U.S. v. Myers

• Decision Date: 22 January 2004
• Docket Number: No. 02-3497.,02-3497.
• Citation: 355 F.3d 1040
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin C. MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

355 F.3d 1040

UNITED STATES of America, Plaintiff-Appellee, v. Martin C. MYERS, Defendant-Appellant.

No. 02-3497.

United States Court of Appeals, Seventh Circuit.

Argued May 22, 2003.

Decided January 22, 2004.

John K. Mehochko (argued), Office of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.

David G. Morrison (argued), Galvin & Galvin, Rock Island, IL, for Defendant-Appellant.

Before BAUER, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Martin C. Myers was indicted on four counts relating to child pornography. He pled guilty to two counts, including receiving in interstate commerce images of children engaged in sexually explicit conduct, consisting of three videotapes, in violation of 18 U.S.C. § 2252(a)(2), and possession of three or more images of children engaged in sexually explicit conduct in the form of video-cassette tapes and computer-generated image files which had been transported in interstate commerce, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sentenced him to 42 months incarceration, and he appeals that sentence on two grounds.

First, Myers argues that the district court erred in calculating his base level as seventeen pursuant to U.S.S.G. § 2G2.2 which is the provision for receipt of child pornography, rather than a base level of fifteen pursuant to U.S.S.G. § 2G2.4 which applies to possession of child pornography. Although he pled guilty to receipt of child pornography, he contends that the specification of a higher offense level for the offense of receipt of child pornography than for the possession of child pornography is irrational, and therefore violative of the due process and equal protection guarantees of the Constitution. Second, Myers challenges the imposition of a four-level enhancement under U.S.S.G. § 2G2.2(b)(3) based on the court's determination that the offense involved material portraying sadistic or masochistic conduct, or other depictions of violence.

I.

Count I to which Myers pled guilty, 18 U.S.C. § 2252(a)(2), proscribes the knowing receipt of child pornography that has traveled in interstate commerce. Count III, in contrast, criminalizes the knowing possession of such child pornography. 18 U.S.C. § 2252(a)(4)(B). Because Myers pled guilty to both receipt and possession of child pornography, the court applied the stricter Sentencing Guideline provision for receiving child pornography, U.S.S.G. § 2G2.2, rather than the provision for possessing such material, U.S.S.G. § 2G2.4, with the result that his base offense level was 17 rather than 15. Myers essentially argues that the distinction between receipt and possession of child pornography is meaningless, because anyone in possession of child pornography must have received it at some point in time, and therefore he contends that it is irrational to impose a higher sentence for the receipt than for mere possession. Myers' argument is without merit.

The Supreme Court has held that the prohibition on receipt of child pornography in § 2252(a)(2) includes a scienter requirement, and therefore encompasses only situations in which the defendant knows that the material he is receiving depicts minors engaged in sexually explicit conduct. United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). Accordingly, a person who seeks out only adult pornography, but without his knowledge is sent a mix of adult and child pornography, will not have violated that statutory provision. That same person, however, could be in violation of the possession provision of § 2252(a)(4)(B) if he or she decides to retain that material, thereby knowingly possessing it. See 18 U.S.C. §§ 2252(a)(4)(B) and 2252(c) (requiring knowing possession, and including an affirmative defense where such material is promptly and in good faith destroyed or reported to law enforcement.) It is certainly not irrational to punish more severely the person who knowingly receives such material, because it is that person who is creating and/or perpetuating the market for such material. As numerous courts have recognized, increasing the punishment when the conduct involves receiving such materials, trafficking in such materials, or producing such materials, serves the purpose of the statute to end the abuse of children because those actions are more directly tied to the market for such products. United States v. Ellison, 113 F.3d 77, 81 (7th Cir.1997) (distinctions in § 2252 assigning a lower base level for mere possession are intended to punish more harshly conduct that creates or strengthens the market for child pornography; "even the receipt of the prohibited materials for personal use, without more, keeps producers and distributors of this filth in business."); United States v. Grosenheider, 200 F.3d 321, 332-33 (5th Cir. 2000) ("Congress established a series of distinctly separate offenses respecting child pornography, with higher sentences for offenses involving conduct more likely to be, or more directly, harmful to minors than the mere possession offense"); see also United States v. Sromalski, 318 F.3d 748, 753 (7th Cir.2003). Because possession and receipt are not the same conduct and threaten distinct harms, the imposition of different base offense levels is not irrational and therefore Myers' challenge must fail. Myers pled guilty to receiving such materials, and therefore the district court properly calculated his base offense level under § 2G2.2. See Ellison, 113 F.3d at 81-82.

II.

Myer also argues that the court erred in concluding that the child pornography he pled guilty to receiving supported the four-level enhancement under U.S.S.G. § 2G2.2(b)(3) as material "that portrays sadistic or masochistic conduct or other depictions of violence." Moreover, Myers contends that imposition of that enhancement impermissibly double-counts conduct already accounted for in the base offense and in the two-level enhancement under ...