United States v. Fulford

• Decision Date: 14 November 2011
• Docket Number: No. 10–12916.,10–12916.
• Citation: 23 Fla. L. Weekly Fed. C 552,662 F.3d 1174
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Clifton FULFORD, a.k.a. Residence at 5119 Glenshire Drive, Loxley, Alabama, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 552

662 F.3d 1174

UNITED STATES of America, Plaintiff–Appellee,

v.David Clifton FULFORD, a.k.a. Residence at 5119 Glenshire Drive, Loxley, Alabama, Defendant–Appellant.

No. 10–12916.

United States Court of Appeals, Eleventh Circuit.

Nov. 14, 2011.

Christopher Brinson, Steven E. Butler, Sean P. Costello, Donna Barrow Dobbins, Maria E. Murphy, Eugene Seidel, Asst. U.S. Atty., Mobile, AL, for Plaintiff–Appellee.

Robert C. Campbell, III, Robert Nash Campbell, Campbell, Duke & Campbell, Mobile, AL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Alabama.Before DUBINA, Chief Judge, CARNES, Circuit Judge, and SANDS, ^* District Judge.CARNES, Circuit Judge:

A defendant convicted of distribution of child pornography is subject to a 5–level enhancement under § 2G2.2(b)(3)(C) of the sentencing guidelines if the distribution was to a minor. The defendant in this case distributed child pornography to an unidentified person, not connected with law enforcement, who convinced him that she (or he) was a minor. The district court applied the distribution to a minor enhancement after concluding that the actual age of the recipient, which has never been determined in this case, does not matter so long as the defendant thought that the recipient was a minor. In doing so, the court extended the reasoning of some of our decisions involving fictitious minors created by law enforcement. Regardless of what we said in those other cases involving different facts and different guidelines provisions, we reach a different conclusion because the definition of “minor” in the application note to § 2G2.2 convinces us that here it is more than just the thought that counts.

I.

David Fulford pleaded guilty to, and was convicted of, one count of knowingly possessing and attempting to possess images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and two counts of knowingly receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The presentence investigation report stated that Fulford entered into online “chat rooms” with children and distributed child pornography to them. Based on that conduct, the PSR recommended a 5–level sentence enhancement for distribution of child pornography to a minor under U.S.S.G. § 2G2.2(b)(3)(C). Fulford objected to the enhancement, arguing that the government had not provided proof that the people he was chatting with and distributing pornography to were minors as that term is defined for that guideline.

At Fulford's sentence hearing, Wes Anthony, the lead agent in the investigation of the case, testified that a forensic examination of Fulford's computer revealed instant messages and the exchange of images with people Anthony inferred were minors and that Fulford had distributed some child pornography to those people. Agent Anthony admitted that the only two people that the government could identify who had received child pornographic images from Fulford turned out to be adult males posing as minor girls, and none of the people were law enforcement officers running a sting.

Even so, the government argued that the 5–level enhancement still applied because Fulford believed he was sending material to minors, and in their online conversations several of them seemingly held themselves out to be minors. Fulford objected to the enhancement on the ground that the government had not provided proof that any of those to whom he distributed the child pornography actually were minors. After receiving additional briefing on the question, the district court held a second sentence hearing to consider it.

The government made two arguments. First, it argued that based on the chat logs and recovered images, the district court could find by a preponderance of the evidence that Fulford distributed child pornography to a minor with the user name “Dawn.” Although Dawn was never located, she represented herself—or perhaps himself—to be a 13–year–old female. Second, the government argued that, regardless of Dawn's identity and actual age, Fulford thought she was a minor and intended to distribute child pornography to her, and that was enough to warrant application of the 5–level enhancement. While it acknowledged there was no controlling precedent on the issue, the government cited our decisions in United States v. Murrell, 368 F.3d 1283 (11th Cir.2004), and United States v. Lebovitz, 401 F.3d 1263 (11th Cir.2005), for the proposition that the relevant consideration was not the victim's true age but Fulford's intent.

