U.S. v. Dawn

• Decision Date: 04 November 1997
• Docket Number: No. 96-3585,96-3585
• Citation: 129 F.3d 878
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wesley L. DAWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 878

129 F.3d 878

UNITED STATES of America, Plaintiff-Appellee, v. Wesley L. DAWN, Defendant-Appellant.

No. 96-3585.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1997.

Decided Nov. 4, 1997.

Cheryl B. Schacht (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Bruce J. Rosen, Susan C. Blesener (argued), Pellino, Rosen, Mowris & Kirkhuff, Madison, WI, for Defendant-Appellant.

Before FLAUM, KANNE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Wesley Dawn pled guilty to charges that he received and possessed a number of films depicting minors engaged in sexually explicit conduct. Dawn had made these films in Honduras, where he worked for several years as a schoolteacher. In view of his role as the creator of the films, the district court in sentencing Dawn cross-referenced the guideline for the production of child pornography, which resulted in a substantially higher sentence. Dawn appeals, contending that sentencing him based on conduct that took place outside of the United States is inappropriate absent explicit confirmation that Congress and the Sentencing Commission meant for the laws and sentencing guidelines relating to child pornography to apply extraterritorially. Dawn was not actually sentenced for production of the films, however; he was convicted on receipt and possession charges alone, and his sentence comports with the statutory minimums and maximums for those offenses. His production of the films was simply factored into the sentence as conduct relevant to the receipt and possession offenses. This was permissible regardless of whether the proscription against producing child pornography extends beyond the borders of the United States. We therefore affirm Dawn's sentence.

I.

In July 1995, Dawn dropped off fourteen films for developing at his local grocery store in Spooner, Wisconsin. A film processor conducting a spot check on one of the films noticed that it appeared to contain child pornography, and he notified the police. After reviewing that film, officers obtained an anticipatory search warrant for Dawn's home. In the meantime, the other thirteen films were processed and returned to Dawn, who was told that the fourteenth (now in the hands of the authorities) was missing. Dawn requested a tracer on the "missing" film and was eventually told that it had been located and would be delivered to him directly by the United Parcel Service. Subsequently, a part-time sheriff's deputy posing as a UPS delivery worker brought the film to Dawn at his home. After Dawn signed for the film, the deputy returned with two investigators to execute the search warrant. Dawn cooperated in the search, providing the officers with between seventy and eighty additional films that he acknowledged producing. The subjects of the films, Dawn explained, were street children in Honduras, who had lived with Dawn in his home there while he was employed as a primary school teacher. The FBI referred fourteen of the films ¹ to a pediatrician with expertise in child abuse. She estimated that the children involved were between four or five and twelve years of age. They were engaged in various pornographic activities, and Dawn admitted that an adult hand in the films shown fondling the genitalia of a child belonged to him. The films were stored in boxes labeled "Qualex," a company that develops eight millimeter films in Texas and California and ships via interstate commerce to drop off sites around the country, including Wisconsin.

Dawn was ultimately charged in a sixteen-count federal indictment. Counts one through fourteen were based on Dawn's production of the fourteen films, and charged him with violating 18 U.S.C. § 2251(a), which provides:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d), if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

Count fifteen charged Dawn with receipt of the film delivered to him by the undercover deputy, in violation of 18 U.S.C. § 2252(a)(2), and count sixteen charged him with possessing the fourteen films that he had produced, in violation of 18 U.S.C. § 2252(a)(4)(B). Dawn pled guilty to counts fifteen and sixteen, but stipulated in his plea agreement that he would be sentenced on the basis of all relevant conduct as defined by United States Sentencing Guidelines section 1B1.3. R. 26 at 2. The parties also stipulated that the films were produced entirely in Honduras and then transported by Dawn to the United States, where they were developed. R. 24.

Several Guidelines sections were important at Dawn's sentencing. Section 2G2.2, which pertains to "Trafficking in Material Involving the Sexual Exploitation of a Minor," applied to Dawn's receipt of the film delivered to him by the undercover deputy. It establishes a base offense level of 15 and provides for several enhancements that may have applied to Dawn's conduct. Section 2G2.4 applies to possession of child pornography, and establishes a base offense level of 13, also with several enhancements that may have applied to Dawn's offense. Both sections also provide for cross-referencing to section 2G2.1, the guideline that applies to production of child pornography "[i]f the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct." U.S.S.G. §§ 2G2.2(c)(1), 2G2.4(c)(1) (Nov.1995). It was in Dawn's interest to avoid the cross-reference, because section 2G2.1 establishes a much higher offense level of 25, and imposes greater enhancements than the other sections. ²

Overruling Dawn's objections to the cross-reference, the district court applied the production guideline. The base offense level of 25 specified by section 2G2.1(a) was increased by four levels because the offense involved minors under the age of twelve (s2G2.1(b)(1)), and by another two levels because the children Dawn had exploited were under his custody, care, and supervisory control (s2G2.1(b)(2)). The multiple counts provisions of section 2G2.1(c)(1) and section 3D1.4 added five more levels. A three level reduction for acceptance of responsibility (s3E1.1) resulted in a final adjusted offense level of 33. For someone like Dawn with no prior criminal history, the Guidelines specified a sentence of 135 to 168 months. The district court rejected Dawn's request for a downward departure, and ordered Dawn to serve a prison term of 120 months (the statutory maximum) on the receipt charge and a consecutive term of 36 months on the possession charge. See U.S.S.G. § 5G1.2(d).

II.

Dawn contends that the district court erred in applying the cross-reference to section 2G2.1, because he produced the films outside of the United States. He contends that the guidelines should not be applied to foreign conduct unless Congress or the Sentencing Commission has been explicit about doing so. ³ This is strictly a legal issue, and so our review is de novo. E.g., United States v. Garcia, 89 F.3d 362, 366 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 443, 136 L.Ed.2d 340 (1996).

We note at the outset that Dawn's appeal focuses solely on the fact that the pertinent films were produced on foreign soil. He makes no argument that cross-referencing is otherwise improper. As we have mentioned above, the trafficking and possession guidelines both compel cross-referencing to the production guideline when "the offense involved causing, ... [or] permitting ... a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct." U.S.S.G. §§ 2G2.2(c)(1), 2G2.4(c)(1). ⁴ As the government points out, the term "offense" is defined broadly to include not only the offense of conviction (in this case the receipt and possession of the pornography), but also all conduct deemed relevant by section 1B1.3. U.S.S.G. § 1B1.1 (comment.) (n. 1(l )). We have no difficulty agreeing that Dawn's exploitation of the minors depicted in the films he subsequently received and possessed would constitute "relevant conduct," and indeed (the extraterritoriality question aside) Dawn does not argue otherwise. See, e.g. U.S.S.G. § 1B1.3(a)(1). ⁵ So understood, Dawn's receipt and possession offenses without question "involved" the exploitation of minors, bringing into play the cross-reference to the production guideline (section 2G2.1).

None of the guidelines we have discussed makes the relevance of the defendant's conduct turn on whether that conduct took place within or without the borders of the United States. The Sentencing Commission's definitions of "offense" and "relevant conduct," as well as the terms of the cross-referencing provisions, focus instead upon the factual and logical relationship between the offense of conviction and the defendant's other acts, wherever they may have occurred. On their face, then, these guidelines would appear to permit (indeed, direct) the sentencing court to consider conduct that culminates in or is otherwise relevant to the offense of conviction, even if that conduct took place in another country. No other guideline specifies differently. ⁶ Thus, unless some independent principle bars the consideration of foreign acts, the cross-reference was not only permissible, but required. See United States v. Corbin, 998 F.2d 1377, 1383 (7th...