U.S. v. Gawthrop

• Decision Date: 04 November 2002
• Docket Number: No. 01-1462.,01-1462.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Gary GAWTHROP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

310 F.3d 405

UNITED STATES of America, Plaintiff-Appellee, v. David Gary GAWTHROP, Defendant-Appellant.

No. 01-1462.

United States Court of Appeals, Sixth Circuit.

Argued: August 14, 2002.

Decided and Filed: November 4, 2002.

Kathleen Moro Nesi (argued and briefed), Asst. U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Richard J. O'Neill (briefed), James R. Gerometta (argued and briefed), Federal Public Defenders Office, Detroit, MI, for Defendant-Appellant.

Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge.^*

OPINION

MARBLEY, District Judge.

Defendant-Appellant, David Gary Gawthrop ("Gawthrop"), appeals his sentence received for conviction on one count of receiving child pornography over the Internet in violation of 18 U.S.C. § 2252(a)(2). Gawthrop assigns error to the district court's imposition of a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(4), for engaging in a pattern of activity involving the sexual abuse of a minor, and to the court's application of a two-level enhancement, pursuant to U.S.S.G. § 3A1.1, based upon a vulnerable victim. This Court's appellate jurisdiction is proper under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. For the following reasons, this Court AFFIRMS Defendant-Appellant's sentence.

I. BACKGROUND

This case arose from Defendant-Appellant's arrest and conviction on state charges for sexually abusing his granddaughter. From January 1999 through April 1999, Gawthrop knowingly possessed 54 visual depictions of minors engaged in sexual activity. Sometime between January 1999 and March 1999, he molested his three-year-old granddaughter, who was visiting his residence. During that incident, Gawthrop was viewing child pornography on his home computer in his bedroom, when his granddaughter entered the room and saw the illicit images. At that point, Gawthrop pulled out his penis and had her touch it. He then had the child perform oral sex, assuring her that it was alright because that was what the children in the pictures were doing. Gawthrop told his granddaughter not to tell anyone about the incident.

On July 21, 1999, Gawthrop's son went to the Livonia, Michigan Police Department with his daughter and informed the police that she had told him that her grandfather made her put his penis in her mouth. After the child was interviewed by a detective the next day and related the same incident, Gawthrop was arrested. On August 11, 1999, his computer was seized and examined by the Wayne County Sheriff's Office. As various files depicted children under the age of 18 engaged in sexually explicit activity with adults, the matter was referred to the FBI on September 16, 1999. On October 12, 1999, Gawthrop was convicted of criminal sexual conduct in Michigan state court for molesting his granddaughter, sentenced to 81 months to 20 years in prison, and given psychological counseling. He is currently serving his sentence and will be eligible for parole on July 11, 2006.

On October 13, 2000, an Information was filed in the Eastern District of Michigan charging Gawthrop with knowingly receiving child pornography over the Internet during July 1999, in violation of 18 U.S.C. § 2522(a)(2). On December 5, 2000, he waived indictment and pled guilty to the Information. The Plea Agreement, written pursuant to Rule 11 of the Federal Rules of Criminal Procedure, included a total offense level of 18 and a criminal history category of II, with a guideline range of 30 to 37 months in prison. The parties agreed that any sentence imposed would not exceed 33 months.

Prior to sentencing, the United States Probation Department issued a Presentence Report ("PSR") on February 6, 2001. In the PSR, the Probation Officer calculated Gawthrop's base offense level to be 17 and subject to the following adjustments: (1) a two-level increase, pursuant to U.S.S.G. § 2G2.2(b)(1), as the pornographic material contained prepubescent minors under the age of 12; (2) a two-level increase, pursuant to § 2G2.2 (b)(5), as the offense involved the use of a computer; (3) a five-level increase, pursuant to § 2G2.2(b)(4), based upon a pattern of activity involving sexual abuse of minors;¹ and (4) a three-level decrease, pursuant to § 3E1.1, for acceptance of responsibility. The PSR noted that the district court might also wish to consider a two-level enhancement under § 3A1.1 for vulnerable victim, or an upward departure because Gawthrop had abused a position of trust due to his familial relationship with his granddaughter. Gawthrop was assigned a criminal history category of II, based in part upon his state conviction for molesting his granddaughter. Thus, the PSR concluded that the resulting guideline range was between 51 and 63 months.

