United States v. Sampson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2872
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United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Michael D. Sampson, Jr., *
*
Defendant – Appellant. *
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Submitted: April 13, 2010
Filed: May 26, 2010
___________

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
___________

MURPHY, Circuit Judge.

Michael D. Sampson, Jr. pled guilty to knowingly transporting and attempting
to transport child pornography in interstate commerce, in violation of 18 U.S.C. §
2252A(a)(1) and (b)(1), and to possessing a firearm after having been convicted of a
felony, in violation of 18 U.S.C. § 922(g)(1). Sampson appeals the denial of his
motion to withdraw his guilty plea to the felon in possession count, arguing that his
plea was coerced. He also contends that the district court1 erred in its interpretation
of the guideline enhancement relating to the number of pornographic images and in

1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
concluding that his prior conviction for indecent solicitation is a crime of violence.
We affirm.

I.

On February 3, 2008 America Online (AOL) intercepted two emails sent from
Sampson's email address, each of which contained the same 16 second digital video
depicting an adult male engaging in sexual intercourse with a 5 to 6 year old
prepubescent girl. AOL referred the emails and videos via a cyber tip line to the
National Center for Missing and Exploited Children (NCMEC), which forwarded
them under 42 U.S.C. § 5773(b)(1)(P) to the Iowa Internet Crimes Against Children
(ICAC) Task Force. The Black Hawk County Sheriff's Department subsequently
obtained a search warrant for Sampson's residence on the basis of the intercepted
emails and videos.

Law enforcement officers executed the search warrant on March 25, 2008.
They found and seized several computers and one shotgun from the basement room
where Sampson resided. Subsequent forensic analysis of the computers revealed that
one contained 29 digital images of child pornography saved in the cache folder of a
program used to upload images to the Internet. Nine of the images depicted adults
penetrating pubescent or prepubescent children. During interviews with investigators,
Sampson admitted that the email address from which the video had been sent was his.
Although he admitted to having received, saved, and watched the video, he maintained
that he had not emailed it, but had instead deleted it after discovering that it contained
child pornography.

Sampson also admitted to having used a peer to peer file sharing program to
search for "teen porn[ography]" and to having used an instant messaging program to
send digital images from his residence in Iowa to a woman in Missouri. That woman
later admitted to investigators that she had received images from Sampson, one of
which depicted adults engaged in sex acts with a prepubescent female child.

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Investigators confirmed that the picture was stored on her computer and that it
matched one of those found on Sampson's.

Sampson was indicted on four counts. Two charged him with knowingly
transporting and attempting to transport child pornography, in violation of 18 U.S.C.
§ 2252A(a)(1) and (b)(1). The third count alleged that he had knowingly possessed
and attempted to possess child pornography, in violation of § 2252A(a)(5)(B) and
(b)(2). And the fourth charged him with possessing a firearm after having been
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

On January 13, 2009 Sampson reached a plea agreement with the government
and entered a guilty plea to one of the transportation of child pornography counts and
to the felon in possession of a firearm count. The remaining counts were subsequently
dismissed. The district court accepted Sampson's pleas on January 28, 2009, but he
moved to withdraw them on May 11, 2009 after new counsel had been appointed. The
magistrate judge2 held a hearing on the motion and recommended that it be denied.
The district court adopted his report and recommendation.

At the sentencing hearing Sampson objected to the three level upward
adjustment sought by the government under U.S.S.G. § 2G2.2(b)(7). He argued that
the video which he had emailed twice should be counted only once under §
2G2.2(b)(7). He also objected to a base offense level of 24 for his felon in possession
conviction on the ground that his 2004 Illinois conviction for indecent solicitation of
a child was not a crime of violence under U.S.S.G. § 2K2.1(a)(2). The district court
overruled both objections. It calculated the advisory sentencing guideline range at
188 to 235 months based on a combined offense level of 35 and criminal history II,
and it then sentenced Sampson to 188 months.

