United States v. Norris

Revised November 17, 1998

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-40148

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

EDDIE EUGENE NORRIS,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of Texas

October 29, 1998
Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:

Eddie Eugene Norris pleaded guilty to ten counts of receiving

child pornography in violation of 18 U.S.C. § 2252(a)(2). He was

sentenced to a 78-month prison term. He appeals from that sentence

on the theory that his ten counts of conviction should have been

grouped pursuant to U.S.S.G. § 3D1.2(b) because each offense

involved the same “victim” (namely, society as a whole), and
therefore involved substantially the same harm. We disagree, and

therefore affirm.

I.

Norris took his computer to a shop in Corpus Christi, Texas,

for the purpose of having the hard drive repaired. The employee

who performed the repairs noticed that the filenames of several

documents stored in the computer’s hard drive contained sexually

explicit words. Upon opening several of these files, the employee

discovered that the files contained explicit images of children

engaged in sexual conduct. Local law enforcement and the United

States Customs Service were notified, the contents of the hard

drive were examined, and Norris was arrested following a

“controlled delivery” of his computer.

Norris was indicted on ten counts of “knowingly receiv[ing] a

visual depiction, the producing of which involved the use of a

minor engaging in sexually explicit conduct . . . which visual

depiction had been transported and shipped in interstate and

foreign commerce,” in violation of 18 U.S.C. § 2252(a)(2), and one

count of “knowingly possess[ing] three (3) or more visual

depictions, the producing of which invoked the use of a minor

engaging in sexually explicit conduct, which visual depictions are

of such conduct,” in violation of 18 U.S.C. § 2252(a)(4)(B). He

pleaded guilty to the ten counts of receiving child pornography,

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and the one count of possessing child pornography was dismissed on

the government’s motion, pursuant to a plea agreement. The

district court accepted Norris’s guilty plea and scheduled a

sentencing hearing.

The sentencing recommendation of the presentence investigation

report originally prepared for Norris by a United States Probation

Officer recommended a total offense level of 18 and criminal

history category of I, which together carry an imprisonment range

of 27 to 33 months.1 This recommendation reflected a base offense

level of 17 for ten grouped counts of receiving child pornography

in violation of 18 U.S.C. § 2522(a)(2) (U.S.S.G. §§ 2G2.2(a),

3D1.2(b)),2 two specific offense characteristic increases of two

1
The United States Sentencing Commission Guidelines Manual in
effect on the date of sentencing is used to calculate a defendant’s
sentence. See U.S.S.G. § 1B1.11(a) (Nov. 1997). The district
court imposed judgment on Norris on December 4, 1997, and the
judgment was entered on December 9, 1997. Accordingly, the
sentencing issues in this case are governed by the Guidelines
Manual incorporating guideline amendments effective November 1,
1997. All sentencing guidelines references in this opinion refer
to the November 1997 edition, though the presentence investigation
report indicates that it was based on the 1995 edition.
2
As a justification for the grouping recommendation, the
presentence investigation report stated:

Individual grouping would be appropriate if each
picture actually victimized the minors in the
visual depictions. . . . [T]he adult participants
in the visual depictions, the photographers, and
the individuals who have made financial profit from
such items are the ones who victimize the minors.
This defendant is apparently more of a passive
viewer of the depictions and his actions do not
serve to perpetrate the crimes as much as the other

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levels each for involvement of material involving prepubescent

minors (U.S.S.G. § 2G2.2(b)(1)) and use of a computer for

transmission (U.S.S.G. § 2G2.2(b)(5)), and downward adjustments of

two levels for acceptance of responsibility (U.S.S.G. § 3E1.1(a))

and one level for timely notification to the government of intent

to plead guilty (U.S.S.G. § 3E1.1(b)(2)).

The parties filed no objections to this recommendation, but an

addendum to the presentence investigation report and a revised

sentencing recommendation were filed by the probation office in

response to a request by the district court. The new report and

recommendation contained two changes. An additional four-level

increase was suggested because the pornographic items received by

Norris depicted acts of violence (U.S.S.G. § 2G2.2(b)(3)), and,

rescinding the previous grouping analysis,3 a five-level increase

was recommended to account for the multiple counts of conviction

(U.S.S.G. § 3D1.4). The new recommendation thus suggested a total

offense level of 27, which carries an imprisonment range of 70 to

87 months for a criminal history category of I.

Norris objected to the failure to group the counts for

sentencing purposes, but the objection was overruled. Adopting the

presentence investigation report, the district court assigned a

participants.
3
The addendum stated that the counts of receiving child
pornography should not be grouped because “these offenses involved
separate minors.”

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total offense level of 27, a criminal history category of I, and a

sentence of 78 months of imprisonment. Norris timely appeals from

the district court’s calculation of his sentence.

