In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3976
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ILLIAM T RAVIS B ROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 4:08-CR-06-01—David F. Hamilton, Chief Judge.
A RGUED JANUARY 12, 2011—D ECIDED M ARCH 7, 2011
Before
K ANNE and T INDER, Circuit Judges, and
H ERNDON, District Judge.
K ANNE, Circuit Judge. William Travis Brown was con-
victed in federal district court of one count of possession
of child pornography and one count of transportation
The Honorable David R. Herndon, Chief Judge of the
United States District Court for the Southern District of
Illinois, sitting by designation.
2 No. 09-3976
of child pornography. The court issued Brown a below-
guidelines sentence of 240 months’ imprisonment. Brown
appeals his sentence, arguing that the district court im-
properly applied a sentence enhancement under U.S.S.G.
§ 2G2.2(b)(3)(B) and that it did not consider the relation-
ship between Brown’s sentence and sentences imposed
for other serious sexual crimes against children. We
reject Brown’s arguments and affirm his sentence.
I. B ACKGROUND
Sometime in 2006 or 2007, federal law enforcement
agents learned that someone had been exchanging
child pornography on the Internet from a computer
located in Brown’s residence in Georgetown, Indiana.
On March 20, 2007, agents executed a search warrant
for the house. The agents seized a computer and several
CDs, all of which a forensic specialist later examined. The
specialist found over one thousand pornographic images
of prepubescent girls stored on the computer and CDs.
Some of the images depicted sadistic conduct. Some
portrayed vaginal penetration of prepubescent girls by
adult men.
The forensic specialist also found several software
programs that allowed Brown to communicate with
others and share files online. On one of these programs,
Brown had designated several chat rooms for chatting
about sex with young girls as “favorites”—allowing him
quick access to these rooms upon logging in. Brown
used these programs to trade pornographic images of
underage girls. While exchanging images, Brown dis-
No. 09-3976 3
cussed child pornography preferences with other users.
He distributed images of prepubescent girls engaged in
sex acts with adult men, once asking a trading partner
if images of four-year-old girls were acceptable. He de-
scribed his preference for pictures of young girls
actively engaged in sexual activity.
Brown also chatted online about his interest in having
sex with young girls. During one discussion, Brown
lamented that all his children were boys and said he
wished for a daughter so he could have sex with her. In
another, he claimed to have had sex with his nieces.
At least once, Brown tried to arrange a sexual en-
counter with an underage girl. While chatting online
with a woman he had met in person—a resident of
the group home where Brown’s wife worked—Brown
discussed the possibility of paying the woman’s thirteen-
year-old daughter to have sex with him while the
woman watched.
Based on the images on Brown’s computer and on
evidence that he had exchanged some of these images,
Brown was convicted of one count of possession of child
pornography and one count of transportation of child
pornography. During sentencing, the district court de-
termined Brown’s offense level to be 40. This included
a five-level enhancement for “[d]istribution for the
receipt, or expectation of a receipt, of a thing of value, but
not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). The
district court sentenced Brown to concurrent terms of
imprisonment: 240 months for the transportation count
and 120 months for the possession count. Brown timely
appealed his sentence.
4 No. 09-3976
II. A NALYSIS
Brown argues that the district court’s application of
the § 2G2.2(b)(3)(B) “thing of value” enhancement was
impermissible double counting. He also argues that the
district court did not consider the relevant 18 U.S.C.
§ 3553(a) factors and that his final sentence was unrea-
sonable. We review de novo whether the district court
impermissibly double counted Brown’s conduct in its
calculation of the applicable guidelines range.1 United
States v. Tenuto, 593 F.3d 695, 697 (7th Cir. 2010). We
also review de novo the question of whether the district
court properly considered the § 3553(a) sentencing
factors. United States v. Pape, 601 F.3d 743, 746 (7th Cir.
2010). We review the reasonableness of the sentence for
an abuse of discretion. Id.
A. Double Counting and U.S.S.G. § 2G2.2(b)(3)(B)
Brown argues that his possession and transportation
of child pornography convictions entirely account for
the behavior underlying the “thing of value” enhance-
ment, so application of the enhancement is impermis-
1
The government argues that Brown did not make a double-
counting argument before the district court and that this
argument should therefore be waived or that the issue
should be reviewed for plain error. But a generous reading
of Brown’s sentencing memorandum and the sentencing
transcript reveals a double-counting argument. This argu-
ment, though cursory, preserves Brown’s argument on appeal.
