U.S. v. Ahders, No. 09-4093 (2d Cir. 2010)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on September 16, 2010.
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09-4093-cr U.S. v. Ahders 1 AMENDED OPINION 2 3 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 4 August Term 2010 5 6 Argued: August 24, 2010 7 Decided: September 16, 2010 Amended: September 21, 2010 Docket No. 09-4093-cr 8 9 UNITED STATES OF AMERICA, 10 11 12 13 Appellee, v. STEVEN AHDERS, 14 Defendant-Appellant. 15 16 Before: KATZMANN, HALL, and CHIN, Circuit Judges. 17 Appeal from a judgment of the United States District 18 Court for the Northern District of New York (Norman A. Mordue, 19 Chief Judge) convicting defendant-appellant of producing child 20 pornography. 21 22 23 REMANDED. ALEXANDER BUNIN, Albany, N.Y., for Defendant-Appellant. 1 2 3 4 5 6 7 8 9 BRENDA K. SANNES, Assistant United States Attorney (Thomas Spina, Jr., Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellee. PER CURIAM: Defendant-appellant Steven Ahders appeals from a 10 judgment of the United States District Court for the Northern 11 District of New York convicting him, pursuant to a guilty plea, 12 of one count of producing child pornography, in violation of 18 13 U.S.C. §§ 2251(a), (e) and 2256(8), and sentencing him 14 principally to a term of imprisonment of 580 months. 15 the conviction and remand for the district court to reconsider 16 and clarify the basis for one aspect of its sentence. 17 18 We affirm BACKGROUND In 2005, while on supervised release for a prior 19 conviction for possession of child pornography, Ahders met a 20 woman through a personal ad. 21 the woman and her five-year-old son, EM, moved into Ahders's home 22 in Schenectady, New York. 23 molesting EM and filming and photographing the abuse. 24 molestation continued until July 2007. They married in September 2006, and Thereafter, Ahders began sexually - 2 - The 1 Ahders was arrested in January 2008. 2 admitting the molestation of EM, he admitted that he had 3 purchased an "Acer" laptop computer in February or March 2007, 4 and that he used the internet to download images of both boys and 5 girls under the age of 15 years. 6 Ahders's home, an Acer laptop computer, a digital camera, and a 7 "personal digital assistant" ("PDA"), which included a storage 8 card. 9 pornography, including images of nude girls tied and bound, some 10 approximately 11 to 12 years old, one tied to a bed and another 11 tied and blindfolded. 12 on the storage card. 13 In addition to Investigators seized, in The laptop and PDA contained numerous images of child Two pornographic images of EM were found During the ensuing investigation, EM informed 14 investigators that Ahders sometimes tied EM's wrists to the 15 headboard of a bed or the handlebars of a bicycle and then 16 sexually abused him. EM described how Ahders used a video camera 17 to record the abuse. Ahders admitted to filming EM engaging in 18 sexually explicit conduct. 19 During Mother's Day weekend in 2007, Ahders sexually 20 molested two other children, BB and VB, who had joined EM at 21 Ahders's home for a sleepover. 22 EM and BB perform sexually explicit acts on each other while he During the sleepover, Ahders made - 3 - 1 took pictures of them. 2 children slept together in a tent in the attic, and that Ahders 3 approached her after the boys fell asleep and took off her pants 4 and underwear even though she slapped his hands and tried to stop 5 him. 6 about a foot away. 7 with him in the attic. Ahders then held her legs apart and photographed her from 8 9 BB's sister, VB, reported that the VB also reported that Ahders had "a laptop" EM told investigators that a few days after the sleepover, Ahders showed him a picture of Ahders's penis in VB's 10 vagina. 11 touched her vagina. 12 VB, however, told investigators that Ahders never On November 7, 2008, Ahders pleaded guilty to Count 1 13 of the indictment, which charged him with producing child 14 pornography involving "a male minor" -- EM. 15 guilty to any charges involving VB or BB or the possession of the 16 child pornography found on his laptop and PDA. 17 Government entered into a written plea agreement, but they did 18 not stipulate to the calculation of Ahders's sentencing range 19 under the United States Sentencing Guidelines (the "Guidelines"). 20 Ahders did not plead Ahders and the The Probation Department prepared a presentence report 21 (the "PSR"). Although Ahders pleaded guilty only to the one 22 count involving EM, the PSR concluded that Ahders had exploited - 4 - 1 three minors (EM, VB, and BB) and, pursuant to U.S.S.G. § 2 2G2.1(d)(1), treated the exploitation of each child as a separate 3 count of conviction. 4 for each victim. 