ramos. He admitted to being the sole user of the computers in his home, and to using eMule, the “specific program that ... access[es] the [e]Donkey network,” as a vehicle for obtaining child pornography. Id. at 24–25. When a user initiates a download, the eMule program automatically places the material into shared folders, accessible to other Internet users. However, Mr. Ramos told the ICE agent that he always attempted to transfer his child-pornography files out of the shared eMule folders. And the government presented no evidence that any of the shared folders contained child pornography.

Mr. Ramos entered a plea of guilty without a formal plea agreement to Count One of a two-count Indictment, which charged him with “knowingly and intentionally receiv[ing] ... [child pornography]” in violation of 18 U.S.C. § 2252(a)(2). R., Vol. 1, at 8 (Indictment, filed July 20, 2010); see id. at 10–14 (Pet. to Enter Plea of Guilty & Order Entering Plea, filed Dec. 13, 2010). Count Two (possession or access with intent to view child pornography, 18 U.S.C. § 2252(a)(4)(B)) was later dismissed.

The U.S. Probation Office prepared a Presentence Investigation Report (“PSR”); it set Mr. Ramos's base offense level at twenty-two pursuant to § 2G2.2(a)(2) of the U.S. Sentencing Guidelines (“U.S.S.G.”).¹ R., Vol. 2, at 112–13 (PSR, prepared Jan. 21, 2011, revised Feb. 14, 2011). The PSR also recommended numerous specific-offense enhancements, including, as relevant here, a five-level enhancement under § 2G2.2(b)(3)(B) because the crime involved “[d]istribut[ion of child pornography] ... for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” Id. at 113. After accounting for acceptance of responsibility, Mr. Ramos's total recommended offense level was thirty-seven. The PSR assigned Mr. Ramos a criminal history category of I. The resulting advisory Guidelines sentencing range (derived from the offense level and criminal history) was 210 to 240 months.²

Mr. Ramos raised multiple objections to the PSR. Pertinently, he objected to the five-level enhancement under § 2G2.2(b)(3)(B), and the PSR's corresponding failure to apply a two-level reduction for “non”-distribution under § 2G2.2(b)(1). He further argued that the five-year mandatory-minimum sentence prescribed by 18 U.S.C. § 2252(b)(1) violates the Equal Protection Clause of the Fifth Amendment because it punishes “receipt” of child pornography much more harshly than the allegedly comparable crime of “possession.” Finally, he argued that the mandatory minimum for the receipt offense violates the Sixth Amendment because it is inconsistent with the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This is so, Mr. Ramos reasoned, because the mandatory-minimum penalty prevents the trial court from imposing a sentence for a receipt offense that is uniform with a sentence that it would be authorized to impose for a possession offense, which involves conduct that is “relatively, if not completely, the same” as the receipt offense. R., Vol. 2, at 17 (Obj. to the PSR and Sentencing Mem., filed Feb. 14, 2011).

After conducting a hearing, the district court issued a written letter to counsel ruling on many of Mr. Ramos's objections. The court first applied the two-level enhancement under § 2G2.2(b)(3)(F) for basic “distribution” of child pornography, instead of adopting the PSR's recommendation of the five-level enhancement under § 2G2.2(b)(3)(B). It rejected, however, Mr. Ramos's argument that there was no evidence of any form of “distribution” of child pornography within the meaning of § 2G2.2(b). Consequently, it declined to apply the two-level reduction in § 2G2.2(b)(1).

The court also rejected Mr. Ramos's arguments regarding the alleged unconstitutionality of the mandatory-minimum provision of 18 U.S.C. § 2252(b)(1). Nonetheless, the court did sustain many of Mr. Ramos's objections on matters that are not at issue in this appeal. The court ultimately arrived at a final Guidelines range of seventy to eighty-seven months, which was derived from a total offense level of twenty-seven and a criminal history category of I. The court sentenced Mr. Ramos to a prison term at the top of that range, that is, eighty-seven months. Mr. Ramos filed a timely notice of appeal.

