Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-10-2007
USA v. Cramer
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1004
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1004
____________
UNITED STATES OF AMERICA
v.
COREY C. CRAMER,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cr-00184)
District Judge: Honorable Yvette Kane
____________
Submitted Under Third Circuit LAR 34.1(a)
December 12, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER,* District Judge.
(Filed January 10, 2007)
____________
OPINION OF THE COURT
____________
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
BUCKWALTER, District Judge.
Before the court is the appeal of Corey C. Cramer from the judgment imposed on
December 19, 2005 by which he was sentenced to 192 months imprisonment to be
followed by three (3) years of supervised release.
I.
The issues on appeal as framed by Cramer are
1. WHETHER A PLAIN READING OF SECTION 2251(b) OF TITLE
18 OF THE UNITED STATES CODE, 18 U.S.C. §2251(b),
EMPLOYING STANDARD STATUTORY AND
GRAMMATICAL CONSTRUCTION, CONFIRMS AN ABSENCE
OF FEDERAL JURISDICTION?
2. WHETHER THE INTRASTATE, NON-COMMERCIAL
PRODUCTION OF CHILD PORNOGRAPHY FOR
PERSONAL USE WITH MATERIALS TRANSPORTED IN
INTERSTATE COMMERCE PROVIDES A SUFFICIENT
AND PROPER BASIS FOR FEDERAL JURISDICTION
UNDER THE COMMERCE CLAUSE?
3. WHETHER THE DISTRICT COURT ERRED IN
APPLYING A VULNERABLE VICTIM ENHANCEMENT
TO APPELLANT’S SENTENCING GUIDELINE RANGE
WHEN THIS CIRCUMSTANCE WAS INCORPORATED
INTO THE OFFENSE GUIDELINE?
II.
Cramer was indicted May 11, 2005, on four counts of knowingly permitting a
minor to engage in sexually explicit conduct for purposes of producing a visual depiction
of such conduct in violation of 18 U.S.C. § 2251(b). On September 12, 2005, he entered
a conditional plea to Count One preserving for review the first two issues cited above.
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The district court denied a motion to dismiss based on those two issues and at a
sentencing hearing on December 19, 2005, also denied Cramer’s objection to the
Presentence Report which assessed two extra points in applying a vulnerable victim
enhancement.
III.
Our standard of review of the first two issues is plenary. Below is the statute
under which Cramer was prosecuted (18 U.S.C. § 2251):
(b) Any parent, legal guardian, or person having custody or control of a
minor who knowingly permits such minor to engage in, or to assist
any other person to engage in, sexually explicit conduct for the
purpose of producing any visual depiction of such conduct shall be
punished as provided under subsection (e) of this section, if such
parent, legal guardian, or person knows or has reason to know that
such visual depiction will be transported in interstate or foreign
commerce or mailed, if that visual depiction was produced using
materials that have been mailed, shipped, or transported in interstate
or foreign commerce by any means, including by computer, or if
such visual depiction has actually been transported in interstate or
foreign commerce or mailed.
As the district court found with regard to the first issue, “Defendant’s reading of §
2251(b) is strained and unsupported by law.” Thus, under the statute as interpreted by
that court, any person, legal guardian or person having custody or control of a minor . . .
shall be punished if just one of the following three conditions are met:
(1) if he knows or has reason to know that such visual depiction will be
transported in interstate commerce or mailed; or
(2) if the visual transmission was produced using materials that have
been mailed, shipped or transported in interstate or foreign
commerce; or
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(3) if such visual depiction has actually been transported in interstate
commerce or mailed.
Cramer argues otherwise. His contention is that where the violation, as in 18
U.S.C. § 2251(b), is premised on intrastate conduct involving a visual depiction produced
using materials that have been mailed, shipped or transported in interstate or foreign
commerce, the government must also demonstrate that either: (1) the parent, legal
guardian or person knew or had reason to know that such visual depiction would be
transported in interstate or foreign commerce or mailed; or (2) that the visual depiction
was actually so transported or mailed. We disagree.
The only opinion of this court which Cramer cites with respect to this issue is
United States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003). In Hodge, the statute involved
was clearly distinguishable from the one in this case. This court, before whom the
interpretation of the statute was a matter of first impression (Hodge at 433), accepted the
conjunctive reading of the statute as five district courts had concluded (Hodge at 436).
