REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 96-30319 and 96-30320
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOE CANADA,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
April 7, 1997
Before REAVLEY, KING, and BARKSDALE, Circuit Judges.
PER CURIAM:
Joe Canada appeals his sentence for convictions under 18
U.S.C. §§ 2252(a)(2), 2252(a)(4)(B), and 2423(2)(b). Finding no
error, we affirm.
I. BACKGROUND
The convictions that underlie the sentence that is the
subject of this appeal relate to Canada’s computer solicitation
of a person whom Canada thought to be a thirteen-year-old male
minor, and Canada’s resulting travel across state lines with
intent to engage in sexual acts with the minor. On March 10,
1995, Canada was indicted in the United States District Court for
the Eastern District of Louisiana in a three-count indictment.
Count one charged Canada’s violation of 18 U.S.C. § 2252(a)(2) by
his willful and knowing distribution through interstate commerce
of a visual depiction of minors engaging in sexually explicit
conduct. Canada sent the depiction by computer from his home in
Tupelo, Mississippi, to the location of the purported thirteen-
year-old male in New Orleans, Louisiana. Count two dealt with
Canada’s travel from Tupelo to New Orleans for the purpose of
engaging in sexual acts with the purported thirteen-year-old male
in violation of 18 U.S.C. § 2423(2)(b). Count three invoked
governmental authority under 18 U.S.C. § 2253 to gain the
forfeiture of the computer equipment used by Canada to commit the
offense under count one.
Canada pleaded guilty to counts one and two of the
indictment on June 22, 1995. Canada also entered a consent
judgment on the same date in regard to the forfeiture count.
Canada was subsequently charged with an additional count in
the United States District Court for the Northern District of
Mississippi for violation of 18 U.S.C. § 2252(a)(4)(B). This
additional count alleged that Canada had knowingly possessed
three or more matters containing visual depictions of minors
engaged in sexually explicit conduct and that these matters had
come into Canada’s possession through interstate commerce. The
government discovered the matters during a search of the memory
of Canada’s computer that was located in his residence in Tupelo.
2
After the additional count had been transferred and consolidated
with the case in the district court in Louisiana,1 Canada
likewise entered a guilty plea as to this count.
The district court accepted Canada’s guilty plea as to all
counts and ordered that a Pre-Sentence Report be prepared.
Canada filed a motion objecting to the guidelines calculations on
February 8, 1996, and subsequently filed supplemental objections
to the Pre-Sentence Report on March 5, 1996. The district court
held a hearing on March 13, 1996, to address Canada’s objections.
On March 21, 1996, the district court sentenced Canada to
two seventy-eight-month terms and one sixty-month term of
imprisonment for his three criminal convictions. All terms were
to be served concurrently. In addition, the court sentenced
Canada to a three-year period of supervised release upon his
release from imprisonment. The court also imposed a $7500 fine
on Canada, as well as a $150 special assessment that was due
immediately.
The district court calculated Canada’s sentence under the
U.S. SENTENCING GUIDELINES MANUAL § 2G2.2. U.S.S.G. § 2G2.2 sets the
base offense level at fifteen for acts that constitute
“Trafficking in Material Involving the Sexual Exploitation of a
Minor; Receiving, Transporting, Shipping, or Advertising Material
Involving the Sexual Exploitation of a Minor; Possessing Material
Involving the Sexual Exploitation of a Minor with Intent to
Traffic.” The district court enhanced Canada’s sentence from
1
Canada consented to the transfer.
3
this base offense level by applying the enhancement provisions in
U.S.S.G. § 2G2.2(b).2 The court added two levels to Canada’s
base offense level under § 2G2.2(b)(1) because the material
related to count one and the additional count involved minors
under the age of twelve years. The court also imposed a five-
level enhancement under § 2G2.2(b)(2) because Canada had
distributed the materials related to the same counts as a means
of enticing a minor to have sex with him. The court added four
levels under § 2G2.2(b)(3) because it found that Canada intended
to traffic in materials depicting minors involved in sadistic
conduct. Canada objected to the five- and four-level increases.