2
The Honorable Jon S. Scoles, United States Magistrate Judge for the Northern
District of Iowa.

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 II.

A.

Sampson appeals the denial of his motion to withdraw his guilty plea to felon
in possession of a firearm.3 At the hearing on his motion Sampson contended that his
plea to that count was coerced, that he was actually innocent of it, and that he only
pled guilty because he believed he could not otherwise obtain a plea agreement. The
magistrate judge rejected those arguments, concluding that Sampson failed to offer
any evidence to support his claim of innocence and that his testimony in support of
the motion was in direct contradiction to the sworn testimony offered in support of his
guilty plea. The district court adopted the report and recommendation and denied
Sampson's motion to withdraw. On appeal Sampson maintains his innocence and his
contention that his plea was coerced.

Our review of the denial of a motion to withdraw is for an abuse of discretion,
while we consider de novo the mixed legal and factual question of whether a plea was
knowingly and voluntarily made. United States v. Gray, 152 F.3d 816, 819 (8th Cir.
1998). Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure allows a
defendant to withdraw a plea of guilty before sentencing if "the defendant can show
a fair and just reason for requesting the withdrawal." Other relevant factors include
"whether the defendant has asserted his innocence to the charge, the length of time
between the plea of guilty and the motion to withdraw, and whether the government
will be prejudiced by withdrawal." United States v. Austin, 413 F.3d 856, 857 (8th
Cir. 2005). A court need not consider all these factors if there was not a fair and just
reason for withdrawing the plea. United States v. Nichols, 986 F.2d 1199, 1201 (8th
Cir. 1993).

3
Sampson does not appeal the district court's denial of the motion in respect to
the transportation of child pornography count.

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 After careful review of the record, we conclude that Sampson entered his guilty
plea knowingly and voluntarily. Nothing in the record suggests coercion. At the plea
hearing Sampson confirmed that his plea was voluntarily made and that he understood
his rights as well as the consequences of entering a guilty plea. He confirmed that his
attorney had reviewed the plea agreement with him in detail, that he understood its
terms, and that the signature on the agreement and the initials appearing adjacent to
each paragraph were his own. He admitted the factual allegations necessary for
conviction: that he had been convicted of a crime punishable by more than 1 year
imprisonment, that thereafter he knowingly possessed a firearm, and that the firearm
had been transported across a state line. See § 922(g)(1).

Sampson contends that the chance of losing the opportunity to obtain a plea
agreement caused him to confess his guilt despite being actually innocent. Yet, both
before the district court and now on appeal he has not provided any evidence to
support his claim of innocence. Sampson's conclusory argument simply does not
satisfy his burden of showing a fair and just reason for "permit[ting] a withdrawal of
what he had solemnly made under oath." See United States v. Smith, 422 F.3d 715,
723 (8th Cir. 2005).

Furthermore, his contention that the plea agreement was a contract of adhesion
is not supported by the record. The plea agreement that Sampson signed was not the
first offered to him, and it included language that had been stricken by hand and
initialed by him. We rejected an argument similar to Sampson's in United States v.
McClure, 338 F.3d 847 (8th Cir. 2003), and the rationale of that case applies with
equal force here. Sampson's plea agreement was not a contract of adhesion because
"[he] did not have to enter into [it]. [He] was free to holdout for better terms and
could have proceeded to trial or pled guilty without an agreement." Id. at 850.

We conclude that the district court did not abuse its discretion in finding that
Sampson had provided no fair and just reason for requesting the withdrawal of his
guilty plea.

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 B.

Sampson next contests the district court's application of U.S.S.G. § 2G2.2(b)(7),
which sets sentencing enhancements based upon the number of images involved in the
trafficking or possession of material involving the sexual exploitation of a minor.
Paragraph (B) of § 2G2.2(b)(7) calls for a three level enhancement "[i]f the offense
involved . . . at least 150 images, but fewer than 300." Unless substantially longer
than five minutes, "[e]ach video, video-clip, movie, or similar recording shall be
considered to have 75 images." § 2G2.2 cmt. n.4(B)(ii).

