U.S. v. Probel

• Decision Date: 13 June 2000
• Docket Number: No. 99-4123,99-4123
• Citation: 214 F.3d 1285
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Eric Scott PROBEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1285

214 F.3d 1285 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Eric Scott PROBEL, Defendant-Appellant.

No. 99-4123.

United States Court of Appeals Eleventh Circuit.

June 13, 2000.

Appeal from the United States District Court for the Southern District of Florida.(No. 98-08113-CR-WDF), Wilkie D. Ferguson, Jr., Judge.

Before COX, Circuit Judge, and HILL and MESKILL^*, Senior Circuit Judges.

MESKILL, Senior Circuit Judge:

Defendant-appellant Eric Scott Probel pled guilty to one count of transporting or shipping child pornography in violation of 18 U.S.C. 2252A(a)(1). At sentencing, he objected to the application of a five-level sentence enhancement for "distribution" of child pornography pursuant to U.S.S.G. 2G2.2(b)(2). The United States District Court for the Southern District of Florida, Ferguson, J., overruled the objection, finding that the plain language of the guideline did not, as Probel argued, require that the defendant receive pecuniary or other gain. On appeal, Probel renews his contention that application of the enhancement must be predicated on a finding that he received some pecuniary or other benefit. For the reasons that follow, we disagree. Probel, who does not contest that he "distributed" child pornography in the ordinary sense of the term, was appropriately sentenced.

BACKGROUND

On June 15, 1998, a law enforcement officer using the name "suzyQ17" was patrolling an Internet chat room entitled "#0!!!!!!!13yearoldgirlsex." "suzyQ17" entered into a private discussion with Probel, who was using the screen name "sophie ^^." Probel asked if "suzyQ17" wanted to trade personal pictures. "suzyQ17" responded that, due to a computer malfunction, "she" would not be able to send any pictures, but was interested in receiving some. Probel responded by asking if "suzyQ17" "like[d] young." The officer responded affirmatively and Probel sent some pictures. The pictures depicted young boys and girls engaged in various sexual acts. Probel continued to send more pictures despite "suzyQ17"'s inability to reciprocate. The discussion lasted approximately two hours and became very sexual in nature.

Based on the Internet discussion and Probel's pictures, law enforcement officers obtained a warrant to search Probel's computer and home. The search took place on July 14, 1998. It turned up over 800 pornographic pictures stored on floppy disks and on the hard drive of Probel's computer. According to an expert, approximately 200 of these pictures involved persons under the age of 18 and sixteen involved children under the age of 12. After being advised of his rights, Probel admitted that he owned the pictures and that he had sent pictures via the Internet on ten to twenty previous occasions.

On August 25, 1998, a grand jury indicted Probel on five counts of transporting or shipping child pornography in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1), and one count of possessing a computer disk with three or more images of child pornography that had been transported in interstate commerce by computer, in violation of 18 U.S.C. § 2252A(a)(5)(B). Probel was arrested three days later. On October 28, 1998, pursuant to a written plea agreement, Probel pled guilty to one count of transporting or shipping child pornography.¹

On January 8, 1999, the district court held a sentencing hearing. Probel objected to the Pre-Sentence Investigation Report's determination that he should receive a five-level enhancement for "distribution" of child pornography. He argued that the enhancement was not applicable because he did not receive any pecuniary or other benefit in return for the pictures. He did not dispute that he "distributed" pictures in the ordinary sense of the term. At the close of the hearing, the district court determined that the enhancement did not require a finding of pecuniary or other benefit. It did not make any factual findings as to whether Probel received any benefit, pecuniary or otherwise. It interpreted "distribution" to mean "to disseminate, or circulate or to send." Accordingly, the district court applied the five-level sentence enhancement. This enhancement, and other adjustments which are not at issue here,² raised Probel's offense level from a base offense level of 17 to 27. Probel was sentenced to 70 months in prison, at the low end of the Guidelines range, followed by three years of supervised release and a $100 special assessment.

