United States v. Lynn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10242
Plaintiff-Appellee, D.C. No.
v.  1:08-cr-00172-
RYAN CHRISTOPHER LYNN, LJO-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted
November 29, 2010—San Francisco, California

Filed February 23, 2011

Before: Mary M. Schroeder, Sidney R. Thomas, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

2829
2834 UNITED STATES v. LYNN

COUNSEL

Geoffrey M. Jones, Esq., Law Office of Geoff Jones, San
Francisco, California, for the defendant-appellant.

Benjamin B. Wagner, United States Attorney, and David L.
Gappa (argued), Assistant United States Attorney, Fresno,
California, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Ryan Christopher Lynn appeals his conviction and sentence
for receiving or distributing visual depictions of a minor
engaging in sexually explicit conduct in violation of 18
U.S.C. § 2252(a)(2) (2006) and for possessing visual depic-
tions of a minor engaging in sexually explicit conduct in vio-
lation of 18 U.S.C. § 2252(a)(4)(B) (2006).1

Lynn’s principal argument is that his convictions should be
reversed because they were not supported by sufficient evi-
dence that the visual depictions had been transported in inter-
state commerce, an element of the offenses. He contends in
the alternative that the simultaneous convictions for receiving
and possessing visual depictions of a minor engaging in sexu-
ally explicit conduct (hereinafter “child pornography”)2 were
1
Lynn was charged and convicted under a predecessor version of 18
U.S.C. § 2252, which was in effect from July 27, 2006 to October 7, 2008.
All citations to § 2252 in this opinion refer to this prior version.
2
Although the statutes at issue do not use the term “child pornography,”
we use it here for brevity.
 UNITED STATES v. LYNN 2835
based on the same underlying conduct and therefore violate
the Fifth Amendment’s prohibition on double jeopardy.
Finally, Lynn argues that, if his convictions are upheld, the
case should be remanded for resentencing because the district
court committed procedural error in calculating the Sentenc-
ing Guidelines offense level when it included a two-level
upward adjustment for a vulnerable victim under U.S.S.G.
§ 3A1.1(b)(1).

We have jurisdiction under 28 U.S.C. § 1291. We conclude
that Lynn’s convictions were supported by sufficient evi-
dence. But, determining that there was a double jeopardy vio-
lation, we vacate the sentence and remand to the district court
with instructions to vacate one of the convictions. We also
conclude that there was no procedural error in the district
court’s calculation of the applicable Sentencing Guidelines
range.

I

On May 23, 2008, federal agents executed a search warrant
at the home of Ryan Christopher Lynn, age 21, in Fresno,
California, where he lived with his father. The agents seized
Lynn’s Toshiba laptop computer and found about 184 video
files and 53 still images of child pornography stored on its
hard drive. Lynn had downloaded the videos and images from
the Internet through a peer-to-peer file sharing program called
Limewire, which is described in more detail below. In May
2008, Lynn was indicted for receipt or distribution of child
pornography in violation of § 2252(a)(2) and possession of
child pornography in violation of § 2252(a)(4)(B), as well as
a forfeiture count related to the laptop.

Lynn went to trial, and a jury returned a verdict of guilty
on both substantive counts. During trial, the government pre-
sented an expert, Robert Leazenby, Special Agent with the
Wyoming Division of Criminal Investigation, to explain to
the jury the basics of computers, the Internet, and peer-to-peer
2836 UNITED STATES v. LYNN
networks. Among other things, Agent Leazenby explained the
nature of the Limewire program and the “Gnutella” network
it relies on, which together permit users to share files over the
Internet. Once individual users or “peers” download the
Limewire software to their computers, they can access
dynamic indexing servers within the network that store infor-
mation about the files being offered for download, or shared,
by other peers in the network. A Limewire user can conduct
a search of those files, pull up a list of users that have a file
meeting the search criteria, and then download files that they
want directly from other peers. Upon downloading the pro-
gram, a Limewire folder is created on the hard drive, with
sub-folders called “Incomplete,” “Shared,” and “Saved.”
When a user downloads a file using Limewire, the file begins
to download into the folder marked Incomplete. After the
download is complete, the file is placed in the Saved folder,
where by default it can be accessed by other members of the
network.3

The government also called Kevin Wiens, an expert in
computer forensics and the investigation of child exploitation
cases with the Fresno County Sheriff’s Department, to testify
regarding his forensic examination of Lynn’s laptop com-
puter. He explained that Lynn’s laptop had a Limewire folder
with the standard sub-folders and that Wiens had located child
pornography videos within the Shared, Saved, and Incomplete
folders, and child pornography still images within the Saved
and Shared folders.

