Revised August 29, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-41259
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERT HILL
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
July 11, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL,
District Judge.*
KING, Chief Judge:
Defendant-Appellant Robert Hill appeals his sentence imposed
following a guilty plea to two counts of distributing child
pornography and two counts of receiving child pornography, in
violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). Hill
appeals the application of a five-level sentence enhancement for
*
District Judge of the Eastern District of Texas, sitting
by designation.
“distribution” of child pornography, contending that his conduct
did not involve “distribution” within the meaning of
§ 2G2.2(b)(2) of the United States Sentencing Guidelines. For
the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 1999, Defendant-Appellant Robert Hill used
his America Online account to forward a computer graphic image
file containing child pornography to 108 recipients, including an
undercover law enforcement officer. The graphic image was
forwarded to the United States Customs Service, which obtained a
federal search warrant for Hill’s residence on February 3, 2000.
The search of Hill’s home revealed a computer, scanner, tape
drive, floppy discs, and approximately 545 images of child
pornography. Legal pornographic material was also recovered in
the search. All of the pornographic material had been
categorized and cataloged by Hill.
On February 10, 2000, Hill, a correctional officer, was
interviewed at his place of employment, the Texas Department of
Criminal Justice in Beeville, Texas. Hill admitted that he had
received computer images containing child pornography through
chat rooms on the Internet and that he had knowingly both printed
and retained hard copies of the images and transmitted the images
to other anonymous people who logged into the chat rooms. Hill
2
denied maintaining any “buddy lists” of the anonymous people he
had met in the chat rooms, and claimed to have stopped sending
and receiving child pornography after his America Online account
was terminated.
Hill was charged in a seven-count indictment, including
three counts of distributing visual depictions of child
pornography (Counts One, Two, and Three) and four counts of
receiving visual depictions of child pornography (Counts Four,
Five, Six, and Seven), in violation of 18 U.S.C. § 2252(a)(2).
On July 31, 2000, Hill entered into a written plea agreement with
the government, pleading guilty to Counts One, Two, Five, and
Seven.
The Presentence Investigation Report (“PSR”) prepared by the
probation department calculated Hill’s sentence based on the 1998
version of the United States Sentencing Guidelines (the
“Guidelines”).1 Pursuant to § 2G2.2(a) of the Guidelines, each
count received a base offense level of 17. Pursuant to
§ 2G2.2(b)(1), a two-level upward adjustment was recommended for
all counts because material in the offense involved prepubescent
minors. Pursuant to § 2G2.2(b)(5), a two-level upward adjustment
was also recommended for all counts because a computer was used
1
Because Hill was sentenced on October 20, 2000, before
the November 1, 2000 effective date of the 2000 Guidelines, the
1998 version was the appropriate version of the Guidelines to
apply in his case. See 18 U.S.C. § 3553(a)(4)(A) (requiring that
the sentence be determined by the Guidelines in effect on the
date of sentencing).
3
to transmit the images involved in the offense. In connection
with Counts One, Two, and Seven, the PSR recommended a four-level
upward adjustment based on § 2G2.2(b)(3) because the images
involved portrayed masochistic or violent behavior. In
connection with Counts One and Two, the PSR recommended a five-
level upward adjustment based on § 2G2.2(b)(2) because the
offense involved “distribution.” It is this last adjustment that
gives rise to the present appeal.
The PSR concluded that Hill’s total adjusted offense level
for Counts One and Two was 30, that his adjusted offense level
for Count Five was 21, and that his adjusted offense level for
Count Seven was 25. Based on the grouping rules under § 3D1.4,
Hill’s combined adjusted offense level was 33. The probation
department recommended a three-level reduction under § 3E1.1 for
acceptance of responsibility, resulting in a total offense level
of 30. Because Hill did not have any prior criminal history, his
“criminal history score” was determined to be I, subjecting him
to a guideline range of 97 to 121 months imprisonment.
Hill objected to the PSR’s inclusion of the five-level
increase for distribution as applied to Counts One and Two,
arguing that the 1998 Application Notes to § 2G2.2(b)(2) defined
“distribution” as “any act related to distribution for pecuniary
gain,” see U.S. SENTENCING GUIDELINES MANUAL § 2G2.2, Application Note
1 (1998), and that the government had presented no proof that he
had transmitted the images for pecuniary gain.
4
The district court adopted the PSR at the sentencing
hearing. At the hearing, Hill renewed his objection to the
recommended upward adjustment for distribution under
§ 2G2.2(b)(2). The district court overruled the objection and
applied the five-level sentence enhancement to Counts One and
Two. The district court sentenced Hill to 110-months
imprisonment, followed by a three-year term of supervised
release, and ordered Hill to pay a $50 fine. Hill timely appeals
his sentence.
II. STANDARD OF REVIEW
“In examining sentences imposed under the federal sentencing
guidelines, ‘we review the trial court’s findings of fact for
clear error and review purely legal conclusions or
interpretations of the meaning of a guideline de novo.’” United
States v. Canada, 110 F.3d 260, 262-63 (5th Cir. 1997) (quoting
United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995)).