II.

Norris contends that the district court erred by refusing to

group his offenses under U.S.S.G. § 3D1.2. That section provides,

in pertinent part:

All counts involving substantially the same harm
shall be grouped together into a single Group.
Counts involve substantially the same harm within
the meaning of this rule:

* * *

(b) When counts involve the same victim and two or
more acts or transactions connected by a
common criminal objective or constituting part
of a common scheme or plan.

U.S.S.G. § 3D1.2(b). The commentary to this guideline states that:

The term “victim” is not intended to include
indirect or secondary victims. Generally, there
will be one person who is directly and most
seriously affected by the offense and is therefore
identifiable as the victim. For offenses in which
there are no identifiable victims (e.g., drug or
immigration offenses, where society at large is the
victim), the “victim” for purposes of subsections
(a) and (b) is the societal interest that is
harmed. In such cases, the counts are grouped
together when the societal interests that are
harmed are closely related. . . . Ambiguities
should be resolved in accordance with the purpose
of this section as stated in the lead paragraph,
i.e., to identify and group “counts involving
substantially the same harm.”

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U.S.S.G. § 3D1.2 cmt. 2. This commentary “must be given

controlling weight unless it is plainly erroneous or inconsistent”

with the text of § 3D1.2. Stinson v. United States, 508 U.S. 36,

45, 113 S. Ct. 1913, 1919 (1993) (internal quotation marks

omitted).

Analogizing to the commentary’s example of drug offenses,

Norris contends that his receipt of child pornography is a

victimless crime. According to Norris, society at large is

therefore the “victim” for the purposes of the grouping rule, and

because each time he received child pornography that same societal

interest was harmed, the counts should be grouped. In addition, to

the extent that the children portrayed in the pictures received by

Norris may be considered to be victims of his crimes, he contends

that they are indirect or secondary victims of his actions of the

sort not contemplated by § 3D1.2.

A.

The issue of whether the district court correctly interpreted

the sentencing guidelines to permit the children depicted in child

pornography to be considered the victims of the crime of receiving

child pornography for the purposes of the guidelines’ grouping rule

is a question of law which we review de novo. See United States v.

Hibbler, Nos. 96-2345 & 96-2450, 1998 WL 729540, at *2 (6th Cir.

Oct. 21, 1998), United States v. Boos, 127 F.3d 1207, 1209 (9th

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Cir. 1997), cert. denied, 118 S. Ct. 734 (1998); United States v.

Ketcham, 80 F.3d 789, 792 (3d Cir. 1996); United States v. Rugh,

968 F.2d 750, 755 (8th Cir. 1992); United States v. Toler, 901 F.2d

399, 402 (4th Cir. 1990). In reviewing the district court’s

findings of fact and application of the guidelines to the specific

facts of a case, we review for clear error. See, e.g., United

States v. Powell, 124 F.3d 655, 663 (5th Cir. 1997), cert. denied,

118 S. Ct. 1518 (1998).

B.

The question of whether multiple children depicted in multiple

pornographic images may be treated as different “victims” for

sentencing purposes is not novel -- it has been considered by five

other circuits. See Hibbler, 1998 WL 729540, at *2-*4 (yes); Boos,

127 F.3d at 1209-13 (yes); Ketcham, 80 F.3d at 792-93 (yes); Rugh,

968 F.2d at 754-56 (yes); cf. Toler, 901 F.2d at 402-03 (no -- the

depicted minor is the primary “victim” for the purposes of 18

U.S.C. § 2423 (interstate transportation of a minor with intent

that the minor engage in prohibited sexual conduct), but not under

18 U.S.C. § 2252(a) (interstate transportation of child

pornography)). We agree with those circuits which have decided

that the children depicted in child pornography may be considered

to be the victims of the crime of receiving child pornography.

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 1.

Just as in the case of interpreting a statute, when

interpreting a provision of the sentencing guidelines our starting

point is the text of that provision. Cf., e.g., Hightower v. Texas

Hosp. Ass’n, 65 F.3d 443, 448 (5th Cir. 1995) (“When courts

interpret statutes, the initial inquiry is the language of the

statute itself.”). We must look first, then, to the text of

U.S.S.G. § 3D1.2 and the plain meaning of the word “victim.”

Section 3D1.2(b) permits the grouping of counts which “involve the

same victim.” A “victim” in this sense is “anyone who suffers

either as a result of ruthless design or incidentally or

accidentally.” Webster’s Third New International Dictionary 2550

(1971).

Norris argues that when he committed the crime of receiving

child pornography, the children depicted were not “victimized” by

that act, and therefore were not “victims” for sentencing purposes.

