United States v. Cox, No. 13-4066 (4th Cir. 2014)
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Defendant appealed his sentencing enhancement after pleading guilty to possessing child pornography. At sentencing, the district court determined that, as part of the offense, defendant caused a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. The court agreed with its sister circuits that the cross-reference's purpose requirement was satisfied anytime one of the defendant's purposes was to produce a visual depiction of the sexually explicit conduct. On these facts, the court concluded that the district court did not err in applying the U.S.S.G. 2G2.2(c)(1) cross-reference and that defendant's sentence was reasonable. Accordingly, the court affirmed defendant's sentence.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4066 UNITED STATES OF AMERICA, Plaintiff Appellee, v. HARVEY L. COX, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:11-cr-00474-DCN-1) Argued: December 11, 2013 Decided: March 5, 2014 Before WILKINSON, DIAZ, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Thacker joined. ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. Peter Thomas Phillips, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. DIAZ, Circuit Judge: Harvey Cox pleaded guilty to possessing child pornography. At sentencing, the district court determined that, as part of the offense, Cox caused a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. Based on this determination, the court enhanced Cox s sentence under Guidelines. applicable Cox provisions appeals, arguing of that insufficient to support the enhancement. the the Sentencing evidence was Finding no error in the district court s sentencing calculations, we affirm. I. In early Sherriff s 2011, Office was assault of a minor. the Florence investigating County, Cox South regarding Carolina, the sexual After authorities arranged a meeting with him to discuss the investigation, Cox staged his own death. He created the appearance that he had died while fishing off the South Carolina coast--prompting the Coast Guard to conduct a search--when daughter, in A.C., fact he had fled reported the ruse to to Florida. After authorities, the Cox s U.S. Marshals Service arrested Cox in Florida and returned him to South Carolina. During authorities the ensuing forty-six investigation, Polaroid A.C. photographs 2 of turned a over naked to young girl, whom A.C. identified as Cox s niece, M.G. investigators that she discovered bedroom and in his truck. the A.C. informed photographs in Cox s On the back of each photograph was a date, in Cox s handwriting, ranging from June 2004 to December 2005. A.C. informed investigators that Cox had sexually abused her when she was between the ages of ten and thirteen. The end of on this period coincided photographs of M.G. with the earliest dates the According to A.C., Cox would demand that A.C. bring M.G. with her when A.C. came to stay with him, and would require the girls to sleep in his bed. Investigators account. M.G. interviewed acknowledged M.G., that she who was confirmed the girl A.C. s in the photographs and reported that Cox took them beginning when she was twelve years old. According to the PSR: [M.G.] stated that Cox would give them (her and [A.C.]) Crown Royal liquor and he would put stuff in their drinks to make them feel better. She admitted they had sexual intercourse, and he would masturbate and ejaculate on her stomach after taking the pictures. Cox also gave [M.G.] money and threatened to do it to her little sister if she told anyone. J.A. 136. warrants Polaroid The Florence County Sheriff s Office executed search at Cox s cameras, home and as well business, as where bedding they seized observed in two the photographs. A federal grand jury indicted Cox on three counts. Count I charged that Cox knowingly and willfully caused the Coast Guard 3 to attempt to save a life and property when no help was needed, in violation of 14 U.S.C. § 88(c). that Cox knowingly did use, J.A. 17. persuade, Count II charged induce, and coerce a person under the age of eighteen . . . to engage in sexually explicit conduct . . . for the purpose of producing visual depictions of such conduct, in violation of 18 U.S.C. § 2251(a) and (b). J.A. 18. knowingly possess Finally, Count III charged that Cox did material that contained images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b). J.A. 18. While Cox was detained on these charges, his cellmate turned over to authorities a letter Cox had given him to send to A.C. In the letter, Cox instructed A.C. to listen carefully and practice what she has to say. J.A. 136. The letter also directed A.C. to testify at trial that she and M.G. took the photographs themselves and that Cox knew nothing about them. return, Cox promised to support