U.S. v. Dickson

• Decision Date: 27 January 2011
• Docket Number: No. 09–11071.,09–11071.
• Citation: 632 F.3d 186
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Bryan K. DICKSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

632 F.3d 186

UNITED STATES of America, Plaintiff–Appellee,

v.Bryan K. DICKSON, Defendant–Appellant.

No. 09–11071.

United States Court of Appeals, Fifth Circuit.

Jan. 27, 2011.

Delonia Anita Watson, Asst. U.S. Atty. (argued), Fort Worth, TX, for Plaintiff–Appellee.William Reynolds Biggs, Asst. Fed. Pub. Def. (argued), Dallas, TX, Matthew Kyle Belcher, Fed. Pub. Def., Denver, CO, for Defendant–Appellant.Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bryan Dickson was convicted of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and production of child pornography in violation of 18 U.S.C. § 2251(a). He appeals his conviction and sentence. We affirm.

I.

Federal agents executed a search warrant at Dickson's residence and found a CD that contained videos and images of child pornography. Some of the pictures were of a one-year-old boy, A.B., which were the only pictures taken by Dickson himself.

After the government presented its case at a bench trial, Dickson unsuccessfully moved for judgment of acquittal on the ground that the government had failed to meet its burden as to each element of both counts. Dickson presented no evidence, and the court found him guilty.

The presentence report (“PSR”) stated that counts one (possession) and two (production) should be grouped pursuant to U.S.S.G. § 3D1.1(a)(1)-(3) because “one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” § 3D1.2(c). The offense level applicable to the group is the offense level of the most serious count, see § 3D1.3(a), and the PSR determined that count two (production) produced the highest base offense level, 32. The PSR recommended increasing the base level by four because the offense involved material that portrayed sadistic or masochistic conduct or other depictions of violence, pursuant to § 2G2.1(b)(4).

After the application of two other enhancements that are not at issue here, Dickson's total offense level was 42. He had a category I criminal history from one prior adult conviction for seven counts of sexual assault, the victims of which were a three-year-old child and a child under thirteen. The total offense level resulted in a guideline range of 360 months to life, which became 360 to 840 months because the upper limit of the guideline range exceeded the maximum statutory sentence. Neither party objected to the PSR.

At sentencing, Dickson requested a 360–month sentence. The government responded that a sentence on the lower end of the range was inappropriate and further offered that although charges were never filed against Dickson, law enforcement and A.B.'s father believed that Dickson had sexually abused A.B.'s two older brothers as well. Given Dickson's extensive criminal history, the district court determined that “a reasonable sentence in this case, one that would adequately address all of the factors the Court should consider under ... § 3553(a), would be one that would ensure to the maximum possible extent that this defendant will never be free in society again.”

The court sentenced Dickson to 840 months: 240 months for count one and 600 months for count two, to be served consecutively. Dickson objected to the reasonableness of the sentence and appealed. He also appealed the denial of his motion for acquittal and his motion for dismissal of his indictment.

II.

We review denials of motions for judgments of acquittal de novo. United States v. Izydore, 167 F.3d 213, 219 (5th Cir.1999). We view the evidence in the light most favorable to the government “with all reasonable inferences to be made in support of the ... verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir.1997). The evidence is sufficient if it “would permit a rational trier of fact to find [the defendant] guilty beyond a reasonable doubt.” United States v. Pankhurst, 118 F.3d 345, 352 (5th Cir.1997).

To convict under § 2252(a)(4)(B) for possession of child pornography, the government must prove that the defendant possessed a visual depiction of a minor engaging in sexually explicit conduct that “has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce ..., or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer.” Both parties conceded that Dickson's images never traveled in interstate commerce. The issue, therefore, is whether the government presented sufficient evidence that the images were produced using materials that traveled in interstate commerce. The government argues that it met its burden by showing that the CD holding the images was made in the Republic of China.

