US v. Johnny Lee, No. 08-4499 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4499 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHNNY RAY LEE, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:07-cr-00152-D-1) Argued: January 29, 2009 Decided: March 27, 2009 Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. separate concurring opinion. Judge Shedd wrote a ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Ethan A. Ontjes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Banumathi Rangarajan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Defendant imposition Johnny of a transmitting Ray Lee 420-month child sentence pornography materials over the Internet. the advisory applying a appeals guidelines four-level the upon and district his court s conviction transporting of obscene Lee argues that, in calculating range, the enhancement district on the court ground erred that by Lee s offense involved material that portrays sadistic or masochistic conduct § or other 2G2.2(b)(4). five images depictions of violence. U.S.S.G. The district court based this enhancement upon possessed by defendant. We conclude that the district court did not commit clear error in its findings that Exhibit sexually 5, one of explicit the images child possessed pornography regarding the without scope of reaching section was sadistic, As such, it qualifies for the enhancement under any definition. sentence defendant, portraying masochistic, or other violent conduct. defendant s by We therefore affirm defendant s 2G2.2(b)(4) s arguments meaning or the section s constitutionality. I. In early 2006, transmitted child officer Keene, in Lee, pornography New a resident images Hampshire. 3 to of an North Carolina, undercover Investigators in police Keene contacted the North Carolina State which began its own investigation. Bureau of Investigation, An undercover officer made online contact with Lee, and determined that he was involved in exchanging child pornography. After communicating with the officer online, Lee agreed to meet the officer in person for the purpose of exchanging child pornography images. Lee came to the meeting with disks containing child pornography, and subsequent searches of several online accounts revealed more image files. In total, Lee s collection contained between 275 and 295 child pornography images. A federal grand jury indicted Lee on five counts related to transmitting and possessing child pornography. Lee subsequently pled guilty to two of the counts: one count of transmitting child pornography in violation of 18 U.S.C. § 2252(a)(1), and one count of transporting obscene matters over the internet in violation of 18 U.S.C. § 1462. Lee waived his right to appeal a sentence of 293 months or fewer, but preserved his right to appeal a longer sentence. Lee s presentence report determined that the advisory guidelines range for Lee s offense was 360 to 480 months of imprisonment on the count for transmission of child pornography. This calculation included a four-level enhancement resulting from five images portray[ing] sadistic or masochistic conduct or other depictions of violence. 4 U.S.S.G § 2G2.2(b)(4). Without this enhancement, Lee s guideline range on the first count would concluded have that been the 235 to 293 guidelines months. advised The the report maximum also penalty authorized by statute, 60 months of imprisonment, on the count for transportation of obscene materials over the internet. At sentencing, defendant objected to the application of the enhancement based on the five images. that four of the images did not First, defendant argued depict sexually explicit content, and that the section can only apply to pornographic images when used to enhance a guidelines range for the offense of transmitting that Exhibit 5, child while pornography. sexually Second, explicit, defendant did not argued appear to depict an individual under 18 years of age, and that the image was not sadistic, masochistic, or violent. The district court rejected defendant s arguments, holding that section 2G2.2(b)(4) applies to images that are sadistic, masochistic, or violent, even if not sexually explicit. The court made several holdings in the alternative: first, that the third and fifth images were sexually explicit; second, that the fifth image alone would support the enhancement, and that the individual depicted in the image was a minor; and third, that the fifth image would support individual depicted was an adult. 5 the enhancement even if the The district court thus calculated Lee s advisory guideline range to be 360 to 480 months of imprisonment on the transmission of child pornography count, as had the presentence report. The district court then, after considering the sentencing factors enumerated in 18 U.S.C. § 3553(a), sentenced defendant to a term of imprisonment of 420 months on the first count of the indictment, to be served concurrently with a term of 60 months on the second count. if the four-level enhancement The court also observed that, under section 2G2.2(b)(4) were improperly applied, the court would have sentenced defendant to the same sentence in light of the unique nature and circumstances of this offense, the uniquely troubling history and characteristics of this defendant, and the unique need to protect the public from further crime of this defendant. 114. J.A. Defendant now appeals his sentence on the ground that the district court procedurally erred when computing defendant s advisory guidelines range. II. United States v. Booker, 543 U.S. 220 (2005), found the federal sentencing guidelines unconstitutional and remedied the unconstitutionality by declaring them to be merely advisory for sentencing judges. Sentences are now reviewed for reasonableness, an inquiry that includes both procedural and 6 substantive components. 