UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10907
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH LYNN DAVIDSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
February 22, 2002
Before DAVIS and JONES, Circuit Judges, and BARBOUR,* District
Judge.
EDITH H. JONES, Circuit Judge:
Kenneth Davidson pleaded guilty to a 72 count indictment which
included seventy-one counts related to possession, interstate
trafficking and distribution of child pornography. Davidson argues
that the district court erred by failing to group the child
pornography offenses for sentencing purposes pursuant to United
States Sentencing Guidelines (“U.S.S.G.”) § 3D1.2. We find that §
*
District Judge of the Southern District of Mississippi, sitting by
designation.
3D1.2 did not require grouping of Davidson’s offenses and AFFIRM
the judgment of the district court.
FACTS
From June of 1998 through April of 1999, Davidson
operated his personal computer as a pornography “fileserver”
accessible via the internet. Davidson’s fileserver operated under
the name “Wildserv”. Wildserv facilitated trading of computer
images of child pornography, bestiality, bondage, rape, murder and
other violent acts. Davidson advertised the existence of Wildserv
in various internet chat rooms.
Davidson set up Wildserv to permit other computer users
to download computer images of child pornography and violent acts.
Davidson’s computer images could not be downloaded until the user
“uploaded” images of comparable content to Davidson’s computer.
Davidson posted the following rule on Wildserv regarding the type
of uploaded images required to gain access to Davidson’s files:
“Only upload rape, snuff, preteens, teens, young bondage, torture,
sleeping, drugged, and movies . . . Only the best will get
unlimited access to my other server . . . Also panic pics.”
On February 15, 2000, a grand jury returned a 72 count
indictment against Davidson charging him with forty-nine counts of
interstate transportation of child pornography in violation of 18
U.S.C. § 2252A(a)(2)(A); nine counts of interstate distribution of
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child pornography in violation of 18 U.S.C. § 1465; two counts of
receipt of obscene matter in interstate commerce in violation of 18
U.S.C. § 1462; eleven counts of possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(b); and a single count of
possession of an unregistered firearm in violation of 18 U.S.C. §§
5861 and 5871. Davidson entered a guilty plea to all counts
charged in the indictment without the benefit of a plea agreement.
The district court imposed concurrent sentences of 151 months
imprisonment for interstate transportation of child pornography, 60
months for interstate distribution, possession and receipt of child
pornography, and 120 months for possession of an unregistered
firearm.
At issue in this appeal is the propriety of the 151 month
sentence imposed for interstate transportation of child pornography
The parties agree that the Pre-Sentencing Report (“PSR”) properly
calculated Davidson’s adjusted base offense level for each
interstate transportation count, pursuant to U.S.S.G. § 2G2.2, as
follows:
Base Offense Level for
Transportation of Child Pornography 17
Enhancement for material involving a minor +2
Enhancement for distribution +5
Enhancement for violent depictions +4
Enhancement for use of a computer +2
3
Total Offense level 30.
The parties disagree about the district court’s determination that
Davidson’s interstate transportation offenses warranted a five-
level multiple-offense enhancement, pursuant to U.S.S.G. § 3D1.4,
raising the total offense level to 35.
Davidson contends that the district court erred by
refusing to group his interstate transportation offenses as
“closely related counts” into a single offense pursuant to U.S.S.G.
§ 3D1.2(c). If grouped, Davidson’s offenses would be treated as a
single offense unit, and the five-level multiple-offense
enhancement would not apply. The PSR, relying on United States v.
Norris, 159 F.3d 926 (5th Cir. 1998), determined that Davidson’s
offenses were not amenable to § 3D1.2(c) grouping because
Davidson’s offenses involved multiple victims. The district court
relied on the recommendations of the PSR and refused to group
Davidson’s offenses. Davidson now appeals his sentence.
DISCUSSION
This court reviews the trial court’s application of the
sentencing guidelines de novo and findings of fact under the
clearly erroneous standard. See, e.g., United States v. Salter,
241 F.3d 392, 394 (5th Cir. 2001). The guidelines in effect on the
date of Davidson’s sentencing are used to calculate his sentence.