“A sentence will be upheld unless it was imposed in violation of
law, was an incorrect application of the sentencing guidelines,
or is outside the range of the applicable sentencing guideline.”
United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). The
government must prove factors for enhancement of sentencing by a
preponderance of the evidence. See Canada, 110 F.3d at 263.
5
III. SENTENCING ENHANCEMENT FOR DISTRIBUTION
This case turns on the interpretation of the term
“distribution” found in § 2G2.2(b)(2) of the Guidelines. See
U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(2) (1998). Under the
heading “Trafficking in Material Involving the Sexual
Exploitation of a Minor; Receiving, Transporting, Shipping, or
Advertising Material Involving the Sexual Exploitation of a
Minor; Possessing Material Involving the Sexual Exploitation of a
Minor with Intent to Traffic,” the 1998 version of § 2G2.2(b)(2)
provided:
If the offense involved distribution, increase by the number
of levels from the table in § 2F1.1 corresponding to the
retail value of the material, but in no event by less than 5
levels.
Id. The 1998 Application Note to § 2G2.2 further defined
“distribution” as “includ[ing] any act related to distribution
for pecuniary gain, including production, transportation, and
possession with intent to distribute.” Id. § 2G2.2(b)(2),
Application Note 1 (1998).
As will be discussed infra in more detail, the district
court made no findings at the sentencing hearing regarding
whether Hill “distributed” the illegal material for pecuniary
gain or some non-pecuniary valuable consideration, and instead,
found in effect that a gratuitous transfer satisfied the
definition of “distribution” contained in § 2G2.2(b)(2). It is
this finding that Hill challenges.
6
In United States v. Canada, this court held that the term
distribution was not limited to pecuniary gain and that it also
included distribution based on non-monetary gains. See 110 F.3d
260, 263 (5th Cir. 1997) (“[T]he intended definition of
‘distribution’ for the sake of the guideline is meant to be
inclusive of pecuniary gain purposes, but not exclusive of all
other purposes.”). Therefore, we held that because Canada’s
distribution “was accompanied by an additional element,” namely
the potential gain of enticing a minor to have sexual relations
with him, the five-level enhancement was warranted. See id.; see
also United States v. Fowler, 216 F.3d 459, 460 (5th Cir. 2000)
(holding that distribution of child pornography to encourage a
meeting to engage in sex was sufficient to warrant enhancement).2
2
This reasoning is in accord with the majority of circuit
courts of appeals. Every circuit court of appeals that has
interpreted “distribution” in the 1998 version of the Guidelines
has held that pecuniary gain includes monetary gain but is not
limited to monetary gain. See United States v. Williams, No. 99-
4882, -- F.3d ---, 2001 WL 672049, at *3 (4th Cir. June 15,
2001); United States v. Probel, 214 F.3d 1285, 1288 (11th Cir.
2000); United States v. Imgrund, 208 F.3d 1070, 1072 (8th Cir.
2000); United States v. Laney, 189 F.3d 954, 959 (9th Cir. 1999);
United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999); United
States v. Lorge, 166 F.3d 516, 518 (2d Cir. 1999); United States
v. Hibbler, 159 F.3d 233, 238 (6th Cir. 1998); United States v.
Black, 116 F.3d 198, 202 (7th Cir. 1997). As such, courts have
upheld the enhancement for distribution when proof of barter,
trade, or in-kind transactions has been demonstrated.
Within this general consensus, however, some difference
emerges regarding whether “distribution for pecuniary gain” can
also encompass gain that cannot be considered within a broad
definition of valuable consideration, i.e., pecuniary or non-
pecuniary gain without a monetary equivalent. See Imgrund, 208
F.3d at 1072; Laney, 189 F.3d at 959; Black, 116 F.3d at 202.
7
However, Canada and subsequent cases have left open the question
Hill purportedly raises: whether the enhancement for
distribution can be applied without the finding of an additional
element of pecuniary gain or non-pecuniary thing of value (i.e.,
whether the five-level enhancement is allowed for gratuitous
dissemination of child pornography). See Canada, 110 F.3d at 263
n.4 (“[W]e do not address the issue of whether such additional
element must be present in order for the court to enhance
sentencing under § 2G2.2(b)(2).”).
Specifically, Hill argues that the government submitted no
evidence that he transmitted the images for monetary gain, or to
entice minors to have sex with him, or in return for images sent
to him by others, or for any reason other than his own
gratification. Hill asserts that the gratuitous transfer of
images without an additional element of valuable consideration or
gain cannot lead to application of the five-level enhancement.
In so arguing, Hill relies on United States v. Imgrund, in which
the Court of Appeals for the Eighth Circuit stated, in
interpreting § 2G2.2(b)(2), that “[p]urely gratuitous
dissemination . . . will not trigger the § 2G2.2(b) enhancement
for distribution.” 208 F.3d 1070, 1072 (8th Cir. 2000).3
3
Hill also cites to two decisions from other circuit
courts that implicitly support his argument. See Laney, 189 F.3d
at 959-61; Black, 116 F.3d at 202-03.