Hodge is helpful because following its analysis demonstrates why Cramer’s
argument is misplaced. The statute in Hodge provided in brief that a controlled substance
analogue shall be treated as a controlled substance. The issue in this case was whether
the mixture of candle wax and flour was a controlled substance analogue, which was
defined as follows:
[With certain exceptions not relevant here,] the term “controlled substance
analogue” means a substance –
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(i) the chemical structure of which is substantially similar to the
chemical structure of a controlled substance in schedule I or
II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on
the central nervous system that is substantially similar to or
greater than the stimulant, depressant, or hallucinogenic effect
on the central nervous system of a controlled substance in
schedule I or II; or
(iii) with respect to a particular person, which such person
represents or intends to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system that is
substantially similar to or greater than the stimulant,
depressant, or hallucinogenic effect on the central nervous
system of a controlled substance in schedule I or II.
21 U.S.C. § 802(32)(A).
The government argued for a disjunctive interpretation so that a substance would
be a controlled substance analogue if it satisfied any one of clauses (i), (ii) or (iii). We
held, however, that clause (i) states an independent requirement and clauses (ii) and (iii)
read in parallel and are more subordinate to clause (i) because the functional language in
each begins with the relative pronoun “which.” In this regard, we said:
The doctrine of the last antecedent teaches that “qualifying words, phrases,
and clauses are to be applied to the words or phrase immediately preceding”
and not to “others more remote.” See Resolution Trust Corp. v. Nernberg, 3
F.3d 62, 65 (3d Cir. 1993) (quoting Azure v. Morton, 514 F.2d 897, 900
(9th Cir. 1975)). That suggests that clauses (ii) and (iii) more likely modify
clause (i)’s phrase “controlled substance in schedule I or II” than the word
“substance” in the main clause. See also 2A Norman J. Singer, Sutherland
Statutory Construction, § 47.33 (6th ed.2000).
Following that doctrine, the statute before us cannot be read, as Cramer suggests,
to set forth an independent requirement of intrastate conduct involving a visual depiction
using materials that have been mailed, shipped, or transported in interstate or foreign
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commerce as to which the remaining clauses (1 and 3 on pages 3 and 4 of this opinion)
involving either reason to know of actual transportation in interstate or foreign commerce
are subordinate. Instead, all three clauses (1, 2 and 3 on pages 3 and 4 of this opinion) are
applied to the words or phrases immediately preceding them in the opening clause of 18
U.S.C. § 2251 (b), [any parent, legal guardian or person having custody or control of a
minor who knowingly permits such minor to engage in, or to assist any other person to
engage in, sexually explicit conduct for the purpose of producing any visual depiction of
such conduct shall be punished as provided under subsection (e) of this section, . . . .] and
qualify the independent conditions, for which the violation of any one will result in
punishment. In addition, Hodge reiterates that “cannons of construction ordinarily
suggest that terms connected by a disjunctive be given separate meaning unless the
context dictates otherwise,” Hodge at 436. The context here, unlike Hodge, does not
dictate otherwise.
IV.
As to the second issue, Cramer concedes that this court has upheld the
constitutionality of the same jurisdictional language in United States v. Galo, 239 F.3d
572, 575 (3d Cir. 2001) citing United States v. Rodia, 194 F.3d 465, 473 (3d Cir. 1999).
Nevertheless, he urges us to revisit those two decisions in light of United States v.
Morrison, 529 U.S. 598, 120 S. Ct. 740 (2000) and Gonzales v. Raich, 545 U.S. 1, 125 S.
Ct. 2195 (2005). Neither of those cases, however, would effect our analysis in either
Galo or Rodia.
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Morrison, decided May 15, 2000, six days after our argument on May 9, 2000 in
Galo, dealt with a statute, 42 U.S.C. § 13981, that provided a federal civil remedy for
gender motivated violence. The victim in Morrison alleged she had been raped by the
two respondents while the three were students at Virginal Polytechnic Institute.
After referring to its principles underlying Commerce Clause jurisprudence, the
Court in Morrison found that gender motivated crimes of violence are not economic
activity.
The Court’s analysis in Morrison discussed at length the Commerce Clause
interpretation set forth in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995) in
which the Court identified the three broad categories of activities that Congress may
regulate under its commerce power. In brief, they are:
1. The use of channels of interstate activity;
2. The instrumentalities of interstate commerce, or persons or things in
interstate commerce even though the threat may come only from
intrastate commerce; and
3. Those activities having a substantial relation to interstate commerce,
i.e., those activities that substantially affect interstate commerce.
This court in Rodia discussed the three categories above and concluded that
Congress had a rational basis for concluding that the intrastate possession of pornography
has a substantial effect on interstate commerce. There is nothing in Morrison to suggest
that this analysis was not correct.
In Raich, decided June 6, 2005, the respondents (Raich, et al.), California residents
who both used doctor recommended marijuana, relied heavily on Lopez and Morrison in
7
seeking to enjoin the Federal Drug Enforcement Administration (DEA) from enforcing
the Federal Controlled Substance Act (CSA) to the extent it prevents them from the
manufacture, possession or use of marijuana for personal medical care because it would
violate the Commerce Clause.
