United States v. Fulford

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 14, 2011
No. 10-12916 JOHN LEY
________________________ CLERK

D.C. Docket No. 1:09-cr-00257-WS-N-1

UNITED STATES OF AMERICA,

llllllllllllllllllll lPlaintiff - Appellee,

versus

DAVID CLIFTON FULFORD,
a.k.a. Residence at 5119 Glenshire Drive, Loxley, Alabama,

llllllllllllllllllll lDefendant - Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
________________________

(November 14, 2011)

Before DUBINA, Chief Judge, CARNES, Circuit Judge, and SANDS,* District
Judge.

CARNES, Circuit Judge:

*
Honorable W. Louis Sands, United States District Judge for the Middle District of
Georgia, sitting by designation.
 A defendant convicted of distribution of child pornography is subject to a 5-

level enhancement under § 2G2.2(b)(3)(C) of the sentencing guidelines if the

distribution was to a minor. The defendant in this case distributed child

pornography to an unidentified person, not connected with law enforcement, who

convinced him that she (or he) was a minor. The district court applied the

distribution to a minor enhancement after concluding that the actual age of the

recipient, which has never been determined in this case, does not matter so long as

the defendant thought that the recipient was a minor. In doing so, the court

extended the reasoning of some of our decisions involving fictitious minors

created by law enforcement. Regardless of what we said in those other cases

involving different facts and different guidelines provisions, we reach a different

conclusion because the definition of “minor” in the application note to § 2G2.2

convinces us that here it is more than just the thought that counts.

I.

David Fulford pleaded guilty to, and was convicted of, one count of

knowingly possessing and attempting to possess images of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B) and two counts of knowingly receiving

and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The

presentence investigation report stated that Fulford entered into online “chat

2
rooms” with children and distributed child pornography to them. Based on that

conduct, the PSR recommended a 5-level sentence enhancement for distribution of

child pornography to a minor under U.S.S.G. § 2G2.2(b)(3)(C). Fulford objected

to the enhancement, arguing that the government had not provided proof that the

people he was chatting with and distributing pornography to were minors as that

term is defined for that guideline.

At Fulford’s sentence hearing, Wes Anthony, the lead agent in the

investigation of the case, testified that a forensic examination of Fulford’s

computer revealed instant messages and the exchange of images with people

Anthony inferred were minors and that Fulford had distributed some child

pornography to those people. Agent Anthony admitted that the only two people

that the government could identify who had received child pornographic images

from Fulford turned out to be adult males posing as minor girls, and none of the

people were law enforcement officers running a sting.

Even so, the government argued that the 5-level enhancement still applied

because Fulford believed he was sending material to minors, and in their online

conversations several of them seemingly held themselves out to be minors.

Fulford objected to the enhancement on the ground that the government had not

provided proof that any of those to whom he distributed the child pornography

3
actually were minors. After receiving additional briefing on the question, the

district court held a second sentence hearing to consider it.

The government made two arguments. First, it argued that based on the chat

logs and recovered images, the district court could find by a preponderance of the

evidence that Fulford distributed child pornography to a minor with the user name

“Dawn.” Although Dawn was never located, she represented herself—or perhaps

himself—to be a 13-year-old female. Second, the government argued that,

regardless of Dawn’s identity and actual age, Fulford thought she was a minor and

intended to distribute child pornography to her, and that was enough to warrant

application of the 5-level enhancement. While it acknowledged there was no

controlling precedent on the issue, the government cited our decisions in United

States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), and United States v. Lebovitz,

401 F.3d 1263 (11th Cir. 2005), for the proposition that the relevant consideration

was not the victim’s true age but Fulford’s intent.

On the issue at hand, Fulford emphasized that even if the evidence

established that he had he transmitted child pornography over the internet, there

was no proof that anyone who received it was actually a minor. He stressed that

the only recipients who were positively identified were actually adult males.

Turning to the government’s second argument, Fulford argued that his intent was

4
not sufficient to justify the enhancement, pointing out that intent is not addressed

in the language of the guidelines provision. He distinguished the decisions the

government relied on because they all involved a law enforcement sting operation

using a fictitious minor. In a nutshell, Fulford argued that the government had to

prove that one or more of the people to whom he had sent child pornography were

actually minors, and because the government had not done so the enhancement did

not apply.