The government’s evidence on the interstate commerce ele-
ment consisted of the testimony of two witnesses, Michael
Crozier, retired Chief Deputy for the Stephens County Sher-
iff’s Office in Georgia, and Roy Shepherd, of Richland,
Washington’s police department. A portion of one video
3
For further discussion of Limewire, see United States v. Flyer, ___
F.3d ___, No. 08-10580, 2011 WL 383967, at *1 (9th Cir. Feb. 8, 2011)
and United States v. Lewis, 554 F.3d 208, 211 (1st Cir. 2009).
 UNITED STATES v. LYNN 2837
retrieved from the Limewire Saved folder on Lynn’s laptop
was played for the jury, and Crozier identified the subject of
the video as a minor victim of sexual abuse and exploitation
from Georgia. He also stated that a copy of the video was
found to have been mailed from an address in Georgia to Lon-
don, England. Shepherd’s testimony took a similar course: a
portion of another video from Lynn’s laptop (found in the
Limewire Shared folder) was shown, and Shepherd identified
its subject as a minor victim of sexual abuse and exploitation
that took place in Washington.

Lynn’s defense was that he downloaded the child pornogra-
phy from Limewire inadvertently—that is, without knowledge
that the files he selected en masse for download contained
depictions of child pornography—and that he did not open or
view the files after downloading them (with the exception of
one image, which he immediately deleted). David Penrod, a
computer forensics expert who examined an exact duplicate
of Lynn’s hard drive, testified on behalf of Lynn. Among
other things,4 Penrod discussed the Gnutella network and said
that, in using the network, one could be downloading files
from users located in different states or countries, or right
next door. Lynn also testified in his own defense.

The prosecutor’s closing argument on the element of inter-
state commerce consisted of the following:

And you could look at [the interstate commerce
element] as having been satisfied also with more
than enough evidence. Any one image would be suf-
ficient to support a conviction if the other elements
are met. But just looking at that image element, it’s
clear that there were hundreds of images of minors
engaged in sexually explicit conduct.
4
Wiens and Penrod gave conflicting views on whether the evidence
demonstrated that Lynn had opened and viewed the various files contain-
ing child pornography. However, this conflict was resolved by the jury
and is not relevant to the questions presented on appeal.
2838 UNITED STATES v. LYNN
And for two of those images, we had witnesses
come in from Washington [s]tate and the state of
Georgia to explain they were investigators on those
cases where those images were produced and they
were produced in the state in which the abuse took
place, in Washington or in Georgia.

And in the case of witness from Georgia, he said
that he became aware of the need to investigate the
case because the particular video, which was four
hours in length, had surfaced in the United Kingdom.

So that image and those images had traveled not
only in interstate commerce, from Georgia to Cali-
fornia, but also from Georgia to the United King-
dom.

So, again, more than abundant evidence to find
that this element has been met and that the defendant
knew that the producing of the visual depiction
involved the use of a minor engaged in sexually
explicit conduct.

Again, this is something where you will have to
use your common sense.

Following the government’s case-in-chief, Lynn moved for
judgment of acquittal under Federal Rule of Criminal Proce-
dure 29, arguing that the government had produced insuffi-
cient evidence to meet its burden on the interstate commerce
element of the charged offenses. The district court denied the
motion at the close of evidence. After the jury returned a ver-
dict of guilty on both counts, Lynn renewed his motion for
judgment of acquittal under Rule 29, again on the basis of the
interstate commerce element, and for a new trial under Rule
33. The district court denied these motions.
 UNITED STATES v. LYNN 2839
At sentencing, the district court adopted the Sentencing
Guidelines range calculation in the Presentence Investigation
Report, which was offense level of 41, criminal history cate-
gory I, for a range of 324 to 405 months. The offense level
included a two-level adjustment pursuant to U.S.S.G.
§ 3A1.1(b)(1)5 for a vulnerable victim, to which Lynn
objected in writing. Although the probation officer recom-
mended a below-Guidelines sentence of 182 months, the dis-
trict court sentenced Lynn to 210 months’ imprisonment on
the receipt count, and 120 months’ imprisonment (the statu-
tory maximum) on the possession count, to be served concur-
rently, with supervised release for a term of life.

