United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10195
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ERIC RICHARD WISE
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
Defendant-appellant Eric Richard Wise appeals his judgment
of conviction and sentence, arguing that the district court erred
by refusing to group his counts of conviction pursuant to U.S.
SENTENCING GUIDELINES MANUAL § 3D1.2 (2002) [hereinafter U.S.S.G.].
For the following reasons, we AFFIRM the judgment of conviction
and sentence as imposed by the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2002, defendant-appellant Eric Richard Wise
(“Wise”), a thirty-seven-year-old man living in Cedar Rapids,
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Iowa, began communicating over the Internet with Jane Doe
(“Doe”), a thirteen-year-old female living in Lubbock, Texas.
Wise communicated with Doe in chat rooms and through instant
messaging, and eventually he also communicated with Doe by e-mail
and telephone. Based on their conversations, Wise knew that Doe
was not interested in forming a relationship with a man of his
age,1 so he initially represented to Doe that he was sixteen
years old. In subsequent communications, he gradually raised his
age to thirty-one.
During these conversations, Wise and Doe often talked about
sex. Wise encouraged Doe to “be nastier,” to say “dirtier”
things, and to “be kinky with [him]” and expressed his approval
when she complied with his requests. Wise encouraged Doe to
elaborate on the sex acts they might perform on each other.
On December 27, 2002, in response to Wise’s request, Doe e-
mailed Wise a digital photograph that depicted her nude from the
waist up and exposed her breasts. That same day, Wise responded
by e-mailing Doe a nude photograph of himself. The next day, he
sent her an e-mail, commenting on her picture: “Youre so
beautiful [Doe]. I keep looking at your pic . . . wow, what a
perfect chest. Yum . . . when can I see the rest? hehe Love u
sooooooo much. Ya know we are engaged, since I asked u to marry
1
In one of their chat room conversations, Doe complained
to Wise that she was upset that another man who was thirty-three
years old had shown interest in her.
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me and u said yes. :) Your Fiancee, E.”2 On December 30, 2002,
again in response to Wise’s prompting, Doe photographed herself
in a sexually explicit pose, exhibiting her genitals and pubic
area. This photograph is referenced in count one of the second
superseding indictment as an image bearing a
creation/modification date of December 30, 2002, at 7:38 p.m.
On January 1, 2003, Wise e-mailed Doe a color photograph of
six rings. In this e-mail, Wise stated: “Which of these 6 u
like? Im thinking even though I want to get one thats a promise
ring, maybe we should get one that has colored stones, so ya
rents don’t get suspicious.”3
On January 2, 2003, Wise and Doe exchanged several
photographs. Doe photographed herself nude in five different
poses, two of which displayed her genitals and pubic area. After
each photograph was taken, she downloaded it on to her computer
and e-mailed it to Wise. Wise e-mailed Doe a full-length nude
photograph of himself in which he displayed his erect penis. He
also e-mailed a photograph of himself sitting on a couch holding
a cat. The two photographs showing Doe’s genitals and pubic area
are referenced in counts two and three of the second superseding
indictment and bear a creation/modification date of January 2,
2
1 R. at 180 (quoted exactly as written by Wise, but
omitting the victim’s name).
3
Id. at 181 (quoted exactly as written by Wise, with
“rents” referring to parents).
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2003, at 11:50 a.m. and 12:28 p.m., respectively.
On January 11, 2003, again in response to Wise’s request,
Doe photographed herself in two sexually explicit poses, exposing
her genitals and pubic area. These two photographs are
referenced in counts four and five of the second superseding
indictment and bear a creation/modification date of January 11,
2003, at 10:14 p.m. and 10:21 p.m., respectively.4 Wise stored
the photographs referenced in counts one through five of the
second superseding indictment on compact discs at his Iowa
residence.
