PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4939
ROBERT JAY HECHT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CR-05-116)
Argued: September 19, 2006
Decided: December 4, 2006
Before WILLIAMS and KING, Circuit Judges,
and James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed in part and vacated and remanded by published opinion.
Judge Dever wrote the opinion, in which Judge Williams and Judge
King joined.
COUNSEL
ARGUED: Clarence Rauch Wise, Greenwood, South Carolina, for
Appellant. Maxwell Barnes Cauthen, III, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON
BRIEF: Jonathan S. Gasser, United States Attorney, Greenville,
South Carolina, for Appellee.
2 UNITED STATES v. HECHT
OPINION
DEVER, District Judge:
Robert Hecht pleaded guilty to possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B), and the district court sen-
tenced him to 33 months in prison. Hecht appeals his sentence and
contends that the district court erred in two ways. First, he contends
that the district court erroneously treated 18 U.S.C. § 3553(b)(2) as
mandatory, found certain facts that increased his sentence under the
guidelines, and thereby violated the rationale of United States v.
Booker, 543 U.S. 220 (2005). Second, he contends that the district
court erroneously interpreted the guidelines and increased his offense
level by two levels for "distribution" of child pornography.
As explained below, we agree that section 3553(b)(2) violates the
rationale of Booker, that Hecht’s sentence must be vacated, and that
the action must be remanded for resentencing. In reaching this con-
clusion, we agree with every other circuit court that has held that the
sentencing scheme set forth in section 3553(b)(2) does not comport
with the rationale of Booker and that the proper remedy is to excise
and sever section 3553(b)(2) and to replace it with an advisory guide-
lines regime under which sentences are reviewed for reasonableness.
We reject, however, Hecht’s contention that the district court errone-
ously increased his offense level by two levels for "distribution" of
child pornography.
I.
Hecht was named in a one-count criminal information filed in the
District of South Carolina. Count one charged that on or about July
21, 2004, Hecht knowingly possessed child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B). The child pornography was stored on
Hecht’s computer.
The case originated as part of an investigation concerning the pro-
duction and distribution of child pornography. JA 46. An individual
who knew Hecht introduced Hecht to an undercover agent. The agent
had been informed that Hecht had previously shown images of child
UNITED STATES v. HECHT 3
pornography over the internet. On July 21, 2004, the agent and Hecht
engaged in an on-line conversation. During that conversation, Hecht
turned his web camera toward his computer screen. Hecht then trans-
mitted to the agent over the internet approximately 51 images of child
pornography from his computer screen via his web camera. JA 47.
On June 21, 2005, Hecht pleaded guilty to the one-count informa-
tion. In preparing the presentence report, the probation officer used
the 2003 edition of the Guidelines Manual. See JA 47. Neither the
government nor the defendant objected to using the 2003 edition. The
presentence report assigned a base offense level of 17, added two
levels for "distribution," added two levels because a computer was
involved, and added two levels because the offense involved at least
ten images but fewer than 150 images. See JA 48. Due to Hecht’s
acceptance of responsibility, the offense level was reduced three
levels. Thus, the adjusted offense level was 20. See id. Hecht’s crimi-
nal history category was I. Accordingly, the sentencing range in the
report was 33 to 41 months. JA 49.
On September 12, 2005, the district court held a sentencing hear-
ing. Before the sentencing hearing, Hecht objected to an enhancement
of two levels under U.S.S.G. § 2G2.2(b)(2)(E) (2003) for "distribu-
tion" of child pornography. Hecht also asked the district court to
declare 18 U.S.C. § 3553(b)(2) unconstitutional and argued that sec-
tion 3553(b)(2) violates the rationale of Booker.
The district court overruled Hecht’s objections. After finding cer-
tain facts associated with the offense level, the district court deter-
mined that the offense level was 20, the criminal history category was
I, and the guideline range for imprisonment was 33 to 41 months. The
district court sentenced Hecht to 33 months in prison. Hecht filed a
timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Because Hecht made timely and sufficient legal objections in the
district court, we review his objection to his sentence de novo. See,
e.g., United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003). A
district court’s legal conclusions concerning the guidelines are
4 UNITED STATES v. HECHT
reviewed de novo. See, e.g., United States v. Blake, 81 F.3d 498, 503
(4th Cir. 1996).
