U.S. v. Plotts

Decision Date22 October 2003
Docket NumberNo. 02-3412.,02-3412.
Citation347 F.3d 873
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James D. PLOTTS, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the District of Kansas, Thomas, J. Marten, J Submitted on the briefs:* David J. Phillips, Federal Public Defender, and Timothy J. Henry, Assistant Federal Public Defender, District of Kansas, Wichita, KS, for Appellant.

Eric F. Melgren, United States Attorney, and Brent I. Anderson, Assistant United States Attorney, Office of the United States Attorney, Wichita, KS, for Appellee.

Before TACHA, Chief Circuit Judge, EBEL, and BRISCOE, Circuit Judges.

TACHA, Chief Judge.

Defendant-Appellant James Plotts pleaded guilty to one count of receiving child pornography over the Internet in violation of 18 U.S.C. § 2252(a)(2), and one count of criminal forfeiture in violation of 18 U.S.C. § 2253(a)(3). The district court sentenced Mr. Plotts to an eighty-seven-month prison term, to be followed by five years of supervised release. As a condition of his supervised release, the district court ordered Mr. Plotts to cooperate in the collection of his DNA, as required by 18 U.S.C. § 3583(d) ("the DNA Act"). Mr. Plotts filed a timely notice of appeal on November 19, 2002. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

On appeal, Mr. Plotts first argues that the district court erred in construing U.S.S.G. § 2G2.2(b)(4) to require a mandatory, rather than discretionary, five-level sentence enhancement. Mr. Plotts also argues that the DNA Act is unconstitutional, because it exceeds Congress's power under the Commerce Clause of the Federal Constitution.

II. Discussion
A. Enhancement for prior convictions under § 2G2.2(b)(4)

We first address Mr. Plotts's claim that the district court incorrectly interpreted § 2G2.2(b)(4) to mandate, rather than permit, a five-level increase in his sentence. "The district court's interpretation of the sentencing guidelines is a legal question subject to de novo review." United States v. Castro-Rocha, 323 F.3d 846, 848-49 (10th Cir.2003).

Section 2G2.2(b)(4) of the Sentencing Guidelines reads, "If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels." U.S.S.G. § 2G2.2(b)(4) (2002). Application Note 2 provides, "[i]f the defendant engaged in the sexual abuse or exploitation of a minor at any time ... and subsection (b)(4) does not apply, an upward departure may be warranted." Id., Application Note 2. Considering the interplay of these provisions, the district judge ruled that subsection (b)(4) required, rather than permitted, a five-level increase to Mr. Plotts's sentence.

On appeal, Mr. Plotts argues that reading § 2G2.2(b)(4) in conjunction with Application Note 2 indicates that the Sentencing Commission intended § 2G2.2(b)(4) to permit, but not require, a five-level increase. Mr. Plotts reasons that subsection (b)(4) permits, rather than requires, such an increase because Application Note 2 makes clear that instances will exist in which a defendant will have abused another child, and yet a subsection (b)(4) increase will not apply. Thus, Mr. Plotts concludes that subsection (b)(4) cannot be a mandatory requirement if situations will exist in which a judge will not apply it. Mr. Plotts adds that, because the subsection is open to differing interpretations, we should follow the rule of lenity, which requires courts to interpret ambiguous statutes in favor of criminal defendants.

In light of the plain language of subsection (b)(4), however, we find Mr. Plotts's suggested interpretation unpersuasive. We interpret the Sentencing Guidelines "as if they were a statute or court rule." United States v. Gay, 240 F.3d 1222, 1230 (10th Cir.2001). As with all statutory interpretation, we begin our analysis with the language of subsection (b)(4), "`giving the words used their ordinary meaning.'" United States v. Gacnik, 50 F.3d 848, 852 (10th Cir.1995) (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990)). "Where the language is clear and unambiguous, it must be followed except in the most extraordinary situation where the language leads to an absurd result contrary to clear legislative intent." United States v. Tagore, 158 F.3d 1124, 1128 (10th Cir.1998) (internal quotation omitted).

