United States v. Gould

• Citation: 30 F.4th 538
• Decision Date: 07 April 2022
• Docket Number: 20-5284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Douglas GOULD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

30 F.4th 538

UNITED STATES of America, Plaintiff-Appellee,

v.Mark Douglas GOULD, Defendant-Appellant.

No. 20-5284

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2021

Decided and Filed: April 7, 2022

ARGUED: Travis A. Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Travis A. Rossman, ROSSMAN LAW, PLLC, Barbourville, Kentucky, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, James T. Brooks, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.

Before: GUY, DONALD, and MURPHY, Circuit Judges.

DONALD, J., delivered the opinion of the court in which MURPHY, J., joined. GUY, J. (pp. 547-51), delivered a separate opinion concurring in part and in the judgment.

BERNICE BOUIE DONALD, Circuit Judge.

This case presents this Court with two purely legal questions: (1) whether a FaceTime call constitutes a "visual depiction" under U.S.S.G. § 2G1.3(c)(1), and (2) whether responding to a notice or advertisement "involved" "offering or seeking by notice or advertisement" under that same provision. The district court found that a FaceTime call does constitute a "visual depiction" and that the provision is broad enough to cover responding to a notice or advertisement. For the following reasons, we AFFIRM .

I. BACKGROUND

A. Gould Responds to Advertisement for Child Pornography

As described in the Presentence Report and Plea Agreement, in 2018 Defendant-Appellant Mark Gould responded to an online advertisement that offered to allow someone to "engage in a live online session with an 8-year-old in exchange for child pornography." That advertisement included a photo of a minor. Gould initiated the conversation, writing: "Hey I saw your daughter in the tub. I would live [sic] to facetime with you two. Hit me up thanks." Gould later wrote, "[I]f you want to make me the [happiest] guy [on] the planet, [I] would love to facetime with your daughter." Gould offered to send money to the individual through PayPal or Apple Pay. At this point, Gould was speaking to a real individual, but law enforcement later apprehended that person. Gould then began speaking with an undercover agent from the Department of Homeland Security who had assumed the arrested person's online identity. The agent offered to let "his" minor daughter have sex with Gould, explaining that he would "video" the encounter. Gould replied, "That sounds amazing I would pay for that:). Can I FaceTime with her sometime?"

Throughout December, Gould sent the undercover agent links to child pornography, as well as Gould's password to a cloud account with thousands of images of minors, including toddlers. In discussing his hoped-for visit with the undercover agent's "daughter," Gould explained that "I would gladly do your daughter while you taped it" and that "[t]he thought of being able to see your daughter on [c]am is like a dream for me." Through December and January, the two continued to discuss Gould's planned travel from the State of Washington to Tennessee. On January 7, 2019, the undercover agent told Gould that he would like to "video" Gould's encounter with his daughter, to which Gould "indicated he had some HD camcorders, but that his phone was amazing." Days later, Gould said that "he had a good editing program in order to blur faces out on videos."

On January 24, 2019, Gould flew to Tennessee where he met with an undercover agent in Chattanooga. Gould presented a blood test indicating he had no sexually-transmitted diseases

. The undercover agent asked Gould "if he would like to take a video home with him[,] and [Gould] stated they had not discussed that." At that point, law enforcement arrested Gould. Under interrogation, Gould admitted that he responded to the advertisement and confirmed that he saw the images of the 8-year-old in that initial advertisement.

B. Procedural History

On February 26, 2019, Gould was charged with Enticing a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b). Gould reached a plea agreement with the government, admitting that he "knowingly use[d] a facility or means of interstate commerce to attempt to persuade, induce, entice or coerce an individual who has not attained the age of 18 years, to engage in sexual activity[.]" The charge carried a mandatory minimum sentence of ten years and a maximum sentence of life imprisonment. The plea agreement noted that the government would not oppose a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The agreement also noted that if Gould's offense level were sixteen or greater and if Gould were awarded a two-level reduction under § 3E1.1(a) (for acceptance of responsibility), the government would move for an additional one-point reduction under § 3E1.1(b) (for timely notice of intent to plead guilty). The plea agreement contained no appellate waiver.