5 Ahders's possession of material that portrayed sadistic or 6 masochistic conduct -- the images of nude minor girls bound and 7 tied. 8 actions in removing her pants and underwear and photographing 9 her. The offense level was calculated separately For EM, a 4-level enhancement was included for For VB, a 2-level enhancement was included for Ahders's For BB, a 2-level enhancement was included for Ahders's 10 actions in directing EM and BB to engage in sexually explicit 11 conduct while he took pictures and sexually abused BB. 12 The three calculations were grouped pursuant to 13 U.S.S.G. § 3D1.4. In the end, Ahders's offense level totaled 14 44,1 which was then reduced to the highest offense level found in 1 This was based on an offense level of 44 for the offense against EM and 40 for the offenses against BB and VB. The score of 44 included the 4-level enhancement for the sadistic images of the girls. Without this enhancement, the score would have been 40 and the grouping analysis would have been as follows: the highest offense level for any unit would have been 40, the combined adjusted offense level would have been 43 (instead of 47), and the total offense level would have been 40 (instead of 43). See U.S.S.G. § 3D1.4. An offense level of 40, with Ahders's Criminal History Category of III, would have yielded a Guideline range of 360 months to life. If the conduct against BB and VB were not included, the total offense level would have been reduced to 41 with the 4-level enhancement and to 37 without it. - 5 - 1 the Guidelines Sentencing Table: 43. 2 an offense level of 43 is life imprisonment. 3 statutory maximum term of imprisonment for producing child 4 pornography is fifty years, Ahders's Guidelines range was reduced 5 from life imprisonment to fifty years (600 months). 6 2251(a), (e); U.S.S.G. § 5G1.1(c)(1). 7 The Guidelines "range" for Because the 18 U.S.C. § The district court adopted the facts and the Guidelines 8 calculation in the PSR, and sentenced Ahders to the statutory 9 maximum term of incarceration, fifty years, minus twenty months 10 as credit for the time Ahders served in New York State custody 11 between his arrest and federal sentencing. 12 This appeal followed. 13 14 15 DISCUSSION A. Applicable Law In general, we review sentences using a "deferential 16 abuse-of-discretion standard." See United States v. Cavera, 550 17 F.3d 180, 189 (2d Cir. 2008) (en banc). 18 "both to 'the sentence itself' and to 'the procedures employed in 19 arriving at the sentence.'" 20 F.3d 122, 127 (2d Cir. 2008) (quoting United States v. Fernandez, 21 443 F.3d 19, 26 (2d Cir. 2006)). 22 conclusions as to interpretations of the Guidelines de novo, This standard applies United States v. Verkhoglyad, 516 We review the district court's - 6 - 1 United States v. Awan, 607 F.3d 306, 312 (2d Cir. 2010), and 2 findings of fact for clear error, United States v. Salim, 549 3 F.3d 67, 72 (2d Cir. 2008). 4 When reviewing a sentence, we "must first ensure that 5 the district court committed no significant procedural error, 6 such as failing to calculate (or improperly calculating) the 7 Guidelines range, . . . or failing to adequately explain the 8 chosen sentence." 9 We must then conduct a substantive review by evaluating "the Gall v. United States, 552 U.S. 38, 51 (2007). 10 length of the sentence imposed in light of the factors enumerated 11 under 18 U.S.C. § 3553(a)." 12 F.3d 204, 206 (2d Cir. 2007). 13 United States v. Villafuerte, 502 A district court must begin the sentencing process by 14 calculating the advisory Guidelines range before proceeding to an 15 independent, individualized consideration of the sentence to 16 impose. 17 district court must make "specific factual findings," by a 18 preponderance of the evidence, to support any sentencing 19 enhancement under the Guidelines. 20 514 F.3d 209, 212 (2d Cir. 2008) (quoting United States v. 21 Molina, 356 F.3d 269, 275 (2d Cir. 2004)); United States v. 22 Salazar, 489 F.3d 555, 558 (2d Cir. 2007). Gall, 552 U.S. at 49-50; Cavera, 550 F.3d at 189. - 7 - A See United States v. Espinoza, A district court need 1 not specifically recite all the facts relevant to its Guidelines 2 calculation; rather, it is sufficient for the district court to 3 adopt the findings in the presentence report -- if those findings 4 are adequate to support the sentence imposed. 5 States v. Carter, 489 F.3d 528, 540 (2d Cir. 2007) (holding that 6 "the District Court's reliance on the inadequate findings of the 7 PSR, without more, constituted plain error"); United States v. 8 Eyman, 313 F.3d 741, 745 (2d Cir. 2002). 9 required to rule on controverted matters that will affect 10 sentencing, Fed. R. Crim. P. 32(i)(3), but it may do so by 11 adopting the recommendations of the presentence report. 12 States v. Prince, 110 F.3d 921, 924 (2d Cir. 1997). 13 B. 14 See, e.g., United The district court is United Application On appeal, Ahders does not challenge the substantive 15 reasonableness of his sentence, but argues that the district 16 court committed procedural error by improperly calculating the 17 advisory Guidelines range. 