On the issue at hand, Fulford emphasized that even if the evidence established that he had he transmitted child pornography over the internet, there was no proof that anyone who received it was actually a minor. He stressed that the only recipients who were positively identified were actually adult males. Turning to the government's second argument, Fulford argued that his intent was not sufficient to justify the enhancement, pointing out that intent is not addressed in the language of the guidelines provision. He distinguished the decisions the government relied on because they all involved a law enforcement sting operation using a fictitious minor. In a nutshell, Fulford argued that the government had to prove that one or more of the people to whom he had sent child pornography were actually minors, and because the government had not done so the enhancement did not apply.

After considering the arguments, the district court found as a fact that Fulford had chatted over the internet with a person who said her name was Dawn and “who held herself out to be a 13–year–old female,” and believing Dawn to be a minor, he had transmitted child pornography to her.¹ The district court did not make a finding, one way or the other, about whether Dawn was actually a minor. Instead, extending our Murrell and Lebovitz decisions, the court stated that it was “persuaded that that same kind of analysis and reasoning would apply in this case and should apply in this case.” Accordingly, it overruled Fulford's objection and applied the 5–level enhancement under § 2G2.2(b)(3)(C), which resulted in an adjusted offense level of 37. Combined with his criminal history category of I the result was a guidelines range of 210–262 months. The court sentenced Fulford to 210 months imprisonment.

In this appeal of his sentence Fulford contends that the district court erred when it applied the 5–level enhancement for distribution of child pornography to a minor under § 2G2.2(b)(3)(C).²

II.

We review de novo “the district court's legal interpretations of the Sentencing Guidelines.” United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir.2010). “To properly interpret the Sentencing Guidelines, we begin with the language of the Guidelines, considering both the Guidelines and the commentary.” United States v. Panfil, 338 F.3d 1299, 1302 (11th Cir.2003) (citation omitted). “The language of the Sentencing Guidelines, like the language of a statute, must be given its plain and ordinary meaning,” United States v. Sutton, 302 F.3d 1226, 1227 (11th Cir.2002), because “[a]s with Congress, we presume that the Sentencing Commission said what it meant and meant what it said,” United States v. Shannon, 631 F.3d 1187, 1190 (11th Cir.2011) (quotation marks omitted). The guidelines commentary “ ‘is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.’ ” United States v. Jordi, 418 F.3d 1212, 1216 (11th Cir.2005) (quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993)). When interpreting the guidelines, we apply the “traditional rules of statutory construction, including the prohibition on rewriting statutes.” Shannon, 631 F.3d at 1189 (citation omitted).

III.

The sentencing enhancement at issue in this case provides: “If the offense involved ... [d]istribution to a minor, increase by 5 levels.” U.S.S.G. § 2G2.2(b)(3). “Distribution to a minor” is “the knowing distribution to an individual who is a minor at the time of the offense.” Id. § 2G2.2 cmt. n. 1. So the issue here is whether Dawn—the person to whom Fulford distributed child pornography—was a “minor” at the time of the offense. The commentary to § 2G2.2 defines “minor” as:

(A) an individual who had not attained the age of 18 years; (B) an individual whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.

Id. The plain language of that commentary sets out three ways Dawn could be considered a minor. She could actually be under 18 years of age. Or she could be a fictitious person a law enforcement officer represented to be under 18 years of age who “could be provided for the purposes of engaging in sexually explicit conduct.” Or she could be an undercover law enforcement officer who represented herself (or himself) to be under 18 years of age. Those are the only three ways that the commentary provides that Dawn could be a minor for purposes of the 2G2.2(b)(3)(C) enhancement.

Because the commentary's definition of minor is not contrary to the plain meaning of the text of the enhancement provision, we are bound to follow it. See United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir.2006) (“When it comes to the interpretation of the guidelines, Commentary and Application Notes of the Sentencing Guidelines are binding on the courts unless they contradict the plain meaning of the text of the Guidelines.” (quotation marks omitted)).

Reading into the definition of minor a fourth category—anyone the defendant believes is under the age of 18—would expand the guidelines provision to...