DISCUSSION

The only issue on appeal is whether the application of U.S.S.G. § 2G2.2(b)(2) requires that the defendant receive some pecuniary or other benefit. In United States v. Garrett, 190 F.3d 1220 (11th Cir. 1999), this court held that the application of U.S.S.G. § 2G2.2(b)(2) was proper after finding that the defendant had received "what he considered to be another `valuable gain.'" Id. at 1223. The court did not address whether the enhancement would have been proper in the absence of a finding that the defendant received a benefit. In that respect, this is a case of first impression in this Circuit. Whether U.S.S.G. § 2G2.2(b)(2) requires pecuniary gain has created a split among the Circuits with the Seventh and Ninth Circuits holding that pecuniary gain, albeit defined broadly, is required, while the Second, Fifth, Sixth and Eighth Circuits have stated that pecuniary or other gain is not required. We now join the majority of courts to consider the issue and hold that, based on the plain language of the Guidelines and the application notes, pecuniary or other gain is not required for the enhancement to apply.

The district court did not make any findings as to any benefit to Probel, instead basing its decision on the plain language of the Guidelines and the ordinary meaning of the term "distribution." We must determine whether the court correctly interpreted the Guidelines. We review its interpretation de novo. See United States v. Miller, 166 F.3d 1153, 1155 (11th Cir. 1999).

We begin our analysis with the Guidelines language. U.S.S.G. § 2G2.2 is entitled "Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic," and provides for a base offense level of 17. Under "Specific Offense Characteristics," U.S.S.G. § 2G2.2(b)(2) provides: "If the offense involved distribution, increase by the number of levels from the table in § 2F1.1 corresponding to the retail value of the material, but in no event by less than 5 levels." The table in § 2F1.1 provides for increased offense levels dependent on the loss due to fraud. According to the table, the retail value of child pornography must exceed $70,000 to warrant an enhancement greater than the threshold five-level enhancement prescribed in U.S.S.G. § 2G2.2(b)(2). Although the term "distribution" is undefined, Application Note 1 to U.S.S.G. § 2G2.2 provides: "`Distribution' includes any act related to distribution for pecuniary gain, including production, transportation, and possession with intent to distribute." Significantly, Application Note 2 to U.S.S.G. § 1B1.1, providing for general application principles, provides: "The term `includes' is not exhaustive." Application notes are binding on this court. See Stinson v. United States, 508 U.S. 36, 38 (1993).

Because the term "includes" is not exhaustive, it is clear that "the definition of `distribution' in Section 2G2.2(b)(2) is not limited by Application Note 1 thereof to acts for `pecuniary gain.'" United States v. Lorge, 166 F.3d 516, 518 (2d Cir.), cert. denied, 119 S.Ct. 1372 (1999). Giving Application Note 1 its most natural reading, it actually enlarges, rather than limits, the applicability of the enhancement. In addition to defendants who distribute child pornography, Application Note 1 makes clear that individuals who are indirectly involved in distribution for profit, such as producers and transporters, are also subject to the enhancement. It was drafted to expand liability to cover these other individuals and should not be understood to limit the application of the enhancement to exclude individuals like Probel. See id. ("Application Note 1 . . . is most easily read as intended to avoid an overly narrow reading of distribution."). Thus, the term "distribution" should be given its ordinary meaning of "to dispense" or "to give out or deliver." See Webster's Third New International Dictionary 660 (1981).

Our conclusion that "distribution" should be given its ordinary meaning based on the plain language of the guideline accords with the majority of circuits to consider the issue. In Lorge, the Second Circuit held that "it is irrelevant that the district court did not find that Lorge sought a pecuniary gain," because "a motive of pecuniary gain need not be shown." Lorge, 166 F.3d at 518. The court applied the ordinary meaning of "distribution" "without regard to the actor's motive" and expressly declined to follow contrary authority. Id. at 518-19. It refused to look beyond the plain meaning of the guideline, because if a requirement of pecuniary gain was intended, "Section 2G2.2(b)(2) need only have provided for enhancement if the crime involved 'distribution for pecuniary gain.' " Id. at 519. We are likewise persuaded that it is unnecessary to look beyond the plain meaning of the guideline. If the Sentencing Commission had intended pecuniary gain to be required, it could easily have substituted "means" for "includes" in Application Note 1 to limit the term "distribution." See United States v. Horn, 187 F.3d 781, 791 (8th Cir.1999) ("If Congress had intended 2G2.2(b)(2) to apply only to distribution for pecuniary gain, it could easily have said so directly.").

In addition to Lorge, the Fifth, Sixth, Eighth and Eleventh Circuits, in dicta, have stated that pecuniary gain is not required for the enhancement to apply....