18 district court erred in two respects: 19 production of sexually explicit images of BB and VB and by adding 20 a 4-level enhancement for Ahders's possession of sadistic or 21 masochistic child pornography. He argues principally that the - 8 - by including Ahders's 1 a. 2 The Inclusion of BB and VB Ahders contends that the conduct with respect to BB and 3 VB should not have been grouped and combined with the offense of 4 conviction. 5 the production of pornography with respect to only one "male 6 minor." We reject the argument. 7 8 Ahders notes that Count 1 of the indictment charged First, it is not dispositive that Count 1 did not cite the acts against BB and VB. 9 10 11 12 13 Section 2G2.1(d)(1) provides: If the offense involved the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction. 14 U.S.S.G. § 2G2.1(d)(1). As the commentary explains, "if the 15 relevant conduct of an offense of [producing child pornography] 16 includes more than one minor being exploited, whether 17 specifically cited in the count of conviction or not, each such 18 minor shall be treated as if contained in a separate conviction." 19 U.S.S.G. § 2G2.1(d)(1), cmt. n.5 (emphasis added). 20 conduct involving BB and VB may be included if it was "relevant 21 conduct." - 9 - Hence, the 1 2 Second, the exploitation of BB and VB was relevant conduct. "Relevant conduct" includes: 3 4 5 6 7 8 9 all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. U.S.S.G. § 1B1.3(a)(1)(A). 10 charged conduct." 11 This includes "both charged and non- Cir. 1998). 12 United States v. Bove, 155 F.3d 44, 47-48 (2d The conduct involving BB and VB occurred "during the 13 commission of the offense of conviction," as it occurred during 14 the period that Ahders was producing pornographic images and film 15 of EM. 16 abusing EM and BB together, during Mother's Day weekend in 2007 17 when VB and BB were staying with EM for a sleepover. 18 weekend, Ahders produced pornographic images of all three 19 children. 20 conduct," and it was properly considered by the district court. 21 Ahders exploited and abused all three children, including During this Clearly, then, the abuse of VB and BB was "relevant Ahders argues that he was not given adequate notice 22 that he would be held accountable in this case for his actions 23 against VB and BB. 24 Government put Ahders on notice that it would be seeking a He is incorrect. - 10 - At his plea allocution, the 1 "multiple count analysis" because "two other minors" had been 2 sexually abused and photographed by Ahders, which would result in 3 3 levels being added to the total offense level. 4 to plead guilty anyway. Ahders elected 5 Ahders also argues that the district court relied on 6 insufficient evidence of the exploitation of BB and VB, noting 7 the unreliable nature of the statements of the three young 8 children. 9 make sufficient factual findings and credibility determinations. 10 11 He also contends that the district court failed to We disagree. As paragraphs 30-31 of the PSR relate, BB stated that 12 Ahders told him and EM to touch each other's penises and then 13 took photographs of them doing so, and VB stated that Ahders took 14 off her pants, held her legs apart, and took photographs. 15 district court expressly overruled Ahders's objections to 16 paragraphs 29 through 32 of the PSR, found that the described 17 conduct was "relevant conduct," and concluded that the findings 18 were "supported by a preponderance of the evidence." 19 raises no colorable challenge to this evidence, and it is clearly 20 sufficient to establish that Ahders exploited VB and BB within 21 the meaning of 18 U.S.C. § 2251. - 11 - The Ahders 1 2 b. 3 The Enhancement for Possession of Sadomasochistic Images Ahders argues that the district court erred when it 4 applied a 4-level enhancement pursuant to U.S.S.G. § 2G2.1(b)(4) 5 for possession of material portraying sadistic or masochistic 6 conduct. 7 properly apply the enhancement only if (1) the child pornography 8 Ahders was convicted of producing involved the portrayal of 9 sadomasochistic conduct or (2) Ahders engaged in conduct that was In the circumstances here, the district court could 10 "relevant" to his production of child pornography involving EM 11 and that "relevant conduct" involved sadomasochistic material. 12 See U.S.S.G. §§ 1B1.3(a)(1), 2G2.1(b)(4). 13 record lacks clarity as to the basis for the district court's 14 imposition of this enhancement. 15 Unfortunately, the The colloquy at sentencing suggests that the district 16 court considered three possible bases for imposing the 17 enhancement: 18 EM tied to a bed and bicycle; (2) Ahders's producing an image of 19 him sexually penetrating VB; and (3) Ahders's possession on his 20 laptop and PDA of images of young girls tied and bound. 