United States v. Lee

UNPUBLISHED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Affirmed by unpublished per curiam opinion. Judge Shedd wrote a
separate concurring opinion.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Defendant Johnny Ray Lee appeals the district court’s

imposition of a 420-month sentence upon his conviction of

transmitting child pornography and transporting obscene

materials over the Internet. Lee argues that, in calculating

the advisory guidelines range, the district court erred by

applying a four-level enhancement on the ground that Lee’s

“offense involved material that portrays sadistic or masochistic

conduct or other depictions of violence.” U.S.S.G.

§ 2G2.2(b)(4). The district court based this enhancement upon

five images possessed by defendant. We conclude that the

district court did not commit clear error in its findings that

Exhibit 5, one of the images possessed by defendant, was

sexually explicit child pornography portraying sadistic,

masochistic, or other violent conduct. As such, it qualifies

for the enhancement under any definition. We therefore affirm

defendant’s sentence without reaching defendant’s arguments

regarding the scope of section 2G2.2(b)(4)’s meaning or the

section’s constitutionality.

I.

In early 2006, Lee, a resident of North Carolina,

transmitted child pornography images to an undercover police

officer in Keene, New Hampshire. Investigators in Keene

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contacted the North Carolina State Bureau of Investigation,

which began its own 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.” U.S.S.G § 2G2.2(b)(4).

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Without this enhancement, Lee’s guideline range on the first

count would have been 235 to 293 months. The report also

concluded that the guidelines advised the maximum 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. First, defendant argued

that four of the images did not 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 child pornography. Second, defendant argued

that Exhibit 5, while sexually explicit, did not 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 the enhancement even if the

individual depicted was an adult.

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 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. The court also observed that,

if the four-level enhancement 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.” J.A.

114. 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

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substantive components.” United States v. Abu Ali, 528 F.3d

210, 260 (4th Cir. 2008). However, the guidelines are not

without legal significance after Booker. The sentencing

procedure mandated by the reasonableness inquiry requires

district judges to calculate the proper guidelines range for a

defendant at the outset of sentencing. See Gall v. United

States, 128 S. Ct. 586, 596 (2007). “A sentence based on an

improperly calculated guidelines range will be found

unreasonable and vacated.” Abu Ali, 528 F.3d at 260.

The advisory guidelines range calculated by the district

court in this case included a four-level enhancement under

section 2G2.2(b)(4). The district court’s first justification

for applying the enhancement was that section 2G2.2(b)(4)

applies to material that is sadistic, masochistic, or violent,

even if not sexually explicit. Defendant argues that this

interpretation is inconsistent with the text of section

2G2.2(b)(4), which states that “[i]f the offense 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). Defendant contends that the

provision’s text requires that 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

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children depicting sadism, masochism, or other violence can be

used to enhance defendant’s sentence under section 2G2.2(b)(4).

In the alternative, defendant argues that that a reading of

section 2G2.2(b)(4) that allows an enhancement for 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, or whether such a

reading would implicate the First Amendment. The district court

provided an alternate ground for its application of the four-

level 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. Defendant never contested that Exhibit 5 is

sexually explicit, and on appeal now concedes that the

individual depicted therein is a minor. 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

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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). Exhibit 5 depicts a boy wearing a leather strap

around his 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. This inference is at the very

least not clearly erroneous. 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 the interpretation of the guideline advanced by

defendant. The district court therefore calculated the advisory

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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.

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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 of

imprisonment even if the enhancement does not apply. Although

Lee argues on appeal that the court erred in using the

enhancement, he does not argue that the court 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

(11th Cir. 2006). In Keene, the district court sentenced the

defendant using a contested sentencing enhancement, but it also

stated that even if the enhancement did not apply it would

impose the same sentence. On appeal, the Eleventh Circuit

affirmed without deciding the enhancement issue because it found

that the alternate sentence was reasonable. As the court

explained: “[I]t would make no sense to set 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

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same sentence, a sentence we would be compelled to affirm.” Id.

at 1350.

This case is strikingly similar to Keene. Even if we

agreed with Lee regarding the enhancement, a remand to 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. Therefore,

this case could have been affirmed simply on the alternate

sentence. 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).

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