II

Lynn raises three basic contentions in this appeal. First, he
contends that his convictions for receipt and possession of
child pornography under § 2252 should be reversed because
the government did not establish at trial that the visual depic-
tions of child pornography that he downloaded had been
mailed, shipped, or transported in interstate commerce. Sec-
ond, he contends his simultaneous convictions for receiving
and possessing child pornography were based on the same
underlying conduct and thus violate the prohibition on double
jeopardy. Third, Lynn contends that the district court commit-
ted a procedural error in sentencing by including an adjust-
ment in offense level for a vulnerable victim.

A

[1] At the time of Lynn’s offense, § 2252(a)(2) punished
anyone who “knowingly receive[d], or distribute[d], any
5
The Presentence Investigation Report and the briefs refer to U.S.S.G.
§ 3A1.1(b)(1)(B)(1). There is no such section in the applicable version of
the Guidelines, but we assume reference is made to § 3A1.1(b)(1) which
states: “If the defendant knew or should have known that a victim of the
offense was a vulnerable victim, increase by 2 levels.”
2840 UNITED STATES v. LYNN
visual depiction [of child pornography] that has been mailed,
or has been shipped or transported in interstate or foreign
commerce, . . . by any means including by computer . . . .”
Section 2252(a)(4)(B) similarly punished those who “know-
ingly possesse[d] 1 or more books, magazines, periodicals,
films, video tapes, or other matter which contain any visual
depiction [of child pornography] that has been mailed, or has
been shipped or transported in interstate or foreign commerce,
. . . by any means including by computer . . . .” This part of
the case boils down to whether evidence that a video depict-
ing child pornography was originally produced in another
state suffices for a rational trier of fact to find that the visual
depiction “has been mailed, or has been shipped or trans-
ported in interstate or foreign commerce.” § 2252(a)(2),
(a)(4)(B).

We review a challenge to the sufficiency of the evidence de
novo. United States v. Green, 592 F.3d 1057, 1065 (9th Cir.
2010). “Evidence is sufficient to support a conviction unless,
viewing the evidence in the light most favorable to sustaining
the verdict, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Overton, 573 F.3d 679, 685 (9th Cir. 2009).

[2] According to Lynn, the government’s evidence on the
out-of-state production of certain videos was insufficient
because it did not bear on whether the actual contraband—
which he contends are the digital video files found on Lynn’s
laptop—had crossed a state border. He contends that the
“original” child pornography videos, first produced in Wash-
ington and Georgia, respectively, are not the same visual
depiction as the digital video files received on Lynn’s laptop
via Limewire. Thus, Lynn’s position is that even if the video
was made in a different state, the interstate commerce element
is not satisfied because he might have downloaded the visual
depiction from an in-state Limewire user. Lynn further urges
us to reject the holding of several of our sister circuits that,
in the absence of other evidence, proof that a defendant used
 UNITED STATES v. LYNN 2841
the Internet to acquire child pornography satisfies the inter-
state commerce element.

[3] The government responds that the uncontroverted evi-
dence that some of the original videos were produced in other
states is sufficient to meet its burden. In its view, the jurisdic-
tional elements of § 2252(a)(2) and (a)(4)(B) do not require
proof that the specific digital video file on Lynn’s laptop
moved interstate; it is enough that the video footage, fixed in
any medium, was mailed, shipped, or transported in interstate
or foreign commerce at any point before arriving on Lynn’s
laptop via Limewire. The government also argues that, even
accepting Lynn’s incorrect understanding of “visual depic-
tion,” the prosecution showed that the digital video and image
files stored on Lynn’s laptop traveled interstate by presenting
evidence about the way files are acquired using Limewire. As
a final alternative, the government asks the panel to hold that
proof of use of the Internet to obtain child pornography, with-
out more, satisfies the interstate commerce element given the
inherently interstate nature of the Internet.