Canada filed this appeal to challenge the five- and four-
level increases to his base offense level.3
II. STANDARD OF REVIEW
In examining sentences imposed under the federal sentencing
guidelines, “we review the trial court’s findings of fact for
2
The court also gave, under the authority granted in 18
U.S.C. §3553(b), an additional four-level enhancement that was
outside the sentencing guidelines range. The court possessed the
authority to order such enhancement if it found “that there
exists an aggravating or mitigating circumstance of a kind or to
a degree not adequately taken into consideration by the
Sentencing Commission.” See 18 U.S.C. § 3553(b). The district
court noted that Canada’s history of sexual abuse, the use of a
computer as an instrumentality in the commission of the offenses,
and the evidence of Canada’s active participation in the receipt
or trading of child pornography warranted the four-level increase
because such factors were not accounted for in the sentencing
guidelines. The district court thereafter reduced Canada’s base
offense level by three levels, however, because Canada had
accepted responsibility for the violations.
3
Canada formerly filed a motion with this court requesting
the court to consolidate his appeals as to both cases below.
This court granted his unopposed motion.
4
clear error and review purely legal conclusions or
interpretations of the meaning of a guideline de novo.” See
United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995),
cert. denied, 116 S. Ct. 1547 (1996). The government generally
must prove factors for enhancement of sentencing by a
preponderance of the evidence. See United States v. Watts, 117
S. Ct. 633, 637 (1997); United States v. Gaytan, 74 F.3d 545, 558
(5th Cir.), cert. denied, 117 S. Ct. 77, and cert. denied, 117 S.
Ct. 506 (1996).
III. DISCUSSION
A. Five-Level Enhancement for Distribution
U.S.S.G. § 2G2.2(b)(2) provides for an enhancement of
sentencing “[i]f the offense involved distribution.” Canada
argues that the distribution contemplated by § 2G2.2(b)(2)
requires a purpose to exact a pecuniary gain. Moreover, Canada
contends that the failure to require an additional element of
pecuniary gain for distribution under § 2G2.2(b)(2) makes the
original base offense level superfluous since any “trafficking”
would then be tantamount to distribution and the five-level
increase would therefore be automatic. Canada asserts that the
necessary additional element for § 2G2.2(b)(2) “distribution”
must be pecuniary gain because Application Note 1 under the
commentary to the guideline states, “‘[d]istribution,’ as used in
this guideline, includes any act related to distribution for
pecuniary gain, including production, transportation, and
possession with intent to distribute.”
5
Canada correctly notes that the commentary in the Guidelines
Manual is generally binding on the courts. See Stinson v. United
States, 508 U.S. 36, 38 (1993) (holding that the “commentary in
the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline”). Nevertheless, the wording of Application
Note 1 under the commentary for § 2G2.2 supports a broader
interpretation than that proffered by Canada. The clause in
Application Note 1 in which pecuniary gain is mentioned is
predicated by the verb includes. The plain meaning of this
wording unambiguously indicates that the intended definition of
‘distribution’ for the sake of the guideline is meant to be
inclusive of pecuniary gain purposes, but not exclusive of all
other purposes. This interpretation receives explicit support in
the part of the Guidelines Manual noting “General Application
Principles.” Application Note 2 in the commentary to § 1B1.1
(“Application Instructions”) states that “[t]he term ‘includes’
is not exhaustive.”
The fact that Application Note 1 is inclusive, and not
exclusive, is determinative in the current context. The district
court determined that Canada’s distribution was accompanied by an
additional element, albeit not one of pecuniary gain.4 The
4
Because the district court found this additional element
present, we do not address the issue of whether such additional
element must be present in order for the court to enhance
sentencing under § 2G2.2(b)(2).
6
sentencing court found that Canada had distributed the material
at issue for the purpose of enticing the thirteen-year-old minor
to have sex with him. Canada does not challenge this factual
finding of the sentencing court.