21 proven, all of this alleged conduct would have involved material 22 that portrayed sadistic or masochistic conduct or other (1) Ahders's conduct in filming his sexual abuse of - 12 - If 1 depictions of violence involving minors. United States v. 2 Gilmore, 599 F.3d 160, 168 n.6 (2d Cir. 2010) (images depicting 3 sexual penetration of eight-year old girl by adult male are 4 sadistic because they depict sexual act that would cause pain to 5 minor); United States v. Freeman, 578 F.3d 142, 147-48 (2d Cir. 6 2009) (sadism enhancement applies when "the district court makes 7 an objective determination that (1) an image depicts sexual 8 activity involving a minor and (2) the depicted activity would 9 have caused pain to the minor"); United States v. Hoey, 508 F.3d 10 687, 691-92 (1st Cir. 2007) (photographs depicting sexual 11 penetration of young victims by adult males represent "sadistic" 12 and "violent" materials). 13 proven conduct was either part of the offense of conviction or 14 relevant conduct to the offense of conviction. 15 The issue then would be whether the As to the first possible basis, the district court 16 merely inquired about "the handcuffing and the being tied up" of 17 EM. 18 Moreover, although the district court adopted the findings of the 19 PSR, the PSR did not rely on any images that Ahders produced for 20 imposing the 4-level enhancement. 21 district court did not rely on the images that Ahders made of EM The district court made no findings in this respect. Hence, it appears that the - 13 - 1 in bondage, images that surely are sadomasochistic in nature. 2 remand, the district court may want to undertake an analysis of 3 the enhancement under § 2G2.1(b)(4) with respect to the images 4 Ahders produced of EM and consider whether the production of 5 these images was part of the offense of conviction or, 6 alternatively, whether it was relevant conduct. 7 On As to the second possible basis, the district court did 8 not resolve the conflict between EM's assertion that he saw a 9 photograph of Ahders penetrating VB and VB's assertion that 10 Ahders never touched her vagina. Fed. R. Crim. P. 32(i)(3) 11 (district court must resolve controverted matters that affect 12 sentencing). 13 the sentencing that the district court relied on this second 14 basis to impose the enhancement under § 2G2.1(b)(4), and the PSR 15 did not. 16 this second basis for imposing the enhancement, it must first 17 resolve the conflict between EM's statement and VB's statement 18 and decide whether such an image was produced, and, if so, then 19 determine whether Ahders's production of the image is relevant 20 conduct to the offense of conviction -- his production of child 21 pornography involving EM. Moreover, it is not apparent from the colloquy at On remand, if the district court elects to consider - 14 - 1 As to the third possible basis, it does appear that the 2 images of the girls tied and bound found on the laptop and PDA 3 were the basis for the district court's imposition of the 4-level 4 enhancement. 5 Ahders does not dispute that these were sadistic images of child 6 pornography or that he possessed them, but he argues that they 7 are not relevant because "[t]here is no act or omission by [him] 8 that associates those images with his conviction for production 9 of child pornography." The colloquy at sentencing and the PSR so suggest. In essence, he argues that his possession 10 of the sadomasochistic images of the girls -- which he did not 11 produce -- was not "relevant conduct" to his production of child 12 pornography involving EM. 13 that Ahders's possession of the images of the girls was relevant 14 conduct, but they did so in wholly conclusory fashion, without 15 any analysis and without explaining the link between his 16 possession of the images of the girls and his production of 17 pornographic materials involving EM. 18 engage in meaningful appellate review. 19 The PSR and district court concluded Hence, we are unable to This Circuit has not previously addressed the question 20 under what circumstances the possession of sadomasochistic images 21 is "relevant conduct" to the production of child pornography. 22 Indeed, it appears that the issue has not been specifically - 15 - 1 addressed by any Circuit. 2 598 F.3d 444, 446 (8th Cir. 2010) (declining to decide issue, and 3 noting "this appears to be an issue of first impression, raising 4 difficult questions of whether sadistic or masochistic materials 5 that [the defendant] did not produce are nonetheless relevant 6 conduct to his production offense . . . under U.S.S.G. 7 1B1.3(a)(1), because they are 'acts . . . that occurred during 8 the commission of the offense of conviction'"). 9 See, e.g., United States v. Shuler, The phrase "occurred during the commission of the 10 offense of conviction" is not defined in the Guidelines, nor does 11 the commentary provide any guidance. 12 conduct" suggest more is required than mere temporal proximity, 13 as the other conduct must be "relevant" and it must occur "during 14 the commission of the offense of conviction, in preparation for 15 that offense, or in the course of attempting to avoid detection 16 or responsibility for that offense." 