See Norris, 159 F.3d at 928 n. 1 (citation omitted).
4
The November 1, 1998, sentencing guidelines were in
effect at the time of Davidson’s sentencing. Section 3D1.2
provided as follows:
3D1.2. Groups of Closely Related Counts
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: . . .
(c) When one of the counts embodies
conduct that is treated as a specific offense
characteristic in, or other adjustment to, the
guideline applicable to another of the counts.
U.S. SENTENCING GUIDELINES MANUAL § 3D1.2 (1998). Section 3D1.2 also
provided a laundry list of “(1) [offenses] to which the section
specifically applies; (2) [offenses] to which the section
specifically does not apply; and (3) [offenses] for which grouping
may be appropriate on a case-by-case basis.” Salter, 241 F.3d at
394 (citing United States v. Gallo, 927 F.2d 815 (5th Cir. 1991)).
Davidson’s offenses fell into the case-by-case grouping category.
However, on November 1, 2001, § 3D1.2 was amended, and Davidson’s
offense was placed on the list of offenses for which grouping is
mandatory.1
Davidson contends that the district court erred by
refusing to group his interstate trafficking offenses. First,
Davidson argues that the November 1, 2001, amendment to § 3D1.2 is
1
Amendment 615, effective on November 1, 2001, added §§ 2G2.2 and 2G2.4
to the list of offenses which require grouping. See U.S. SENTENCING GUIDELINES MANUAL
§ 3D1.2 (2001).
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a clarifying amendment which must be retroactively applied. In the
alternative, Davidson argues that his offenses should be grouped
pursuant to § 3D1.2(c) of the 1998 sentencing guidelines. We
reject both arguments.
1. The amendment to § 3D1.2
Davidson urges retroactive application of Sentencing
Guideline Amendment 615. See U.S. SENTENCING GUIDELINES MANUAL, SUPP. TO
APPENDIX C (2001). An amendment to the sentencing guidelines is
retroactive only “if it is intended to clarify application of a
guideline [and] ‘was not intended to make any substantive changes
to [the guidelines] or [their] commentary . . . .” See United
States v. Gross, 26 F.3d 552, 555 (5th Cir. 1994) (quoting United
States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993)).
Amendment 615, as a substantive amendment to the
guidelines, may not be retroactively applied. First, the amendment
added text to § 3D1.2 substantively changing the guideline.
Additionally, the commentary to Amendment 615 does not classify the
amendment as a clarifying amendment, a description that would
support the conclusion that the amendment is substantive. Instead,
the substantive nature of this amendment is evident in the
commentary, which states:
[T]he amendment addresses a circuit conflict regarding
whether multiple counts of possession, receipt, or
transportation of images containing child pornography
should be grouped together pursuant to [§ 3D1.2]. . . .
In addressing the circuit conflict, the Commission
6
adopted a position that provides for grouping of multiple
counts of child pornography distribution, receipt, and
possession pursuant to § 3D1.2(d).
U.S. SENTENCING GUIDELINES MANUAL, SUPP. TO APPENDIX C, 130 (2001); see
also, United States v. McIntosh, __ F.3d __, 2002 WL 58867, *5 (5th
Cir. 2002) (relying on commentary to Amendments to determine that
Amendment was substantive rather than clarifying). “Further
evidence that the sentencing commission did not intend Amendment
[615] to be a clarifying change is that it is not included in the
list of amendments to be applied retroactively.” See McIntosh at
*5 (citing U.S.S.G. § 1B1.10(c)). Amendment 615 does not apply to
Davidson’s sentence because it substantively changes § 3D1.2.
2. Section 3D1.2(c) grouping
Davidson next contends that the district court erred by
refusing to group his offenses pursuant to § 3D1.2(c) of the 1998
guidelines. As stated earlier, Davidson’s offenses fell into the
case-by-case grouping category of § 3D1.2 at the time of his
sentencing. The grouping determination for offenses in the case-
by-case category “depends on factual and case-specific conclusions.
