Case: 09-11071 Document: 00511362874 Page: 1 Date Filed: 01/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2011
No. 09-11071
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN K. DICKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bryan Dickson was convicted of possession of child pornography in viola-
tion of 18 U.S.C. § 2252(a)(4)(B) and production of child pornography in violation
of 18 U.S.C. § 2251(a). He appeals his conviction and sentence. We affirm.
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No. 09-11071
I.
Federal agents executed a search warrant at Dickson’s residence and
found a CD that contained videos and images of child pornography. Some of the
pictures were of a one-year-old boy, A.B., which were the only pictures taken by
Dickson himself.
After the government presented its case at a bench trial, Dickson unsuc-
cessfully moved for judgment of acquittal on the ground that the government
had failed to meet its burden as to each element of both counts. Dickson pre-
sented no evidence, and the court found him guilty.
The presentence report (“PSR”) stated that counts one (possession) and
two (production) should be grouped pursuant to U.S.S.G. § 3D1.1(a)(1)-(3) be-
cause “one of the counts embodies conduct that is treated as a specific offense
characteristic in, or other adjustment to, the guideline applicable to another of
the counts.” § 3D1.2(c). The offense level applicable to the group is the offense
level of the most serious count, see § 3D1.3(a), and the PSR determined that
count two (production) produced the highest base offense level, 32. The PSR rec-
ommended increasing the base level by four because the offense involved materi-
al that portrayed sadistic or masochistic conduct or other depictions of violence,
pursuant to § 2G2.1(b)(4).
After the application of two other enhancements that are not at issue here,
Dickson’s total offense level was 42. He had a category I criminal history from
one prior adult conviction for seven counts of sexual assault, the victims of which
were a three-year-old child and a child under thirteen. The total offense level
resulted in a guideline range of 360 months to life, which became 360 to 840
months because the upper limit of the guideline range exceeded the maximum
statutory sentence. Neither party objected to the PSR.
At sentencing, Dickson requested a 360-month sentence. The government
responded that a sentence on the lower end of the range was inappropriate and
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further offered that although charges were never filed against Dickson, law en-
forcement and A.B.’s father believed that Dickson had sexually abused A.B.’s two
older brothers as well. Given Dickson’s extensive criminal history, the district
court determined that “a reasonable sentence in this case, one that would ade-
quately address all of the factors the Court should consider under . . . § 3553(a),
would be one that would ensure to the maximum possible extent that this defen-
dant will never be free in society again.”
The court sentenced Dickson to 840 months: 240 months for count one and
600 months for count two, to be served consecutively. Dickson objected to the
reasonableness of the sentence and appealed. He also appealed the denial of his
motion for acquittal and his motion for dismissal of his indictment.
II.
We review denials of motions for judgments of acquittal de novo. United
States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). We view the evidence in the
light most favorable to the government “with all reasonable inferences to be
made in support of the . . . verdict.” United States v. Moser, 123 F.3d 813, 819
(5th Cir. 1997). The evidence is sufficient if it “would permit a rational trier of
fact to find [the defendant] guilty beyond a reasonable doubt.” United States v.
Pankhurst, 118 F.3d 345, 352 (5th Cir. 1997).
To convict under § 2252(a)(4)(B) for possession of child pornography, the
government must prove that the defendant possessed a visual depiction of a min-
or engaging in sexually explicit conduct that “has been mailed, or has been
shipped or transported using any means or facility of interstate or foreign com-
merce . . . , or which was produced using materials which have been mailed or
so shipped or transported, by any means including by computer.” Both parties
conceded that Dickson’s images never traveled in interstate commerce. The is-
sue, therefore, is whether the government presented sufficient evidence that the
3
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images were produced using materials that traveled in interstate commerce. The
government argues that it met its burden by showing that the CD holding the
images was made in the Republic of China.
Whether copying images to another device constitutes “production” is an
issue of first impression for this circuit. Several of our sister circuits, however,
have reached the same conclusion: that images are “produced” for purposes of
§ 2252(a)(4)(B) when they are copied or downloaded onto hard drives, disks, or
CDs.1 “When the file containing the image is copied onto a disk, the original is
left intact and a new copy of the image is created, so the process ‘produces’ an
image.” United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002).
Dickson contends that he did not use the CD to produce the images, but
only to store them. He asserts that the statute contemplates the original act of
producing the images, not their subsequent transfer onto a CD, which he char-
acterizes as reproduction. Had Congress wanted to criminalize reproduction, he
argues, it would have done so specifically, as it did in § 2252(a)(2) by criminaliz-
ing receiving, distributing, or reproducing child pornography.2 Finally, Dickson
asserts that, at the very least, the statute is ambiguous and thus should be con-
strued in his favor under the rule of lenity.
