U.S. v. Boudreau

• Decision Date: 26 April 2001
• Docket Number: No. 00-30271,00-30271
• Citation: 250 F.3d 279
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant, Cross-Appellee, v. ALBERT L. BOUDREAU, Defendant-Appellee, Cross-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 279

250 F.3d 279 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant, Cross-Appellee, v. ALBERT L. BOUDREAU, Defendant-Appellee, Cross-Appellant.

No. 00-30271

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

April 26, 2001

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Western District of Louisiana, Lafayette

Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The United States ("the government") appeals the district court's determination that a photograph of a sixteen year old boy did not constitute a lascivious exhibition of the genitals within the meaning of 18 U.S.C. § 2256(2)(E). Albert L. Boudreau ("Boudreau") appeals the district court's determination that downloaded computer images, which were not the subject of his conviction, were sufficient to enhance his sentence by two levels under § 2G2.4(b)(3) of the United States Sentencing Guidelines Manual ("U.S.S.G." or "the guidelines"). For the reasons assigned below, we affirm the district court in part, reverse in part, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On December 19, 1997, a search warrant was executed at Boudreau's home. The search revealed numerous items of purported child pornography. The items germane to the case at bar are seventeen magazines commercially produced in Europe, which Boudreau admitted to smuggling into the United States upon his return from Europe on November 6, 1996, a photo of S.B., a sixteen year old boy, taken by Boudreau during a picnic at Avery Island in September 1997, and images downloaded from Boudreau's computer that allegedly depict child pornography.

On October 14, 1998, the government indicted Boudreau on thirteen counts of various violations of child pornography laws. They were as follows: (1) smuggling several magazines and one video tape containing child pornography in violation of 18 U.S.C. § 545 (Count I); (2) ten counts of receipt of child pornography in interstate commerce in violation of 18 U.S.C. § 2252 A(a)(2)(A) (Counts II-XI); (3) one count of possessing more than three visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252 A(a)(5)(B) (Count XII); and (4) one count of conspiracy to sexually exploit children beginning in August 1981 and continuing to December 1997 in violation of 18 U.S.C. § 2251(a) and (d) (Count XIII). On February 9, 1999, the government dismissed the counts, charging that Boudreau received computer images of child pornography and that he conspired to employ, entice, or persuade minors to engage in sexually explicit conduct. In exchange, Boudreau pled guilty to Counts I and XII of the indictment. Accordingly, the only charges remaining against him were for smuggling and possessing magazines containing child pornography.

Two separate sentencing hearings followed. The government alleged that the photograph of S.B., upon which it had originally based Count XIII, was relevant conduct to Boudreau's possession conviction. It argued that, via the internal cross-reference in U.S.S.G. § 2G2.4(c)(1) to § 2G2.1,¹ the district court could enhance Boudreau's sentence based on the photograph of S.B. However, after analyzing the photo using the six Dost factors,² the district court found that the photograph of S.B. did not constitute a "lascivious exhibition of the genitals or pubic area" of the minor portrayed and therefore was not material depicting sexually explicit conduct. As such, it pretermitted the government's relevant conduct argument and sentenced Boudreau under § 2G2.4 for possession at the Base Level of 15.

However, the district court enhanced Boudreau's sentence under 2G2.4(b)(2) by two levels because Boudreau possessed more than ten items of pornographic material. Relying on Boudreau's possession of the downloaded computer images, the district court then further enhanced his sentence by two additional levels pursuant to § 2G2.4(b)(3). Accordingly, the district court sentenced Boudreau to 21 months of confinement to be followed by three years of supervised release. The judgment was entered on February 14, 2000. The government now appeals the district court's finding regarding the photograph of S.B., and Boudreau appeals the district court's reliance on the computer images to enhance his sentence for possession of the magazines.

DISCUSSION

I. Standard of Review

The government and Boudreau disagree about the proper standard of review applicable to a district court's determination of whether a visual depiction of a minor constitutes a lascivious exhibition of the genitals or pubic area under § 2256(2)(E). The government contends that this court should review de novo the lasciviousness determination because it implicates the First Amendment right to free speech. See United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999) (stating that though child pornography warrants little protection under the First Amendment, "a determination that speech falls within" that category "requires plenary review to ensure that protected speech is not infringed"). Boudreau, however, contends that clear error is the appropriate level of review.