Shortly after Doe sent the last of the photographs, Wise
made arrangements to travel to Lubbock to meet Doe. Wise
reserved a motel room in Lubbock for the nights of January 17-19,
2003, rented a car, and drove from Cedar Rapids to Lubbock. On
January 16, 2003, Wise e-mailed Doe informing her that he was on
his way to meet her. Wise traveled to Lubbock for the purpose of
engaging in sexual acts with Doe, and this conduct is referenced
in count fifteen of the second superseding indictment. His
enticement of Doe, which occurred from their initial Internet
communications through January 17, 2003, is referenced in count
4
As part of his factual resume, Wise admitted that:
Doe would not have produced any of the sexually explicit
images that she took of herself, nor would she have sent
them by way of the Internet from Lubbock, Texas, to Cedar
Rapids, Iowa, but for the request of Wise for such images
to be produced and sent to him.
Id. at 182.
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fourteen of the second superseding indictment.
Upon arriving in Lubbock on January 17, 2003, Wise met Doe
and drove her to a location in southwest Lubbock. While in the
vehicle, Wise fondled Doe’s genitals and digitally penetrated her
genital opening. On January 18, 2003, Wise met Doe at a Wal-Mart
and drove her to his motel room where he took non-sexual
photographs of himself with Doe. Wise then returned Doe to the
Wal-Mart where he had picked her up.
On January 19, 2003, Wise picked up Doe and drove her to his
motel. Wise set up his eight-millimeter camcorder on a tripod
next to the bed, with the intent of recording his sexual
encounter with Doe. They engaged in various sexual acts,
including oral-genital and vaginal intercourse, and Wise recorded
these acts. Wise engaged in this same sexually explicit conduct
and recorded the encounter on January 20, 2003.5 That same day,
Wise returned to Cedar Rapids from Lubbock, transporting the
videotapes. The videotapes from the two sexual encounters are
referenced in counts six and seven of the second superseding
indictment.6
5
Wise did not use any force or threats of force against
Doe during these sexual encounters. He also did not attempt to
conceal the fact from Doe that he intended to record and did in
fact record the encounters.
6
The videotapes, along with the compact discs containing
the sexually explicit photographs of Doe, were found in Wise’s
residence in Cedar Rapids when a search warrant was executed
there in August of 2003 by Kenosha, Wisconsin police on unrelated
child enticement charges.
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Wise was charged by a second superseding indictment with
fifteen counts of various sexual exploitation offenses.7 On
October 21, 2004, Wise pleaded guilty to nine of the fifteen
counts.8 Specifically, Wise pleaded guilty to: seven counts of
production of child pornography (collectively, the “production
counts” or “production of child pornography counts”), in
violation of 18 U.S.C. § 2251(a); one count of enticement of a
child (“enticement count”), in violation of 18 U.S.C. § 2422(b);
and one count of travel with intent to engage in a sexual act
with a juvenile (“travel count”), in violation of 18 U.S.C.
§ 2423(b). As part of Wise’s plea agreement, the government
agreed to dismiss the remaining six counts at sentencing.
In the Presentence Report (“PSR”), the probation officer
divided the nine counts into seven groups using the grouping
rules in U.S.S.G. § 3D1.2.9 The probation officer separately
7
Wise originally was charged by a seven-count indictment
dated November 6, 2003. On December 10, 2003, a fifteen-count
superseding indictment was filed. The second (and final)
superseding indictment was filed on August 18, 2004.
8
In his plea agreement, Wise reserved the right to appeal
an incorrect application of the Sentencing Guidelines.
9
Section 3D1.2 in relevant part provides:
All counts involving substantially the same harm shall be
grouped together into a single Group. Counts involve
substantially the same harm within the meaning of this
rule:
(a) When counts involve the same victim and the
same act or transaction.