A.C. and M.G. financially. following letters week, intended Cox s for cellmate A.C., in turned which uncle, Jason, took the photographs. over Cox another stated The set that In of M.G. s These letters urged A.C. and M.G. not to testify. Cox subsequently pleaded guilty to Counts I and III of the indictment pursuant to a plea agreement. Prior to sentencing, a probation In officer prepared the 4 PSR. calculating Cox s Guidelines sentencing range, the probation officer applied U.S.S.G. § 2G2.2, the section of the Sentencing Guidelines that pertains to offenses that involve the possession of material depicting the sexual exploitation of a minor. Section 2G2.2 includes a is cross-reference, § 2G2.2(c)(1), which triggered [i]f the offense involved causing . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. In applicable cases, the cross- reference instructs the court to apply § 2G2.1--which ordinarily pertains to offenses involving the production of sexually explicit material--if application of that section would result in a higher adjusted offense level than would § 2G2.2. Finding these conditions satisfied, the probation officer applied the cross-reference. Application of § 2G2.1 resulted in an adjusted offense level of 40 for Count III, a thirteen level increase over what would have resulted from applying § 2G2.2. Based in part on this computation, the probation officer calculated Cox s overall offense level as 41, which, coupled with a criminal history category of III, yielded an advisory Guidelines range of 360 months to life imprisonment. Cox objected to the application of the cross-reference, contending that there was insufficient evidence to support a finding that he acted for the purpose of producing a visual 5 depiction of sexually explicit conduct. district court overruled Cox s objection. J.A. 128. The It found that the photographs themselves and the information in the PSR confirmed that Cox had the requisite purpose. The district court thus applied the cross-reference, but recalculated Cox s Guidelines range based on other, unrelated objections Cox had raised. This calculation produced a range of 262 to 327 months imprisonment, capped at 300 months by an applicable statutory maximum. The court sentenced Cox to concurrent prison terms of 60 months on Count I and 240 months on Count III. II. A. On appeal, Cox challenges the procedural reasonableness of his sentence. miscalculated Specifically, he argues that the district court his advisory Guidelines range by improperly applying the U.S.S.G. § 2G2.2(c)(1) cross-reference. We review the reasonableness of a sentence under a deferential abuse-of-discretion standard, first ensur[ing] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines (2007). range. Gall v. United States, 552 U.S. 38, 51 In assessing the district court s calculation of the Guidelines range, we review its legal conclusions de novo and 6 its factual findings for clear error. United States v. Medina- Campo, 714 F.3d 232, 234 (4th Cir.), cert. denied, 134 S. Ct. 280 (2013). on the Clear error occurs when . . . the reviewing court entire evidence is left with the definite conviction that a mistake has been committed. and firm United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks omitted). determining a Sentencing judges may find facts relevant to Guidelines range by a preponderance of the evidence . . . . United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008). [T]he traditional rules of evidence are not applicable to sentencing proceedings, and the court may give weight to any uncorroborated sufficient relevant hearsay, indicia of information provided reliability that to before the support it, including information its has accuracy. United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). B. Cox pleaded guilty to violating 18 U.S.C. § 2252A(a)(5)(b), an offense governed by § 2G2.2 of the Sentencing Guidelines. previously noted, § 2G2.2 includes a cross-reference, which provides as follows: If the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct[,] . . . apply § 2G2.1 . . . if the resulting offense level is greater than that determined [under § 2G2.2]. 7 As U.S.S.G. § 2G2.2(c)(1) (emphasis added). Cox contends that there was no evidence presented to support a finding that he acted for the purpose of producing a visual depiction of sexually explicit conduct. at 6. Appellant s Br. He argues that the district court instead based its application of the cross-reference solely on the existence of photographs, which he believes is impermissible. Id. at 8. Although Cox does not dispute that he caused M.G. to engage in sexually explicit conduct, or that he photographed that conduct, he contends that production of the photographs central component of the sexual encounters. was not a Id. at 9. 