U.S. v. Ellison

• Decision Date: 18 June 1997
• Docket Number: No. 96-2891,96-2891
• Citation: 113 F.3d 77
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert ELLISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 77

113 F.3d 77

UNITED STATES of America, Plaintiff-Appellee, v. Robert ELLISON, Defendant-Appellant.

No. 96-2891.

United States Court of Appeals Seventh Circuit.

Argued Jan. 16, 1997.

Decided April 30, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied June 18, 1997.

Barry Rand Elden, Chief of Appeals, Ryan Stoll (argued), Office of the U.S. Atty., Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Michael F. Lefkow (argued), Chicago, IL, for Defendant-Appellant.

Before ESCHBACH, COFFEY, and DIANE P. WOOD, Circuit Judges.

ESCHBACH, Circuit Judge.

Ellison pled guilty to knowing receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), a charge that arose from Ellison's unwitting participation in a federal sting operation designed to entice targets into buying illegal pornographic materials through the mails. The district court sentenced Ellison to a prison term of 33 months, based in part on the application of Sentencing Guideline § 2G2.2, which set his base offense level at 15. The sentence also included an enhancement for Ellison's possession of a stack of pornographic magazines depicting minors performing sadomasochistic acts. Before our court, Ellison makes two challenges to his sentence. Finding no merit in either challenge, we affirm.

I.

Based on telltale records seized from an international distributor of child pornography, United States Postal Inspectors targeted Ellison as part of a nationwide sting operation designed to entice known pedophiles into buying illegal pornographic materials through the mails. The scheme ran as follows. In July of 1995, Postal Inspectors mailed Ellison a promotional letter introducing him to a dummy pornography company they called "Island Male," which purported to offer videotapes of "the hottest most irresistible lads." Ellison returned the customer interest form, and shortly thereafter received another letter from the dummy company, offering sexually explicit videotapes in several categories. Ellison took the bait. He ordered a tape depicting young boys 7-11 years of age engaged in sexual activity, enclosing a $15 money order as payment. On September 7, 1995, Ellison received his video selection through the mail, and the Postal Inspectors were not far behind. Shortly after the tape was delivered, the Inspectors showed up at Ellison's door and, acting under a valid search warrant, found the videotape opened on Ellison's coffee table. Ellison then consented to a more thorough search of his house, during which the police found Ellison's magazine collection of illegal child pornography. Several of the magazines, including one entitled "Young Boys and Bondage," featured prepubescent boys engaged in sadistic and masochistic acts. The Inspectors arrested Ellison for receipt of child pornography.

On December 20, 1995, a grand jury returned a two-count superseding indictment charging Ellison with violations of 18 U.S.C. § 2252. Count 1 charged illegal receipt of the child pornographic videotape through the mails in violation of § 2252(a)(2). Count 2 charged Ellison with possession of three or more child pornographic magazines--the magazines found by the Postal Inspectors during the consent search of Ellison's home--in violation of § 2252(a)(4). In exchange for the government's promise to drop the possession charge, Ellison pled guilty to the receipt charge and proceeded to sentencing. The district court imposed a sentence of 33 months imprisonment, the highest sentence within the allowable range of 27-33 months. In arriving at the appropriate sentencing range, the district court applied Guideline § 2G2.2, which set Ellison's base offense level at 15. U.S.S.G. § 2G2.2(a). The court also made several adjustments to the base offense level (both upward and downward), including a four-level enhancement under § 2G2.2(b)(3) for Ellison's possession of the sadomasochistic magazines found at his home. Ellison objects to his sentence on two grounds. First, he argues that the district court applied the wrong Guideline to set his base offense level, claiming that § 2G2.4, not § 2G2.2, was the proper Guideline to use. Second, he argues that because the videotape that prompted his conviction for receipt contained no sadomasochistic acts, the enhancement he received for sadomasochistic portrayals under § 2G2.2(b)(3) was improper. We have jurisdiction of these challenges under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

The first issue on appeal is which Guideline section, § 2G2.2 or § 2G2.4, should have been used to set Ellison's base offense level. At sentencing, the district court stated that it was bound to apply § 2G2.2 because that Guideline specifically listed § 2252(a)(2) (Ellison's offense of conviction) in the "Statutory Provisions" section of the Commentary. Ellison argues that the district court had the discretion to apply either § 2G2.2 or § 2G2.4, and in fact should have applied the latter. On our de novo review of the district court's decision to apply a specific Sentencing Guideline, see United States v. Bigelow, 914 F.2d 966, 973 (7th Cir.1990), we find that the district court properly applied § 2G2.2 to set Ellison's base offense level.

