United States v. Norman Evans McElroy, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 16, 2009
THOMAS K. KAHN
No. 09-11810 CLERK
Non-Argument Calendar
________________________

D. C. Docket No. 07-00104-CR-W-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORMAN EVANS MCELROY, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________

(November 16, 2009)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:
Norman McElroy appeals the 20-year sentence imposed following his

conviction on two counts of receiving child pornography in violation of 18 U.S.C.

§ 2252A(a)(2)(A). He challenges the sentence on three grounds, arguing that the

district court erred in admitting nine victim impact statements under 18 U.S.C.

§ 3771, that he should not have received a five-point offense level enhancement

under U.S.S.G. § 2G2.2(b)(3)(B), and that his sentence was substantively

unreasonable in violation of 18 U.S.C. § 3553(a).

I. BACKGROUND

Pursuant to an investigation concerning child pornography uploaded to an

online user group, the FBI discovered 2,670 images of child pornography on two

computers used by Norman McElroy. In subsequent interviews with FBI agents,

McElroy admitted using the machines to download, view, and store sexually

explicit images of children. He also admitted uploading three images of child

pornography to the online user group in exchange for the ability to view other

images posted to that group. McElroy ultimately entered a guilty plea on both

§ 2252A(a)(2)(A) counts.

At his sentencing hearing, McElroy objected to the government’s

introduction of nine victim impact statements on the ground that the authors had

not been established as victims of his crimes. McElroy also objected to a five-

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level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distributing material

involving the sexual exploitation of a minor “for the receipt, or expectation of

receipt, of a thing of value, but not for pecuniary gain,” arguing that no evidence

supported a finding that he expected to receive anything of value when he

uploaded images to the online user group. The district court overruled both

objections.

After determining the advisory Guidelines range to be 210 to 262 months,

the district court imposed a sentence of 240 months on each count, to be served

concurrently. McElroy objected to the sentence as unreasonable under 18 U.S.C.

§ 3553(a) because it created an unwarranted sentencing disparity among similarly

situated defendants. The district court overruled the objection, and McElroy

timely appealed.

II. STANDARD OF REVIEW

We will not overturn the district court’s evidentiary rulings absent clear

abuse of discretion. United States v. Veltmann, 6 F.3d 1483, 1491 (11th Cir.

1993). With respect to the court’s application of the Sentencing Guidelines, we

review its factual findings for clear error and its determinations regarding the

appropriateness of a sentencing enhancement on those facts de novo. United

States v. Walker, 490 F.3d 1282, 1299 (11th Cir. 2007).

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We review sentencing decisions for an abuse of discretion, reviewing for

both significant procedural errors and substantive reasonableness under the totality

of the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.

2008). In applying this deferential standard, “we recognize that there is a range of

reasonable sentences from which the district court may choose.” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we do not presume a

sentence within the advisory Guidelines range to be reasonable, United States v.

Campbell, 491 F.3d 1306, 1313 (11th Cir. 2008), when the district court imposes

such a sentence, “we ordinarily will expect that choice to be a reasonable one,”

Talley, 431 F.3d at 788.

III. DISCUSSION

On appeal, McElroy argues that the authors of the victim impact statements

considered by the district court are not “victims” within the meaning of the Crime

Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, because they were not “directly

and proximately harmed as a result” of his crimes, id. § 3771(e). Specifically, he

argues that the children in the images found on his computers were victims of the

creation of the pornography depicting them, not victims of his receipt and

distribution thereof. As we have previously emphasized, however, “[t]he

distribution of photographs and films depicting sexual activity by juveniles is

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intrinsically related to the sexual abuse of children[,] . . . and the harm to the child

is exacerbated by their circulation.” Pugh, 515 F.3d at 1196 (quoting New York v.

Ferber, 458 U.S. 747, 759 (1982)). Even those “who ‘merely’ or ‘passively’

receive or possess child pornography directly contribute to this continuing

victimization,” United States v. Goff, 501 F.3d 250, 259 (11th Cir. 2007)

(emphasis added), and if “criminal behavior causes a party direct and proximate

harmful effects, the party is a victim under the CVRA,” In re Stewart, 552 F.3d

1285, 1288 (11th Cir. 2008).

The government produced evidence at McElroy’s sentencing hearing that

the victim impact statements had been written by children and the parents of

children1 depicted in pornographic images found on McElroy’s computers. These

children were victims of McElroy’s crimes. Under the CVRA, “[a] crime victim

has . . . [t]he right to be reasonably heard at any public proceeding in the district

court involving . . . sentencing.” 18 U.S.C. § 3771(a), (a)(4). Moreover,

sentencing judges “may appropriately conduct an inquiry broad in scope, largely

unlimited either as to the kind of information [they] may consider, or the source

from which it may come.” United States v. Rodriguez, 765 F.2d 1546, 1555 (11th

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“In the case of a crime victim who is under 18 years of age, . . . the legal guardians of the crime
victim . . . may assume the crime victim’s rights under [the CVRA] . . . .” 18 U.S.C. § 3771(e).

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Cir. 1985) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)). The

district court, therefore, did not abuse its discretion by considering the victim

impact statements.

McElroy’s challenge to his five-level sentencing enhancement under

U.S.S.G. § 2G2.2(b)(3)(B) is similarly unavailing. “‘Distribution for the receipt,

or expectation of receipt, of a thing of value, but not for pecuniary gain’ means

any transaction . . . that is conducted for a thing of value, but not for profit.”

U.S.S.G. § 2G2.2(b)(3)(B), comment. (n.1) (2008). “Things of value” may include

“child pornographic material received in exchange for other child pornographic

material bartered in consideration for the material received.” Id.; accord United

States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002). McElroy admitted

uploading three images of child pornography to an online user group in exchange

for the ability to view other child pornography. Accordingly, the district court did

not err in its application of U.S.S.G. § 2G2.2(b)(3)(B).

Finally, we conclude that McElroy’s sentence was reasonable. The district

court properly calculated the advisory Guidelines range and acknowledged

McElroy’s arguments regarding the relevant factors under 18 U.S.C. § 3553(a).

The district court was not obligated to discuss each of the section 3553(a) factors

individually, and its “acknowledgment . . . that it ha[d] considered the defendant’s

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arguments and the factors in section 3553(a) [wa]s sufficient” to support a

sentence within the advisory Guidelines range under the circumstances of this

case. Talley, 431 F.3d at 786.

In light of our conclusions that the district court did not abuse its discretion

in considering the victim impact statements, did not err in enhancing McElroy’s

offense level under U.S.S.G. § 2G2.2(b)(3)(B), and imposed a reasonable

sentence, we affirm the judgment and sentence of the district court.

AFFIRMED.