In United States v. Carroll,³ a panel of this court reviewed a district court's determination that the defendants' videotape, which contained various images of an eleven-year-old boy changing clothes, striking poses, and reading a sexually explicit magazine, portrayed sexually explicit conduct. Id. at 292, 297. This court began its discussion in Carroll by stating that: "We review the district court's factual findings under the Sentencing Guidelines for clear error . . . ." Id. at 293. After declaring the applicability of the "six factor Dost test to determine whether a visual depiction of a minor constitutes an actual 'lascivious exhibition of the genitals or pubic area' under § 2256(2)(E)," this court reviewed the relevant facts of the case and concluded that the videotape in question met "at least five out of the six Dost factors." Id. at 298. Accordingly, clear error is the appropriate standard under which this court will review the propriety of the district court's determination that the photograph of S.B. did not depict a lascivious exhibition of his pubic area.

II. Sexually Explicit Conduct: Lascivious Exhibition

Under § 2256 the "lascivious exhibition of the genitals or pubic area of any person" is "'sexually explicit conduct.'" 18 U.S.C. § 2256(2)(E). The district court applied the six Dost factors to make its finding regarding the lasciviousness of the S.B photograph. While acknowledging that S.B.'s pubic area is the focal point of the disputed photograph, the district court observed that S.B.'s genitalia were completely covered by his underwear and partially by his shorts.⁴ The court then reasoned that the park in which the picture was taken was not a sexually suggestive setting and that, by standing, S.B. was not involved in an unnatural pose. Finally, the district court opined that the photo did not depict sexual coyness and that it did not appear to be designed to elicit a sexual response.

Our review of the photograph confirms the district court's findings. The purposefulness with which S.B. held up his shorts to expose his underwear, the resting of the sitting man's head on S.B.'s thigh next to S.B.'s pubic area, and the standing man's pointing his finger at S.B.'s genital area inescapably demonstrate that S.B.'s pubic area is the picture's focus. But S.B.'s convivial facial expression intimates neither sexual coyness nor a willingness to engage in sexual activity. Moreover, the park is not a sexually suggestive setting and S.B. is not engaged in an unnatural pose by standing; as such, these factors buttress the district court's finding that the photo was not intended to elicit a sexual response. See Carroll, 190 F.3d at 298 (finding that the child lying on his side in an unmade bed with one knee up to expose his genital or pubic area depicted an unnatural pose in a sexually suggestive setting and that, therefore, the "totality of the circumstances . . . indicate that the video was intended to elicit a sexual response in the viewer"); United States v. Villasenor, 236 F.3d 220, 223-24 (5th Cir. 2000) (finding photos featuring "the pubic area of a 15-year-old girl dressed in leopard skin panties and a black bra or in a t-shirt and nude from the waste down; lying, sitting, or kneeling on a bed" to be "sexually suggestive, highlighting the pubic area in a setting and attire intended to elicit sexual response in the viewer"). Thus, we affirm the district court's finding that the photograph of S.B. did not depict a lascivious exhibition of the minor's genitals or pubic area.⁵

III. § 2G2.4(b)(3) Enhancement: Possession Resulting from the Use of a Computer

Although the government dismissed Counts II-XI, containing the charges against Boudreau for ten counts of receipt of child pornography in interstate commerce, in violation of 18 U.S.C. § 2252 A(a)(2)(A), the district court nonetheless relied on Boudreau's possession of the downloaded computer images to enhance his sentence under § 2G2.4(b)(3). Boudreau contends that this enhancement was erroneous.

Section 2G2.4(b)(3) states that: "If the defendant's possession of the material resulted from the defendant's use of a computer, increase by 2 levels." Relying on United States v. Fowler, 216 F.3d 459 (5th Cir. 2000),⁶ Boudreau contends that the guidelines intended to limit the scope of materials that can be used to increase sentencing to the materials supporting the offense of conviction. See id. at 464 (stating that the majority defined "offense" narrowly) (Emilio M. Garza, J., dissenting). In the instant case, he avers that those materials are the European child pornography magazines that he pled guilty to possessing and not the computer images related to dismissed Counts II-XI.

The government responds by vigorously urging an expansive...