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grouped production counts two and three and production counts
four and five after concluding that these production counts
“occurred on the same occasion.” The groups were as follows:
Group One: Count 1 (December 30, 2002 photograph of
Doe, exposing her genitals and pubic
area);
Group Two: Counts 2 and 3 (January 2, 2003
photographs of Doe, exposing her genitals
and pubic area);
Group Three: Counts 4 and 5 (January 11, 2003
photographs of Doe, exposing her genitals
and pubic area);
Group Four: Count 6 (January 19, 2003 videotape
depicting Doe engaging in sexually
explicit conduct);
Group Five: Count 7 (January 20, 2003 videotape
depicting Doe engaging in sexually
explicit conduct);
Group Six: Count 14 (enticement of a juvenile); and
Group Seven: Count 15 (travel with intent to engage in
sexual acts with a juvenile).
Using the procedures in U.S.S.G. § 3D1.1,10 the probation officer
(b) When counts involve the same victim and two or
more acts or transactions connected by a
common criminal objective or constituting part
of a common scheme or plan.
10
Section 3D1.1 in relevant part provides:
(a) When a defendant has been convicted of more than
one count, the court shall:
(1) Group the counts resulting in conviction into
distinct Groups of Closely Related Counts
(“Groups”) by applying the rules specified in
§ 3D1.2.
(2) Determine the offense level applicable to each
Group by applying the rules specified in
§ 3D1.3.
(3) Determine the combined offense level
applicable to all Groups taken together by
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determined the offense level applicable to each group. In
calculating the combined offense level for Wise’s offenses
pursuant to U.S.S.G. § 3D1.4,11 the probation officer assigned
each group as a unit, for a total of seven units. Based on these
units, the probation officer recommended a five-level increase to
Wise’s offense level. After subtracting three levels for Wise’s
acceptance of responsibility, the probation officer recommended a
sentencing range of 135 to 168 months. The government filed a
statement adopting the PSR.
Prior to sentencing, Wise filed written objections to the
PSR, arguing, inter alia, that the probation officer should group
all nine of his counts. According to Wise, “all nine counts to
applying the rules specified in § 3D1.4.
11
Section 3D1.4 in relevant part provides:
The combined offense level is determined by taking the
offense level applicable to the Group with the highest
offense level and increasing that offense level by the
amount indicated in the following table:
Number of Units Increase in Offense Level
1 none
1 1/2 add 1 level
2 add 2 levels
2 1/2 - 3 add 3 levels
3 1/2 - 5 add 4 levels
More than 5 add 5 levels.
In determining the number of Units for purposes of this
section:
(a) Count as one Unit the Group with the highest
offense level. Count one additional Unit for each
Group that is equally serious or from 1 to 4 levels
less serious.
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which [he] pleaded guilty involve substantially the same harm
because they involve the same victim . . . and consist of two or
more acts or transactions connected by a common criminal
objective or constituting part of a common scheme or plan.” In
an addendum to the PSR, the probation officer maintained that he
had applied the correct grouping analysis and that his analysis
was supported by examples in the commentary to U.S.S.G. § 3D1.2.
He acknowledged that “[c]ase law is limited in this area” and
provided an alternative sentence of 120 months “should the Court
decide an improper grouping analysis occurred.”12 The government
filed an objection to the PSR addendum, urging the district court
to adopt the grouping calculations in the original PSR.
At sentencing, the district court adopted the grouping
calculations as set forth in the original PSR, and in so doing,
it grouped only those production of child pornography counts
occurring on the same day. The district court’s grouping
calculus resulted in seven groups and under U.S.S.G. § 3D1.4, the
district court added a five-level increase to Wise’s offense
level, resulting in a sentencing range of 135 to 168 months. The
district court sentenced Wise to 168 months in prison and three
years of supervised release. Wise filed this timely appeal.
II. DISCUSSION
12
Wise’s proposed calculus would have resulted in a
sentence of 78-97 months, which fell below the applicable
statutory minimum of 120 months. See 18 U.S.C. § 2251(d).
