U.S. v. Larkin

• Citation: 629 F.3d 177
• Decision Date: 10 December 2010
• Docket Number: No. 09-2619,09-2619
• Parties: UNITED STATES of America v. Angela LARKIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

629 F.3d 177 UNITED STATES of America v. Angela LARKIN, Appellant. No. 09-2619. United States Court of Appeals, Third Circuit. Submitted Under Third Circui LAR 34.1(a) Feb. 23, 2010. Opinion filed: Dec. 10, 2010.

Anne C. Shapiro, Esquire, Shapiro & Becker, P.C., Lewisburg, PA, for Appellant.

Dennis C. Pfannenschmidt, Esquire, United States Attorney, Middle District of Pennsylvania, Frederick E. Martin, Esquire, Assistant United States Attorney, Williamsport, PA, for Appellee.

Before: SCIRICA and CHAGARES, Circuit Judges, and RODRIGUEZ, ^*District Judge.

OPINION OF THE COURT

RODRIGUEZ, Senior District Judge.

I. INTRODUCTION

Pursuant to a plea agreement, appellant Angela Larkin ¹ entered a plea of guilty to a violation of 18 U.S.C. § 2251(a) for producing child pornography. Larkin's criminal conduct involved, inter alia, the trading of photographs which contained visual depictions of her daughters, then ages two and five, over the internet to known pedophiles.² The District Court sentenced Larkin to the statutory maximum term of incarceration of three hundred sixty months, to be followed by a life term of supervised release. Larkin appeals her sentence arguing that: (1) the District Court erroneously concluded that visual depictions of B.L. rendered her a "second victim" meriting a two-level sentencing enhancement pursuant to U.S.S.G. § 2G2.1(c)(1) (2003); (2) the government violated the terms of the plea agreement; (3) the District Court's application of a five level upward departure under U.S.S.G. § 5K2.0 violates the ex post facto clause; and (4) the sentence was unreasonable.

For the reasons we discuss below, we will affirm the final judgment of sentence of the District Court.

II. BACKGROUND

The investigation that led to the arrest and prosecution of Angela Larkin began inWaco, Texas, where authorities discovered a sexually explicit video of a minor on the computer of Phillip Roberts. The video contained close up shots of the child's genitalia and pubic regions and was titled "Peanut," which is a nickname Larkin called M.M. In addition, "chat" history logged on the computer revealed that certain pictures were sent to Mr. Roberts by an individual, later identified as Larkin, who used the screen name "neon-angeleyes." Larkin sent sexually explicit photographs to Mr. Roberts and indicated that the depictions were of her daughter and that she had received a sum of money from him for their production.

The origin of the video file was traced to Cameron County, Pennsylvania. The Pennsylvania State Police were contacted and began an investigation jointly with agents from the Federal Bureau of Investigation. Angela Larkin was arrested by the Pennsylvania State Police and the Federal Bureau of Investigation for trafficking pictures of her daughter in violation of 18 U.S.C. § 2251(a). A two count indictment charging violations of 18 U.S.C. §§ 2251(a) (production of a sexually explicit visual depiction of a minor) and 2251(b) (production of a sexually explicit visual depiction of a minor that was produced using materials shipped through interstate commerce) followed, to which Larkin entered not guilty pleas. The grand jury subsequently returned a superceding indictment, which charged Larkin with traveling through interstate commerce with codefendant Richard King ³ with the intent to engage in a sex act with M.M., in violation of 18 U.S.C. §§ 2 and 2241(c).

Pursuant to a plea agreement, Larkin entered a plea of guilty to only the production charge, a violation of 18 U.S.C. § 2251(a). The plea agreement required Larkin to assist in the investigation and prosecution of the unlawful activities of others and, in exchange for her promised assistance, the government would consider filing a Motion for Downward Departure pursuant to U.S.S.G. § 5K1.1 on her behalf. Notwithstanding this possibility, the plea agreement contemplated a sentencing guideline range between 121 and 151 months, if the mandatory minimum of 180 months was inapplicable.

