United States v. Burrows

• Decision Date: 09 October 2018
• Docket Number: No. 17-3292,17-3292
• Citation: 905 F.3d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William T. BURROWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

905 F.3d 1061

UNITED STATES of America, Plaintiff-Appellee,

v.William T. BURROWS, Defendant-Appellant.

No. 17-3292

United States Court of Appeals, Seventh Circuit.

Argued September 7, 2018

Decided October 9, 2018

Greggory R. Walters, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Peoria, IL, for Plaintiff-Appellee.

Brian P. Mullins, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rock Island, IL, for Defendant-Appellant.

Before Flaum, Ripple, and Barrett, Circuit Judges.

Flaum, Circuit Judge.

William Burrows conditionally pleaded guilty to one count of receiving child pornography pursuant to 18 U.S.C. § 2252A(a)(2)(A). He argues that § 2252A(a)(2)(A) is void for vagueness as applied to him, and therefore, that his indictment should have been dismissed. Additionally, he maintains that the district court erred at sentencing by basing his sentence, in part, on the need for sex offender treatment. We disagree, and we affirm Burrows's conviction and sentence.

I. Background

From July to August 2015, United States Secret Service agents used a peer-to-peer sharing network to download eight images of child pornography from a computer using an internet protocol address assigned to William Burrows's home. The Secret Service obtained a search warrant for his home and executed it on September 9, 2015.

A forensic search of a computer at the residence revealed a number of files received through the peer-to-peer sharing program, including videos depicting sexually explicit content of prepubescent females as young as six years old. Burrows waived his Miranda rights and stated that prior to deleting his child pornography collection ten days earlier, he had approximately twenty to thirty movies and several thousand images of child pornography on his computer.

On January 24, 2017, a grand jury indicted Burrows for knowingly receiving three digital media files of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). Burrows moved to dismiss the indictment, arguing § 2252A(a)(2)(A) is unconstitutionally vague. The district court disagreed, and on May 31, 2017, Burrows entered a conditional guilty plea.

On October 19, 2017, the district court conducted a sentencing hearing. It concluded that Burrows's total adjusted offense level was 32 and his criminal history category was I, resulting in a Guidelines range of 121–155 months' imprisonment. The court then examined the various 18 U.S.C. § 3553(a) factors. The court explained that not only was it concerned about "general deterrence" and the "seriousness of the offense," but also, it believed Burrows posed a "greater risk to recidivate than other similarly situated individuals" based on his "juvenile history" and "pattern of violent outbursts." The court also addressed mitigating factors, including abuse Burrows suffered as a child. Then, it concluded:

I did consider going towards the high end of what I think is the appropriate ... guideline range of 121 to 151 ... and I actually don't think that that's necessary after considering everything because I think that a sentence at the low end of 121 months will be sufficient to address the seriousness of the offense and also my concerns about your risk to recidivate and the need for general deterrence. But I also think that putting you on a life term of supervised release—you're relatively young; you're 33 years old.... [Y]ou're going to prison as an adult for the first time, and I think that that will be sufficient time to address the harm caused by your conduct and to also hopefully specifically deter you and give you time to avail yourself of the sex offender treatment as an adult because you haven't had that opportunity as an adult, just as a juvenile. And putting you on lifetime supervised release will be necessary given your prior history as a juvenile and all the other things that I mentioned that support my concern of your risk to recidivate and will be sufficient ... to offset any need for additional time in prison above that low end of 121 months.

Finally, the court asked Burrows's counsel if he wished for "further elaborat[ion] on any of the reasons for imposing the sentence." He stated he did not. The court also asked whether it "addressed all of [Burrows's] principal arguments in mitigation." Counsel indicated that it did. The court then officially imposed the 121-month sentence and asked whether either party had "anything further." Both responded in the negative. Burrows now appeals.

II. Discussion

A. Vagueness Challenge

We "review de novo the constitutionality of a statute." United States v. Morris , 821 F.3d 877, 879 (7th Cir. 2016). "A statute is unconstitutionally vague if it ‘fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.’ " Id. (alteration in original) (quoting Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015) ).

At issue here is 18 U.S.C. § 2252A. The receipt provision makes it illegal for a person to "knowingly receive[ ] ... any child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including by computer." Id. § 2252A(a)(2)(A). A person who violates the receipt provision faces a mandatory minimum of five years' imprisonment. Id. § 2252A(b)(1). In contrast, the possession provision targets individuals who:

knowingly possess[ ] ... any ... material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer.

Id. § 2252A(a)(5)(B). A person who violates the possession provision faces no mandatory minimum except in circumstances not relevant here. Id. § 2252A(b)(2).¹

Burrows alleges § 2252A"is unconstitutionally vague because it does not distinguish receiving child pornography from possessing it, which does not impose a mandatory minimum sentence." He claims that in application, "he was unable to differentiate conduct prohibited by § 2252A(a)(2)(A) (receiving child pornography) from conduct prohibited by § 2252A(a)(5)(B) (possessing child pornography)." As a result of this supposed lack of distinction, he claims "the statute invites arbitrary enforcement by law enforcement, prosecutors, judges, and juries."

To agree with Burrows, we would need to overrule our decision in United States v. Watzman , 486 F.3d 1004 (7th Cir. 2007). In Watzman we rejected a vagueness challenge to § 2252A(a)(2). We held that "[b]y distinguishing receipt from possession, the two subsections of the statute are sufficiently clear about what conduct each prohibits," and that "it cannot be said that the receiving child pornography statute relies on the discretion of those who enforce it to define its terms." Id. at 1010. We rejected the argument that "receipt and possession are substantially the same offense," and we emphasized that a possessor of child pornography need not have received child pornography. Id. at 1009–10. We also noted that " ‘possession and receipt ... threaten distinct harms’ " because "receiving materials that have been shipped in interstate commerce is conduct more closely linked to the market for child pornography." Id. at 1009 (quoting United States v. Myers , 355 F.3d 1040, 1042–43 (7th Cir. 2004) ); see United States v. Barevich , 445 F.3d 956, 959 (7th Cir. 2006) ("Transporting and receiving child pornography increases market demand."). In short, we concluded that "all receivers are possessors but not all possessors are receivers, and so the matter of which crime to charge is not simply a product of the prosecutor's whims." Watzman , 486 F.3d at 1010. Instead, because the defendant violated both statutes, the government simply exercised its discretion in choosing to prosecute under § 2252A(a)(2)(A) rather than § 2252A(a)(5)(B). See United States v. Batchelder , 442 U.S. 114, 123–24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) ("This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.").

Burrows claims Watzman 's analysis has "been undermined by other courts of appeals and this Court's subsequent decisions." He points primarily to cases that held convicting a defendant of both receiving and possessing child pornography violates the Double Jeopardy Clause. See United States v. Ehle , 640 F.3d 689, 694–99 (6th Cir. 2011) ; United States v. Davenport , 519 F.3d 940, 943–47 (9th Cir. 2008) ; United States v. Miller , 527 F.3d 54, 70–74 (3d Cir. 2008). "The Double Jeopardy Clause ... ‘protects against multiple punishments for the same offense.’ " Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (quoting North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Third, Sixth, and Ninth Circuits all found Double Jeopardy Clause violations because they concluded that possessing child pornography is a lesser-included offense of receiving it. Ehle , 640 F.3d at 695 ; Davenport , 519 F.3d at 945 ; Miller , 527 F.3d at 72.²

These cases are not helpful to Burrows's argument. While it might be true that one cannot receive child pornography without also possessing it, one can possess child pornography without receiving it....