[4] We start with a look at the particular jurisdictional lan-
guage Congress used in the statutes at issue. Both
§ 2252(a)(2) and (a)(4)(B) require the government to prove
that a visual depiction “has been” mailed, shipped, or trans-
ported “in interstate or foreign commerce.” § 2252(a)(2),
(a)(4)(B). The Supreme Court has explained that Congress’s
decision to use the present perfect tense (“has been”) in a
jurisdictional element of a statute “denot[es] an act that has
been completed.” Barrett v. United States, 423 U.S. 212,
216-17 (1976) (holding that a firearm “has been” shipped in
interstate commerce where the defendant purchased the
weapon from a vendor within his state of Kentucky, but the
weapon was manufactured in Massachusetts, shipped to North
Carolina, and then received by the vendor in Kentucky). Thus,
the interstate commerce element of both § 2252(a)(2) and
(a)(4)(B) is met where the visual depiction “already has com-
pleted its interstate journey” before it is downloaded and
2842 UNITED STATES v. LYNN
received by the defendant. Id. at 217. In other words, the gov-
ernment’s position is that to convict for receipt and possession
of child pornography, the government did not have to show
that the specific transfer of a visual depiction of child pornog-
raphy from one Limewire user to Lynn’s laptop involved the
crossing of a state border. The evidence must show only that
the visual depiction has, at some time, crossed a state or inter-
national boundary.6

[5] Lynn nevertheless asserts that the government must
prove he received the child pornography videos by way of an
interstate Limewire transaction, because the “original” videos,
created in other states, and the digitized copies of those videos
he eventually downloaded are separate visual depictions.
Notably, Lynn does not argue that each and every digital copy
of a pornographic video constitutes a completely distinct
visual depiction for purposes of tracking interstate movement.
Indeed, such a position would make it impossible to prove the
interstate movement of any digital image or video by com-
puter, even though § 2252 explicitly punishes the receipt or
possession of child pornography “by any means including by
computer.” § 2252(a)(2). Lynn concedes that the government
could establish the jurisdictional element by showing that
Lynn had downloaded a digital video file from the computer
of a Limewire user located in another state, even though
Lynn’s laptop would have to “create” a digital copy of the file
in the process.7 Lynn’s attempt to separate the original video
6
By contrast, statutes punishing those who mail, transport, or ship child
pornography in interstate commerce require proof that the defendant him-
self moved the image across state lines, as the interstate element modifies
the act of mailing, transporting, or shipping, rather than attaching to the
visual depiction. See Flyer, 2011 WL 383967, at *5; United States v.
Wright, 625 F.3d 583, 594 (9th Cir. 2010). For this reason our recent deci-
sions in Flyer and Wright do not apply.
7
Given the nature of his argument, Lynn’s reliance on our decisions in
United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) and United States
v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) (per curiam), is mis-
 UNITED STATES v. LYNN 2843
and his digital copy into two distinct visual depictions relies
not on the digital copying or reproduction of the videos, but
on his premise that when an image or video is placed into a
different medium (from a VHS tape to an MPEG file, for
example), it becomes a distinct “visual depiction” for pur-
poses of tracking its interstate movement. To evaluate and
resolve his claim thus requires us to examine the term “visual
depiction” and its function in the statutes, with an aim to
determine whether a visual depiction is fixed in, rather than
independent from, its medium.

[6] At the time of Lynn’s conviction, 18 U.S.C. § 2256(5)
stated that a “ ‘visual depiction’ includes undeveloped film
and videotape, and data stored on computer disk or by elec-
tronic means which is capable of conversion into a visual
image.” 18 U.S.C. § 2256(5). Because it uses the word “in-
cludes” rather than “means,” § 2256(5) does not so much
define “visual depiction” as provide a non-exhaustive list of
examples of visual depictions. See United States v. Hockings,
129 F.3d 1069, 1071 (9th Cir. 1997) (explaining that
§ 2256(5) “is not drafted as an exhaustive list of all items that
constitute a ‘visual depiction’ ”). Section 2256(5) does not