We hold that Canada’s distribution of materials involving
the sexual exploitation of minors with a purpose of enticing
another person to have sex with him is sufficient to trigger the
enhancement characteristic in § 2G2.2(b)(2). While § 2G2.2(b)(2)
calls upon the sentencing court to impose enhancement based on
the retail value of the material distributed, in cases such as
this where the material was distributed for a purpose which is
difficult to evaluate monetarily, the sentencing court is within
its province to impose the threshold five-level enhancement. See
U.S.S.G. § 2G2.2(b)(2) (setting the enhancement level for
distribution “in no event by less than 5 levels”); see also
United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996)
(noting that loss determinations under U.S.S.G. § 2F1.1 “need not
be determined with precision” and “are reviewed for clear
error”).
B. Four-Level Increase for Material Portraying Sadistic Conduct
U.S.S.G. § 2G2.2(b)(3) provides for a four-level increase in
the base offense level for trafficking in materials involving the
sexual exploitation of a minor “[i]f the offense involved
material that portrays sadistic or masochistic conduct or other
depictions of violence.” Canada contends that the four-level
enhancement imposed by the court under U.S.S.G. § 2G2.2(b)(3) was
7
not warranted by the evidence. Canada argues in particular that
the sadistic photographs extracted from his computer’s hard drive
were insufficient to indicate his “trafficking” in materials
involving the sexual exploitation of a minor.
Additionally, Canada argues that his mere receipt of the
photos should be insufficient to establish the applicability of
guideline 2G2.2 because guideline 2G2.4 (“Possession of Materials
Depicting a Minor Engaged in Sexually Explicit Conduct”) would
thus become superfluous. Canada makes this argument by equating
possession of child pornography with the receipt of such material
for the purposes of the sentencing guidelines since, as he
claims, such material would had to have been previously received
in order to be currently in a person’s possession.
Canada’s equivalence of the receipt of child pornography
with its possession for the purposes of sentencing under §§ 2G2.2
and 2G2.4 is unconvincing. See, e.g., United States v. Romualdi,
101 F.3d 971, 975 (3d Cir. 1996) (remarking that “[b]oth the
relevant statute and the Sentencing Guidelines make a distinction
between receipt and possession of child pornography”). As Canada
himself admits, possession of such materials may be obtained
through other means, e.g., by manufacturing it. To hold that
receiving child pornography should only be covered by § 2G2.4
would abrogate the specific coverage of § 2G2.2--”Receiving,
Transporting, Shipping, or Advertising Material Involving the
Sexual Exploitation of a Minor” (emphasis added). We decline to
reach such a result. See Reiter v. Sonotone Corp., 442 U.S. 330,
8
339 (1979) (observing with regard to statutory construction that
courts “are obliged to give effect, if possible,” to statutory
wording and noting that terms connected by the disjunctive be
given separate meanings); see also United States v. Rocha, 916
F.2d 219, 243 (5th Cir. 1990) (noting that the sentencing
guidelines are subject to the rules of statutory construction).
Moreover, the provisions under § 2G2.4 expressly instruct the
court to look to § 2G2.2 in situations like Canada’s:
If the offense involved trafficking in material
involving the sexual exploitation of a minor (including
receiving, transporting, shipping, advertising, or
possessing material involving the sexual exploitation
of a minor with intent to traffic), apply § 2G2.2.
See U.S.S.G. § 2G2.4(c)(2) (emphasis added).
The district court’s determination that Canada received
sadistic photos with an intent to traffic in them was not clearly
erroneous. See Kimbrough, 69 F.3d at 734. A government witness
testified during the sentencing hearing that sadistic photos,
showing anal and vaginal penetration of minors through the use of
sexual devices,5 were located on the hard drive of Canada’s
computer. The government also adduced evidence at the hearing
that detailed Canada’s active trading in child pornography.6 The
government’s evidence, in toto, provides proof by a preponderance
of the evidence that Canada had received material portraying
5
Canada does not challenge the court’s characterization of
this material as sadistic.
6
The government concedes that the child pornographic photo
that was sent to the purported thirteen-year-old male in New
Orleans did not portray sadistic conduct.
9
sadistic conduct and that he intended to traffic in such
material. This is sufficient for the district court’s imposed
four-level enhancement under § 2G2.2(b)(3).
IV. CONCLUSION
For the foregoing reasons, Canada’s sentence is AFFIRMED.
10