After considering the arguments, the district court found as a fact that

Fulford had chatted over the internet with a person who said her name was Dawn

and “who held herself out to be a 13-year-old female,” and believing Dawn to be a

minor, he had transmitted child pornography to her.1 The district court did not

make a finding, one way or the other, about whether Dawn was actually a minor.

Instead, extending our Murrell and Lebovitz decisions, the court stated that it was

“persuaded that that same kind of analysis and reasoning would apply in this case

and should apply in this case.” Accordingly, it overruled Fulford’s objection and

applied the 5-level enhancement under § 2G2.2(b)(3)(C), which resulted in an

adjusted offense level of 37. Combined with his criminal history category of I the

1
The district court’s factfindings as to the § 2G2.2(b)(3)(C) enhancement dealt only with
the “individual who identified herself as Dawn.” The government apparently dropped any
reliance on the others to whom Fulford sent pornography.

5
result was a guidelines range of 210–262 months. The court sentenced Fulford to

210 months imprisonment.

In this appeal of his sentence Fulford contends that the district court erred

when it applied the 5-level enhancement for distribution of child pornography to a

minor under § 2G2.2(b)(3)(C).2

II.

We review de novo “the district court’s legal interpretations of the

Sentencing Guidelines.” United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir.

2010). “To properly interpret the Sentencing Guidelines, we begin with the

language of the Guidelines, considering both the Guidelines and the commentary.”

United States v. Panfil, 338 F.3d 1299, 1302 (11th Cir. 2003) (citation omitted).

“The language of the Sentencing Guidelines, like the language of a statute, must

be given its plain and ordinary meaning,” United States v. Sutton, 302 F.3d 1226,

1227 (11th Cir. 2002), because “[a]s with Congress, we presume that the

Sentencing Commission said what it meant and meant what it said,” United States

v. Shannon, 631 F.3d 1187, 1190 (11th Cir. 2011) (quotation marks omitted). The

2
The government argues that any error is harmless because Fulford was also allegedly
subject to an alternate 5-level § 2G2.2(b)(3)(B) enhancement based on the value of the child
pornography that he received in exchange for the child pornography that he distributed. The
district court ruled that the government had waived that argument by failing to object to the
PSR’s failure to recommend a § 2G2.2(b)(3)(B) enhancement. The government has not appealed
that waiver ruling.

6
guidelines commentary “‘is authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.’” United States v. Jordi, 418 F.3d 1212, 1216 (11th Cir. 2005) (quoting

Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 1915 (1993)). When

interpreting the guidelines, we apply the “traditional rules of statutory

construction, including the prohibition on rewriting statutes.” Shannon, 631 F.3d

at 1189 (citation omitted).

III.

The sentencing enhancement at issue in this case provides: “If the offense

involved . . . [d]istribution to a minor, increase by 5 levels.” U.S.S.G. §

2G2.2(b)(3). “Distribution to a minor” is “the knowing distribution to an

individual who is a minor at the time of the offense.” Id. § 2G2.2 cmt. n.1. So the

issue here is whether Dawn—the person to whom Fulford distributed child

pornography—was a “minor” at the time of the offense. The commentary to §

2G2.2 defines “minor” as:

(A) an individual who had not attained the age of 18 years; (B) an
individual whether fictitious or not, who a law enforcement officer
represented to a participant (i) had not attained the age of 18 years,
and (ii) could be provided for the purposes of engaging sexually
explicit conduct; or (C) an undercover law enforcement officer who
represented to a participant that the officer had not attained the age of
18 years.

7
Id. The plain language of that commentary sets out three ways Dawn could be

considered a minor. She could actually be under 18 years of age. Or she could be

a fictitious person a law enforcement officer represented to be under 18 years of

age who “could be provided for the purposes of engaging in sexually explicit

conduct.” Or she could be an undercover law enforcement officer who

represented herself (or himself) to be under 18 years of age. Those are the only

three ways that the commentary provides that Dawn could be a minor for purposes

of the 2G2.2(b)(3)(C) enhancement.

Because the commentary’s definition of minor is not contrary to the plain

meaning of the text of the enhancement provision, we are bound to follow it. See

United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir. 2006) (“When it comes to

the interpretation of the guidelines, Commentary and Application Notes of the

Sentencing Guidelines are binding on the courts unless they contradict the plain

meaning of the text of the Guidelines.” (quotation marks omitted)).