placed. In those cases, we held that digital copying of a pornographic
image “produced” a visual depiction for purposes of establishing that the
visual depiction was produced using materials (a computer or disk) that
had moved in interstate commerce. Lacy explains that jurisdiction under
§ 2252(a)(4)(B) can be established by proving either “that the visual
depictions were transported in interstate commerce or that they were pro-
duced using materials which have been mailed or so shipped or trans-
ported, by any means including by computer.” 119 F.3d at 750 (citations
and internal quotation marks omitted) (emphasis added). Lacy and Guag-
liardo addressed the production of the visual depictions, not their transpor-
tation in interstate commerce, which is at issue here, and do not establish
that a new visual depiction is created for purposes of tracking interstate
movement each time an image is copied. Because the issues posed in this
case, on the one hand, and in Lacy and Guagliardo, on the other hand, are
different, we are not persuaded by Lynn’s position, asserted at oral argu-
ment, that the government “can’t have it both ways.”
2844 UNITED STATES v. LYNN
list, for instance, a photograph, which is indisputably a visual
depiction. Section 2256 is designed to ensure that new tech-
nologies come within the scope of the child pornography stat-
utes, particularly those that capture images and videos in
condensed forms that do not superficially look like traditional
“visual depictions.”8 The few cases in this circuit interpreting
§ 2256(5) have involved questions of whether “visual depic-
tion” reaches an image or video captured in an unusual format
and have reinforced the inclusive nature of the term. See, e.g.,
United States v. Romm, 455 F.3d 990, 998-99 (9th Cir. 2006)
(holding that files in an Internet cache are visual depictions);
Hockings, 129 F.3d at 1072 (holding that graphic interchange
format (GIF) files are visual depictions).

[7] But nowhere in § 2256 did Congress specify that a “vi-
sual depiction,” in contravention of its ordinary meaning,
should be tied or fixed to a particular medium. There are indi-
cations to the contrary elsewhere in the statutory text. For
example, § 2252(a)(4)(B) criminalizes the possession of
“books, magazines, periodicals, films, video tapes, or other
matter which contain any visual depiction” of child pornogra-
phy, suggesting a visual depiction is something that may be
captured within or on a particular matter or medium, but also
exists independently of its format. § 2252(a)(4)(B) (emphasis
added); see also Lacy, 119 F.3d at 748 (explaining that “[t]he
statute indicates that at a minimum, a ‘matter’ must be capa-
ble of containing a visual depiction” and noting that both
disks and GIF files could be viewed as “containing” a visual
depiction); United States v. Schales, 546 F.3d 965, 979 (9th
Cir. 2008) (noting in the double jeopardy context that “a ‘mat-
8
Section 2256(5) was amended to keep up with the changing technolo-
gies, and now states that a visual depiction “includes undeveloped film
and videotape, data stored on computer disk or by electronic means which
is capable of conversion into a visual image, and data which is capable of
conversion into a visual image that has been transmitted by any means,
whether or not stored in a permanent format.” 18 U.S.C.A. § 2256(5)
(West 2011).
 UNITED STATES v. LYNN 2845
ter,’ is the physical medium that contains the visual depic-
tion,” and that images can be stored in “separate mediums”).

[8] We are persuaded that when Congress enacted
§ 2252(a)(2) and (a)(4)(B), it criminalized the receipt, distri-
bution, and possession of images and videos of child pornog-
raphy, regardless of the format or media in which such images
were captured when the offender was caught. As we
explained in a different context: “The visual image trans-
ported in binary form starts and ends pornographically and
that is what Congress seeks to prohibit.” Hockings, 129 F.3d
at 1072.

