U.S. v. Norris

• Decision Date: 29 October 1998
• Docket Number: No. 98-40148,98-40148
• Citation: 159 F.3d 926
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie Eugene NORRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 926

159 F.3d 926

UNITED STATES of America, Plaintiff-Appellee, v. Eddie Eugene NORRIS, Defendant-Appellant.

No. 98-40148.

United States Court of Appeals, Fifth Circuit.

Oct. 29, 1998.

Robert Eric Reed, Paula Camille Offenhauser, Asst. U.S. Atty., Kathlyn Giannaula Snyder, Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, William Gerow Christian, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Eddie Eugene Norris pleaded guilty to ten counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). He was sentenced to a 78-month prison term. He appeals from that sentence on the theory that his ten counts of conviction should have been grouped pursuant to U.S.S.G. § 3D1.2(b) because each offense involved the same "victim" (namely, society as a whole), and therefore involved substantially the same harm. We disagree, and therefore affirm.

I.

Norris took his computer to a shop in Corpus Christi, Texas, for the purpose of having the hard drive repaired. The employee who performed the repairs noticed that the filenames of several documents stored in the computer's hard drive contained sexually explicit words. Upon opening several of these files, the employee discovered that the files contained explicit images of children engaged in sexual conduct. Local law enforcement and the United States Customs Service were notified, the contents of the hard drive were examined, and Norris was arrested following a "controlled delivery" of his computer.

Norris was indicted on ten counts of "knowingly receiv[ing] a visual depiction, the producing of which involved the use of a minor engaging in sexually explicit conduct ... which visual depiction had been transported and shipped in interstate and foreign commerce," in violation of 18 U.S.C. § 2252(a)(2), and one count of "knowingly possess[ing] three (3) or more visual depictions, the producing of which invoked the use of a minor engaging in sexually explicit conduct, which visual depictions are of such conduct," in violation of 18 U.S.C. § 2252(a)(4)(B). He pleaded guilty to the ten counts of receiving child pornography, and the one count of possessing child pornography was dismissed on the government's motion, pursuant to a plea agreement. The district court accepted Norris's guilty plea and scheduled a sentencing hearing.

The sentencing recommendation of the presentence investigation report originally prepared for Norris by a United States Probation Officer recommended a total offense level of 18 and criminal history category of I, which together carry an imprisonment range of 27 to 33 months. ¹ This recommendation reflected a base offense level of 17 for ten grouped counts of receiving child pornography in violation of 18 U.S.C. § 2522(a)(2) (U.S.S.G. §§ 2G2.2(a), 3D1.2(b)), ² two specific offense characteristic increases of two levels each for involvement of material involving prepubescent minors (U.S.S.G. § 2G2.2(b)(1)) and use of a computer for transmission (U.S.S.G. § 2G2.2(b)(5)), and downward adjustments of two levels for acceptance of responsibility (U.S.S.G. § 3E1.1(a)) and one level for timely notification to the government of intent to plead guilty (U.S.S.G. § 3E1.1(b)(2)).

The parties filed no objections to this recommendation, but an addendum to the presentence investigation report and a revised sentencing recommendation were filed by the probation office in response to a request by the district court. The new report and recommendation contained two changes. An additional four-level increase was suggested because the pornographic items received by Norris depicted acts of violence (U.S.S.G. § 2G2.2(b)(3)), and, rescinding the previous grouping analysis, ³ a five-level increase was recommended to account for the multiple counts of conviction (U.S.S.G. § 3D1.4). The new recommendation thus suggested a total offense level of 27, which carries an imprisonment range of 70 to 87 months for a criminal history category of I.

Norris objected to the failure to group the counts for sentencing purposes, but the objection was overruled. Adopting the presentence investigation report, the district court assigned a total offense level of 27, a criminal history category of I, and a sentence of 78 months of imprisonment. Norris timely appeals from the district court's calculation of his sentence.

II.

Norris contends that the district court erred by refusing to group his offenses under U.S.S.G. § 3D1.2. That section provides, in pertinent part:

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:

* * * * * *

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

U.S.S.G. § 3D1.2(b). The commentary to this guideline states that:

The term "victim" is not intended to include indirect or secondary victims. Generally, there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related.... Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph, i.e., to identify and group "counts involving substantially the same harm."

U.S.S.G. § 3D1.2 cmt. 2. This commentary "must be given controlling weight unless it is plainly erroneous or inconsistent" with the text of § 3D1.2. Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993) (internal quotation marks omitted).

Analogizing to the commentary's example of drug offenses, Norris contends that his receipt of child pornography is a victimless crime. According to Norris, society at large is therefore the "victim" for the purposes of the grouping rule, and because each time he received child pornography that same societal interest was harmed, the counts should be grouped. In addition, to the extent that the children portrayed in the pictures received by Norris may be considered to be victims of his crimes, he contends that they are indirect or secondary victims of his actions of the sort not contemplated by § 3D1.2.

A.

The issue of whether the district court correctly interpreted the sentencing guidelines to permit the children depicted in child pornography to be considered the victims of the crime of receiving child pornography for the purposes of the guidelines' grouping rule is a question of law which we review de novo. See United States v. Hibbler, 159 F.3d 233, 236 (6th Cir.1998), United States v. Boos, 127 F.3d 1207, 1209 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 734, 139 L.Ed.2d 672 (1998); United States v. Ketcham, 80 F.3d 789, 792 (3d Cir.1996); United States v. Rugh, 968 F.2d 750, 755 (8th Cir.1992); United States v. Toler, 901 F.2d 399, 402 (4th Cir.1990). In reviewing the district court's findings of fact and application of the guidelines to the specific facts of a case, we review for clear error. See, e.g., United States v. Powell, 124 F.3d 655, 663 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1082, 140 L.Ed.2d 139 (1998).

B.

The question of whether multiple children depicted in multiple pornographic images may be treated as different "victims" for sentencing purposes is not novel--it has been considered by five other circuits. See Hibbler, 159 F.3d at 236-38 (yes); Boos, 127 F.3d at 1209-13 (yes); Ketcham, 80 F.3d at 792-93 (yes); Rugh, 968 F.2d at 754-56 (yes); cf. Toler, 901 F.2d at 402-03 (no--the depicted minor is the primary "victim" for the purposes of 18 U.S.C. § 2423 (interstate transportation of a minor with intent that the minor engage in prohibited sexual conduct), but not under 18 U.S.C. § 2252(a) (interstate transportation of child pornography)). We agree with those circuits which have decided that the children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.

1.

Just as in the case of interpreting a statute, when interpreting a provision of the sentencing guidelines our starting point is the text of that provision. Cf., e.g., Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 448 (5th Cir.1995) ("When courts interpret statutes, the initial inquiry is the language of the statute itself."). We must look first, then, to the text of U.S.S.G. § 3D1.2 and the plain meaning of the word "victim." Section 3D1.2(b) permits the grouping of counts which "involve the same victim." A "victim" in this sense is "anyone who suffers either as a result of ruthless design or incidentally or accidentally." Webster's Third New International Dictionary 2550 (1971).

Norris argues that when he committed the crime of receiving child pornography, the children depicted were not "victimized" by that act, and therefore were not "victims" for sentencing purposes. Under this theory the victimization of the children occurred at the time the pornographic images were produced. Therefore, according to Norris, the criminal act of simply receiving child pornography is a victimless crime, and the children depicted in the child pornography can only be victims of the crime of receiving child pornography in an indirect or secondary sense.

Norris takes an unrealistically narrow view of the scope of harms experienced by the child victims of the child pornography industry. Unfortunately, the "victimization" of the children involved does not end when the...