Reading into the definition of minor a fourth category—anyone the

defendant believes is under the age of 18—would expand the guidelines provision

to cover additional conduct. Doing so would run contrary to the canon of

statutory interpretation that the specific inclusion of one meaning in a definition

excludes other meanings that are not included. See Burgess v. United States, 553

8
U.S. 124, 130, 128 S.Ct. 1572, 1577 (2008) (“As a rule, a definition which

declares what a term means excludes any meaning that is not stated.” (quotation

marks and alterations omitted)); Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1366

(11th Cir. 2011) (same). The same rationale that stops this Court from adding to a

list of statutory remedies, see, e.g., Christ v. Beneficial Corp., 547 F.3d 1292,

1298 (11th Cir. 2008), or adding to a list of exceptions to a general grant of power,

see, e.g., Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1255–56 (11th

Cir. 2003), also stops us from adding to a list of meanings contained in a

definition. Cf. Young v. United States, 936 F.2d 533, 538 (11th Cir. 1991) (“This

interpretation would effectively rewrite section 4B1.2(2). If the Sentencing

Commission had intended sentence enhancement for such a broad range of prior

crimes they would not have specifically listed the offenses that could be used

. . . .”).

Even if expanding the guidelines definition to cover the facts of this case

would be an improvement, it is not our function to modify, amend, or improve

statutes or guidelines. See Pavelic & LeFlore v. Marvel Entm’t Grp., 493 U.S. 120,

126, 110 S.Ct. 456, 460 (1989) (“Our task is to apply the text, not to improve upon

it.”); Nguyen v. United States, 556 F.3d 1244, 1256 (11th Cir. 2009) (“We are not

authorized to rewrite, revise, modify, or amend” the sentencing guidelines in the

9
guise of interpreting” them.); see also Shannon, 631 F.3d at 1189 (“[I]nterpretation

of the Sentencing Guidelines is governed by traditional rules of statutory

construction, including the prohibition on rewriting statutes . . . .” (citation

omitted)).

IV.

However, the government contends that we should follow the district court’s

lead and extend the rationale of some of our decisions interpreting other guidelines

provisions in order to construe § 2G2.2(b)(3)(C) to include anyone the defendant

believes is a minor. The decisions the government points to are United States v.

Root, 296 F.3d 1222, 1232–34 (11th Cir. 2002) (interpreting § 2A3.2 (2000)),

superseded by Amend. 732, U.S.S.G. Supp. to App’x C (2009) as recognized in

United States v. Jerchower, 631 F.3d 1181, 1186–87 (11th Cir. 2011); United

States v. Murrell, 368 F.3d 1283, 1288–89 (11th Cir. 2004) (interpreting § 2G1.1),

and United States v. Lebovitz, 401 F.3d 1263, 1267–70 (11th Cir. 2005)

(interpreting § 2A3.1).

Because none of those three decisions involved the question of how minor is

defined for purposes of § 2G2.2(b)(3)(C), none of their holdings bind us in this

case. See, e.g., Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010)

(explaining that language in an opinion that goes beyond the facts and specific

10
questions presented in that case is not itself binding precedent); Anders v.

Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003) (“The prior

panel precedent rule obligates us to follow the holdings of an earlier decision, but

the holdings of a prior decision can reach only as far as the facts and circumstances

presented to the court in the case which produced that decision.” (citations,

quotation marks, and alterations omitted)); Dantzler v. I.R.S., 183 F.3d 1247, 1251

(11th Cir. 1999) (“[T]here is a big difference between following a precedent where

the prior-precedent rule demands it and extending a precedent.”). Nor are we

persuaded to take any rationales from Root, Murrell, or Lebovitz and extend,

expand, or extrapolate them to fit these facts and answer the specific question they

present.

In Root the defendant was convicted of attempting to persuade a minor to

engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b), and

traveling in interstate commerce for the purpose of engaging in a criminal sexual

act with a minor, in violation of 18 U.S.C. § 2423(b). See 296 F.3d at 1223,

1226–27. His intended victim was actually an undercover law enforcement officer.