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Wise challenges only the district court’s refusal to group
his offenses pursuant to U.S.S.G. § 3D1.2(a) or (b). According
to Wise, regardless of whether we decide there should be one
group (all nine counts together), two groups (production counts
together and enticement and travel counts together), or three
groups (production counts together and enticement and travel
counts in separate groups), his maximum advisory sentence would
be the statutory minimum of 120 months. Because the production
of child pornography counts comprise five of the seven groups,
Wise correctly recognizes that in order for this court to agree
with his grouping theory, we must first determine that the
district court erred in refusing to group the production counts
that occurred on different days. We review the district court’s
interpretation and application of the grouping rules under the
Guidelines de novo. See United States v. Lopez-Urbina, 434 F.3d
750, 762 (5th Cir.), cert. denied, 126 S. Ct. 672 (2005); United
States v. Tolbert, 306 F.3d 244, 246 (5th Cir. 2002) (“The
decision whether to group offenses is a question of law we review
de novo.”).
Section 3D1.2 of the Guidelines instructs that “[a]ll counts
involving substantially the same harm shall be grouped together
into a single Group.” U.S.S.G. § 3D1.2. Separate counts involve
“substantially the same harm” when, inter alia, the “counts
involve the same victim and the same act or transaction” or the
“counts involve the same victim and two or more acts or
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transactions connected by a common criminal objective or
constituting part of a common scheme or plan.” Id. § 3D1.2(a)-
(b). The commentary reveals that counts are to be grouped
together under the guideline when: (1) “they represent
essentially a single injury or are part of a single criminal
episode or transaction involving the same victim”; or (2) they
“are part of a single course of conduct with a single criminal
objective and represent essentially one composite harm to the
same victim . . . even if they constitute legally distinct
offenses occurring at different times.” Id. § 3D1.2 cmt. n.3 &
n.4.
The production of child pornography counts at issue here
involve the same victim, but there is a question as to whether
they involve the same transaction or scheme. The examples to the
commentary offer some guidance when, as here, the same victim is
involved and the conduct takes place on different days. See
id. § 3D1.2 cmt. n.3 ex.6 (stating that “counts are not to be
grouped together” when “[t]he defendant is convicted of two
counts of assault on a federal officer for shooting at the
officer on two separate days”) (emphasis added); id. § 3D1.2 cmt.
n.4 (stating that “[t]his provision does not authorize the
grouping of offenses that cannot be considered to represent
essentially one composite harm (e.g., robbery of the same victim
on different occasions involves multiple, separate instances of
fear and risk of harm, not one composite harm)”); id. § 3D1.2
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cmt. n.4 ex.5 (noting that “counts are not to be grouped
together” when “[t]he defendant is convicted of two counts of
rape for raping the same person on different days”) (emphasis
added).13
Courts interpreting the Guidelines must begin with the text
of the provision at issue and the plain meaning of the words in
the text. See United States v. Mendez-Villa, 346 F.3d 568, 570
(5th Cir. 2003). In addition, we must consider the commentary to
the Guidelines as authoritative. See U.S.S.G. § 1B1.7; see also
13
Wise takes issue with the use of the example concerning
rape. In United States v. Von Loh, 417 F.3d 710 (7th Cir. 2005),
the Seventh Circuit recently rejected arguments similar to those
Wise makes here. The defendant in Von Loh argued that the court
should not rely on example five in the commentary because the
term “rape” covers only forcible assaults and not statutory rape
and because the Guidelines intended to treat statutory rape
different than example five for grouping decisions. Id. at 713.
The Seventh Circuit was unpersuaded by this argument, stating
that:
Section 3D1.2 of the Guidelines includes cross-references
to provisions for both aggravated sexual abuse (§ 2A3.1)
and statutory rape (§ 2A3.2). This indicates that the
Sentencing Commission knew when it drafted Example 5
[dealing with rape of the same victim on different days]
that the Guidelines recognized multiple forms of rape.
It is reasonable to infer from these cross-references
that the Sentencing Commission used the more expansive
term “rape” to cover various forms of the crime. That
the Guidelines distinguish between forcible and statutory
rape in other provisions further supports the inference
that the Sentencing Commission’s use of more inclusive
terminology in Example 5 was intentional.