The district court applied a three level enhancement under § 2G2.2(b)(7)(B)
because it found that Sampson's offense involved 179 images. It based that total on
29 photographs found on Sampson's computer and the video which had been sent
from Sampson's account. The court counted the video twice, assigning 75 images for
each time it had been emailed. Sampson does not object to the court's counting of the
photographs, but argues that the video should have been counted only once.

We review the district court's application of the sentencing guidelines de novo.
United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005). Neither the text of the
guideline nor the relevant commentary clarify precisely how duplicate images and
videos are to be scored. See § 2G2.2(b)(7); id. at cmt. n.4(B)(i) ("Each photograph
. . . shall be considered to be one image."); id. at cmt. n.4(B)(ii) ("Each video . . . shall
be considered to have 75 images."). And as the parties and the district court have
acknowledged, there is a dearth of case law discussing the issue.

Although the Third Circuit has observed in dicta that duplicate images are not
to be counted under U.S.S.G. § 2G2.4(b)(5) (the predecessor to § 2G2.2(b)(7)), it did
so without analysis and in the context of a child pornography possession case. See
United States v. Goff, 501 F.3d 250, 255 n.9 (3d Cir. 2007); see also United States v.
Lacey, 569 F.3d 319, 322 & n.1 (7th Cir. 2009) (observing in a child pornography
possession case that the district court had excluded duplicate images under §
2G2.2(b)(7), but not addressing the propriety of that interpretation). Sampson, in

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contrast, was convicted for transporting a video depicting child pornography multiple
times (not for possessing multiple copies of the video).

A decision of the D.C. Circuit underscores the significance of the distinction
between the possession of multiple copies of an image of child pornography and the
distribution of multiple copies of such an image. In United States v. Sullivan, 451
F.3d 884 (D.C. Cir. 2006), that court considered the constitutional authority of
Congress to enact 18 U.S.C. § 2252A as part of the Child Pornography Prevention Act
of 1996 (CPPA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). Although the court did
not address the precise issue of counting duplicate images under § 2G2.2(b)(7), its
discussion of the "viral" nature of digital forms of child pornography is nonetheless
instructive.
In contrast to wheat or marijuana, the supply of electronic images of
child pornography has a viral character: every time one user downloads
an image, he simultaneously produces a duplicate version of that image.
Transfers of wheat or marijuana merely subdivide an existing cache;
transfers of digital pornography, on the other hand, multiply the existing
supply of the commodity, so that even if the initial possessor's holdings
are destroyed, subsequent possessors may further propagate the images.
This means that each new possessor increases the available supply of
pornographic images.

Sullivan, 451 F.3d at 891.

The viral nature of digital forms of child pornography does not depend upon the
uniqueness of a photograph or video. The distribution of duplicate images increases
the supply and availability of child pornography just as the distribution of unique
images does. Both types of distribution compound the effect of an original act of
sexual exploitation of a child by increasing the quantity and thus the availability of the
image. See 110 Stat. at 3009-26 ("[C]hild pornography permanently records the
victim's abuse, and its continued existence causes the child victims of sexual abuse
continuing harm by haunting those children in future years.").

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 The legislative history underlying the enactment of § 2G2.2(b)(7) reflects such
concerns. The sentencing enhancement in § 2G2.2(b)(7) was originally enacted by
the Prosecutorial Remedies and Tools Against the Exploitation of Children Today
(PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (codified as amended in
scattered sections of 18 and 42 U.S.C.). The PROTECT Act grew out of Congress's
finding that "'[c]hild pornography stimulates the sexual appetites and encourages the
activities of child molesters and pedophiles, who use it to feed their sexual fantasies
. . . [and] to convince potential victims that the depicted sexual activity is normal.'"
S. Rep. No. 108-2, at 3 (2003) (quoting S. Rep. No. 104-358, at 12–14 (1996)). That
concern is just as clearly implicated by a duplicate image as it is by the original. The
PROTECT Act was enacted to bolster and expand protections created by the CPPA,
see id. at 1–3, the avowed purpose of which was to "encourage the possessors of
[child pornography] to rid themselves of or destroy the material, thereby helping to
. . . eliminate the market for the sexual exploitative use of children," 110 Stat. at 3009-
27.