III.
Hecht’s objection to 18 U.S.C. § 3553(b)(2) requires us to deter-
mine whether section 3553(b)(2) contains the same defects and
requires the same remedy that the Court in Booker imposed on 18
U.S.C. § 3553(b)(1). In Booker, the Court held that the mandatory
application of the sentencing provisions in 18 U.S.C. § 3553(b)(1)
violated the Sixth Amendment when facts increasing the sentence
were found by the judge, rather than admitted by the defendant or
found by a jury beyond a reasonable doubt. See Booker, 543 U.S. at
243-44. As a remedy, the Court severed and excised 18 U.S.C.
§ 3553(b)(1), which mandated (absent unusual circumstances) that a
district court impose a sentence within the guideline range. Id. at 245-
46. The Court also held that sentences imposed under the advisory
scheme would be reviewed for reasonableness. Id. at 260-63. The
Court in Booker did not, however, address 18 U.S.C. § 3553(b)(2),
presumably because section 3553(b)(2) was not at issue in Booker. Cf.
id. at 245-46.
Congress enacted 18 U.S.C. § 3553(b)(2) as part of the Prosecu-
torial Remedies and Other Tools to End the Exploitation of Children
Today Act of 2003 ("PROTECT Act"). The PROTECT Act included
certain mandatory sentencing provisions applicable to child and sex-
ual offenses, including possession of child pornography. Those man-
datory sentencing provisions are codified at 18 U.S.C. § 3553(b)(2).1
(Text continued on page 6)
1
18 U.S.C. § 3553(b)(2) states:
(b) Application of guidelines in imposing a sentence.-
(2) Child crimes and sexual offenses. -
(A) Sentencing. - In sentencing a defendant convicted
of an offense under section 1201 involving a minor vic-
tim, an offense under section 1591, or an offense under
chapter 71, 109A, 110, or 117, the court shall impose a
sentence of the kind, and within the range, referred to in
subsection (a)(4) unless -
UNITED STATES v. HECHT 5
(i) the court finds that there exists an aggravating cir-
cumstance of a kind or to a degree, not adequately taken
into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sen-
tence greater than that described;
(ii) the court finds that there exists a mitigating cir-
cumstance of the kind, or to a degree, that -
(I) has been affirmatively and specifically identi-
fied as a permissible ground of downward departure
in the sentencing guidelines or policy statements
issued under section 994(a) of title 28, taking account
of any amendments to such sentencing guidelines or
policy statements by Congress;
(II) has not been taken into consideration by the
Sentencing Commission in formulating the guide-
lines; and
(III) should result in a sentence different from that
described, or
(iii) the court finds, on motion of the Government,
that the defendant has provided substantial assistance in
the investigation or prosecution of another person who
has committed an offense and that this assistance estab-
lished a mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines
that should result in a sentence lower than that
described.
In determining whether a circumstance was adequately taken into consid-
eration, the court shall consider only the sentencing guidelines, policy
statements, and official commentary of the Sentencing Commission,
together with any amendments thereto by an act of Congress. In the
absence of an applicable sentencing guideline, the court shall impose an
appropriate sentence, having due regard for the purposes set forth in sub-
section (a)(2). In the absence of an applicable sentencing guideline in the
case of an offense other than a petty offense, the court shall also have
due regard for the relationship of the sentence imposed to sentences pre-
scribed by guidelines applicable to similar offenses and offenders, and to
6 UNITED STATES v. HECHT
At oral argument in this case, the government conceded that sec-
tion 3553(b)(2) violates the rationale of Booker in the same way that
section 3553(b)(1) violated the Sixth Amendment in Booker and con-
ceded that the same remedy applies. In making this concession, the
government acknowledged that every circuit court to address this
issue has held that section 3553(b)(2) suffers from the same defects
identified in Booker and requires the same remedy — excising and
severing section 3553(b)(2) and replacing it with an advisory guide-
lines regime under which sentences are reviewed for reasonableness.
