U.S. v. Kemmish, s. 96-50241

• Decision Date: 15 July 1997
• Docket Number: 96-50250,Nos. 96-50241,s. 96-50241
• Citation: 120 F.3d 937
• Parties: 97 Cal. Daily Op. Serv. 5598, 97 Daily Journal D.A.R. 9058 UNITED STATES of America, Plaintiff-Appellant, v. James Leroy KEMMISH, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. James Leroy KEMMISH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 937

120 F.3d 937

97 Cal. Daily Op. Serv. 5598, 97 Daily Journal

D.A.R. 9058

UNITED STATES of America, Plaintiff-Appellant, v. James Leroy KEMMISH, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. James Leroy KEMMISH, Defendant-Appellant.

Nos. 96-50241, 96-50250.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1997.

Decided July 15, 1997.

Barbara L. Major, Assistant United States Attorney, San Diego, CA, for plaintiff-appellant-cross-appellee.

Christopher P. Tenorio, Federal Defenders of San Diego, San Diego, CA, for defendant-appellee-cross-appellant.

Appeals from the United States District Court for the Southern District of California; Howard B. Turrentine, Senior District Judge, Presiding. D.C. No. CR-94-00868-1-HBT.

Before: SCHROEDER, FERGUSON, and LEAVY, Circuit Judges.

Opinion by Judge LEAVY; Partial Concurrence and Partial Dissent by Judge FERGUSON.

LEAVY, Senior Circuit Judge:

The government appeals from the sentence imposed on a child pornographer following the defendant's entry of a guilty plea to all six counts of a second superseding indictment, arguing that the case should be remanded for resentencing. The defendant has cross-appealed, arguing that the district court erred by denying his motion to suppress. We affirm the denial of the motion to suppress, but vacate the sentence and remand for resentencing.

FACTS AND PRIOR PROCEEDINGS

On June 29, 1994, U.S. Customs agents arrested James Leroy Kemmish at the San Diego International Airport after he attempted to smuggle into the United States child pornography videotapes and more than $16,000 in unreported American currency. An examination of Kemmish's luggage revealed mailing lists, advertisements, and notices for Overseas Male ("OSM"), a Mexico City-based producer of child pornography. Armed with a search warrant, law enforcement officers went to Kemmish's residence the following day. There they found sophisticated video reproduction equipment and several hundred blank videotapes; 204 master videotapes and 332 non-master videotapes, all depicting child pornography; photograph albums and slides containing child pornography; large quantities of OSM advertisements; and mailing supplies.

On November 2, 1995, a federal grand jury handed down a six-count second superseding indictment, charging Kemmish with failing to report transportation of currency in violation of 31 U.S.C. §§ 5316, 5322(a) and 5324(b)(1) (Count I); making a false statement in violation of 18 U.S.C. § 1001 (Count II); advertising to distribute child pornography in violation of 18 U.S.C. §§ 2251(c)(1)(A) and 2251(c)(2)(A) (Count III); transporting child pornography in violation of 18 U.S.C. § 2252(a)(1) (Count IV); reproducing child pornography for distribution in violation of Following the district court's rulings on various preliminary matters, including Kemmish's motions to dismiss the indictment and suppress the evidence, Kemmish pleaded guilty to all six counts of the indictment and consented to forfeiture of his goods pursuant to the terms of a written plea agreement. Although the probation office recommended, and the government acquiesced in, a mid-range sentence of 295 months' imprisonment, the district court departed downward and imposed a sentence of only 63 months. The government has timely appealed from the sentence, and Kemmish has timely cross-appealed from the denial of his motion to suppress.

18 U.S.C. § 2252(a)(2) (Count V); and possessing with the intent to sell child pornography in violation of 18 U.S.C. § 2252(a)(3)(B) (Count VI).

ANALYSIS

I. Motion to Suppress [Cross-Appeal: 96-50250]

Standard of Review

We review de novo a district court's denial of a motion to suppress evidence seized in a search. United States v. Polanco, 93 F.3d 555, 560 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996). We examine for clear error the court's factual findings underlying that decision. Id.

Discussion

Kemmish argues that the district court erred by refusing to grant his motion to suppress because (a) the warrant was based on an unconstitutional statute; (b) the warrant lacked sufficient particularity; and (c) the affidavit in support of the application for the warrant failed to establish probable cause. We reject each of these contentions.