A reviewing court must therefore give ‘due deference’ to the
district court, and respect the informed judgements made by that
court.” Gallo, 927 F.2d at 823 (citing United States v. Pope, 871
F.2d 506, 509 (5th Cir. 1989)).
In United States v. Haltom, 113 F.3d 43, 46 (5th Cir.
1997), this court observed that the purpose of section 3D1.2(c) is
7
to prevent “double counting” of offense behavior. Haltom was
convicted of tax evasion and mail fraud. Haltom’s sentence for the
tax evasion offense was enhanced on the basis of his mail fraud
conviction. Haltom was then separately sentenced for the mail
fraud offense. This court determined that the enhancement for mail
fraud was impermissible double counting, and that § 3D1.2(c)
required grouping of the tax evasion and mail fraud offenses
because “the mail fraud count ‘embodies conduct that is treated as
a specific offense characteristic’ of the tax evasion counts.” Id.
Similarly, in United States v. Rice, 185 F.3d 326 (5th
Cir. 1999), this court determined that § 3D1.2(c) required grouping
of drug-related offenses with money laundering offenses. The court
found that the drug offenses had been impermissibly double counted
at sentencing; “once as the basis for [the defendant’s] conviction
on his drug counts, and again as a specific offense characteristic
of the money laundering count.” Id. at 329. In vacating Rice’s
sentence, the court again reiterated that the purpose of § 3D1.2(c)
is to prevent double counting of offense conduct in sentencing.
Id. at 328; see also, Salter, 241 F.3d at 395 (requiring grouping
of drug trafficking and money laundering offenses because the drug
trafficking offense was used to enhance the money laundering
offense).
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Davidson argues that Haltom and Salter require grouping
of his pornography offenses because the district court applied a
“distribution” enhancement to each of Davidson’s interstate
transportation of child pornography counts. Davidson’s argument
lacks merit. It is true that each of Davidson’s forty-nine counts
of interstate transportation of child pornography was enhanced for
distribution pursuant to § 2G2.2(b)(2). However, unlike the
offense conduct in Haltom and Salter, distribution is not a
separate “count [which] embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the
guideline applicable to another [] count.” In other words,
distribution is not being double counted because it is not a
separate offense. Likewise, distribution is not a characteristic
that links the separate interstate transportation offenses
together. Distribution operates as an independent and unrelated
enhancement of separate crimes have in the same sense as bodily
injury is described in the commentary to § 3D1.2(c):
It is not, for example, the intent of this rule that
(assuming they could be joined together) a bank robbery
on one occasion and an assault resulting in bodily injury
on another occasion be grouped together. The bodily
injury (the harm from the assault) would not be a
specific offense characteristic to the robbery and would
represent a different harm.
This is not to say that under the 1998 guidelines,
multiple offenses involving interstate transportation of child
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pornography could never be grouped under § 3D1.2(c); but they are
not required to be so grouped, and should not be so grouped simply
because each offense was aggravated by distribution.2 Therefore,
the district court did not err by refusing to group Davidson’s
pornography offenses.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
2
Davidson relies on United States v. Ketcham, 80 F.3d 789 (3rd Cir.
1996). In Ketcham, the Third Circuit explained, in dicta, that grouping under
§ 3D1.2(c) is appropriate if the “pattern of activity involving sexual abuse or
exploitation of a minor” enhancement of § 2G2.4(b)(4) is applied to multiple
counts. Ketcham held, however, that grouping pursuant to § 3D1.2 was not
required because the “pattern of conduct” enhancement was incorrectly applied,
and there was no “ongoing or continuous” conduct warranting grouping under §
3D1.2(d). See id. at 795-96. Ketcham does not support Davidson’s contention
that grouping is required in all cases involving multiple child pornography
trafficking counts which are individually enhanced for distribution.
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