Dickson’s arguments are as unpersuasive to us as similar arguments were
to the Fourth, Seventh, Ninth, and Tenth Circuits. First, “producing” is broadly
defined as “producing, directing, manufacturing, issuing, publishing, or adver-
tising.” 18 U.S.C. § 2256(3). Congress could have left “producing” undefined,
1
See United States v. Caley, 355 Fed. App’x 760 (4th Cir. 2009); United States v.
Schene, 543 F.3d 627, 638 (10th Cir. 2008); United States v. Angle, 234 F.3d 326 (7th Cir.
2000); United States v. Lacy, 119 F.3d 742 (9th Cir. 1997).
2
Any person who “knowingly receives, or distributes, any visual depiction . . . or know-
ingly reproduces any visual depiction for distribution . . . if . . . the producing of such visual
depiction involves the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2252-
(a)(2) (2006).
4
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thereby giving it its ordinary meaning. But by defining “producing” using the
term itself plus other closely related terms, Congress intended the statute to cov-
er a wider range of conduct than merely initial production.3 Excluding copying
from our interpretation of “producing” would be too restrictive a reading.
Second, § 2252(a)(2) uses “reproduce,” rather than “produce” as in § 2252-
(a)(3) and (4), because that subpart addresses receiving child pornography, un-
like the other two subparts, which address selling and possessing child pornogra-
phy, respectively. One who sells or possesses images may also produce them and
thus could continue to produce copies, but one who merely receives pornography
could not have been the original producer and thus may only reproduce. Finally,
the statute is not ambiguous, so the rule of lenity does not apply.
Because the government presented sufficient evidence that the CD was
shipped from the Republic of China, a reasonable fact-finder could have found
that Dickson produced the pornographic images using materials that traveled
in interstate or foreign commerce. The conviction is affirmed.
III.
Dickson argues that the district court erred when it enhanced his sentence
for production (count two) based on the sadistic or masochistic images that he
possessed (count one). Dickson asserts that conduct underlying one count cannot
enhance another count when grouped under § 3D1.2(c) because, unlike for counts
grouped under § 3D1.2(d), the guidelines do not explicitly say that the offense
3
See United States v. Fadl, 498 F.3d 862, 867 (8th Cir. 2007) (“Congress intended to
retain a non-technical definition of the term ‘producing’ (that is, in the sense of creating or
making), but also sought to expand its scope to include activities that may not be generally
considered to fall with the typical meaning of the term. We therefore conclude that list of
terms . . . reflects Congress’s intention to enact a broad definition of ‘producing’ . . . .”).
5
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level is determined by the combined offense behavior taken as a whole.4 Dickson
says that the enhancement could apply to his sentence if he had produced sa-
distic or masochistic images, but the only images he was convicted of producing
were those of A.B., and those were not sadistic or masochistic.
Because Dickson failed to object to the procedure used to calculate his
guideline range or to the application of the enhancement, we review the sentence
for plain error. United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.
2008). Plain error occurs when the error was clear or obvious and affected the
defendant’s substantial rights. Id. If the defendant can show plain error, this
court has the discretion to correct the error only if it seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings. Id.
Dickson is correct that the district court erred in calculating his sentence.
According to the guidelines, a court should first determine the base level for an
offense, then apply any appropriate specific offense characteristics or enhance-
ments. U.S.S.G. § 1B1.1(a)-(c). “If there are multiple counts of conviction, [the
court should repeat those steps] for each count.” U.S.S.G. § 1B1.1(d).
Next, if necessary, the court should group the various counts according to
§ 3D and adjust accordingly.5 The grouping commentary states that “the highest
offense level of the counts in the group is used. Ordinarily, it is necessary to de-
termine the offense level for each of the counts in a Group in order to ensure that
the highest is correctly identified.” U.S.S.G. § 3D1.3 cmt. 2. The guidelines,
therefore, plainly instruct a court to apply enhancements before grouping. The
offense that produces the highest total offense level, not the highest base offense
4
See U.S. SENTENCING GUIDELINES MANUAL § 3D1.3 cmts. 2-3 (2004).
5
U.S.S.G. § 1B1.1(d). Under our circuit’s precedent, the district court probably should
not have grouped the two counts, because the victims in the images Dickson possessed and in
those he produced were different. See United States v. Norris, 159 F.3d 926, 931 (5th Cir.
1998).
6
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level, sets the level for the group.6
It follows that the district court should have calculated one total offense
level for possession and a separate one for production. The court erred when it
first determined that production produced the highest base offense level and
then, second, enhanced the total offense level for the group based on the sadistic
or masochistic images Dickson possessed.
