U.S. v. Wise, 05-10195.

• Decision Date: 24 April 2006
• Docket Number: No. 05-10195.,05-10195.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric Richard WISE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.3d 440

UNITED STATES of America, Plaintiff-Appellee, v. Eric Richard WISE, Defendant-Appellant.

No. 05-10195.

United States Court of Appeals, Fifth Circuit.

April 24, 2006.

Steven M. Sucsy, Asst. U.S. Atty. (argued), Lubbock, TX, for Plaintiff-Appellee.

Jerry V. Beard, Asst. Federal Public Defender (argued), Lubbock, TX, for Defendant-Appellant.

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

Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:

Defendant-appellant Eric Richard Wise appeals his judgment of conviction and sentence, arguing that the district court erred by refusing to group his counts of conviction pursuant to U.S. SENTENCING GUIDELINES MANUAL § 3D1.2 (2002) [hereinafter U.S.S.G.]. For the following reasons, we AFFIRM the judgment of conviction and sentence as imposed by the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2002, defendant-appellant Eric Richard Wise ("Wise"), a thirty-seven-year-old man living in Cedar Rapids, Iowa, began communicating over the Internet with Jane Doe ("Doe"), a thirteen-year-old female living in Lubbock, Texas. Wise communicated with Doe in chat rooms and through instant messaging, and eventually he also communicated with Doe by e-mail and telephone. Based on their conversations, Wise knew that Doe was not interested in forming a relationship with a man of his age,¹ so he initially represented to Doe that he was sixteen years old. In subsequent communications, he gradually raised his age to thirty-one.

During these conversations, Wise and Doe often talked about sex. Wise encouraged Doe to "be nastier," to say "dirtier" things, and to "be kinky with [him]" and expressed his approval when she complied with his requests. Wise encouraged Doe to elaborate on the sex acts they might perform on each other.

On December 27, 2002, in response to Wise's request, Doe e-mailed Wise a digital photograph that depicted her nude from the waist up and exposed her breasts. That same day, Wise responded by e-mailing Doe a nude photograph of himself. The next day, he sent her an e-mail, commenting on her picture: "Youre so beautiful [Doe]. I keep looking at your pic ... wow, what a perfect chest. Yum ... when can I see the rest? hehe Love u sooooooo much. Ya know we are engaged, since I asked u to marry me and u said yes.:) Your Fiancee, E."² On December 30, 2002, again in response to Wise's prompting, Doe photographed herself in a sexually explicit pose, exhibiting her genitals and pubic area. This photograph is referenced in count one of the second superseding indictment as an image bearing a creation/modification date of December 30, 2002, at 7:38 p.m.

On January 1, 2003, Wise e-mailed Doe a color photograph of six rings. In this e-mail, Wise stated: "Which of these 6 u like? Im thinking even though I want to get one thats a promise ring, maybe we should get one that has colored stones, so ya rents don't get suspicious."³

On January 2, 2003, Wise and Doe exchanged several photographs. Doe photographed herself nude in five different poses, two of which displayed her genitals and pubic area. After each photograph was taken, she downloaded it on to her computer and e-mailed it to Wise. Wise e-mailed Doe a full-length nude photograph of himself in which he displayed his erect penis. He also e-mailed a photograph of himself sitting on a couch holding a cat. The two photographs showing Doe's genitals and pubic area are referenced in counts two and three of the second superseding indictment and bear a creation/modification date of January 2, 2003, at 11:50 a.m. and 12:28 p.m., respectively.

On January 11, 2003, again in response to Wise's request, Doe photographed herself in two sexually explicit poses, exposing her genitals and pubic area. These two photographs are referenced in counts four and five of the second superseding indictment and bear a creation/modification date of January 11, 2003, at 10:14 p.m. and 10:21 p.m., respectively.⁴ Wise stored the photographs referenced in counts one through five of the second superseding indictment on compact discs at his Iowa residence.

Shortly after Doe sent the last of the photographs, Wise made arrangements to travel to Lubbock to meet Doe. Wise reserved a motel room in Lubbock for the nights of January 17-19, 2003, rented a car, and drove from Cedar Rapids to Lubbock. On January 16, 2003, Wise e-mailed Doe informing her that he was on his way to meet her. Wise traveled to Lubbock for the purpose of engaging in sexual acts with Doe, and this conduct is referenced in count fifteen of the second superseding indictment. His enticement of Doe, which occurred from their initial Internet communications through January 17, 2003, is referenced in count fourteen of the second superseding indictment.