Id. (internal citation omitted); see also U.S.S.G. § 2L1.2 cmt.
n.1(B) (defining “crime of violence” to include both forcible sex
offenses and statutory rape); id. § 4B1.2 cmt. n.1 (defining
“crime of violence” to include forcible sex offenses only).
Because our decision is not wholly reliant on example five and
for the same reasons proffered by the Seventh Circuit, we decline
to consider Wise’s argument other than to note it here.
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Stinson v. United States, 508 U.S. 36, 38 (1993). The district
court’s decision to treat Wise’s production counts occurring on
different days as separate harms was consonant with both the
plain language of § 3D1.2 and the examples in the commentary.
Although this is an issue of first impression in this circuit,
the district court’s decision was consistent with the circuit
courts that have addressed this and closely related issues. See
United States v. Searle, 65 F. App’x 343, 346 (2d Cir. 2003)
(unpublished) (considering multiple counts of production of child
pornography involving one victim and concluding that the district
court properly declined to group the counts because the child
victim “was harmed separately by the conduct embodied in each
count of conviction”); see also Von Loh, 417 F.3d at 714
(rejecting the defendant’s arguments that his counts of engaging
in sexual acts with a minor should be grouped because they
involved the same harm); United States v. Big Medicine, 73 F.3d
994, 997 (10th Cir. 1995) (holding that the defendant’s seventy-
five instances of sexual contact with the same minor should not
be grouped).
Although these cases do not necessarily address the exact
factual situation before us, we find them very persuasive in the
resolution of this case. The district court here grouped the
production counts that took place on the same day but refused to
group those occurring on different days on the theory that each
time was a separate harm to Doe. Wise made numerous requests for
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sexually explicit photographs of Doe, and each of the photographs
that the district court refused to group was taken on a different
day in response to Wise’s request. Each photograph caused Doe to
engage in a separate act of sexually explicit conduct, and the
district court did not err in concluding that Doe suffered a
separate harm with each occasion of production. See New York v.
Ferber, 458 U.S. 747, 757 (1982) (recognizing that the
psychological effect of visually recording the sexual
exploitation of a child is devastating, and its elimination is of
“surpassing importance”); United States v. Grimes, 244 F.3d 375,
382 (5th Cir. 2001) (noting that the harms involved with the
production and dissemination of child pornography “occur during
the first step--the photographing of the lasciviously exposed
minor”).
Wise cannot point to any case supporting his theory that the
production of child pornography counts occurring on different
days should be grouped. The cases he cites are inapposite
because they did not have grouping issues before the court or
they involved multiple victims. See, e.g., United States v.
Newsom, 402 F.3d 780 (7th Cir. 2005), cert. denied, 126 S. Ct.
1455 (2006); United States v. Altman, 901 F.2d 1161 (2d Cir.
1990). As illustrated by the district court’s decision to group
the production of child pornography counts occurring on the same
days (counts two and three and counts four and five), these cases
will be fact intensive. Although we do not deal with every
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eventuality today, we are convinced that the district court did
not err by refusing to group the production of child pornography
counts occurring on different days because each time involved a
separate harm. See U.S.S.G. § 3D1.2 cmt. n.4 (noting that the
grouping provisions do not authorize the grouping of offenses
that cannot be considered to represent one composite harm); see
also United States v. Bonner, 85 F.3d 522, 526 (11th Cir. 1996)
(holding that the district court properly refused to group twenty
counts of mailing threatening communications where the victim
suffered separate and distinct instances of psychological harm
with each separate communication). In light of our conclusion
that the district court did not err in refusing to group Wise’s
production of child pornography counts occurring on different
days, we need not address Wise’s challenge to the district
court’s decision not to group his enticement and travel counts.
Even assuming arguendo that these two counts should have been
grouped, Wise’s total units would be above the requisite number
of five pursuant to U.S.S.G. § 3D1.4. Thus, we need not reach
this issue.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Wise’s judgment of
conviction and sentence.
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