But for an error to constitute “plain error,” it must also have affected the
defendant’s substantial rights such that “there is a reasonable probability that,
but for the district court’s misapplication of the Guidelines, [the defendant]
would have received a lesser sentence.” Gonzalez-Terrazas, 529 F.3d at 298 (in-
ternal quotation marks and citation omitted). Dickson contends that his guide-
line range, absent the error, would have been 235-293 months, below the errone-
ous sentencing range of 360 months to life, and so the court would not have
imposed the statutory maximum absent the error.
We have generally found that when there is no overlap between the correct
and erroneous sentencing ranges, substantial rights were affected. United
States v. Jones, 596 F.3d 273, 278 (5th Cir.), cert. denied, 131 S. Ct. 93 (2010).
That is not always the case, however. In United States v. Davis, 602 F.3d 643,
648-49 (5th Cir. 2010), the defendant’s correct and erroneous ranges did not
overlap, but we upheld his sentence, which exceeded even the erroneous range,
because the evidence showed that the district court had “ample independent
bases for imposing the sentence it did” in light of the seriousness of the offense.
6
The guidelines discuss such an outcome in the comments to the grouping rules: “Some-
times the rule specified in this section may not result in incremental punishment for addition-
al criminal acts because of the grouping rules.” U.S.S.G. § 3D1.3 cmt. 4. That comment gives
an example of a rape, aggravated assault, and robbery committed against one victim being
grouped together. Assault is included as a specific offense characteristic under the rape guide-
lines, but the robbery would not enhance the guideline range. Although the additional factor
of property loss would not change the range, the court may consider it when determining the
sentence within the range.
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Dickson has not shown that there is a reasonable probability that he would
have received a lesser sentence absent the error. The district court highlighted
Dickson’s extensive criminal history and commented that “[h]e [was] one of the
most vicious predators on children” it had ever encountered.7 Describing Dick-
son’s activity as “a very exceptional case,” the court believed that no term of im-
prisonment would likely deter him from engaging in child molestation, and
therefore “a reasonable sentence . . . would be one that would ensure to the maxi-
mum possible extent that this defendant will never be free in society again.”
Based on the seriousness of his offense and his past crimes, the court sentenced
Dickson to the statutory maximum and so had an independent basis for impos-
ing the sentence.
Further, the court could have considered the nature of the images Dickson
possessed, albeit not in the erroneous way it did. In fashioning a sentence, a
court may consider, as “relevant conduct,” acts in addition to those underlying
the offense of conviction. See United States v. Fowler, 216 F.3d 459, 461 (5th Cir.
2000). Under § 1B1.3(a)(1), the base offense level and enhancements are deter-
mined by “all acts and omissions committed, aided, abetted, counseled, com-
manded, induced, procured, or willfully caused by the defendant . . . that oc-
curred during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that
offense.” The violent images that Dickson possessed were on the same CD that
contained the pictures of A.B.; therefore, Dickson possessed the violent images
“during the commission” of his acts of production.
7
The court noted that Dickson began molesting children in the 1980s, and was convict-
ed in 1986 in New Jersey of molesting children in his care. And despite a severe sentence,
Dickson continued to do so. His modus operandi had been to hold himself out as a caretaker,
running ads soliciting babysitting employment and seeking jobs that gave him access to young
children, such as when he molested children as lifeguard. The court also expressed its disgust
at the “sick, sick handling” of A.B., an infant left in Dickson’s custody.
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Fowler involved a situation factually similar to Dickson’s. The defendant
was convicted of transporting child pornography under § 2252(a)(1) after sending
images to an undercover agent. When federal agents arrested Fowler, he was
in possession of images portraying sadistic sexual conduct, which the agents be-
lieved involved minors. The district court enhanced his sentence because of
those images. On appeal, we determined that the enhancement should not have
applied, because Fowler never sent the sadistic images, but only the non-sadistic
ones, to the agent, and thus the sadistic images did not form the basis of any
counts, nor were they part of the same course of conduct as the conviction.
Fowler, 216 F.3d at 461-62.
By contrast, Dickson’s conviction for possession was based on possession
of the violent images, and he possessed them on the same CD that he used to
produce the images of A.B. Therefore the court, in enhancing the sentence, could
have considered the nature of the images Dickson possessed. Because the court
could have considered those images and had ample independent evidence to sup-
port its sentence, Dickson’s substantial rights were not affected.
IV.
Dickson claims the district court erred in denying his motion to dismiss
the indictment on count two (production) because the Commerce Clause does not
give Congress the power to regulate the conduct underlying that charge. Dick-
son concedes that this argument is foreclosed by United States v. Kallestad, 236
F.3d 225 (5th Cir. 2000), and he raises it solely to preserve it for further review.
Therefore we affirm the denial of the motion to dismiss the indictment on count
two.
AFFIRMED.
9