[9] We hold that the government met its burden on the
interstate commerce element because a rational trier of fact
could reasonably conclude that the visual depictions Lynn
downloaded from Limewire—the images depicting the sexual
exploitation of minors—had previously moved in interstate
commerce. The evidence established that two videos in
Lynn’s possession were first produced in states other than Cali-
fornia.9 Viewing the evidence in the light most favorable to
sustaining the verdict, a rational trier of fact could have found
beyond a reasonable doubt that the visual depictions crossed
9
Lynn’s reliance on the Tenth Circuit cases United States v. Schaefer,
501 F.3d 1197 (10th Cir. 2007), and United States v. Wilson, 182 F.3d 737
(10th Cir. 1999), for the proposition that evidence of out-of-state produc-
tion cannot establish the interstate commerce element is off the mark. Wil-
son is distinguishable because it dealt with a method of proving interstate
movement that is not invoked in this case, namely that the materials used
to produce the images of child pornography moved in interstate com-
merce. And contrary to Lynn’s argument that Schaefer forecloses the out-
of-state production theory of proof in the Tenth Circuit, that circuit has
applied that theory. See United States v. Espinoza, No. 09-8102, 2010 WL
4739519 at *3 (10th Cir. Nov. 23, 2010); United States v. Swenson, 335
F. App’x 751, 753 (10th Cir. 2009). Tenth Circuit Rule 32.1 provides that
unpublished decisions from that circuit may be cited for their persuasive
value. 10th Cir. R. 32.1. If interpreted otherwise, we would not consider
Schaefer persuasive on the interstate commerce issue.
2846 UNITED STATES v. LYNN
state lines before they were downloaded onto Lynn’s laptop.10
If child pornography is produced in one state and the visual
depictions—the images—end up on a defendant’s computer
in another state, regardless of changes of medium, the juris-
dictional provisions requiring that visual depictions of child
pornography have been shipped, mailed, or transported in
interstate or foreign commerce are satisfied. Stated another
way, such evidence is sufficient to sustain a jury determina-
tion that the interstate commerce element was met. We reject
Lynn’s claim that his convictions were not supported by suffi-
cient evidence.

B

[10] Lynn contends that his convictions for receipt and
possession of child pornography, based on essentially the
same evidence, violate the Double Jeopardy Clause of the
Fifth Amendment. Where, as here, a claim of a double jeop-
ardy violation was not properly raised before the district
court, we review for plain error. United States v. Davenport,
519 F.3d 940, 943 (9th Cir. 2008). Under the plain error stan-
dard, we will affirm the sentence unless: “(1) there has been
an error in the proceedings below; (2) that error was plain; (3)
it affected substantial rights; and (4) it seriously affected the
fairness, integrity, or public reputation of judicial proceed-
ings.” Id.

The Fifth Amendment’s prohibition on double jeopardy
protects criminal defendants against being punished twice for
a single criminal offense. U.S. Const. amend. V. “When a
defendant has violated two different criminal statutes, the
double jeopardy prohibition is implicated when both statutes
10
Because we conclude that the government’s evidence of out-of-state
production was sufficient to meet its burden on the interstate commerce
element, we need not address the government’s alternative theories related
to Lynn’s use of the Limewire program and the Internet generally, or the
effect of Wright on the viability of those theories.
 UNITED STATES v. LYNN 2847
prohibit the same offense or when one offense is a lesser
included offense of the other.” Davenport, 519 F.3d at 943.
“[W]here the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the
other does not.” Blockburger v. United States, 284 U.S. 299,
304 (1932).

[11] We have previously had occasion to apply the Block-
burger test to the very statutes at issue here. In United States
v. Schales, we concluded that possession of child pornography
under § 2252(a)(4)(B) is a lesser-included offense of receipt
under § 2252(a)(2), and, “while the government can indict a
defendant for both receipt and possession of sexually explicit
material, entering judgment against him is multiplicitous and
a double jeopardy violation when it is based on the same con-
duct.” 546 F.3d at 978. We have granted relief for double
jeopardy violations in several cases where a defendant was
convicted and punished for both receipt and possession of
child pornography under § 2252 or § 2252A. See, e.g., United
States v. Brobst, 558 F.3d 982, 1000 (9th Cir. 2009); Daven-
port, 519 F.3d at 947; United States v. Giberson, 527 F.3d
882, 891 (9th Cir. 2008). But see Overton, 573 F.3d at 696-98
(rejecting a double jeopardy claim in part because the district
court explicitly found that the receipt conviction was based on
images downloaded from the Internet, and the possession con-
viction was based on pictures the defendant took of his minor
step-daughter). However, we have also suggested that convic-
tions for receipt and possession of child pornography images
may, with properly formed allegations, be premised upon the
same images. See Overton, 573 F.3d at 697-98.