1. In addressing Cox s argument, we begin by analyzing the meaning of the cross-reference s purpose requirement. The application note accompanying § 2G2.2 emphasizes that the crossreference is to be construed broadly. n.5. Consistent with this guidance, U.S.S.G. § 2G2.2 cmt. two circuits that have considered the meaning of virtually identical cross-references in other sections of the Sentencing Guidelines have held that purpose does not mean primary purpose. In United States v. Hughes, the Ninth Circuit explained that, [i]n ordinary usage, doing X for the purpose of Y does not imply that Y is the exclusive purpose. 282 F.3d 8 1228, 1231 (9th Cir. 2002). Partly for this reason, the court held that a defendant cannot immunize himself from the operation of [the cross-reference] merely by demonstrating that he had an additional reason other than the creation of . . . photographs for causing [the victim] to engage in sexually explicit conduct. Id. Relying on Hughes, the Seventh Circuit similarly concluded in United States v. Veazey that defendant s the purposes cross-reference was to applies create a when visual one of the depiction, regardless of whether that purpose was the primary motivation for the defendant s conduct. 491 F.3d 700, 707 (7th Cir. 2007). We agree with our sister circuits that the cross- reference s purpose requirement is satisfied anytime one of the defendant s purposes was to produce a visual depiction of the sexually explicit conduct. In other words, producing the depiction need not be the defendant s sole, or primary, purpose. This construction is fully consistent with the cross-reference s text, and any other reading would violate the application note s instruction that the cross-reference be construed broadly. Accordingly, we reject Cox s contention that the cross-reference applies only when creation of a visual depiction is the central component of the sexual encounter[]. 9 See Appellant s Br. at 9. 2. On these facts, we have little trouble concluding that the district court s application of the cross-reference was proper. Contrary to Cox s assertions, the district court did not base its application of the cross-reference solely on the existence of the photographs. cross-reference s Rather, to support its finding that the purpose requirement was satisfied, the district court specifically referred to paragraphs 11, 12, and 13 of the PSR. Those paragraphs recounted evidence that Cox took the photographs of M.G. after having sex with her; provided her with alcohol and money and threatened to abuse her younger sister; and both dated the photographs and retained them for as many as seven years. Additionally, the district court noted Cox s attempts to convince A.C. to lie about the photographs origins. We agree with the district court that the evidence presented in the PSR corroborate[s] that Cox s purpose was to produce a visual depiction of the sexually explicit conduct. See J.A. 101. are sexually The production of the photographs--all of which explicit--was part and parcel of Cox s sexual exploitation of M.G., lending strong support to the conclusion that producing the images was at least one of his purposes in abusing her. Given that Cox also took the photographs over a series of encounters, dated them, and retained them after the 10 encounters, the evidence was plainly sufficient to support him. principally application of the cross-reference. The cases relies on the Cox cites Third do not Circuit s help decision States, 173 F.3d 122 (3d Cir. 1999). in Cox Crandon v. United In Crandon, however, the court held only that a district court must make some inquiry into the defendant s reference. purpose before applying Id. at 130 (emphasis added). the cross- Here, the district court expressly found that Cox s purpose was to produce a visual depiction of sexually explicit conduct, and it based conclusion on a number of facts reported in the PSR. that See J.A. 102 ( I think the evidence shows he persuaded, he enticed, he induced, perhaps coerced, if you believe the threats. And permitted [M.G. to engage in sexually explicit conduct]. . . . for the purpose of conduct . . . . ). arguably involved producing a visual depiction of th[at] While some of the other cases Cox cites more evidence of such a purpose than was present here, none purport to establish a minimum evidentiary threshold. * * Nor do we do so here. Specifically, we need not determine whether the mere fact that a defendant produced sexually explicit photographs of a minor, without more, may support application of the cross-reference. 11 In sum, application we of discern the no error cross-reference in and the district conclude court s that Cox s sentence is procedurally reasonable. III. For these reasons, we affirm the judgment of the district court. AFFIRMED 12
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