Under this theory the victimization of the children occurred at the

time the pornographic images were produced. Therefore, according

to Norris, the criminal act of simply receiving child pornography

is a victimless crime, and the children depicted in the child

pornography can only be victims of the crime of receiving child

pornography in an indirect or secondary sense.

Norris takes an unrealistically narrow view of the scope of

harms experienced by the child victims of the child pornography

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industry. Unfortunately, the “victimization” of the children

involved does not end when the pornographer’s camera is put away.

The consumer, or end recipient, of pornographic materials may be

considered to be causing the children depicted in those materials

to suffer as a result of his actions in at least three ways.

First, the simple fact that the images have been disseminated

perpetuates the abuse initiated by the producer of the materials.

“[T]he materials produced are a permanent record of the children’s

participation and the harm to the child is exacerbated by their

circulation.” New York v. Ferber, 458 U.S. 747, 759, 102 S. Ct.

3348, 3355 (1982) (emphasis supplied); see also Child Pornography

Prevention Act of 1996, Pub. L. 104-208, sec. 121, 110 Stat. 3009-

26, reprinted in 18 U.S.C. § 2251 note at 611 (Supp. II 1996)

(hereinafter, 1996 Act) (“Congress finds that . . . where children

are used in its production, child 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 . . . .”); Osborne v. Ohio, 495 U.S. 103, 111, 110

S. Ct. 1691, 1697 (1990) (“The pornography’s continued existence

causes the child victims continuing harm by haunting the children

for years to come.”). The consumer who “merely” or “passively”

receives or possesses child pornography directly contributes to

this continuing victimization.

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 Second, the mere existence of child pornography represents an

invasion of the privacy of the child depicted. Both the Supreme

Court and Congress have explicitly acknowledged that the child

victims of child pornography are directly harmed by this despicable

intrusion on the lives of the young and the innocent. See Ferber,

456 U.S. at 759 n.10, 102 S. Ct. at 3356 n.10 (“[D]istribution of

the material violates ‘the individual interest in avoiding

disclosure of personal matters.’” (quoting Whalen v. Roe, 429 U.S.

589, 599, 97 S. Ct. 869, 876 (1977))); 1996 Act, 110 Stat. at 3009-

26 (“Congress finds that . . . the creation or distribution of

child pornography . . . invades the child’s privacy and

reputational interests . . . .”). The recipient of child

pornography obviously perpetuates the existence of the images

received, and therefore the recipient may be considered to be

invading the privacy of the children depicted, directly victimizing

these children.

Third, the consumer of child pornography instigates the

original production of child pornography by providing an economic

motive for creating and distributing the materials. See Osborne,

495 U.S. at 109-12, 110 S. Ct. at 1696-97; Ferber, 458 U.S. at

3355-56. As Congress put it in explicit factual findings:

[T]he existence of and traffic in child
pornographic images . . .

. . . inflames the desires of child molesters,
pedophiles, and child pornographers, thereby
increasing the creation and distribution of child

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 pornography and the sexual abuse and exploitation
of actual children who are victimized as a result
of the existence and use of these materials[.]

1996 Act, sec. 121, 110 Stat. at 3009-27. Plainly, Congress has

described a chicken-and-egg scenario in which it would be

impossible to determine whether child pornographers or consumers of

child pornography were initially responsible for the creation of

the child pornography industry. The underlying point, however, is

that there is no sense in distinguishing, as Norris has done,

between the producers and the consumers of child pornography.

Neither could exist without the other. The consumers of child

pornography therefore victimize the children depicted in child

pornography by enabling and supporting the continued production of

child pornography, which entails continuous direct abuse and

victimization of child subjects.

Any of these effects, stemming directly from a consumer’s

receipt of or willingness to receive child pornography, would amply

justify the conclusion that a child depicted in the pornographic

images was a “victim” of that crime. We therefore disagree with

Norris’s suggestion the nature of the offense he committed requires

that his counts of receiving child pornography be grouped as a

matter of law. We reject the suggestion that the commentary’s

references to victimless crimes and “indirect or secondary victims”

compels the conclusion that the crimes of a “passive” child

pornography recipient must be grouped because the resulting harm is

somehow attenuated as compared to a person who actually produces or

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distributes child pornography. As we have explained, the

victimization of a child depicted in pornographic materials flows

just as directly from the crime of knowingly receiving child

pornography as it does from the arguably more culpable offenses of

producing or distributing child pornography.4

2.