United States v. Shepherd, 453 F.3d 702, 704 (6th Cir. 2006); United
States v. Jones, 444 F.3d 430, 441 n.54 (5th Cir. 2006); United States
v. Grigg, 442 F.3d 560, 562-64 (7th Cir. 2006); United States v. Seli-
outsky, 409 F.3d 114, 116-18 (2d Cir. 2005); United States v. Yazzie,
407 F.3d 1139, 1145-46 (10th Cir. 2005)(en banc). We agree with the
conclusion of these circuit courts and now hold "that the rationale of
Booker applies equally to sentences imposed pursuant to 18 U.S.C.
§ 3553(b)(1) or 18 U.S.C. § 3553(b)(2)." Shepherd, 453 F.3d at 704.
Further, we hold that section 3553(b)(2) is subject to the same remedy
as in Booker: "excising and severing the mandatory language [in sec-
tion 3553(b)(2)] and replacing it with an advisory Guidelines regime
under which sentences are reviewed for reasonableness." Grigg, 442
F.3d at 564 (quotations omitted).
Notwithstanding this conclusion, the government argues that vacat-
ing Hecht’s sentence and remanding the action for resentencing is not
necessary. In making this argument, the government contends that the
district court, in fact, recognized section 3553(b)(2) to be advisory
and simply chose not to vary below the guideline range.
We have reviewed the record and disagree. At the sentencing hear-
ing, Hecht’s counsel cited the Tenth Circuit’s decision in Yazzie. See
JA 23-24. Counsel then argued that section 3553(b)(2) suffered from
the same defects recognized in Booker and argued that the district
court should find it unconstitutional. Id. at 24. The district court
responded, "I’m constrained to deny your objection." Id. Thereafter,
the applicable policy statements of the Sentencing Commission, together
with any amendments to such guidelines or policy statements by act of
Congress.
UNITED STATES v. HECHT 7
counsel again argued that "the Protect Act [as applied to Hecht] . . .
violate[d] the Booker decision." Id. at 29. The court again stated, "I
decline to rule that [the PROTECT Act is] unconstitutional." Id.
The government discounts these statements. Instead, the govern-
ment cites the following statement from the court just before the court
imposed a within-guidelines 33 month sentence: "I have considered
the — as advisory only the Sentencing Reform Act of [1984] and the
advisory nature of the sentencing guidelines, and I’ve also considered
those factors under 18 [U.S.C. §] 3553(a)." JA 34.
This statement does not persuade us that a remand is unnecessary.
The district court’s reference to the Sentencing Reform Act of 1984
does not address the PROTECT Act (which was enacted in 2003).
Likewise, the district court’s ambiguous reference to the "advisory
nature of the sentencing guidelines" does not overcome the district
court’s unequivocal refusal — twice — to declare unconstitutional
section 3553(b)(2) as applied to Hecht and to excise and sever the
mandatory language pursuant to the rationale of Booker. Finally, the
district court’s reference to the section 3553(a) factors fails to con-
vince us that the district court believed it had the discretion to sen-
tence Hecht under an advisory scheme and simply chose not to vary.
Accordingly, we vacate Hecht’s sentence and remand for resentenc-
ing. Resentencing shall take place in accordance with the familiar
process for imposing a sentence under an advisory scheme. See, e.g.,
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006); United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
Because this matter must be remanded for resentencing under an
advisory scheme, we express our agreement with the Seventh Cir-
cuit’s observation in Grigg concerning the sentencing provisions in
the PROTECT Act. In Grigg, the Seventh Circuit stated:
We are mindful of Congress’ view, expressed in the PRO-
TECT Act, regarding prosecuting and sentencing child kid-
nappers and sexual offenders. Although we must hold today
that § 3552(b)(2) cannot constrain the discretion of a district
court to impose a sentence outside the range recommended
by the Sentencing Guidelines, we nevertheless believe that
district courts, in the course of selecting an appropriate sen-
8 UNITED STATES v. HECHT
tence, ought to give respectful attention to Congress’ view
that crimes such as [the defendant’s] are serious offenses
deserving serious sanctions.
Grigg, 442 F.3d at 564-65 (footnote omitted).
IV.
At sentencing, the district court found that Hecht’s offense level
was 20 and his criminal history category was I. As to the offense level
calculation, Hecht objected to a two level increase under U.S.S.G.