Descriptions of the criminal statute under which Ellison was convicted and of both Guidelines are helpful at this point. Ellison was convicted under 18 U.S.C. § 2252(a), which makes illegal four different "activities relating to material involving the sexual exploitation of minors." Subsection (a)(1) prohibits the knowing transportation or shipment in interstate or foreign commerce of such material; subsection (a)(2) (Ellison's crime) prohibits the knowing receipt or distribution of such material through the mails or by an interstate shipment; subsection (a)(3) prohibits the knowing sale of or possession with intent to sell such material; and subsection (a)(4) prohibits the mere possession of three or more books, magazines, periodicals, films or videotapes portraying such material. 18 U.S.C. § 2252(a)(1)(4). ¹

Together, Guidelines § 2G2.2 and § 2G2.4 cover all four subsections of § 2252(a) as follows. Guideline § 2G2.2, the Guideline applied by the district court, indicates by its title that it should be applied if the defendant was "Trafficking ... Receiving, Transporting, Shipping or Advertising Material Involving the Sexual Exploitation of a Minor." Under the version of the Sentencing Guidelines applicable at the time of Ellison's sentencing, § 2G2.2 carries a base offense level of 15. ² The Commentary to § 2G2.2 includes a list of "Statutory Provisions" to which the Guideline should be applied, specifically listing subsections (a)(1)-(a)(3) of § 2252, which encompass Ellison's conviction under § 2252(a)(2).

Guideline § 2G2.4, the Guideline Ellison believes should be applied to set his base offense level, indicates by its title that it should be used to punish the "Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct." Ellison prefers this Guideline because it carries a lesser base offense level of 13. ³ Of the four § 2252(a) subsections, only subsection (a)(4) is listed in the "Statutory Provisions" section of the Commentary to § 2G2.4. Thus, subsections (a)(1)-(a)(3) of § 2252 are specifically assigned to Guideline § 2G2.2, while subsection (a)(4) is specifically assigned to Guideline § 2G2.4. ⁴ With this background, we move on to analyze the district court's decision.

The Sentencing Guidelines provide general instructions on how a sentencing court should select the appropriate offense Guideline. Section 1B1.2 provides that the court "shall apply the offense guideline section in Chapter Two most applicable to the offense of conviction." U.S.S.G. § 1B1.2(a). In this case, the district court noted, and we agree, that the Sentencing Commission has given a specific and unequivocal indication of which Guideline is most applicable to a conviction under 18 U.S.C. § 2252(a)(2) in the "Statutory Provisions" section of the Commentary to § 2G2.2. Conversely, the "Statutory Provisions" section of the Commentary to Guideline § 2G2.4--the Guideline Ellison prefers--states only that it applies to subsection (a)(4) of § 2252. Commentary that serves to explain how a Guideline is to be applied is generally binding unless it "violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993).

Despite this explicit Commentary, Ellison counters that the district court had discretion to apply § 2G2.4. He bases this argument on Application Note 3 of Guideline § 1B1.1, ⁵ also binding Commentary under Stinson, which reads as follows:

The list of "Statutory Provisions" in the Commentary to each offense guideline does not necessarily include every statute covered by that guideline. In addition, some statutes may be covered by more than one guideline.

U.S.S.G. § 1B1.1, comment. (n. 3). Ellison insists that this Application Note always allows a court to disregard a Guideline's listing of "Statutory Provisions." We disagree. Whatever Application Note 3's relationship to the "Statutory Provisions" listings generally, it did not allow the sentencing court to ignore the specific "Statutory Provisions" Commentary here. Ellison makes no persuasive argument as to why this Application Note requires, or even allows, the application of § 2G2.4 in this instance.

First, the fact that the "Statutory Provisions" listings are not always all-inclusive is no reason to ignore the Sentencing Commission's specific instruction on which Guideline should govern here. The Commission could not have been clearer or more complete in its breakdown and assignment of the four subsections of § 2252(a). The amendment history of these Guideline sections shows that this breakdown was deliberate. When Guideline § 2G2.2 was passed in 1987, the Commission originally...