U.S. v. Love

• Decision Date: 22 January 2010
• Docket Number: No. 07-3140.,07-3140.
• Citation: 593 F.3d 1
• Parties: UNITED STATES of America, Appellee v. Allen G. LOVE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

593 F.3d 1

UNITED STATES of America, Appellee v. Allen G. LOVE, Appellant.

No. 07-3140.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 2009.

Decided January 22, 2010.

Appeal from the United States District Court for the District of Columbia (No. 07cr00027-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony W. Miles, Assistant Federal Public Defender, entered an appearance.

Courtney D. Spivey, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney at the time the brief was filed, and Roy W. McLeese III, Assistant U.S. Attorney.

Before: GINSBURG and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Allen G. Love pled guilty to transporting or shipping material involving child pornography in violation of 18 U.S.C. §§ 2252A(a)(1) and 2256 (2006). On appeal, he challenges the district court's application of a sentencing enhancement, as well as some of the conditions of his supervised release. We affirm Love's sentence, save one condition of supervised release.

I.

On October 19, 2006, two men using the screen names "James" and "Al" met in an incest chat room on the Internet. James mentioned he had a ten-year-old daughter, and Al asked to see a picture of her. James soon replied with a photograph of a young girl. "Al" was the defendant, Allen Love. "James" was undercover Metropolitan Police Detective Timothy Palchak, an investigator of Internet crimes against children.¹

Love and Palchak chatted online many times over the next several months. Love wrote that he wanted to have sex with Palchak's daughter and asked for nude pictures of her. Love also suggested that Palchak bring his daughter to Chicago, where Love could have sex with her at a local hotel. In addition, Love sent Palchak four photographs and two video clips of prepubescent children engaging in sexually explicit conduct, including one clip in which a child is forcibly raped.

During an online chat on October 26, 2006, Palchak asked Love for pictures he could show his daughter. Love sent him a photograph of an adult male's genitals. On December 7, 2006, the men chatted again about Love's having sex with Palchak's daughter. Palchak said that he told his daughter Love wanted to have sex with her and that she was excited to meet him. Palchak said he was going to show her the child pornography Love had sent and asked for more. Love responded, "ok," and repeated that he wished Palchak and his daughter were in Chicago so that Love could have sex with her. Presentence Investigation Report (PSR) ¶ 21. In a chat on January 23, 2007, Palchak asked Love if he had any more pictures he could show his daughter or "just the same stuff" he had sent previously. Love replied, "[J]ust the same ones." Id. ¶ 22.

On January 25, 2007, agents from the Federal Bureau of Investigation executed a search warrant at Love's home. A search of his computers discovered over 600 images of child pornography. Love confessed to the FBI that he regularly traded child pornography with people he met online. Love was subsequently indicted for one count of transporting or shipping material involving child pornography and one count of possessing such material. Love pled guilty on September 4, 2007, to the distribution count in exchange for the government's dismissing the possession count and recommending a sentence at the low end of the guideline range.

Under section 2G2.2 of the Sentencing Guidelines, the base offense level for Love's conduct is 22. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(a) (2007) [hereinafter U.S.S.G.]. As part of the plea agreement, Love stipulated to several enhancements to his offense level: a two-level increase because he possessed or transmitted illicit material involving a prepubescent minor, id. § 2G2.2(b)(2); a two-level increase because he distributed child pornography, id. § 2G2.2(b)(3)(F); a four-level increase because the material portrayed violent, sadistic, or masochistic conduct, id. § 2G2.2(b)(4); a two-level increase because he used a computer to facilitate his offense, id. § 2G2.2(b)(6); and a five-level increase because he possessed 600 or more illicit images, id. § 2G2.2(b)(7)(D). In return, the government agreed the offense level should be decreased by three levels under section 3E1.1 of the Guidelines for Love's acceptance of responsibility. According to the stipulations, Love's total offense level was 34.