Whether copying images to another device constitutes “production” is an issue of first impression for this circuit. Several of our sister circuits, however, have reached the same conclusion: that images are “produced” for purposes of § 2252(a)(4)(B) when they are copied or downloaded onto hard drives, disks, or CDs.¹ “When the file containing the image is copied onto a disk, the original is left intact and a new copy of the image is created, so the process ‘produces' an image.” United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir.2002).

Dickson contends that he did not use the CD to produce the images, but only to store them. He asserts that the statute contemplates the original act of producing the images, not their subsequent transfer onto a CD, which he characterizes as reproduction. Had Congress wanted to criminalize reproduction, he argues, it would have done so specifically, as it did in § 2252(a)(2) by criminalizing receiving, distributing, or reproducing child pornography.² Finally, Dickson asserts that, at the very least, the statute is ambiguous and thus should be construed in his favor under the rule of lenity.

Dickson's arguments are as unpersuasive to us as similar arguments were to the Fourth, Seventh, Ninth, and Tenth Circuits. First, “producing” is broadly defined as “producing, directing, manufacturing, issuing, publishing, or advertising.” 18 U.S.C. § 2256(3). Congress could have left “producing” undefined, thereby giving it its ordinary meaning. But by defining “producing” using the term itself plus other closely related terms, Congress intended the statute to cover a wider range of conduct than merely initial production. ³ Excluding copying from our interpretation of “producing” would be too restrictive a reading.

Second, § 2252(a)(2) uses “reproduce,” rather than “produce” as in § 2252(a)(3) and (4), because that subpart addresses receiving child pornography, unlike the other two subparts, which address selling and possessing child pornography, respectively. One who sells or possesses images may also produce them and thus could continue to produce copies, but one who merely receives pornography could not have been the original producer and thus may only reproduce. Finally, the statute is not ambiguous, so the rule of lenity does not apply.

Because the government presented sufficient evidence that the CD was shipped from the Republic of China, a reasonable fact-finder could have found that Dickson produced the pornographic images using materials that traveled in interstate or foreign commerce. The conviction is affirmed.

III.

Dickson argues that the district court erred when it enhanced his sentence for production (count two) based on the sadistic or masochistic images that he possessed (count one). Dickson asserts that conduct underlying one count cannot enhance another count when grouped under § 3D1.2(c) because, unlike for counts grouped under § 3D1.2(d), the guidelines do not explicitly say that the offense level is determined by the combined offense behavior taken as a whole.⁴ Dickson says that the enhancement could apply to his sentence if he had produced sadistic or masochistic images, but the only images he was convicted of producing were those of A.B., and those were not sadistic or masochistic.

Because Dickson failed to object to the procedure used to calculate his guideline range or to the application of the enhancement, we review the sentence for plain error. United States v. Gonzalez–Terrazas, 529 F.3d 293, 296 (5th Cir.2008). Plain error occurs when the error was clear or obvious and affected the defendant's substantial rights. Id. If the defendant can show plain error, this court has the discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Dickson is correct that the district court erred in calculating his sentence. According to the guidelines, a court should first determine the base level for an offense, then apply any appropriate specific offense characteristics or enhancements. U.S.S.G. § 1B1.1(a)-(c). “If there are multiple counts of conviction, [the court should repeat those steps] for each count.” U.S.S.G. § 1B1.1(d).

Next, if necessary, the court should group the various counts according to § 3D and adjust accordingly.⁵ The grouping commentary states that “the highest offense level of the counts in the group is used. Ordinarily, it is necessary to determine the offense level for each of the counts in a Group in order to ensure that the highest is correctly identified.” U.S.S.G. § 3D1.3 cmt. 2. The guidelines, therefore, plainly instruct a court to apply enhancements before grouping. The offense that produces the highest total offense level, not the highest base offense level, sets the level for the group.⁶

It follows that the district court should have calculated one total offense level for possession and a separate one for production. The court erred when it first determined that production produced the highest base offense level and then, second, enhanced the total...