Our conclusion that a child depicted in child pornography may

be the victim of the crime of receiving child pornography is

supported by the titles of the legislative acts which created 18

4
We note in passing the unique posture of the receipt offense
in the sentencing scheme as compared to other child pornography
offenses. Norris was convicted and sentenced for receiving child
pornography, which is grouped with the offenses of trafficking,
shipping, advertising, or possessing with intent to traffic. See
U.S.S.G. § 2G2.2. Sentencing under this provision results in a
greater base offense level than does conviction and sentencing for
the offense of possessing child pornography. Compare id. (base
offense level of 17 for receiving child pornography), with U.S.S.G.
§ 2G2.4 (base offense level of 15 for possessing child
pornography). Arguably, there is no meaningful distinction between
the offenses of receiving and possessing child pornography, and the
different base offense levels for those offenses are, therefore,
difficult to reconcile. This problem has not escaped the notice of
the Sentencing Commission. See U.S. Sentencing Comm’n, Report to
Congress: Sex Offenses Against Children: Findings and
Recommendations Regarding Federal Penalties 41-42 (1996), available
in U.S. Sentencing Comm’n, Report to Congress - Sex Offenses
Against Children (visited Oct. 26, 1998)
. Congress, however, has insisted on
maintaining the current scheme. See Treasury, Postal Service and
General Government Appropriations Act of 1992, Pub. L. 102-141,
§ 632, 105 Stat. 834, 876. A prosecutor can therefore manipulate
the severity of a sentence by deciding whether to charge the
defendant with receiving or possessing child pornography -- a
result at apparent odds with the policy goals of the sentencing
guidelines.

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U.S.C. § 2252 and which amended that statute to criminalize the

mere receipt of child pornography, the Protection of Children

Against Sexual Exploitation Act of 1977, Pub. L. 95-225, § 2(a), 92

Stat. 7, 7-8, and the Child Protection Act of 1984, Pub. L. 98-292,

sec. 4, 98 Stat. 204, 204-05.5 “‘[T]he title of a statute and the

heading of a section’ are ‘tools available for the resolution of a

doubt’ about the meaning of a statute.” Almendarez-Torres v.

United States, 118 S. Ct. 1219, 1226 (quoting Brotherhood of R.R.

Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29, 67 S.

Ct. 1387, 1391-92 (1947)). These titles leave no doubt whatsoever

about the intentions of Congress in criminalizing the receipt of

child pornography.6 The titles of the acts show that the focus of

5
The same theme is also reflected in the titles and legislative
findings of later statutes amending 18 U.S.C. § 2252, such as the
Child Abuse Victims’ Rights Act of 1986, Pub. L. 99-500, sec.
704(b), 100 Stat. 1783-74, 1783-75, the Child Protection and
Obscenity Enforcement Act of 1988, Pub. L. 100-690, sec. 7511(b),
102 Stat. 4485, 4485, and the Child Protection Restoration and
Penalties Enhancement Act of 1990, Pub. L. 101-647, sec. 323, 104
Stat. 4816, 4818-19.
6
Significantly, we cannot place our whole reliance on the
original enactment of 18 U.S.C. § 2252, as did our sister circuits
in Boos and Ketcham. The prohibition against the receipt of child
pornography contained in 18 U.S.C. § 2252(a)(2) began as a
prohibition of “knowingly receiv[ing] for the purpose of sale or
distribution . . . any obscene visual or print medium” depicting
child pornography. Protection of Children Against Sexual
Exploitation Act of 1977, Pub. L. 95-225, § 2(a), 92 Stat. 7, 7-8
(emphasis supplied). The Child Protection Act of 1984 amended this
provision in two significant respects, eliminating both the
“purpose of sale or distribution” and obscenity restrictions. See
Child Protection Act of 1984, Pub. L. 98-292, sec. 4, 98 Stat. 204,
204-05. The crime committed by Norris, receiving child
pornography, was not a crime under the 1977 legislation because the

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Congress was on protecting children, not, as Norris would have it,

a general concern for society as a whole. We would stand the

statute on its head to conclude otherwise. See Boos, 127 F.3d at

1213; Ketcham, 80 F.3d at 793.

C.

We have concluded that the sentencing guidelines do not

preclude, as a matter of law, children depicted in child

pornography from being characterized as victims of the crime of

receiving child pornography for the purposes of the grouping

provision. We now turn to the task of reviewing the district

court’s determination that the children depicted in the images

received by Norris were the victims of his crime. Norris

identifies no facts which would indicate that the children depicted

were not victims of Norris’s crime, and our independent review of

the record reveals no clear error.

III.

For the foregoing reasons, we AFFIRM the judgment of the

district court.

record does not suggest that he had a “purpose of sale or
distribution.” It is, therefore, important that we also take into
consideration the 1984 amendment which eliminated that element of
the offense. The defendants in both Boos and Ketcham were
convicted, inter alia, on counts of distributing child pornography,
which was covered by the original 1977 legislation.

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