Professional Documents
Culture Documents
No. 08-4499
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
District Judge. (5:07-cr-00152-D-1)
Argued:
Decided:
PER CURIAM:
Defendant
imposition
Johnny
of
transmitting
Ray
Lee
420-month
child
sentence
pornography
advisory
applying
appeals
guidelines
four-level
the
upon
and
district
his
courts
conviction
transporting
of
obscene
range,
the
enhancement
district
on
the
court
ground
erred
that
by
Lees
or
other
2G2.2(b)(4).
five
images
depictions
of
violence.
U.S.S.G.
possessed
by
defendant.
We
conclude
that
the
district court did not commit clear error in its findings that
Exhibit
sexually
5,
one
of
explicit
the
images
child
possessed
pornography
regarding
the
without
scope
of
reaching
section
was
sadistic,
As such, it qualifies
defendant,
portraying
defendants
by
We therefore affirm
defendants
2G2.2(b)(4)s
arguments
meaning
or
the
sections constitutionality.
I.
In
early
transmitted
officer
in
2006,
child
Keene,
Lee,
pornography
New
resident
images
Hampshire.
3
to
of
an
North
Carolina,
undercover
Investigators
in
police
Keene
contacted
the
North
Carolina
State
Bureau
of
Investigation,
child
pornography.
After
communicating
with
the
officer online, Lee agreed to meet the officer in person for the
purpose of exchanging child pornography images.
Lee subsequently
presentence
report
determined
that
the
advisory
calculation
included
four-level
enhancement
resulting
other
depictions
of
violence.
4
U.S.S.G
2G2.2(b)(4).
would
concluded
have
that
been
the
235
to
293
guidelines
months.
advised
The
the
report
maximum
also
penalty
four
of
the
images
did
not
sexually
explicit
transmitting
that
Exhibit
5,
child
while
pornography.
sexually
Second,
explicit,
defendant
did
not
argued
appear
to
The
fifth
image
would
support
the
enhancement
even
if
the
to
be
360
to
480
months
of
imprisonment
on
the
The
district
court
then,
after
considering
the
the
four-level
enhancement
under
section
2G2.2(b)(4)
were
same
sentence
in
light
of
the
unique
nature
and
J.A.
district
court
procedurally
erred
when
computing
defendants
II.
United States v. Booker, 543 U.S. 220 (2005), found the
federal sentencing guidelines unconstitutional and remedied the
unconstitutionality by declaring them to be merely advisory for
sentencing
judges.
Sentences
are
now
reviewed
for
substantive components.
210,
260
without
(4th
Cir.
legal
procedure
2008).
However,
significance
mandated
by
after
the
the
guidelines
Booker.
reasonableness
The
are
not
sentencing
inquiry
requires
at
the
outset
of
sentencing.
calculated
Gall
v.
United
A sentence based on an
guidelines
See
range
will
be
found
in
this
case
included
section 2G2.2(b)(4).
for
applying
the
four-level
enhancement
under
enhancement
was
that
section
2G2.2(b)(4)
if
not
sexually
interpretation
2G2.2(b)(4),
is
which
explicit.
Defendant
inconsistent
with
states
[i]f
that
the
the
argues
text
that
of
offense
this
section
involved
U.S.S.G. 2G2.2(b)(4).
provisions
text
requires
that
sadistic,
masochistic
or
the
alternative,
section
2G2.2(b)(4)
defendant
that
argues
allows
that
an
that
enhancement
reading
for
of
non-
unconstitutionally
overbroad,
because
it
would
increase
that
is
not
sexually
explicit,
or
whether
such
provided an alternate ground for its application of the fourlevel enhancement: it found that Exhibit 5 depicts a minor, is
sexually explicit, and is sadistic, masochistic, or otherwise
violent.
Both
sides
agree
that
section
2G2.2(b)(4)
can
be
explicit,
and
on
appeal
now
concedes
that
the
U.S.S.G. 2G2.2(b)(4).
at
sentencing
will
be
overturned
only
if
clearly
erroneous.
United States v. Hampton 441 F.3d 284, 287 (4th Cir. 2006); see
also Gall, 128 S. Ct. at 597.
We hold that the district court did not clearly err in
finding that Exhibit 5 portrays sadistic, masochistic, or other
violent conduct.
his
and
holding
his
hands
behind
his
back.
Defendant argues that the boy is not bound, and does not appear
to be in pain. However, both the leather strap and the placement
of the boys hands behind his back -- an unusual position for
someone to place his unbound hands -- give rise to an inference
that the boys hands are bound.
least
not
clearly
erroneous.
thus
cannot
say
that
the
on
defendant.
the
interpretation
of
the
guideline
advanced
by
in defendants sentencing. *
III.
Defendants sentence is therefore affirmed.
AFFIRMED
10
I write
why
it
would
sentence
Lee
to
the
same
term
argues
enhancement,
on
appeal
he
does
that
not
the
argue
court
that
the
erred
in
court
of
Although
using
the
committed
any
imposing
the
alternate
sentence,
the
district
court
that
impose
the
even
same
if
the
enhancement
sentence.
On
did
appeal,
not
the
apply
it
Eleventh
would
Circuit
the
explained:
alternate
[I]t
sentence
would
make
was
no
reasonable.
sense
to
As
set
the
aside
court
this
reasonable sentence and send the case back to the district court
since it has already told us that it would impose exactly the
11
Id.
at 1350.
This
agreed
case
with
is
Lee
strikingly
regarding
similar
the
to
Keene.
enhancement,
Even
remand
if
to
we
the
this
circumstance,
where
we
are
presented
with
single
case
sentence.
could
have
been
affirmed
simply
on
the
Therefore,
alternate
12