Id. at 1223. On appeal Root challenged the enhancement he received under §

2A3.2(b)(2)(B) (2000), which applied where the defendant “unduly influenced the

victim to engage in prohibited sexual conduct.” Id. at 1232. His argument was that

11
the police officer posing as a minor was not, and could not have been, unduly

influenced to engage in prohibited sexual conduct. Id. at 1233. The government

conceded that the officer was not actually unduly influenced but argued that the

enhancement applied anyway. Id. We gave three reasons for our conclusion that

the enhancement did apply. Id. at 1232–34.

First, we pointed out that § 2A3.2 stated that where the defendant was more

than ten years older than the minor victim undue influence was to be rebuttably

presumed. Id. at 1233 (citing U.S.S.G. § 2A3.2 cmt. n.5 (2000)). That reason has

no force at all in the present case because no similar presumption is provided for §

2G2.2(b)(3)(C). Second, in Root we relied on the clear intent of the guidelines to

cover sting operations involving officers posing as minors. See id. at 1234. That

reason does not have much persuasive force because it simply does not follow from

the fact that the guidelines cover sting operations involving officers posing as

minors that every enhancement in that part of the guidelines applies to every crime

involving an undercover officer (or anyone else) posing as a minor. Third, we

reasoned in Root that “if an undercover agent is allowed to be the sole victim of a

crime for which an enhancement under § 2A3.2 may be given, it would be illogical

to interpret § 2A3.2(b)(2)(B) to require that agent’s will actually be overborne.”

Id. That reason is unpersuasive because it either assumes as its premise the

12
conclusion—that the specific enhancement in question applies when an undercover

police officer is posing as a victim—or it makes the equally unsupported

assumption that every potential enhancement in § 2A3.2 applies in every case in

which a law enforcement officer is posing as a victim.

The Sixth and Seventh Circuits disagreed with our decision in Root, creating

a circuit split. See United States v. Chriswell, 401 F.3d 459, 469 (6th Cir. 2005);

United States v. Mitchell, 353 F.3d 552, 559, 561 (7th Cir. 2003). In order to heal

that split the Sentencing Commission adopted Amendment 732. See U.S.S.G.

Supp. to App’x C (2009). That amendment modified the commentary “to provide

that the undue influence enhancements under those Guidelines ‘do[ ] not apply in a

case in which the only “minor” involved in the offense is an undercover law

enforcement officer.’” Jerchower, 631 F.3d at 1186–87 (quoting Amend. 732,

U.S.S.G. Supp. to App’x C). In essence the amendment uprooted our Root

decision and transplanted the Sixth and Seventh Circuits’ position into the

guidelines, and through the guidelines, into our circuit law.

In the Murrell case the defendant was convicted of using the internet to

attempt to knowingly persuade, induce, entice, or coerce a minor to engage in

unlawful sexual activity in violation of 18 U.S.C. § 2422(b). See Murrell, 368 F.3d

at 1284. At sentencing the district court applied the 2-level sentencing

13
enhancement under U.S.S.G. § 2G1.1(b)(2)(B) (2003) for offenses involving a

“victim” between the ages of 12 and 16. Id. at 1288. Murrell argued to us that the

enhancement should not have been applied because there was no victim—only a

fictitious 13-year-old girl made up by a law enforcement officer who pretended to

be the girl’s father “renting” her out for sex. See id. at 1284, 1288. The

commentary to § 2G1.1 stated that “‘victim’ may include an undercover law

enforcement officer.” U.S.S.G. § 2G1.1, cmt. n.1. It did not state, however, that

“victim” could include a fictitious person made up by an officer, which is what was

involved in that case. See id.

Nonetheless, we concluded in Murrell that the § 2G1.1(b)(2)(B)

enhancement did apply in that situation, effectively writing into the definition of

“victim” language that the Sentencing Commission had left out. See Murrell, 368

F.3d at 1289. The sum total of our reasoning was that because the definition the

Commission did provide covered law enforcement officers posing as minors, the

defendant’s intent was what mattered (even if his conduct fell outside the language

of the definition), and Murrell had intended to have sex with a 13-year-old girl.

See id. We did not explain why, if the Sentencing Commission had wanted to

include fictitious minors made up by law enforcement officers in the definition of

“victim,” it did not simply say that, or say even more broadly: “anyone, fictitious

14
or not, the defendant believes is a minor.” Because of the prior precedent rule, we

will continue to apply the Murrell decision to the specific issue it decided, but we

are not persuaded to extend its reasoning to the present case, which involves a

different guidelines provision and different issue.