A. Unconstitutionality

Kemmish first argues that the warrant was defective because it relied in part on an unconstitutional statute, viz., 18 U.S.C. § 2252. (On December 16, 1992, we declared section 2252 to be unconstitutional, and the Supreme Court did not overturn our decision until November 29, 1994, some five months after the search of Kemmish's home.) See United States v. X-Citement Video, Inc., 982 F.2d 1285 (9th Cir.1992), rev'd, 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).

In the affidavit submitted in support of the application for a search warrant, Agent Shirley Harris properly informed the magistrate judge of our ruling in X-Citement Video. She then proceeded to list the things possessed by Kemmish as well as the items to be searched for. In doing so, Agent Harris identified the items sought as child pornography (defined in 18 U.S.C. § 2256, which was not affected by our ruling in X-Citement Video ), all of which constituted obscene material prohibited by 18 U.S.C. §§ 545 and 1462, as well as other provisions of the Child Protection Act of 1984, codified at 18 U.S.C. §§ 2251 et seq. The district court did not err by rejecting Kemmish's argument on this issue.

B. Particularity

Kemmish next argues that Agent Harris' affidavit was legally insufficient to support the search warrant because the items to be seized were not described with particularity. The affidavit lists in considerable detail the items to be seized, and does so by using the definitions set forth in the relevant child pornography statutes. Moreover, Attachment 2 to the affidavit further describes those items by using the precise language of 18 U.S.C. § 2256. The district court did not err by finding that the items to be seized had been described with sufficient particularity.

C. Probable Cause

Kemmish finally argues that the warrant lacked probable cause because Agent Harris' affidavit failed to establish a sufficient basis to search for child pornography. While we decline to recite the lengthy list of facts set forth in Agent Harris' detailed affidavit, we conclude that the facts as outlined were more than legally sufficient to justify the magistrate judge's conclusion that the objects of the search were probably on the premises at the time the warrant was issued. See United In light of the above, we find no error in the district court's decision to deny the motion to suppress.

States v. Baldwin, 987 F.2d 1432, 1435 (9th Cir.1993) (quoting United States v. Garza, 980 F.2d 546, 551 (9th Cir.1992)).

II. Sentencing [Direct Appeal: 96-50241]

Standard of Review

We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996). We examine the district court's application of the Sentencing Guidelines to the facts for an abuse of discretion, and review for clear error its findings of fact underlying the sentencing decision. United States v. Reyes-Oseguera, 106 F.3d 1481, 1482-83 (9th Cir.1997) (citing Robinson, supra).

Discussion

The government argues that the district court erred by (a) failing to include the actual retail value of Kemmish's prior sales of child pornography as "relevant conduct," and (b) refusing to enhance Kemmish's sentence for exhibiting a pattern of sexual exploitation.

A. Retail Value as "Relevant Conduct"

Because all of Kemmish's conviction counts were grouped under U.S.S.G. § 3D1.2(d), ¹ the district court was required to consider "all acts ... that were part of the same course of conduct or common scheme or plan as the offense of conviction[.]" U.S.S.G. § 1B1.3(a)(2). With respect to the offense of trafficking in material involving the sexual exploitation of a minor, the court was obligated to "increase [the base offense level] by the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event less than 5 levels." U.S.S.G. § 2G2.2(b)(2).

The table set out at section 2F1.1 lists nineteen ascending levels based on dollar values ranging from a low of "$2,000 or less" (no increase) to a high of "More than $80,000,000" (increase by 18 levels). U.S.S.G. § 2F1.1(b)(1). For purposes of section 2F1.1, the probation office arrived at a total retail value of $2,905,255, requiring a 13-level increase. In reaching this figure, the probation office used the following calculations: (1) Kemmish's prior six-month sales figures for OSM ($262,997); (2) the retail value of the non-master videotapes ($30,521, based on OSM's catalogue price list); (3) the value of the blank videotapes ($2,337, based on a total of 17 boxes each containing an average of 50 blank tapes @ $2.75 apiece); and (4) the retail value of the videotapes which could be reproduced from the master videotapes ($2,609,400, based on the government's video expert who testified that each master tape could make at least 100 high quality non-master copies for resale).

The district court ignored the government's calculations as to (1), (2), and (3), and rejected its figure as to (4). The court assigned a retail value of between $120,000 and $200,000 to Kemmish's inventory without explaining how it had arrived at that figure. The court then adjusted Kemmish's offense level upward by only 7 points instead of the 13 sought by the government. See U.S.S.G. § 2F1.1 (increase offense level by 7 points for values greater than $120,000 but less than $200,000).

The table at U.S.S.G. § 2F1.1 is nominally concerned with "loss"; however, the Sentencing Guidelines mandate that the figures in that table must "correspond[ ] to the retail value of the material" for purposes of...