We conclude that § 2G2.2(b)(7) means what a plain reading of its application
note indicates: "Each video" and "[e]ach photograph" which a defendant distributes
is to be counted under § 2G2.2(b)(7), regardless of whether or not it is a duplicate.
§ 2G2.2 cmt. n.4(B) (emphases added). To conclude otherwise would mean that a
defendant who distributes a single image would incur the same enhancement under
§ 2G2.2(b)(7) as one who distributes the same image one thousand times, despite the
vast disparity in resulting harm.

Accordingly, the district court did not err in concluding that the video that had
been emailed twice should be counted that way under § 2G2.2(b)(7).

C.

Sampson contends that the district court erred in its application of U.S.S.G. §
2K2.1(a)(2), which provides for a base offense level of 24 for possession of a firearm
by a felon if the defendant was previously convicted of two felony "crime[s] of

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violence." The district court applied § 2K2.1(a)(2) on the basis of Sampson's prior
state court convictions for second degree burglary and indecent solicitation of a child.
Sampson concedes that the burglary conviction is a crime of violence, but argues that
the indecent solicitation conviction is not. Our review of that question is de novo.
United States v. Hennecke, 590 F.3d 619, 620 (8th Cir. 2010).

In construing the term "crime of violence" under § 2K2.1(a)(2), we look to the
definition provided by U.S.S.G. § 4B1.2(a), see § 2K2.1(a)(2) cmt. n.1, as well as to
construction of the analogous term "violent felony" under 18 U.S.C. § 924(e)(2)(B),
see United States v. Clinkscale, 559 F.3d 815, 817 (8th Cir. 2009). Section 4B1.2(a)
defines a "crime of violence" as
any offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that --
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.

In Johnson v. United States, 130 S.Ct. 1265 (2010), the Supreme Court clarified
that an offense is not a crime of violence within the meaning of subsection one unless
it "'has as an element the use, attempted use, or threatened use of'" not just physical
force, but violent physical force, "'against the person of another.'" See id. at 1268,
1271 (quoting § 924(e)(2)(B) and construing "violent felony"); United States v.
Brown, 598 F.3d 1013, 1017 (8th Cir. 2010). The government does not claim that
Sampson's offense, indecent solicitation of a child, qualifies as a crime of violence
under subsection one. We also observe that the Illinois statute would not in every case
require proof of the use, attempted use, or threatened use of violent physical force
against another. See 720 Ill. Comp. Stat. §§ 5/11-6(a), 5/12-13, 5/12-16. Johnson has
made it clear that such an offense is not a crime of violence under subsection one.

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 In Begay v. United States, 553 U.S. 137 (2008), the Supreme Court set out the
analysis courts should use to determine whether a nonlisted offense—that is, one that
does not "'involve[] [the] use of explosives'" and is not "'burglary, arson, or
extortion,'" id. at 140 (quoting § 924(e)(2)(B))—qualifies as a crime of violence under
the "otherwise" clause in subsection two. An offense "otherwise involves conduct that
presents a serious potential risk of physical injury to another," id., only if it is "roughly
similar, in kind as well as in degree of risk posed, to the examples [the listed offenses]
themselves," see id. at 143 (construing "violent felony" under § 924(e)(2)(B)). An
offense that is similar in kind to the listed offenses "should typically involve
'purposeful, violent, and aggressive conduct.'" United States v. Williams, 537 F.3d
969, 972 (8th Cir. 2008) (quoting Begay, 553 U.S. at 144–45).

