U.S. v. Whorley

• Decision Date: 18 December 2008
• Docket Number: No. 06-4288.,06-4288.
• Citation: 550 F.3d 326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dwight Edwin WHORLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

550 F.3d 326

UNITED STATES of America, Plaintiff-Appellee, v. Dwight Edwin WHORLEY, Defendant-Appellant.

No. 06-4288.

United States Court of Appeals, Fourth Circuit.

Argued: December 4, 2007.

Decided: December 18, 2008.

ARGUED: Robert James Wagner, Assistant Federal Public Defender, Office of The Federal Public Defender, Richmond, Virginia, for Appellant. Damon A. King, United States Department of Justice, Criminal Division, Washington, D.C., for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia; Sapna Mirchandani, Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Sara E. Chase, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER and GREGORY, Circuit Judges, and James P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge JONES joined. Judge Jones wrote a separate concurring opinion. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

OPINION

NIEMEYER, Circuit Judge:

Dwight Whorley was convicted of (1) knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462; (2) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, the same 20 anime cartoons, in violation of 18 U.S.C. § 1466A(a)(1); (3) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and (4) knowingly sending or receiving 20 obscene e-mails, in violation of 18 U.S.C. § 1462. Imposing a sentence that departed upward from the recommended Sentencing Guidelines range, the district court sentenced Whorley to 240 months' imprisonment.

On appeal, Whorley contends principally that the statutes under which he was convicted are unconstitutional. He claims (1) that § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); (2) that § 1462 is facially unconstitutional because the term "receives," when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors. In addition to his constitutional challenges, Whorley challenges numerous procedural rulings by the district court and the reasonableness of the sentence that it imposed.

Because § 1462 punishes trafficking in commerce, not the mere possession of obscene materials, and "receives" has a uniform meaning that is readily understood, we reject Whorley's facial challenges. We also reject his arguments that tex-tual matter cannot be obscene under § 1462 and that cartoons depicting minors in sexually explicit conduct must depict real-life minors to violate § 1466A(a)(1). Finally, we reject his challenges to the district court's procedural rulings and his sentence. Accordingly, we affirm.

I

The Virginia Employment Commission maintains a public resource room in Richmond, Virginia, where job seekers may use Commission copiers, computers, and printers for employment-related purposes.

On March 30, 2004, a woman in the resource room informed a Commission employee that Dwight Whorley was viewing what appeared to be child pornography on a Commission computer. In response, the office manager and two supervisors went to the resource room and saw Whorley standing in front of the printer with papers in his hand. Upon request, Whorley showed the supervisor the documents, which depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults. Determining that the documents were an inappropriate use of state computer equipment, the manager banned Whorley from using the Commission's computers and escorted him from the premises.

Returning to the computer that Whorley had been using, the Commission employees found that his YAHOO! e-mail account was still open, and they also found several more copies of anime-style cartoons by the computer. After printing off several e-mails from that account and taking the computer out of service, the manager called his supervisor and the state police. Subsequently, the manager also provided Whorley's probation officer with copies of the documents. (Whorley was on probation in connection with a previous federal conviction for downloading child pornography on a Virginia Commonwealth University computer in 1999.) Later, the FBI obtained more information from YAHOO! about Whorley's e-mail account.

Based on the matters copied, the data contained in the computer used by Whorley, and the information received from YAHOO!, a grand jury returned a 75-count indictment against Whorley. Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. § 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. § 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. § 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.

At trial, evidence from the Commission computer showed that Whorley conducted numerous searches on March 11 and 12, 2004, through the YAHOO! search engine, using the query "child sex play." The pictures of the naked children obtained from those searches came from an Illinois website called "Logical Reality." It also showed that on March 30, 2004, Whorley obtained the 20 Japanese cartoons from a site called "Fractal Underground Studio." On the same day, he sought eight times to open sites that had been blocked on the Commission's computers.

Following trial, the district court dismissed Count 41 for a lack of evidence that the individual depicted in the picture was a minor, and the jury convicted Whorley of the remaining 74 counts.

At sentencing, the district court granted the government's motion for an upward departure, although not to the extent sought by the government. The departure was based on numerous factors, including Whorley's history of downloading child pornography, which was not represented in the recommended Guidelines calculation because, except for the 1999 conviction, the prior conduct had not resulted in Whorley's prosecution and conviction. The court also noted Whorley's repeated failure to abide by the terms of supervised release from his prior conviction, including

continuing to access computers without the probation officer's approval, numerous false statements concerning attempts to obtain employment, failure to obtain employment, failure to report to the Department of Rehabilitation Services, failure to report to the Offender Aid and Restoration Program, and most disturbingly, his presence at local malls and public libraries frequented by children in direct disobedience of his probation officer's instructions.

Also contributing to the decision to depart upward was Whorley's failure "to make a good faith effort to control his sexual deviance" and the "increasingly sadistic and violent" nature of the prepubescent erotica recovered from Whorley. After increasing Whorley's criminal history from a Category III to a Category VI, the most serious category, the district court found that the base offense level of 27 still yielded a sentencing range below the mandatory minimum statutory sentence of 180 months. The court therefore moved down the sentencing table to an offense level 32, see U.S.S.G. § 4A1.3(a)(4)(B), and sentenced Whorley to 240 months' imprisonment, which was 60 months above the recommended Guidelines sentence but which fell within the lower half of the statutory range of 180 to 480 months.

From the judgment of conviction, this appeal followed.

II

Whorley contends first that 18 U.S.C. § 1462 is facially unconstitutional because "it makes no exception for the private receipt, possession, or viewing of obscene material," as, he argues, such conduct is protected by the First Amendment and its application in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In Stanley, the Supreme Court held that a Georgia statute prohibiting the possession of obscene matter, even within the home, was incompatible with the First and Fourteenth Amendments. Id. at 568, 89 S.Ct. 1243. Finding the statute too broad, the Court explained that "traditional notions of individual...