United States v. Randall
| Decision Date | 20 May 2022 |
| Docket Number | 20-10339 |
| Citation | 34 F.4th 867 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dustin RANDALL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Amy B. Cleary (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.
Elham Roohani (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Christopher Chiou, Acting United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.
Before: Kim McLane Wardlaw, Daniel A. Bress, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay ;
Dustin Randall was convicted of distributing and receiving child pornography in violation of 18 U.S.C. § 2252A. He challenges the sentences imposed, raising two questions of first impression:
First, U.S. Sentencing Guideline § 2G2.2(b)(3)(B) provides for a five-level enhancement for offenders who distribute child pornography "in exchange for any valuable consideration." While the enhancement requires that the offender share pornographic material, we have never answered whether the offender must also receive the "valuable consideration." Our sister circuit courts are seemingly divided on this question. One circuit holds that the enhancement does not depend on the receipt of valuable consideration. See United States v. Oliver , 919 F.3d 393, 403–04 (6th Cir. 2019). Another circuit appears to hold the opposite. See United States v. Halverson , 897 F.3d 645, 652 (5th Cir. 2018).
Second, the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a), mandates a $5,000 special assessment for defendants convicted of certain sex crime offenses, including the distribution and receipt of child pornography. We must decide whether the $5,000 assessment attaches to each offense of conviction or whether the statute permits only a single assessment of $5,000 for each defendant per case. Once again, the circuit courts are split. One circuit holds that a $5,000 assessment must be imposed for each eligible conviction. See United States v. Johnman , 948 F.3d 612, 617 (3d Cir. 2020). Another concludes that a defendant can only be assessed one time per case—no matter the number of convictions. See United States v. Haverkamp , 958 F.3d 145, 149 (2d Cir. 2020).
We answer both questions today. Based on the text of the Guideline and the statute, we hold (1) that § 2G2.2(b)(3)(B) does not require the defendant to receive any "valuable consideration"; and (2) that § 3014(a) requires a $5,000 fine per offense. We thus affirm the district court's sentence.1
In 2017, Las Vegas Metropolitan Police Department detectives assigned to the Internet Crimes Against Children Task Force uncovered Randall's criminal activity through the investigation of David Proctor—a suspected trader of child pornography. Detectives investigated Proctor's use of Kik, a free instant messaging mobile application, for distribution of child pornography.
After securing a warrant for Proctor's Kik account, detectives discovered a June 2017 conversation between Proctor and Randall. In relevant part, Proctor and Randall discussed the following:
So Proctor began the conversation by requesting to join the Kik group Randall belonged to, and Randall responded that he had to "send" child pornography "to join" the group. Proctor then sent Randall a link to Dropbox, a cloud-based virtual storage provider, that contained 272 videos and 34 images of child pornography. Later, Proctor asked Randall if he "trade[s] back"—inquiring if Randall wanted to send back pornography in return. Randall confirmed that he "trade[s] back" and then sent Proctor a Dropbox link, which the government asserted contained child pornography. Proctor later sent three more Dropbox links to Randall, presumably also containing child pornography. In return, Proctor repeatedly asked Randall to "[s]end more." After some back and forth, Randall eventually sent Proctor another Dropbox link containing child pornography.
After identifying Randall in December 2017, detectives executed a search warrant on his home. Randall waived his Miranda rights and agreed to speak with the investigators. Randall admitted to trading child pornography on his Kik account. He expressed remorse and stated that he knew his actions were wrong.
In January 2018, detectives received information from Randall's Dropbox account. The account contained 92 videos and 24 images of child pornography. Between Randall's own Dropbox account and the link sent to him by Proctor, Randall had 364 videos of child pornography and 75 images involving the sexual exploitation of children.
In August 2018, Las Vegas detectives arrested Randall on state charges. A federal criminal complaint was then filed against him in September 2018, and he was arraigned in federal court. Without a plea agreement, Randall pleaded guilty to one count of receipt of child pornography and one count of distribution of child pornography, both in violation of 18 U.S.C. § 2252A(a)(2), (b).
At sentencing, the district court determined that Randall had a total offense level of 37, with a Sentencing Guidelines range of 210 to 262 months. The statutory maximum term of imprisonment for each of Randall's offenses was 240 months. In calculating Randall's offense level, the district court applied a five-level enhancement for the exchange of child pornography for valuable consideration. See U.S.S.G. § 2G2.2(b)(3)(B). The district court sentenced Randall to 96 months' imprisonment and a lifetime term of supervised release. Under the Justice for Victims of Trafficking Act, the district court also imposed a $5,000 fine on each of Randall's two offenses—for a total of $10,000.
Randall now appeals his sentence and fine. We review a district court's interpretation of the Guidelines de novo, its application of the Guidelines to the facts of the case for abuse of discretion, and its factual findings for clear error. United States v. Hong , 938 F.3d 1040, 1051 (9th Cir. 2019). We review a district court's interpretation of a statute de novo. United States v. Harris , 983 F.3d 1125, 1126 (9th Cir. 2020).
We confront two important questions in this case: (1) whether a defendant must receive "valuable consideration" to be eligible for the five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) ; and (2) whether assessments under the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a), should be imposed on a per-count or a per-defendant basis. We answer the first question in the negative—the defendant need not actually receive the "valuable consideration" to receive the § 2G2.2(b)(3)(B) enhancement. As to the second question, we conclude that § 3014(a) mandates a $5,000 assessment for each of a defendant's counts of conviction—not a single assessment per defendant in the case.
We first turn to the valuable consideration enhancement under § 2G2.2(b)(3)(B). Randall challenges two aspects of the district court's application of the valuable consideration enhancement—first on legal and second on factual grounds. We disagree with Randall on both.
As amended in 2016, § 2G2.2(b)(3)(B) provides for a five-level enhancement when a defendant exchanges child pornography for "valuable consideration." U.S.S.G. § 2G2.2(b)(3)(B). "Valuable consideration" refers to the exchange of "something of valu[e]," such as "other child pornographic material, preferential access to child pornographic material, or access to a child." U.S.S.G. § 2G2.2 cmt. n.1. As the Sentencing Commission explained, the enhancement accounts for the "higher level of culpability" when a defendant has a "specific purpose" to distribute child pornographic material to another person in "exchange for valuable consideration." U.S.S.G. Supp. to App. C at 136–37. Without the exchange for "valuable consideration," unless another enumerated enhancement applies, offenses involving only distribution generally lead to a two-level increase. U.S.S.G. § 2G2.2(b)(3)(F).
Here, the parties disagree about whether the § 2G2.2(b)(3)(B) enhancement requires the completion of the exchange for "valuable consideration." Randall asserts that a defendant must actually receive the "valuable consideration" for the enhancement to apply. But the government contends that a defendant must only complete his end of the bargain; it is unnecessary for the defendant to receive valuable consideration. As we note below, Randall could not prevail even if receipt of valuable consideration were required; Randall did, in fact, receive valuable consideration in the form of child pornography. But because the legal question is squarely presented here, and because there is value in providing clarity on the scope of criminal law and punishment, we proceed to address whether Randall must have received valuable consideration in order for the § 2G2.2(b)(3)(B) enhancement to be imposed.
To resolve the parties' competing interpretations, we turn to the Guideline's text and any accompanying Application Notes. See United States v. Prien-Pinto , 917 F.3d 1155, 1157 (9th Cir. 2019) (observing...
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