Upon arriving in Lubbock on January 17, 2003, Wise met Doe and drove her to a location in southwest Lubbock. While in the vehicle, Wise fondled Doe's genitals and digitally penetrated her genital opening. On January 18, 2003, Wise met Doe at a Wal-Mart and drove her to his motel room where he took non-sexual photographs of himself with Doe. Wise then returned Doe to the Wal-Mart where he had picked her up.

On January 19, 2003, Wise picked up Doe and drove her to his motel. Wise set up his eight-millimeter camcorder on a tripod next to the bed, with the intent of recording his sexual encounter with Doe. They engaged in various sexual acts, including oral-genital and vaginal intercourse, and Wise recorded these acts. Wise engaged in this same sexually explicit conduct and recorded the encounter on January 20, 2003.⁵ That same day, Wise returned to Cedar Rapids from Lubbock, transporting the videotapes. The videotapes from the two sexual encounters are referenced in counts six and seven of the second superseding indictment.⁶

Wise was charged by a second superseding indictment with fifteen counts of various sexual exploitation offenses.⁷ On October 21, 2004, Wise pleaded guilty to nine of the fifteen counts.⁸ Specifically, Wise pleaded guilty to: seven counts of production of child pornography (collectively, the "production counts" or "production of child pornography counts"), in violation of 18 U.S.C. § 2251(a); one count of enticement of a child ("enticement count"), in violation of 18 U.S.C. § 2422(b); and one count of travel with intent to engage in a sexual act with a juvenile ("travel count"), in violation of 18 U.S.C. § 2423(b). As part of Wise's plea agreement, the government agreed to dismiss the remaining six counts at sentencing.

In the Presentence Report ("PSR"), the probation officer divided the nine counts into seven groups using the grouping rules in U.S.S.G. § 3D1.2.⁹ The probation officer separately grouped production counts two and three and production counts four and five after concluding that these production counts "occurred on the same occasion." The groups were as follows:

Group One: Count 1 (December 30, 2002 photograph of Doe, exposing her genitals and pubic area) Group Two: Counts 2 and 3 (January 2, 2003 photographs of Doe, exposing her genitals and pubic area);

Group Three: Counts 4 and 5 (January 11, 2003 photographs of Doe, exposing her genitals and pubic area);

Group Four: Count 6 (January 19, 2003 videotape depicting Doe engaging in sexually explicit conduct);

Group Five: Count 7 (January 20, 2003 videotape depicting Doe engaging in sexually explicit conduct);

Group Six: Count 14 (enticement of a juvenile); and

Group Seven: Count 15 (travel with intent to engage in sexual acts with a juvenile).

Using the procedures in U.S.S.G. § 3D1.1,¹⁰ the probation officer determined the offense level applicable to each group. In calculating the combined offense level for Wise's offenses pursuant to U.S.S.G. § 3D1.4,¹¹ the probation officer assigned each group as a unit, for a total of seven units. Based on these units, the probation officer recommended a five-level increase to Wise's offense level. After subtracting three levels for Wise's acceptance of responsibility, the probation officer recommended a sentencing range of 135 to 168 months. The government filed a statement adopting the PSR.

Prior to sentencing, Wise filed written objections to the PSR, arguing, inter alia, that the probation officer should group all nine of his counts. According to Wise, "all nine counts to which [he] pleaded guilty involve substantially the same harm because they involve the same victim ... and consist of two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan." In an addendum to the PSR, the probation officer maintained that he had applied the correct grouping analysis and that his analysis was supported by examples in the commentary to U.S.S.G. § 3D1.2. He acknowledged that "[c]ase law is limited in this area" and provided an alternative sentence of 120 months "should the Court decide an improper grouping analysis occurred."¹² The government filed an objection to the PSR addendum, urging the district court to adopt the grouping calculations in the original PSR.

At sentencing, the district court adopted the grouping calculations as set forth in the original PSR, and in so doing, it grouped only those production of child pornography counts occurring on the same day. The district court's grouping calculus resulted in seven groups and under U.S.S.G. § 3D1.4, the district court added a five-level increase to Wise's offense level, resulting in a sentencing range of 135 to 168 months. The district court sentenced Wise to 168 months in prison and three years of supervised release. Wise filed this timely appeal.

II. DISCUSSION

Wise challenges only the district court's refusal to group his offenses pursuant to U.S.S.G. § 3D1.2(a) or (b). According to Wise, regardless of whether we decide there should be one group (all nine counts together), two groups (production counts together and enticement and...