8
The government conceded at the sentencing hearing that there
was no evidence that Hill traded for the particular images he
disseminated or that he received any images in return for the 108
copies of the image he was convicted of transmitting in Count
One.4 Further, there was no evidence adduced regarding whether
Hill received any pecuniary gain from the transactions. Instead,
the government relies on the fact that Hill’s extensive
collection of child pornography, which he obtained over the
Internet, demonstrates that he was actively collecting and
trading images with other like-minded individuals. The
government asserts that Hill discriminated in sending his child
pornography to only those people logged on in certain Internet
chat rooms and, thus, must have been trading images. The
government argues, therefore, that the element of valuable
consideration required under Canada has been demonstrated to
support the enhancement.5 The government also relies on cases
arising from the Courts of Appeals for the Second and Eleventh
Circuits, which have found that all dissemination of child
4
The PSR did not provide information regarding the number
of copies of the image underlying Count Two that were
disseminated or information regarding to whom that image was
sent.
5
In an addendum to the PSR, the probation department
posited another non-monetary “gain” or “thing of value” that Hill
may have received. The probation department argued that the
enhancement was warranted under Canada because Hill sent the
materials for his own “gratification,” and this personal
gratification was the thing of value received. The district
court did not rely on this recommendation.
9
pornography, gratuitous or for some thing of value, warrants the
enhancement for distribution. See United States v. Probel, 214
F.3d 1285, 1288 (11th Cir. 2000); United States v. Lorge, 166
F.3d 516, 518 (2d Cir. 1999).
As mentioned above, the district court in the instant case
explicitly relied on the reasoning of the Eleventh and Second
Circuits, holding that even if Hill disseminated the images
gratuitously, the action warranted the five-level distribution
enhancement. The district court stated:
[A]nd for the same reasons that the Second and the Eleventh
Circuit[s] have found, I do not find it necessary to make a
finding of pecuniary gain, because in the language of the
Second Circuit any distribution of child pornography
gratuitously or for profit, results in a continued
exploitation of the victims depicted in the images.
In so holding, the district court failed to determine whether
Hill had received any non-pecuniary valuable consideration for
disseminating the materials, e.g., whether he had been involved
in any in-kind barter or quid-pro-quo exchanges of child
pornography.
In resolving the question left open by Canada — whether
gratuitous transfers of child pornography warrant the five-level
distribution enhancement — we also adopt the reasoning of the
Courts of Appeals for the Second and Eleventh Circuits. In
Probel, the Eleventh Circuit determined that “the plain language
of the guideline does not limit ‘distribution’ to instances of
pecuniary or other gain.” 214 F.3d at 1289-90. Because
10
distribution “includes any act related to distribution for
pecuniary gain, including production, transportation, and
possession with the intent to distribute,” a natural reading of
the guideline demonstrates an expansive rather than limiting
application. See id. at 1288 (emphasis added); see also Lorge,
166 F.3d at 518 (“Application Note 1 . . . is most easily read as
intended to avoid an overly narrow reading of distribution.”).
This conclusion supports our earlier interpretation in Canada,
which recognized a broad definition of the term “distribution” in
§ 2G2.2(b)(2). See Canada, 110 F.3d at 263.
We agree that a plain reading of the term “distribution” in
§ 2G2.2(b)(2) includes purely gratuitous distribution of child
pornography. See Probel, 214 F.3d at 1288 (“[T]he term
distribution should be given its ordinary meaning of to dispense
or to give out or deliver.” (citations and internal quotations
omitted)); Lorge, 166 F.3d at 518 (“The ordinary meaning of
distribution involves an act or series of acts without regard to
the actor’s motive.”). As such, we hold that the threshold five-
level enhancement is appropriate in circumstances that do not
include the receipt of monetary or other valuable gain.6 Because
6
This conclusion does not result in an automatic
application of the distribution enhancement under § 2G2.2(b)(2).
As we recognized in Canada, receipt of child pornography with the
intent to traffic in those materials is covered under the base
offense level of § 2G2.2. See 110 F.3d at 264. This receipt may
not necessarily warrant a five-level distribution enhancement.
As the Court of Appeals for the Fourth Circuit stated in United
States v. Williams:
11
Hill’s act of dissemination of child pornography fits this plain
reading of the term “distribution,” we conclude that the district
court did not err in its application of the Guidelines.
We note that § 2G2.2(b)(2) has been amended effective
November 1, 2000. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(2)
(2000). Hill’s counsel brings the amendment to our attention,
but concludes that because Hill’s offense was committed before
November 1, 2000, the amended guideline is not applicable to
Hill’s case. Accordingly, because neither party has briefed the
amended guideline, we do not consider it.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Hill’s sentence.
The [§ 2G2.2(b)(2)] enhancement would not apply to those in
the trafficking chain who are convicted under the applicable
statutes of merely receiving or advertising child
pornography. . . . The difference in treatment makes sense
. . . because those who dispense child pornography ought to
be punished more severely than those who do not.
--- F.3d ---, No. 99-4882, 2001 WL 672049, at *3 (4th Cir. June
15, 2001).
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