17 The words "relevant On remand, if the district court chooses to rely on the 18 sadomasochistic images of the girls as relevant conduct, it must 19 provide at least some analysis of the relatedness, if any, 20 between Ahders's possession of the images and his production of 21 child pornography involving EM. 22 Ahders's possession of the images of the girls "occurred during If the district court finds that - 16 - 1 the commission of" his production of pornographic materials 2 involving EM, or "in preparation for that offense," it must point 3 to facts in the record to support its conclusion. 4 5 If the district court elects to proceed on this basis, it may want to consider the following factors: 6 7 8 9 10 ! The temporal proximity between the possession of the images of the girls and the offense of conviction, i.e., when Ahders obtained the images and whether Ahders possessed them during his abuse of EM; 11 12 ! The similarity between the images on the laptop and PDA and the images made of EM; 13 14 ! Whether Ahders used the same laptop and PDA with EM as he used to download the images of the girls; 15 16 17 18 19 20 ! Whether Ahders showed the images to EM and, if so, for what purpose, i.e., whether Ahders was using the images to arouse EM or to "teach" him what to do, see U.S.S.G. § 1B1.3(a)(1)(A) (relevant conduct includes conduct "in preparation for" offense of conviction); 21 22 23 24 ! Whether Ahders viewed the images to assist him in his production of child pornography, i.e., whether he used the images as samples, models, or precedents; and 25 26 27 28 29 30 31 32 33 ! As Ahders admitted that he liked looking at child pornography (which he did on his laptop and PDA), whether his viewing the images aroused him and was a factor in his abusing EM, see United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006) ("a direct connection exists between child pornography and pedophilia"); see also Fed. R. Evid. 414 (allowing propensity evidence in "child molestation" cases); 18 U.S.C. § 2252A ("child pornography" cases - 17 - 1 2 include both production of child pornography and possession of child pornography). 3 None of these factors is dispositive, nor are any required; we 4 list them merely as factors that the district court may want to 5 take into account should it elect to consider imposing the 4- 6 level enhancement based on Ahders's possession of the bondage 7 images of the girls. 8 409, 410-11, 416 (7th Cir. 2010) (where defendant was convicted 9 of receipt of child pornography involving 12-year old girl he had See, e.g., United States v. Nance, 611 F.3d 10 sexually molested, holding his possession of pornographic 11 materials involving other children was relevant conduct that 12 could be used to enhance sentence); United States v. Stulock, 308 13 F.3d 922, 924-26 (8th Cir. 2002) (where defendant was convicted 14 of receiving video of child pornography, affirming district 15 court's holding that his possession of pornographic bondage 16 images of children on his computer was relevant conduct that 17 could be used to enhance his sentence); United States v. Ellison, 18 113 F.3d 77, 82-83 (7th Cir. 1997), cert. denied, 522 U.S. 893 19 (1997) (where defendant was convicted of receipt of video of 20 child pornography, holding, with little discussion, that district 21 court's inclusion of defendant's possession of magazines - 18 - 1 containing sadomasochistic images of boys as "relevant conduct" 2 was "far from clear error"). 3 Accordingly, we remand this case to the district court 4 so that it can reconsider and clarify its basis for imposing the 5 4-level enhancement for possession of sadomasochistic materials, 6 state the factual bases for doing so, and articulate its 7 analysis. 8 resentence the defendant and in so doing may hold an evidentiary 9 hearing. If it deems it necessary, the district court may By identifying the three possible bases for the 10 enhancement discussed above, we do not intend to limit the 11 district court's consideration to only those three bases. 12 we intend to suggest that on remand the district court is bound 13 in any way to determine the facts consistently with the way we 14 have discussed them based on the present record. 15 16 Nor do CONCLUSION For the foregoing reasons, the conviction is AFFIRMED, 17 and the case is REMANDED to the district court for further 18 consideration and explanation of the sentence in conformance with 19 this opinion and for resentencing if the district court 20 determines that to be necessary. 21 jurisdiction over any subsequent appeal; either party may notify 22 the Clerk of a renewed appeal within fourteen days of the This panel will retain - 19 - 1 district court's decision. 2 See United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). - 20 -
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