To determine whether the offense for which Sampson was convicted qualifies
as a crime of violence, we restrict our analysis to the offense's statutory definition and
disregard the factual underpinnings of his conviction. See Begay, 553 U.S. at 141
(citing Taylor v. United States, 495 U.S. 575, 602 (1990)). To identify the precise
statute and subsection to which Sampson pled guilty, however, "we may look to 'the
charging document, the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information.'" Williams, 537
F.3d at 973 (quoting Shepard v. United States, 544 U.S. 13, 26 (2005) (plurality
opinion)).

Sampson pled guilty to violating 720 Ill. Comp. Stat. § 5/11-6(a), which defines
indecent solicitation of a child as follows:
A person of the age of 17 years and upwards commits the offense of
indecent solicitation of a child if the person, with the intent that the
offense of . . . criminal sexual assault . . . or aggravated criminal sexual
abuse be committed, knowingly solicits a child or one whom he or she
believes to be a child to perform an act of sexual penetration or sexual
conduct as defined in Section 12-12 of this Code.

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The contradictory information provided by Sampson's indictment, plea, and judgment
of conviction prevents us from determining whether he was convicted for class 2
(criminal sexual assault) or class 3 (aggravated criminal sexual abuse) indecent
solicitation of a child. See § 5/11-6(c) (differentiating between class 2 and class 3
violations); § 5/12-13 (defining criminal sexual assault); § 5/12-16 (defining
aggravated criminal sexual abuse).

The government contends that we need not decide whether Sampson's Illinois
offense is a crime of violence because any error in applying § 2K2.1(a)(2) would be
harmless. It first points out that the district court thoroughly explained at sentencing
why it considered 188 months to be the appropriate sentence for Sampson whether or
not § 2K2.1(a)(2) applied. Cf. United States v. Davis, 583 F.3d 1081, 1094–95 (8th
Cir. 2009) (declining to decide whether the Iowa crime of indecent contact with a
child by solicitation constituted a crime of violence because any error would be
harmless).

At the sentencing hearing the district court considered in detail how the 18
U.S.C. § 3553(a) factors related to Sampson. It went over the facts and circumstances
surrounding Sampson's offense as well as his characteristics. It observed that he had
transported and attempted to transport child pornography less than a year after being
discharged from probation for his Illinois conviction for indecent solicitation of a
child. It found that Sampson had shown neither remorse nor acceptance of
responsibility for that offense or for his current one. In addition he had "at times
be[en] just flat-out untruthful under oath to the [c]ourt." The court also concluded that
the sentence imposed represented just punishment and that Sampson was a continuing
threat to the public since despite his "continuing interest in children as sex objects,"
he "expressed no interest in [treatment] . . . because he does not see his behavior as
deviant."

The government also urges that Sampson's advisory guideline range was not
affected by the application of the § 2K2.1(a)(2) crime of violence provision. Before
applying that provision the district court observed that "the scoring of count 4 [felon

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in possession] has no impact on the computation of the advisory guideline range,
because count 2 [transportation of child pornography] controls the offense level."
Whether or not § 2K2.1(a)(2) was applied, Sampson's offense level for the felon in
possession count would have remained at least nine levels lower than that for his
transportation of child pornography offense. The total offense level is not affected by
an adjusted offense level for any count which is at least nine levels lower than the
adjusted offense level for the defendant's most serious count. See U.S.S.G. §
3D1.4(c).

We conclude that we need not reach the issue of whether the Illinois crime of
indecent solicitation of a child is a crime of violence. Any error in the district court's
conclusion on that issue was harmless in the circumstances of this case. The district
court clearly explained and adequately justified its intention to impose a 188 month
sentence without regard to that conclusion. Our review of sentences imposed under
the advisory guidelines is for an abuse of discretion. Gall v. United States, 552 U.S
38, 51 (2007). We find none.4

III.

Accordingly, the judgment of the district court is affirmed.

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4
Sampson does not contend that his sentence is substantively unreasonable.

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