II

On appeal, Mr. Ramos raises three issues. First, he contends that there was an insufficient basis for the district court to conclude that he “distributed” child pornography under § 2G2.2(b) by virtue of his use of eMule. Second, he argues that the mandatory-minimum sentence applied to his case, see18 U.S.C. § 2252(b)(1), violates the Equal Protection Clause of the Fifth Amendment because it punishes more severely receivers of child pornography than possessors of child pornography, even though there allegedly is no practical difference between the acts of receipt and possession. Finally, he contends that the mandatory minimum runs afoul of the Sixth Amendment and, more specifically, the Supreme Court's decision in Booker because it prevents trial courts from imposing sentences for receipt of child pornography that are uniform with sentences that would be imposed for possession.

For the reasons explicated below, we reject Mr. Ramos's first, Guidelines-based argument as unpersuasive and dismiss the remainder of his appeal involving his constitutional challenges for lack of subject-matter jurisdiction. As to the latter disposition, we conclude that Mr. Ramos does not have standing to challenge the five-year mandatory-minimum sentence prescribed by 18 U.S.C. § 2252(b)(1).

A

Mr. Ramos argues that he did not “distribute” child pornography for purposes of U.S.S.G. § 2G2.2(b). The district court ruled to the contrary. Consequently, Mr. Ramos was denied a two-level reduction under § 2G2.2(b)(1) and received a two-level enhancement under § 2G2.2(b)(3)(F). The district court found that Mr. Ramos had made child-pornography files available for sharing, conduct that constituted “distribution” under the applicable Guidelines provisions.

Mr. Ramos's argument relates to the procedural reasonableness of his sentence because he contests the district court's calculation of his Guidelines sentencing range. See United States v. Halliday, 665 F.3d 1219, 1222 (10th Cir.2011) (“Defendant argues that the district court erred procedurally in applying [a] sentencing guideline....” (emphasis added)); United States v. Lente, 647 F.3d 1021, 1030 (10th Cir.2011) (“[A] procedural challenge relates to the ‘method by which the sentence is calculated.’ ” (quoting United States v. Wittig, 528 F.3d 1280, 1284 (10th Cir.2008))); see also United States v. McGehee, 672 F.3d 860, 874 (10th Cir.2012) (citing authorities). “We review a sentence for abuse of discretion” and, in doing so, “review the court's legal conclusions de novo and its factual findings for clear error.” United States v. Burgess, 576 F.3d 1078, 1101 (10th Cir.2009); see Halliday, 665 F.3d at 1222–23 (“When reviewing the district court's calculation of the guidelines, we review legal questions de novo and factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts.” (quoting United States v. Mollner, 643 F.3d 713, 714 (10th Cir.2011)) (internal quotation marks omitted)). “The government bears the burden of proving sentencing enhancements by a preponderance of the evidence.” United States v. Orr, 567 F.3d 610, 614 (10th Cir.2009).

Under the Guidelines, the court should apply a two-level reduction to the defendant's base offense level where “[his] conduct was limited to the receipt or solicitation” of child pornography and the defendant did not intend to “distribute” such material. U.S.S.G. § 2G2.2(b)(1) (emphasis added); see Burgess, 576 F.3d at 1102 (“The wording of U.S.S.G. § 2G2.2(b)(1) is neither complicated nor ambiguous.” (quoting United States v. Fore, 507 F.3d 412, 415 (6th Cir.2007))). Additionally, § 2G2.2(b)(3)(F) provides for a two-level enhancement in the defendant's base offense level where he otherwise engages in basic “distribution”— viz., distribution that, for instance, does not involve the expectation of receiving something of value in return, see§ 2G2.2(b)(3)(B), or is not directed to a minor, id.§ 2G2.2(b)(3)(C).

We must resolve a key Guidelines interpretation issue. Specifically, we must determine the meaning of “distribution” under § 2G2.2(b) because Mr. Ramos's...