Then there is the Lebovitz case, involving a defendant who was convicted of

two crimes, one of which was traveling in interstate commerce for the purpose of

having sex with a minor, in violation of 18 U.S.C. § 2423(b). Lebovitz, 401 F.3d at

1265. His intended victim was a fictitious 11-year-old girl created by an

undercover law enforcement officer with whom he had been communicating. Id. at

1265–66. Lebovitz challenged the district court’s application of the §

2A3.1(b)(2)(A) enhancement for cases in which “the victim . . . had not attained the

age of twelve years.” Id. at 1268. He contended that enhancement could not be

applied in any case where the victim was fictitious. Id. The guideline and

commentary involved in that case did not define “victim,” leaving us no choice but

to supply our own definition. See § 2A3.1 cmt. n.1 (no definition for “victim”).

Because the text of the guideline in Lebovitz was basically the same as the text of

the guideline in Murrell, we decided that defining “victim” in the same way that we

had in Murrell (to include law enforcement-created fictitious victims) was

appropriate. See id. at 1269.

15
 There is, however, no need to supply our own definition of the key term

“minor” in the present case because that term is defined in the guidelines

commentary applicable to the enhancement that was applied. The definition

specifically includes fictitious minors created by law enforcement in two, and only

two, limited circumstances. See U.S.S.G. § 2G2.2 cmt. n.1 ((B) and (C)

definitions). Because there is an explicit definition of minor that limits the types of

fictitious ones that qualify, we must apply that definition instead of writing our

own or importing one from another guideline. See supra Part III.

There is, as should be apparent, an important factual distinction between this

case and the Root, Murrell, and Lebovitz cases. Each of those three cases involved

either a law enforcement officer posing as a minor or a fictitious minor created by

an officer. See Root, 296 F.3d at 1223–24; Murrell, 368 F.3d at 1284–85;

Lebovitz, 401 F.3d at 1265–66. Here, however, Dawn is neither a law enforcement

officer posing as a minor nor the fictitious creation of a law enforcement officer. If

Dawn were either, she would fall within the explicit definition of minor provided in

the commentary to § 2G2.2(b)(3). Because she is neither, she does not.

For all of these reasons, we hold that Fulford’s belief that Dawn was a minor

at the time he sent her the child pornography is not enough to justify application of

the § 2G2.2(b)(3)(C) enhancement. The government must prove that Dawn,

16
whoever he or she is, was actually under the age of 18 years at the time.

V.

The only part of the definition of “minor” in the commentary to U.S.S.G. §

2G2.2 that does not include the involvement of a law enforcement officer is “an

individual who had not attained the age of 18 years.” See § 2G2.2 cmt. n.1 (A). In

other words, where the defendant is not dealing with a law enforcement officer, the

enhancement applies only where the “minor” actually is a true, real live, sure

enough minor. The government argues that the chat logs proved by a

preponderance of the evidence that Dawn was under 18 years of age. The district

court, however, made no findings about Dawn’s actual age.

Despite the government’s urging, we will not substitute ourselves for the

district court as factfinder. See, e.g., Norelus v. Denny’s, Inc., 628 F.3d 1270,

1293 (11th Cir. 2010) (“[A]s everyone knows, appellate courts may not make fact

findings.”); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty.,

450 F.3d 1295, 1306–07 (11th Cir. 2006) (“Appellate courts must constantly have

in mind that their function is not to decide factual issues de novo.” (quotation

marks and alterations omitted)); United States v. Banks, 347 F.3d 1266, 1271 (11th

Cir. 2003) (“A court of appeals is not a fact finding body.”); Didie v. Howes, 988

F.2d 1097, 1104 (11th Cir. 1993) (“We, however, are not factfinders.”).

17
 For these reasons, we vacate Fulford’s sentence and remand to the district

court to make a finding regarding whether the government has proven by a

preponderance of the evidence that at the time Fulford sent the child pornography

Dawn was under 18 years of age. If the district court finds that the government has

not carried its burden of proving that fact, about which we express no view, it

should resentence Fulford without the § 2G2.2(b)(3)(C) enhancement.3

VACATED AND REMANDED.

3
Because we are vacating and remanding the case on this ground, we do not reach
Fulford’s argument that his sentence is otherwise unreasonable.

18