Following Love's guilty plea, the United States Probation Office issued a Presentence Investigation Report (PSR) that agreed with those stipulations, with one exception. In lieu of section 2G2.2(b)(3)(F)'s two-level enhancement for any distribution of child pornography, the Probation Office applied section 2G2.2(b)(3)(E)'s seven-level enhancement for "[d]istribution [of child pornography] to a minor that was intended to persuade, induce, entice, or facilitate the travel of, the minor to engage in prohibited sexual conduct." PSR ¶ 31. This difference resulted in a total offense level of 39, see id. ¶ 41, five levels higher than that to which the parties had agreed.

A defendant's sentence may not exceed the statutory maximum regardless of the guideline range that results from his criminal history category and total offense level. See U.S.S.G. § 5G1.1(a) ("Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence."). Love's fairly clean criminal record placed him in Criminal History Category I. See PSR ¶¶ 42-49. His total offense level was either 34 or 39, depending on whether section 2G2.2(b)(3)(E) applied. Given Love's criminal history category, a total offense level of 39 would translate to a sentencing range of 262 to 327 months' imprisonment, and a total offense level of 34 would mean a sentencing range of 151 to 188 months' imprisonment. See U.S.S.G. pt. 5A. But the statutory maximum for Love's offense is 240 months' imprisonment. See 18 U.S.C. § 2252A(b)(1).

At Love's sentencing hearing, the district court applied the seven-level enhancement recommended by the Probation Office, Tr. 24-25, but imposed a sentence of 188 months' imprisonment, followed by supervised release for life. Judgment in a Criminal Case at 2-3 [hereinafter Judgment]. Love's term of supervised release is subject to several standard and special conditions of supervision. Love timely appealed, and we have jurisdiction under 18 U.S.C. § 3742.²

Love argues the district court erred in three ways: (1) applying the seven-level enhancement from section 2G2.2(b)(3)(E); (2) entering a written judgment that conflicted with the orally pronounced sentence and (3) imposing unreasonable conditions of supervised release.

II.

We review sentences for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In applying this standard, the court "ensure[s] that the district court committed no significant procedural error." Id. at 51, 128 S.Ct. 586. Procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Id.

Love argues the district court committed procedural error by applying section 2G2.2(b)(3)(E)'s seven-level enhancement. He alleges error with respect to each element of the enhancement: (1) distribution of child pornography; (2) to a minor; and (3) intended to persuade, induce, entice, or facilitate the travel of, the minor to engage in prohibited sexual conduct. We address each of his arguments in turn. We find none persuasive.

A.

Love argues the district court erroneously based the enhancement on his transmittal of one image of an adult male's genitals, rather than his admitted distribution of pictures and videos of child pornography. Appellant's Br. at 14; Reply Br. at 6-10. To address this argument, we must examine the entire sentencing transcript to understand why the district court applied the enhancement. See United States v. Brockenborrugh, 575 F.3d 726, 740-41 (D.C.Cir.2009) (discussing the need to avoid "reading the district court's explanation [of a sentencing adjustment] in a parsed manner that overlooks its meaning in context"). If Love's understanding of the district court's decision were correct, we would reverse. The enhancement applies only to distribution of "material involving the sexual exploitation of a minor." U.S.S.G. § 2G2.2 cmt.1. A photograph of an adult's genitals does not qualify. A careful reading of the entire sentencing transcript, however, shows that the district court relied on the exchange of adult pornography only for its value as circumstantial evidence that Love distributed child pornography to a minor with the requisite intent. We therefore find no error.

In his pre-hearing objections to the PSR, Love raised two objections to the seven-level enhancement. First, Love distributed child pornography to Palchak, not "to a minor." Second, Love did not intend to facilitate a sexual encounter with Palchak's daughter. At the sentencing hearing, the court questioned defense counsel about these objections. In doing so, the court referred to all the material Love had sent Palchak:

All of that, at least circumstantially, shows that . . . the defendant believed that it was being sent, albeit at the request of the officer, to the officer for the purpose of it being shown to the child . . . . I think it is reasonable to infer from all of that, that he sent it with the anticipation it would...