Among other objections to the PSR, Gawthrop objected to the suggestion of a two-level increase under § 3A1.1, claiming that his granddaughter was not the victim of the offense of receiving child pornography. He also argued that the five-level enhancement under § 2G2.2(b)(4) was "inapplicable to traffickers in child pornography who are not directly involved in the actual physical abuse or exploitation of minors." Although the Probation Officer rejected both of these objections, Gawthrop restated his position in his sentencing memorandum, and added two additional arguments in support of his positions. With respect to the § 3A1.1(b)(1) enhancement, he claimed that the guideline had already considered his granddaughter's age, and noted his punishment for this conduct through his state conviction and sentence of 81 months to 20 years imprisonment. He also claimed that the § 2G2.2(b)(4) enhancement was inapplicable, because the two instances of sexual abuse occurred more than twelve years apart and did not constitute a pattern.

After conducting a two-day sentencing hearing, the district court rejected Gawthrop's objections, and added a two-level increase under § 3A1.1(b)(1) and a five-level enhancement under § 2G2.2(b)(4), for a total offense level of 25 and a criminal history category of II. The court determined that § 3A1.1(b)(1) applied because Gawthrop's abuse of his granddaughter and his exposing her to the pornography qualified as relevant conduct to his offense of receiving child pornography, and because she was particularly vulnerable based upon her familial relationship with Gawthrop. Likewise, the court found that § 2G2.2(b)(4) was appropriate because any two instances of sexual abuse constituted a pattern of such activity. The resulting guideline range was 63 to 78 months, and the court accepted the Rule 11 cap, imposing a sentence in the midpoint of the range at 70 months. Since the conduct underlying Gawthrop's state conviction accounted for a portion of his federal sentence, the court ordered that 15 months be served concurrent with his state sentence, and that the remaining 55 months be served consecutively. The court also provided that if Gawthrop served more than the minimum on his state sentence, he could petition the court to have the consecutive portion of his federal sentence commence forthwith. The district court entered judgment on March 22, 2001, and Defendant-Appellant filed a timely notice of appeal on March 26, 2001.

II. STANDARDS OF REVIEW

Defendant-Appellant challenges the district court's factual findings as to whether his granddaughter was a vulnerable victim in this matter. With regard to a § 3A1.1(b) enhancement, this Court reviews a district court's factual findings for clear error. United States v. Curly, 167 F.3d 316, 318 (6th Cir.1999). While giving due deference to the district court's application of the sentencing guidelines to those facts, the court's legal conclusions are reviewed de novo. Id. Defendant-Appellant does not contest the district court's factual findings regarding his convictions for sexually abusing his daughter in 1988 and his granddaughter in 1999. Rather, Gawthrop challenges the court's application of § 2G2.2(b)(4) to these facts. This Court reviews de novo the district court's construction of § 2G2.2(b)(4). United States v. Surratt, 87 F.3d 814, 817-18 (6th Cir. 1996).

III. THE U.S.S.G. § 3A1.1(b)(1) ENHANCEMENT

Section 3A1.1(b)(1) of the United States Sentencing Guidelines provides: "If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase [the base offense level] by 2 levels." U.S. Sentencing Guidelines § 3A1.1(b)(1). Under § 3A1.1(b)(1):

"vulnerable victim" means a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct. Subsection (b) applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim's unusual vulnerability. The adjustment would apply, for example, in a fraud case in which the defendant marketed an in effective cancer cure or in a robbery in which the defendant selected a handicapped victim. But it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile. Similarly, for example, a bank teller is not an unusually vulnerable victim solely by virtue of the teller's position in a bank. Do not apply subsection (b) if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, this subsection would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.

U.S. Sentencing Guidelines Manual § 3A1.1(b)(1), cmt. n. 2. Relevant conduct is defined as:

all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of...