U.S. v. Mcnerney, 09–4011.

• Decision Date: 01 March 2011
• Docket Number: No. 09–4011.,09–4011.
• Citation: 636 F.3d 772
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Timothy McNERNEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

636 F.3d 772

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy McNERNEY, Defendant–Appellant.

No. 09–4011.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 11, 2011.Decided and Filed: March 1, 2011.

ARGUED: Darin G. Thompson, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Carol M. Skutnik, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Darin G. Thompson, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Carol M. Skutnik, Assistant United States Attorney, Cleveland, Ohio, for Appellee.Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.CLAY, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. ROGERS, J. (p. 781), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Defendant Timothy McNerney appeals his sentence of 120 months of incarceration, followed by 10 years of supervised release. The district court sentenced Defendant on August 12, 2009 following Defendant's guilty plea to one count of receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

For the reasons stated below, we AFFIRM the district court's decision.

BACKGROUND

On February 20, 2007, federal agents obtained a valid search warrant to search Defendant Timothy McNerney's house based on a federal task force agent's determination, through an internet search, that Defendant was sharing 166 files depicting child pornography online via a peer-to-peer file-sharing program. Pursuant to this valid search warrant, federal agents searched Defendant's house, and seized Defendant's computer. A forensic analysis of Defendant's computer revealed that the file-sharing program was installed on Defendant's computer, and that numerous images of child pornography were located in the shared folder, allowing other users of the file-sharing program to access them. The agents also found that Defendant had backed up his files on a second hard drive, creating an identical second copy of all of the data contained on his computer, including the images of child pornography.

A federal grand jury indicted Defendant on December 10, 2008, for receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). On April 22, 2009, Defendant pled guilty to both counts of the indictment. On August 13, 2009, the district court held a sentencing hearing, and sentenced Defendant to an 120 month term of imprisonment, followed by 10 years of supervised release.

At the sentencing hearing the district court calculated Defendant's total offense level at 30, and Defendant's criminal history category at I, producing an advisory sentence range of 97 to 121 months. In calculating Defendant's offense level, the district court began with a base offense level of 22, which both parties agreed was correct. The district court proceeded to add the following enhancements: a two level enhancement for images of prepubescent minors pursuant to U.S.S.G. § 2G2.2(ii); a two level enhancement for transferring materials over the internet pursuant to U.S.S.G. § 2G2.2(b)(3)(F); a two level enhancement for using a computer in the crime pursuant to U.S.S.G. § 2G2.2(b)(6); and a five level enhancement for having more than 600 images pursuant to U.S.S.G. § 2G2.2(b)(7), producing a total offense level of 33. The district court then adjusted Defendant's offense level for acceptance of responsibility, placing Defendant's final offense level at 30.

Regarding its computation of the number of images Defendant possessed, based on which the district court enhanced Defendant's offense level by five points, and which is disputed in this appeal, the district court stated:

[T]here's a dispute about the number of images.¹ The Probation Department has recommended an additional five levels based on the finding that there are more than 600 images, specifically 766. The [D]efendant has argued that there's double counting because there are multiple copies of the same image and, therefore, those images should be counted only once in reaching the total.... Mr. McNerney had two hard drives and many of the images are found on both hard drives.... [G]iven that as the government pointed out the computer automatically creates a mirror image of the first hard drive on the second hard drive, and so if hard drive number one is damaged or erased all the images would still exist on the backup hard drive in pristine form, and in my view then we have multiple images and it's not double counting because we've got two separate hard drives and this means if one were damaged, the [D]efendant would still have them on the other hard drive. That's the only reason to have them on two hard drives, so I don't believe it's unfair or inappropriate to count, you know, we have image A on hard drive one and the same image is on hard drive two, we have two separate images and they could both be used and they are there in case one hard drive crashes. So I don't believe we have double counting, and given that, there are more than 600 images in total and so the plus five applies.

(R. 30, Tr. of Sentencing Proceeding at 4–5.)

Defendant objected to the district court's computation, and the five level enhancement under U.S.S.G. § 2G2.2(b)(7). ( Id. at 13–14.) Defendant timely appealed his sentence.

DISCUSSION

I. Standard of Review

We review “ de novo a district court's interpretation of the Sentencing Guidelines.” United States v. Gibson, 409 F.3d 325, 338 (6th Cir.2005).

II. Analysis

Defendant challenges the district court's application of a five level enhancement to his offense level for possessing 600 or more images, pursuant to U.S.S.G. § 2G2.2(b)(7). Section 2G2.2(b)(7) of the Sentencing Guidelines provides for an increase in a defendant's offense level for child pornography based on the number of images possessed as follows: “If the offense involved—(A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels.”

Defendant contends that only unique digital images, not duplicate digital images,² should be counted in computing an enhancement under this provision of the Sentencing Guidelines. This particular interpretive issue is a question of first impression for this Court. There is also a dearth of case law on this question in other circuits.³

A. History of § 2G2.2

As noted by several of our sister circuits, Congress has taken an active role in creating the sentencing scheme for child pornography offenses. See, e.g., United States v. Grober, 624 F.3d 592, 608 (3d Cir.2010); United States v. Dorvee, 604 F.3d 84, 95 (2d Cir.2010). The Child Pornography Sentencing Guidelines are “fundamentally different from most.... Sentencing Guidelines are typically developed by the Sentencing Commission using an empirical approach based on data about past sentencing policies.” Dorvee, 604 F.3d at 95 (citing Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). However, “the Commission did not use this empirical approach in formulating the Guidelines for child pornography.” Id.

The Child Pornography Sentencing Guidelines “have been substantively amended nine times since 1987.” Grober, 624 F.3d at 604. As Congress has placed a “laser-like focus on the child pornography Guidelines, particularly in the last several years,” id., the Sentencing Commission's amendments to the Child Pornography Guidelines have often been at Congress' behest.

In its report entitled, “The History of the Child Pornography Guidelines,” issued in October 2009, the United States Sentencing Commission explained that “Congress has been particularly active over the last decade creating new offenses, increasing penalties, and issuing directives to the [Sentencing] Commission regarding child pornography offenses. Indeed, in 2008 [alone] the 110th Congress passed three new laws amending child pornography statutes.” History of the Child Pornography Guidelines, Oct. 2009, at 1, available at http:// www. ussc. gov/ Research/ Research_ Projects/ Sex_ Offenses/ 20091030_ History_ Child_ Pornography_ Guidelines. pdf (last visited Feb. 8, 2011). Moreover, Congress' child pornography legislation initiatives have been unambiguously motivated by a desire to cast a wider criminal net, and impose harsher punishments for child pornography offenses. As the Second Circuit stated, “at the direction of Congress, the Sentencing Commission has amended the Guidelines under § 2G2.2 several times since their introduction in 1987, each time recommending harsher penalties.” Dorvee, 604 F.3d at 95; see also Grober, 624 F.3d at 604–05 (stating that “[i]t is clear ... that [in its several amendments to the Guidelines increasing penalties for child pornography] the Commission was constantly reacting to Congress's (sic.) repeated directives, and the penalties for child pornography offenses that were steadily, and often dramatically, increasing.”).

In its recent report, the Sentencing Commission elaborated, “Congress has demonstrated its continued interest in deterring and punishing child pornography offenses, prompting the [Sentencing] Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended the child pornography guidelines, and required the [Sentencing] Commission to consider offender and offense characteristics for the child pornography guidelines.” History of the Child Pornography Guidelines, supra, at 54. Specifically,

[f]or more than 30 years, and particularly in recent years, ...