The Court held initially that Lopez and Morrison had nothing to do with
commerce. It concluded that even though the case for exemption in Raich was that a
locally cultivated product that was used domestically rather than sold on the open market
is not subject to federal regulation, given the findings in the CSA and the undisputed
magnitude of the commercial market for marijuana, such a claim for exemption is
foreclosed.
Analytically, the same conclusion was reached in Rodia where we held after an
exhaustive analysis by the late Chief Judge Becker “that Congress rationally could have
believed that child pornography that did not itself travel in interstate commerce has a
substantial effect on interstate commerce, and is thus subject to regulation under the
Commerce Clause.” Rodia at 479. We see no reason to disturb that ruling.
V.
The third issue argued by Cramer is that the circumstance which the court found in
applying a vulnerable victim enhancement (paragraph 24 of the presentence report) was
already incorporated into the specific offense characteristics and thus resulted in double
counting. The net effect of this alleged error is that Cramer would have had a total
offense level of 28 instead of 30 for a guideline range of 78-97 months rather than 97-121
8
months. In any event, with the mandatory 10-year sentence, the effective guideline range
under a total offense level of 28 would be 120 months.
Specifically, the presentence report, which the court adopted, provided as follows:
20. Base Offense Level: The guideline for an 18 U.S.C. § 2251(b)
offense is U.S.S.G. § 2G2.1. That section provides a base offense
level of twenty-seven. 27
21. Specific Offense Characteristics: Because the offense involved a
victim who had attained the age of twelve years, but not attained the
age of sixteen years, a two-level increase is required pursuant to
U.S.S.G. § 2G2.1(b)(1)(B). +2
22. Because the minor victim was in the custody, care or supervisory
control of the defendant, a two-level increase is required pursuant to
U.S.S.G. § 2G2.1(b)(2). +2
23. Adjustment for Role in the Offense: None. 0
24. Victim-Related Adjustments: Pursuant to U.S.S.G. § 3A1.1(b)(1),
because the defendant knew or should have known that his
“stepdaughter” was a vulnerable victim, a two-level increase is
required. +2
25. Adjustment for Obstruction of Justice: None. 0
26. Adjusted Offense Level: Thirty-three. 33
27. Adjustment for Acceptance of Responsibility: Based on the
defendant’s guilty plea and his admissions to the Court and probation
officer, a two-level reduction appears warranted under U.S.S.G.
§ 3E1.1(a). It appears that the defendant provided complete
information to the Government concerning his involvement in the
offense. Accordingly, the additional one-level reduction under
U.S.S.G. § 3E1.1(b) seems warranted. -3
28. Chapter Four Enhancements: None. 0
29. Total Offense Level: Thirty. 30
9
From reading the court’s statement at sentencing and its statement of reasons in its
criminal judgment order, it is clear that in adding two points pursuant to U.S.S.G.
§ 3A1.1(b)(1), the court found that the victim was unusually vulnerable for reasons
unrelated to those already accounted for in the specific offense characteristics.
Specifically, in its written statement of reasons about Cramer, who was not the biological
father of the victim but had been romantically involved with the victim’s mother for
twelve years, the court said:
His conduct spanned years, not months. Defendant’s conduct was
unusually cruel and depraved. Defendant was not a parent or care giver in
name only. He enjoyed a strong emotional bond and a long history with the
child victim, who since the age of three looked to him as the only father she
had known, even during the course of the rapes, calling him “Daddy.”
Although a sexual offender with parental authority enjoys the ability to
subtly coerce, and the guidelines account for this, Defendant’s parental
coercion exceeded the ordinary case. He deliberately used his position as a
parent and caretaker to overcome the victim’s will. Defendant lauded his
parental power over the victim, specifically threatening the victim with
punishment and the withdrawal of financial support if she refused to
comply. When she attempted to resist his advances, Defendant used force
and violence. Defendant’s conduct was unusually cruel and depraved in
that Defendant psychologically manipulated the victim to submit to his
unlawful requests. Defendant induced the victim to submit to lewd
photographs by promising to refrain from raping her. All of the
circumstances cause the Court to conclude that the offense is unusually
aggravated, even for an offense of this nature, and that by virtue of the
particular facts, the victim was unusually vulnerable and thus subject to
unusual psychological harm.
We find no error in the Court’s conclusion (See App. 125, lines 81.14) that an
enhancement under U.S.S.G. § 3A1.1(b)(1) was warranted.
VI.
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Based upon the foregoing, we will affirm the judgment entered in this case on
December 23, 2005.
11