210, 260 without (4th Cir. legal procedure United States v. Abu Ali, 528 F.3d 2008). However, significance mandated by after the the guidelines Booker. reasonableness The are not sentencing inquiry requires district judges to calculate the proper guidelines range for a defendant at the outset of sentencing. States, 128 S. Ct. 586, 596 (2007). improperly calculated Gall v. United A sentence based on an guidelines unreasonable and vacated. See range will be found Abu Ali, 528 F.3d at 260. The advisory guidelines range calculated by the district court in this case included section 2G2.2(b)(4). for applying the a four-level enhancement under The district court s first justification enhancement was that section 2G2.2(b)(4) applies to material that is sadistic, masochistic, or violent, even if not sexually interpretation 2G2.2(b)(4), is explicit. Defendant inconsistent which with states [i]f that the the argues text that of offense this section involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase [the base offense level] by 4 levels. U.S.S.G. § 2G2.2(b)(4). provision s text requires that Defendant contends that the the sadistic, masochistic or otherwise violent material triggering the enhancement must be part of the offense -- here, transmitting child pornography. Thus, defendant contends that only sexually explicit images of 7 children depicting sadism, masochism, or other violence can be used to enhance defendant s sentence under section 2G2.2(b)(4). In the alternative, section defendant 2G2.2(b)(4) that argues allows that an that a enhancement reading for of non- pornographic material that is sadistic, masochistic, or violent is unconstitutionally overbroad, because it would increase a defendant s advisory guidelines sentencing range for possessing films and images representing constitutionally protected speech. We need not address whether section 2G2.2(b)(4) applies to material that is not sexually explicit, reading would implicate the First Amendment. or whether such a The district court provided an alternate ground for its application of the fourlevel enhancement: it found that Exhibit 5 depicts a minor, is sexually explicit, and is sadistic, masochistic, or otherwise violent. Both sides agree that section 2G2.2(b)(4) can be properly triggered by an image that depicts a minor and is both sexually explicit and that portrays sadism, masochism, or other violent conduct. sexually Defendant never contested that Exhibit 5 is explicit, and on appeal now individual depicted therein is a minor. concedes that the Defendant thus only disputes the district court s factual finding that the image portrays sadistic or masochistic conduct or other depictions of violence. U.S.S.G. § 2G2.2(b)(4). While we review a district court s legal conclusions de novo, the court s findings of fact 8 at sentencing will be overturned only if clearly erroneous. United States v. Hampton 441 F.3d 284, 287 (4th Cir. 2006); see also Gall, 128 S. Ct. at 597. We hold that the district court did not clearly err in finding that Exhibit 5 portrays sadistic, masochistic, or other violent conduct. Pornographic images depicting the bondage of children are sadistic within the meaning of section 2G2.2(b)(4). See, e.g., United States v. Hoey, 508 F.3d 687, 692 n.3 (1st Cir. 2007). around his Exhibit 5 depicts a boy wearing a leather strap torso and holding his hands behind his back. Defendant argues that the boy is not bound, and does not appear to be in pain. However, both the leather strap and the placement of the boy s hands behind his back -- an unusual position for someone to place his unbound hands -- give rise to an inference that the boy s hands are bound. least not clearly erroneous. This inference is at the very We thus cannot say that the district court, in finding the image sadistic, masochistic, or violent, clearly erred. Because we conclude that the district court s finding that Exhibit 5 was sadistic was not clearly erroneous, and because defendant concedes that the Exhibit was sexually explicit and depicted a minor, section 2G2.2(b)(4) clearly applies to it, even on defendant. the interpretation of the guideline advanced by The district court therefore calculated the advisory 9 guidelines range correctly. Thus, there was no procedural error in defendant s sentencing. * III. Defendant s sentence is therefore affirmed. AFFIRMED * Defendant does not argue that, if the advisory guidelines range calculated by the court was in fact correct, the sentence was nonetheless substantively unreasonable. 10 SHEDD, Circuit Judge, concurring: I am pleased to concur in the per curiam opinion. I write separately to note that, in my view, the sentence could also be affirmed on the alternate reasoning given by the district court. The district court calculated Lee s sentencing guidelines range and overruled his objection to the four-level enhancement. The court then sentenced Lee using the enhancement, but it also explained why it would sentence Lee to the same term imprisonment even if the enhancement does not apply. Lee argues enhancement, on appeal he does that not the argue court that the erred in court of Although using the committed any other error in the guidelines calculation. In imposing the alternate sentence, the district court followed the reasoning of United States v. Keene, 470 F.3d 1347 In Keene, the district court sentenced the (11th Cir. 2006). defendant using a contested sentencing enhancement, but it also stated that impose the even same if the enhancement sentence. On did appeal, not the apply it Eleventh would Circuit affirmed without deciding the enhancement issue because it found that the explained: alternate [I]t sentence would make was no reasonable. sense to As set the court aside this reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the 11 same sentence, a sentence we would be compelled to affirm. Id. at 1350. This agreed case with is Lee strikingly regarding similar the to Keene. enhancement, a Even remand if to we the district court would lead to imposition of the same sentence. In this circumstance, where we are presented with a single disputed guideline calculation, the question that we could have addressed in lieu of the propriety of the enhancement is whether the sentence imposed (without the enhancement) is nonetheless reasonable. For the reasons set forth by the district court, I believe that the alternate sentence is reasonable. this case sentence. could have been affirmed simply on the Therefore, alternate See United States v. Shatley, 448 F.3d 264 (4th Cir. 2006) (affirming an alternate sentence that was identical to a sentence that violated United States v. Booker, 543 U.S. 220 (2005), because the Booker error was harmless). 12

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