U.S. v. Tagore, s. 97-6133

• Decision Date: 23 October 1998
• Docket Number: 97-6136,Nos. 97-6133,s. 97-6133
• Citation: 158 F.3d 1124
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anjan Ghosh TAGORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1124

158 F.3d 1124

UNITED STATES of America, Plaintiff-Appellee, v. Anjan Ghosh TAGORE, Defendant-Appellant.

Nos. 97-6133, 97-6136.

United States Court of Appeals, Tenth Circuit.

Oct. 23, 1998.

Daniel G. Webber, Jr. (Patrick M. Ryan, United States Attorney, with him on the brief), Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

John W. Coyle, III (Gloyd L. McCoy with him on the briefs), Oklahoma City, Oklahoma, for Defendant-Appellant.

Before BALDOCK, BRORBY and LUCERO, Circuit Judges.

BRORBY, Circuit Judge.

Defendant-Appellant Anjan Ghosh Tagore pled guilty to conspiring to receive and distribute visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) and to possessing three or more matters containing visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sentenced him to 109 months on the conspiracy count and 60 months on the possession count, the terms to run concurrently. The district court also imposed a three-year term of supervised release for each count to run concurrently and a $100.00 special assessment for each count. Mr. Tagore appeals the sentence imposed under the Sentencing Guidelines. See United States Sentencing Guideline's Manual (Nov.1995) ("U.S.S.G.").

Mr. Tagore raises three issues on appeal. First, he contends the district court erred in applying the cross reference contained in U.S.S.G. § 2G2.2(c)(1) based on the conduct of his co-defendants. Second, he alleges even if the court properly considered the conduct of his co-defendants, that conduct was not reasonably foreseeable and in furtherance of jointly undertaken criminal activity as required under U.S.S.G. § 1B1.3. Lastly, Mr. Tagore contends the district court erred in applying a four-level enhancement pursuant to § 3B1.1 for his role as an organizer or leader of the offense. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

I. Background

Mr. Tagore was a member of an on-line Internet "chat room" called UPN (United Pedophilia Network), later changed to YGW (Young Girl Watchers). Members used this chat room to discuss child pornography and to trade digital image files via computer. Over a several-month period, Mr. Tagore engaged in numerous on-line conversations and maintained an ftp site, or electronic mailbox, through which he received and distributed digital images of child pornography He also authored a "charter" for the chat room, which listed chat room goals, membership policies, and established procedures for keeping the chat room secret.

Prior to and during the chat room's existence, several members filmed their own "homemade" child pornography. These films were then converted to digital image stills or "pics" for distribution to chat room members. Mr. Tagore was never accused of personally producing child pornography. However, he conversed with other members about their sexual encounters with minors and traded the resulting images. Computer files containing copies of members' homemade pornography and the chat room charter were found on Mr. Tagore's hard drive at the time of his arrest.

Mr. Tagore and three other chat room members were indicted for conspiracy to receive and distribute visual depictions of minors engaged in sexually explicit conduct. In addition, Mr. Tagore was charged with knowingly transporting visual depictions of minors engaged in sexually explicit activity and with possession of three or more matters containing visual depictions of minors engaged in sexually explicit conduct. Mr. Tagore entered into a plea agreement in which he pleaded guilty to the conspiracy and possession charges and the government dismissed the transportation charge. A presentence report was prepared to which Mr. Tagore filed several objections. After a hearing, the district court sentenced Mr. Tagore to 109 months on the conspiracy charge and 60 months on the possession charge, the terms to run concurrently.

In reaching its decision, the district court first considered U.S.S.G. § 2G2.2, which contains a base offense level of 15 for violations of 18 U.S.C. § 2252. The district court then applied the cross reference contained in § 2G2.2(c)(1), which directed the court to § 2G2.1. Section 2G2.1 has a base offense level of 25. The court added eight points for specific offense characteristics and Mr. Tagore's role as an organizer or leader of the offense. The court then subtracted three points for Mr. Tagore's acceptance of responsibility, resulting in a total offense level of 30 with a sentencing range of 97 to 121 months.