The government argues that this case is distinguishable
from Schales, Giberson, and Brobst because the possession
count alleged conduct that was factually distinct from the con-
duct alleged in the receipt count. The government points to
two factors to demonstrate that it charged and proved separate
2848 UNITED STATES v. LYNN
conduct for each offense: (1) the indictment alleges that the
files were received from January 10, 2008, through April 28,
2008, and possessed on May 23, 2008, the date Lynn’s laptop
computer was seized; and (2) Lynn received the files by
downloading them from Limewire, but he later possessed the
“depictions that he decided to retain” by moving them from
one file folder on the hard drive to another (from the Saved
folder to the Shared folder).

[12] The allegation of different dates of commission for
each offense, by itself, is insufficient to carve out separate
conduct. Once a person receives something, he also necessar-
ily possesses it as of that moment, based upon a single action
(like downloading a file). See Davenport, 519 F.3d at 943.
Thus, merely citing different dates or date ranges for the
receipt and possession charges alone does not suffice to sepa-
rate the conduct for double jeopardy purposes. Cf. Schales,
546 F.3d at 979-80 (noting that the indictment charged
Schales with possession during a period that was a month lon-
ger than the period charged for the receipt offense, but never-
theless concluding the indictment was multiplicitous). Rather,
the government must allege and prove distinct conduct under-
lying each charge, whether the conduct underlying each
charge occurred on the same or different dates.

Our inquiry considers whether Lynn’s transfer of digital
image or video files of child pornography from one folder to
another on his laptop’s hard drive constitutes separate conduct
so as to avoid double jeopardy. “If the government wishes to
charge a defendant with both receipt and possession of mate-
rial involving the sexual exploitation of minors based on sepa-
rate conduct, it must distinctly set forth each medium forming
the basis of the separate counts.” Schales, 546 F.3d at 980. In
other words, the indictment must allege in what form the
defendant received the image and in what form he possessed
it. In Schales, the indictment did not specifically allege differ-
ent media, nor did the instructions or verdict reflect separate
 UNITED STATES v. LYNN 2849
conduct; therefore, the dual convictions violated double jeop-
ardy. Id.

[13] This case is materially indistinguishable from Schales
in that Lynn was charged “with receipt of the material by way
of downloading it from the [I]nternet onto his computer and
possession of this material in the same medium.” Schales, 546
F.3d at 980. As an initial matter, the movement between fold-
ers is not alleged in the indictment.11 Furthermore, movement
between folders cannot reasonably be viewed as placing
images onto a different medium so as to possess them separate-
ly.12 There is no dispute that the files remained on the hard
drive of the laptop at all times in the same digital format.

[14] As in Schales, Giberson, and Brobst, the entry of
judgment convicting Lynn of both receipt and possession of
child pornography in this case was plain error affecting
Lynn’s substantial rights,13 and this error threatens the fair-
ness, integrity, and public reputation of judicial proceedings.
See Davenport, 519 F.3d at 947-48. We hold that the district
court, to avoid the double jeopardy violation, must vacate one
of the convictions and then resentence based on the remaining
conviction.
11
Count 1 alleged in part that Lynn, “using a computer and modem,
received or distributed via the [I]nternet and interstate commerce, at least
one visual depiction.” Count 2 alleged in part that Lynn “possessed on an
internal hard disc drive of a laptop computer at least one image file which
contained a visual depiction.” Thus, the indictment did not “distinctly set
forth each medium forming the basis of the separate counts,” as “comput-
er” in Count 1 and “internal hard disc drive of a laptop computer” in
Count 2 are not distinct media.
12
As the experts in this trial testified, moving a file from one folder to
another does not transfer or move the data in any real sense; it only
changes the location of the “pointer” or file listing that, when clicked by
a user, will retrieve the data from its stable location on the hard drive.
13
Though Lynn’s sentences of 210 and 120 months were ordered to be
served concurrently, the error affects substantial rights due to the potential
collateral consequences that may attach to an additional conviction. See
Davenport, 519 F.3d at 947.
2850 UNITED STATES v. LYNN
C

[15] Finally, Lynn argues that the district court committed
procedural error in calculating his Sentencing Guidelines
range by including a two-level adjustment for an offense
involving a “vulnerable victim.” For reasons of judicial econ-
omy, we conclude that this issue remains for disposition
despite our prior decision vacating the district court’s sen-
tence because of a double jeopardy violation. If not resolved
now, there may be another appeal on the district court’s calcu-
lation of the Guidelines range.