§ 2G2.2(b)(2)(E) (2003) for "distribution" of child pornography.2
Hecht argues that "he never admitted he knowingly distributed
child pornography" and that he did not distribute child pornography
under U.S.S.G. § 2G2.2(b)(2)(E) (2003). Def. Br. 10-11. Before he
was sentenced, however, Hecht told the district court that he did
engage in an on-line conversation with a person who turned out to be
an undercover agent. Hecht then stated, "At the time when the officer
was on I was busy doing other things, and he asked me to show him
pictures. He said that a good friend of mine said that I had some good
pictures, so I just actually to get rid of him I turned the [web] camera
on pictures I had up on the screen and went on to what else I was
doing." JA 33. In light of Hecht’s admission concerning his conduct,
the question becomes whether Hecht’s admitted conduct in pointing
his web camera at child pornography on his computer screen and
thereby transmitting the images to the agent via the internet consti-
tutes "distribution" of child pornography under U.S.S.G.
§ 2G2.2(b)(2) (2003).
"Distribution" is defined in the 2003 Guidelines Manual as "any
2
As mentioned, the district court applied the 2003 edition of the Guide-
lines Manual. In that edition of the Guidelines Manual, section
2G2.2(b)(2)(E) (2003) states: "Distribution other than distribution
described in subdivisions (A) through (D), increase by 2 levels." In the
2004, 2005, and 2006 editions of the Guidelines Manual, this language
is located in section 2G2.2(b)(3)(F) and reads: "Distribution other than
distribution described in subdivisions (A) through (E), increase by 2
levels." U.S.S.G. § 2G2.2(b)(3)(F) (2004).
UNITED STATES v. HECHT 9
act, including possession with intent to distribute, production, adver-
tisement, and transportation related to the transfer of material involv-
ing the sexual exploitation of a minor." U.S.S.G. § 2G2.2 Application
Note 1 (2003).3 The term "any" at the outset of the first sentence of
the definition of "distribution" in Application Note 1 "is a term of
great breadth." United States v. Wilde, 120 F.3d 468, 470 (4th Cir.
1997) (analyzing 18 U.S.C. § 844(h)). Hecht’s admitted conduct
included an act "related to the transfer" of material involving child
pornography and thereby constitutes "distribution." See United States
v. Williams, 253 F.3d 789, 791-92 (4th Cir. 2001) (defendant who
mailed child pornography to another person via UPS engaged in "dis-
tribution" within the meaning of U.S.S.G. § 2G2.2(b)(2)); United
States v. Probel, 214 F.3d 1285, 1288-91 (11th Cir. 2000) (defendant
who sent images of child pornography over the internet engaged in
"distribution" within the meaning of U.S.S.G. § 2G2.2(b)(2)).
In response, Hecht argues that he did not send the child pornogra-
phy to the agent via an attachment to an e-mail. Def. Br. 13. Accord-
ing to Hecht, sending an image as an e-mail attachment is
"distribution," but "show[ing] the pictures to the undercover agent by
the use of his web camera" is not. Id. Hecht’s argument, however,
ignores the phrase "any act . . . related to the transfer" in the definition
of "distribution." Whether the images are sent over the internet
attached to an e-mail or sent over the internet via a web camera, the
sender has engaged in an act "related to the transfer" of the images.
Thus, we reject Hecht’s argument that the district court erred in inter-
preting the term "distribution."
V.
For the foregoing reasons, we affirm the district court’s interpreta-
tion of the term "distribution" in U.S.S.G. § 2G2.2(b)(2) (2003). Nev-
3
In the 2004, 2005, and 2006 editions of the Guidelines Manual, the
Commission added the following additional sentence to the definition of
"distribution": "Accordingly, distribution includes posting material
involving the sexual exploitation of a minor on a website for public
viewing but does not include the mere solicitation of such material by a
defendant." U.S.S.G. § 2G2.2 Application Note 1 (2004). That additional
sentence does not alter our analysis.
10 UNITED STATES v. HECHT
ertheless, we vacate Hecht’s sentence and remand for resentencing
under an advisory scheme.
AFFIRMED IN PART AND VACATED AND REMANDED