II. Cross reference

Mr. Tagore claims the district court improperly applied the cross reference contained in § 2G2.2(c)(1) based on the conduct of his co-defendants. He argues the cross reference should not have been applied because he did not personally participate in the conduct that triggers use of that cross reference. We review questions of law regarding the application of the guidelines de novo. United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir.1997). We review the district court's underlying findings of fact for clear error. Id. We will not disturb the district court's findings unless the record does not support them or if after reviewing the record "we are left with the definite and firm conviction that a mistake has been made." Id. (citations omitted).

The appropriate guideline for violation of 18 U.S.C. § 2252(a)(1)-(3) is § 2G2.2. Section 2G2.2, in turn, contains a cross reference to § 2G2.1 if two criteria are met: (1) if the offense involved "causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," and (2) if the offense level calculated under § 2G2.1 is greater than that determined under § 2G2.2. U.S.S.G. § 2G2.2(c)(1). Appellant does not dispute that the second prong of the cross reference has been met. ¹ The key issue, then, is whether appellant's "offense" involved sexual exploitation of a minor for the purpose of producing a visual depiction under the first prong of § 2G2.2(c)(1).

An "offense," as defined by the Sentencing Guidelines, includes the offense of conviction and all relevant conduct under § 1B1.3, unless a different meaning is otherwise specified. U.S.S.G. § 1B1.1 n. 1(l). Section 1B1.3, in turn, specifies the relevant conduct to be considered in applying cross references. It provides in pertinent part:

(a) ... Unless otherwise specified, ... (iii) cross references ... shall be determined on the basis of the following:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense....

U.S.S.G. § 1B1.3(a). Thus the term "offense," when used in a cross reference, includes both the conduct of the defendant and certain conduct of other participants in the criminal activity. United States v. Johnson, 971 F.2d 562, 575 (10th Cir.1992) ("[T]he fact that the conduct of an individual other than appellant was used in part to increase appellant's sentence is not inconsistent with the guidelines"). The only exception to this rule is where relevant conduct is "otherwise specified." U.S.S.G § 1B1.3(a). Relevant conduct is "otherwise specified" if a specific guideline contains a more explicit instruction regarding relevant conduct. U.S.S.G. § 1B1.3, comment. (backg'd).

The district court interpreted the cross reference based on relevant conduct as defined by § 1B1.3(a). Accordingly, the court considered the conduct of Mr. Tagore's co-conspirators. ² Appellant contends this was in error. He argues instead that relevant conduct has been "otherwise specified" to include only the defendant's personal conduct. We disagree.

We interpret the Sentencing Guidelines as if they were a statute or a court rule. United States v. Alessandroni, 982 F.2d 419, 420 (10th Cir.1992). 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." Id. at 420-21. The clear and unambiguous language of § 1B1.3 requires cross references to be determined on the basis of reasonably foreseeable conduct of others in furtherance of a jointly undertaken criminal activity. ³ Johnson, 971 F.2d at 574-75. Nothing in § 2G2.2 "otherwise specifies" or explicitly instructs a court to consider a more narrow range of relevant conduct. In fact, commentary to § 2G2.2(c)(1) instructs that the cross reference "is to be construed broadly to include all instances where the offense involved [exploitation of a minor for the purpose of creating a visual depiction]." U.S.S.G. § 2G2.2, comment. n. 3.

Contrary to appellant's contention, application of § 1B1.3(a) does not lead to an absurd result. The Guidelines allow courts to consider conduct which is not formally charged or is not an element of the offense of conviction. U.S.S.G. 1B1.3, comment. Relevant conduct sections such as § 1B1.3 reflect a Guideline judgment that "a particular offense should receive a more serious sentence within the authorized range if it was either accompanied by or preceded by additional criminal activity." Witte v. United States, 515 U.S. 389, 403, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). In this case,...