No. 09-3976 5
sible double counting. First, he argues that mere trans-
portation constitutes “distribution” under § 2G2.2(b)(3)(B).
Our precedent strongly suggests otherwise. See Tenuto,
593 F.3d at 697-98 (concluding that, while the two are
closely related, transportation of child pornography
does not constitute distribution for the purpose of a
§ 2G2.2(b)(3) enhancement). Brown argues—against all
logic—that mere transportation constitutes “distribu-
tion” under § 2G2.2(b)(3)(B), which applies here, while
§ 2G2.2(b)(3)(F), which applied in Tenuto, requires more.
But “distribution” is defined for both subsections as
“any act, including . . . transportation, related to the
transfer of material involving the sexual exploitation of a
minor.” § 2G2.2 cmt. n.1 (emphasis added). Mere trans-
portation is not distribution for any subsection of
§ 2G2.2(b)(3). To constitute distribution, the transporta-
tion (or other applicable “act”) must be related to a
transfer of child pornography.
Brown next argues that the “thing of value” enhance-
ment was impermissible double counting because the
relevant thing of value was the image underlying his
possession conviction. Double counting exists “only if
the offense itself necessarily includes the same conduct
as the enhancement.” United States v. Senn, 129 F.3d 886,
897 (7th Cir. 1997) (emphasis in original). The question,
then, is whether the statute under which the defendant
was convicted “covers more conduct than the enhance-
ment.” United States v. Rodgers, 610 F.3d 975, 979 (7th
Cir. 2010). Brown was convicted of transporting and
possessing child pornography in violation of 18 U.S.C.
§ 2252(a)(1) and (a)(4)(B). Certainly, one can transport
and possess child pornography without receiving or
6 No. 09-3976
expecting to receive a thing of value. So the “thing
of value” enhancement was based on the aggravating
features of Brown’s conduct, not on the elements of
the offenses for which Brown was convicted. Applica-
tion of the enhancement was not double counting.
B. Reasonableness and § 3553(a)
The district court sentenced Brown to 240 months’
imprisonment, below the guidelines-recommended
range of 292 to 365 months. Brown claims this sentence
is unreasonably severe. The only error he alleges is
failure to consider the disparity between his sentence
and lower sentences imposed for other—allegedly more
serious—sexual crimes against children. He argues the
district court may not have recognized its authority to
depart from the guidelines to remedy this disparity.
As evidence, he cites United States v. Pape, in which
we noted that prior cases had “left open the question
whether . . . the district court has the discretion to
disagree with the child pornography Guidelines on
policy grounds.” 601 F.3d at 748. Before Pape, Brown
argues, a district court could not have known it was
authorized to depart from the guidelines to remedy
the disparity.
But the rest of our discussion in Pape undermines
Brown’s argument. Even though the district court in
Pape could not have had the benefit of our pronounce-
ment on the matter, we found that “the district court
was aware of its discretion to vary based on disagree-
No. 09-3976 7
ments with the Guideline.” Id. at 749. We ultimately
held that the district court did not err by not “explain[ing]
its precise position on the general debates regarding
the child pornography Guideline.” Id.
Here, the district court went beyond what we
deemed sufficient in Pape. Not only did the district court
explicitly recognize its discretion to deviate from the
guidelines based on comparisons between Brown’s
crime and other serious crimes, it actually made such
comparisons—including a comparison between Brown’s
offense and the offense of violent sexual assault on a
child. Based on these comparisons, the district court
imposed a sentence more than five years shorter than
the shortest sentence within the guidelines range.
The district court properly based Brown’s sentence
on the § 3553(a) sentencing factors. It accounted for the
sentences applicable to other serious offenses. It also
based its decision on the scale of Brown’s collection
and trading, Brown’s disturbing and graphic discussions
related to his trading, his demonstrated interest in
carrying out the fantasies that motivated his offenses,
and his personal history and characteristics. On these
bases, the district court imposed a reasonable sentence
of 240 months’ imprisonment.
III. C ONCLUSION
In sentencing Brown, the district court properly applied
the § 2G2.2(b)(3)(B) “thing of value” enhancement and
properly considered the § 3553(a) sentencing factors.
8 No. 09-3976
We therefore A FFIRM the sentence the district court im-
posed upon Brown.
3-7-11