We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo and its factual findings during sen-
tencing for clear error, and its application of the Sentencing
Guidelines to the facts for abuse of discretion. United States
v. Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008). If the district
court commits a significant procedural error such as a mate-
rial error in the Sentencing Guidelines calculation, we must
remand for resentencing. Id.

Lynn does not dispute that the images and videos he down-
loaded portrayed the sexual abuse of very young children and
that those children are properly considered victims of his con-
duct. See, e.g., United States v. Boos, 127 F.3d 1207, 1210-13
(9th Cir. 1997) (holding that the children depicted in child
pornography are victims of distribution of child pornography).
Rather, he contends that the offense level adjustment for a
vulnerable victim should not apply because “there was no evi-
dence that the vulnerability of these young victims in any
manner facilitated the commission or concealment of that
criminal conduct.”

Section 3A1.1(b)(1) of the Sentencing Guidelines provides:
“If the defendant knew or should have known that a victim of
the offense was a vulnerable victim, increase by 2 levels.”
U.S.S.G. § 3A1.1(b)(1). The commentary explains that a “vul-
nerable victim” means a person “who is unusually vulnerable
 UNITED STATES v. LYNN 2851
due to age, physical or mental condition, or who is otherwise
particularly susceptible to criminal conduct.” U.S.S.G.
§ 3A1.1 cmt. n.2.

[16] In United States v. Holt, we addressed a challenge to
a sentence for possession of child pornography based on
impermissible double counting. 510 F.3d 1007, 1011 (9th Cir.
2007). The district court applied the vulnerable victim
enhancement, as well as an enhancement for the sadistic or
masochistic conduct portrayed in the images pursuant to
U.S.S.G. § 2G2.2(b)(4). Because the enhancements accounted
for distinct wrongs, the calculation did not reflect double
counting. Holt, 510 F.3d at 1012. We explained that, for a
possession offense, a “district court can apply the vulnerable
victim enhancement where a child is so young and small that
he or she is less able to resist than other child victims of por-
nography.” Id. at 1011.

[17] Holt supports the application of the vulnerable victim
enhancement in this case. Lynn concedes that the toddlers and
children portrayed in the videos were victims of his offense
conduct and that their age and size made them vulnerable and
particularly susceptible to exploitation. Under the plain mean-
ing of § 3A1.1, no more is required. Lynn’s argument regard-
ing a lack of “nexus” between the offense of possession and
the abuse is not grounded in the Sentencing Guidelines or any
case law.14 We conclude the district court did not commit pro-
14
Lynn’s separate but related contention that the children depicted in the
images might have obtained the age of majority since their abuse was cap-
tured on film, and were therefore no longer vulnerable by the time Lynn
acquired the images in 2008, is without merit. Boos established that the
children depicted in pornographic material are the victims of offenses
under § 2252 without regard to the date of the offense conduct or the age
of the children at the time the offense was committed. 127 F.3d at
1210-13; cf. United States v. Butler, 92 F.3d 960, 963-64 (9th Cir. 1996)
(holding that fictitious children, invented for purposes of a sting operation,
were victims of the offense of travel with the intent to engage in a sexual
act with a minor).
2852 UNITED STATES v. LYNN
cedural error in its calculation of the Sentencing Guidelines
range.

III

[18] We affirm the district court’s denial of Lynn’s motion
for judgment of acquittal on the basis of insufficient evidence
of the interstate commerce element, and we also affirm the
district court’s calculation of the Sentencing Guidelines with
the vulnerable victim adjustment. But we conclude that the
imposition of sentences for both receipt and possession of
child pornography violated the Double Jeopardy Clause. We
therefore vacate Lynn’s sentence and remand to the district
court with instructions to vacate one of Lynn’s convictions,
allowing for it to be reinstated without prejudice if his other
conviction should be overturned on direct or collateral review,
and to resentence Lynn based on the remaining conviction.

CONVICTION AFFIRMED IN PART; SENTENCE
VACATED; and REMANDED.