A plain reading of subsection (b)(4) shows that it mandates a five-level sentence enhancement for qualified offenders. Its language could not be more clear: "If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels." U.S.S.G. § 2G2.2(b)(4). Moreover, where the Guidelines vest judges with discretion, as Mr. Plotts argues subsection (b)(4) does, they generally do so explicitly. See, e.g., U.S.S.G. § 5k2.1 ("If death resulted [from defendant's crime], the court may increase the sentence....") (emphasis added). Because the Guidelines do not employ permissive language in subsection (b)(4), the rules of statutory construction compel the conclusion that the Sentencing Commission intended it to require a mandatory, rather than discretionary, five-level increase for qualifying cases. See Universal Const. Co., Inc. v. Occupational Safety & Health Review Comm'n., 182 F.3d 726, 729 (10th Cir.1999) ("Where language appears in one section of a statute but not in another section, we assume the omission was intentional.").

Moreover, we see no conflict between a mandatory interpretation of subsection (b)(4) and Application Note 2. Admittedly, the Note does indicate that instances will exist in which a defendant will have abused another child, and yet a subsection (b)(4) increase will not apply. This does not trouble us, however, because as noted by the district court, such a scenario would occur, for instance, when a defendant has engaged in only a single previous act of sexual abuse, which would not qualify as a "pattern of activity." See U.S.S.G. § 2G2.2, Application Note 1 ("`Pattern of activity involving the sexual abuse or exploitation of a minor' means any combination of two or more separate instances of... sexual abuse....") (emphasis added). Thus, Application Note 2 indicates nothing more than that such scenarios, even though not technically qualifying for a five-level increase under subsection (b)(4), could nevertheless qualify for upward departure. As such, we see no conflict between the mandatory increase for a pattern of activity in subsection (b)(4) and the second Application Note's recognition that certain cases will not qualify for a subsection (b)(4) enhancement, even though they may merit an increased sentence. We thus reject Mr. Plotts's proffered interpretation.

Finally, Mr. Plotts argues that the rule of lenity requires us to interpret subsection (b)(4) in his favor. As we have often stated, however, the rule of lenity only applies when there is a "grievous ambiguity or uncertainty in the language and structure of the act." United States v. Wilson, 10 F.3d 734, 736 (10th Cir.1993) (internal quotation marks and citation omitted), cert. denied, 511 U.S. 1057, 114 S.Ct. 1621, 128 L.Ed.2d 347 (1994). Because we find that subsection (b)(4) is unambiguous, Mr. Plotts's "mere assertion of an alternative interpretation of a sentencing guideline is not enough to bring the rule into play." Tagore, 158 F.3d at 1128 n. 3.

B. Constitutionality of the DNA Act

We next address Mr. Plotts's argument that the DNA Act is unconstitutional. "We review challenges to the constitutionality of a statute de novo." United States v. Dorris, 236 F.3d 582, 584 (10th Cir.2000). "Statutes are presumed constitutional." Id. (citing United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)).

Mr. Plotts argues that the DNA Act is unconstitutional for three reasons. He contends that the Act violates the Fourth Amendment, contravenes the separation of powers doctrine, and exceeds Congress's authority to legislate under the Commerce Clause. Mr. Plotts advanced these arguments before we announced our decision in United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003), in which we rejected identical Fourth Amendment and separation of powers challenges to the DNA Act. But see United States v. Kincade, 345 F.3d 1095, 1112 (9th Cir.2003). Thus, for the reasons stated in Kimler, we reject Mr. Plott's first two arguments.

Mr. Plotts's Commerce Clause challenge to the DNA Act merits further attention.1 Pointing to the Supreme Court's recent decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Mr. Plotts argues that the DNA Act regulates conduct that is noneconomic in nature and that lacks any substantial relation to interstate commerce. Mr. Plotts concludes that the DNA Act, in essence, is an exercise of plenary police power, a power which Congress lacks.

In response, the government argues that the DNA Act is a valid exercise of Congress's power to regulate "things in interstate commerce." The government reasons that because many of the DNA samples taken pursuant to the Act will travel in interstate commerce, the Act is constitutional even though the regulation under the Act is noneconomic in nature.

We find it unnecessary to review the Act's constitutionality under either proposed theory. Whether the DNA Act is properly construed as a civil sanction2 or a law enforcement tool3 (an issue that we do not reach today), we find that the Act is a legitimate exercise of congressional power under the Necessary and Proper Clause.4

"So that the Constitution `be not a splendid bauble,' the framers of our government inserted the Necessary and Proper Clause into the Constitution to `remove all doubts respecting the right to legislate on that vast mass of incidental powers which...

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