After noting his agreement with the factual basis found in the plea agreement, Gould pleaded guilty. There were ultimately three PSRs issued. The first PSR assigned a base offense level of 32, using the cross reference at U.S.S.G. § 2G1.3(c)(1) "because the offense involved seeking by notice a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct." This base offense level (under U.S.S.G. § 2G2.1(a) ) was four levels higher than the base offense level that would have otherwise applied without the cross reference. See U.S.S.G. § 2G1.3(a)(3). The PSR then included three enhancements. First , a four-level enhancement applied under § 2G2.1(b)(1)(A) because the offense involved a minor under the age of twelve. Second , a two-level enhancement applied under § 2G2.1(b)(3) because Gould knowingly distributed child pornography in the course of the offense. Third , a two-level enhancement applied under § 2G2.1(b)(6)(B)(ii) because the offense involved the use of a computer to solicit participation with a minor in sexually explicit conduct. This resulted in an adjusted offense level of 40. With a two-level reduction under § 3E1.1(a) and a one-level reduction under § 3E1.1(b), Gould's total offense level was 37. Gould had no criminal history, resulting in a criminal history category of I, which led to a Guidelines range of 210 to 262 months.

Days later, probation issued a Revised PSR, now adding a four-level enhancement under § 2G2.1(b)(4) because the "offense involved material that portrayed an infant or toddler[.]" Gould objected to the Revised PSR on three grounds. First , Gould argued that the cross reference at § 2G1.3(c)(1) did not apply because Gould responded to the notice with the intent to communicate via FaceTime, not to "produce" a "visual depiction" within the meaning of § 2G1.3(c)(1). In response, the Probation Office said that it considers a live transmission, e.g., a FaceTime call, to be a "visual depiction." Second , Gould argued that § 2G1.3(c)(1) was inapplicable because "Gould did not place any notice himself, and the acts of others should not be attributed to him under these circumstances according to U.S.S.G. § 1B1.3(a)." The Probation Office responded that the cross reference applies because Gould "directly responded" to the advertisement and that the cross reference merely requires that the offense "involve" a notice or advertisement. Third , Gould objected to the four-level enhancement under § 2G2.1(b)(4), to which the Probation Office responded that Gould distributed numerous links to child pornography, links that included images of toddlers.

Probation then issued the third and final PSR on March 2, 2020. This version included the same base offense level of 32 and all four enhancements, resulting in a total offense level of 44. The report included the same three-level reduction for acceptance of responsibility and timely notice of intent to plead, and with Gould's criminal history category of I, the resulting Guidelines range was 324 to 405 months.

At sentencing, Gould made the same three arguments. As to the FaceTime argument, Gould's counsel argued that "there's nothing tangible left at the end of a FaceTime call[;]" rather, "[i]t is the transmission of a live event." The district court, though noting that Gould's arguments were "interesting" and "not without some degree of logic," nonetheless rejected the arguments, finding that Gould's arguments conflicted with the "commonly understood meaning of the key words" in the cross reference. The district court concluded that "producing a visual depiction" under the cross reference included creating a live transmission of the target; by way of example, the district court analogized to "producing" a Broadway play—it is "produced," albeit not recorded. As to Gould's second argument—that he merely responded to the advertisement—the district court rejected that argument because the cross reference requires only that the offense "involve" offering or seeking by notice or advertisement, and that when Gould responded to the advertisement, that alone is "evidence of his interest in seeking out such materials." As to Gould's third and final argument about the enhancement under § 2G2.1(b)(4), the district court found that Gould's offense "involved" material portraying toddlers because Gould's sending of material with toddlers (done throughout the course of Gould's ongoing conversations with the undercover agent) was done to gain trust with the recipient and to entice the other individual to let Gould FaceTime with the child.

Having rejected Gould's three objections, the district court still granted a downward departure under U.S.S.G. § 5K1.1, reducing his offense level to 37. With a resulting Guidelines range of 210 to 262 months, the district court ultimately sentenced Gould to the bottom of that range, 210 months. Gould then timely appealed.

II. ANALYSIS

A. Standard of Review

Because Gould challenges the application of the §...