The Pre-Sentence Report prepared on May 17, 2006 also calculated Larkin's guideline range based upon an offense level of 34 and a criminal history category of II, which differed from the calculations in the plea agreement.⁴ The Probation Office calculation included the fact that B.L. was a second victim as well as a possible enhancement for the use of a computer in the commission of the offense, pursuant to U.S.S.G. § 2G2.1(b)(3). The resulting guideline range was 168-210 months imprisonment.

Larkin advanced several objections to the Pre-Sentence Report including the propriety of categorizing B.L. as a second victim, whether the enhancement pursuant to § 2G2.1(b)(3)(B)(i) was applicable, and the inclusion of the mental health evaluations of her minor children. Larkin also alleged that the government violated the plea agreement by briefing some of these issues. On October 6, 2006, the District Court ruled on Larkin's objections to the Pre-Sentence Report and found no violation of the plea agreement by the government. With respect to the objections, the District Court concluded that the photographsof B.L. rendered her a second victim and that it could consider the mental evaluations of the minor victims for sentencing purposes. But, the District Court found that the enhancement pursuant to § 2G2.1(b)(3)(B)(i) was inapplicable.

In the meantime, Larkin provided assistance to the government in the prosecution of other sex offenders. As a result, on January 21, 2009, the government filed a Motion for Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(b). The parties submitted additional sentencing memoranda in March 2009, and, at the direction of the District Court, filed supplemental briefs addressing, inter alia, possible upward departures. The District Court not only rejected the government's recommendation for a downward departure, in an opinion issued on May 11, 2009, it also advised the parties of its intention to depart upward.

Larkin's sentencing hearing took place on May 22, 2009, at which time representatives for her two minor daughters presented testimony. The District Court sentenced Larkin to the maximum term of confinement of 360 months imprisonment. Larkin timely appealed.

III. JURISDICTION

The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. A final judgment of sentence was entered on May 22, 2009. We have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a), as well as 28 U.S.C. § 1291.

IV. DISCUSSION

A. Whether the Photographs of B.L. Qualify as Pornographic Under 18 U.S.C. § 2256(2)(B)(iii)

Larkin pleaded guilty to a violation of 18 U.S.C. § 2251(a), which criminalizes the use of a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct for distribution in interstate commerce through the use of a computer. Larkin's charged offense conduct relates to photographs of M.M., her then two-year-old daughter. Of the several images generated by Larkin in the commission of this offense, there are five relevant to this appeal. The question presented is whether photographs of B.L., Larkin's then five-year-old daughter, were appropriately characterized by the District Court as "sexually explicit" so as to warrant considering B.L. as a second victim for purposes of calculating Larkin's sentencing guideline range.

The District Court examined these photographs and answered the question affirmatively. While any factual determinations made by the District Court are reviewed for clear error, Kosiba v. Merck & Co., 384 F.3d 58, 64 (3d Cir.2004), the question of whether the photographs of B.L. depict lascivious conduct is one of statutory interpretation subject to de novo review. United States v. Knox, 32 F.3d 733, 744, 753 (3d Cir.1994).

The definition of the term "sexually explicit" conduct is set forth in 18 U.S.C. § 2256(2)(B) and includes:

(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;

(I) bestiality;

(II) masturbation; or

(III) sadistic or masochistic abuse; or

(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person.

18 U.S.C. § 2256(2)(B)(i)-(iii). The parties agree that the photographs before us potentially implicate only subsection (iii). A determination of whether these photographs depict lascivious conduct as defined by the statute is guided by a number of considerations, including, but not limited to, the six factors identified in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), which we formally adopted in United States v. Villard, 885 F.2d 117, 122 (3d Cir.1989). Under this test, we consider:

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id. Considered generally, these are the hallmarks of lascivious conduct. But the Dost factors are not dispositive and serve only as a guide. See Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir.2002) (citing Knox, 32 F.3d at 746 n. 10 (stating that the list of considerations outlined in Dost is not exhaustive)).

In addition to the considerations detailed in Dost, we are guided by Black's Law Dictionary, which defines "lascivious exhibition" as "a depiction which displays or brings forth to view in order to attract notice to...