USA v. Mark Love

Filing

Opinion issued by court as to Appellant Mark Alan Love. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12095
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-00292-RDP-JEO-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ALAN LOVE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 6, 2017)
Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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After a jury trial, Mark Alan Love was convicted of knowingly receiving
and distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and of
knowingly possessing child pornography involving a prepubescent minor, in
violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2).
sentenced to 135 months of imprisonment.

For these offenses, he was

On appeal, he challenges his

convictions and sentences on three grounds: (1) the evidence was insufficient to
show that he knowingly possessed, received, and distributed “child pornography,”
instead of what he calls “legal child erotica”; (2) the jury instruction for the
distribution count defined too broadly what it means to “distribute” child
pornography; and (3) the court imposed a procedurally and substantively
unreasonable sentence. After careful review, we affirm.
I. Sufficiency of the Evidence
Love first challenges the sufficiency of the evidence to support his
convictions. In Love’s view, the government failed to prove that he knowingly
possessed, received, and distributed “child pornography” and not just “legal child
erotica.”
We review de novo the sufficiency of the evidence to support a conviction,
“viewing the evidence in the light most favorable to the government, drawing all
reasonable inferences and making all credibility choices in the government’s
favor.” United States v. Pruitt, 638 F.3d 763, 765 (11th Cir. 2011) (internal
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quotation marks omitted). “A jury’s verdict cannot be overturned if any reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” United States v. Rodriguez, 732 F.3d 1299,
1303 (11th Cir. 2013).

“The evidence need not be inconsistent with every

reasonable hypothesis except guilt, and the jury is free to choose between or
among the reasonable conclusions to be drawn from the evidence presented at
trial.” Id.
To sustain Love’s three convictions, the government had to prove that Love
not only possessed, received, and distributed “child pornography,” but that he did
so “knowingly” rather than mistakenly or inadvertently.

See 18 U.S.C.

§ 2252A(a)(2)(A), (5)(B); see also United States v. Woodruff, 296 F.3d 1041, 1047
(11th Cir. 2002) (an act is done knowingly when it is performed voluntarily and
intentionally, not because of a mistake or accident).

“Child pornography” is

defined in the statute as, among other things, “any visual depiction . . . where the
production of such visual depiction involves the use of a minor engaging in
sexually explicit conduct.” 18 U.S.C. § 2256(8)(A). A “minor” is any person
under eighteen. Id. § 2256(1). “Sexually explicit conduct,” in turn, includes
“masturbation” and “lascivious exhibition of the genitals or pubic area of any
person.” Id. § 2256(2)(A). Thus, the government had to prove Love knew the

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“sexually explicit nature of the material and . . . the age of the performers.” United
States v. X–Citement Video, Inc., 513 U.S. 64, 78 (1994).
The government’s evidence established that in July 2014 a law-enforcement
agent, using peer-to-peer file-sharing software, downloaded from an IP address
registered to Love over 300 images that appeared to capture females under the age
of eighteen in sexual poses. Some of the images featured girls who appeared to be
six or seven years old. While the majority of images did not meet the federal
definition of child pornography, Love does not dispute that some images did. For
example, one of the images downloaded by the agent depicted a pubescent female
sitting on a red carpet with her legs spread apart, and the photograph focused on
her vagina, with the logo “lsmodels.com” in the top-right corner.
Officers executed a search warrant at Love’s residence and seized a hard
drive and a thumb drive. On the hard drive, under the password-protected user
name “Mark,” Love had created a folder titled “ls” in which he stored images and
videos of child pornography. In total, the government found roughly 2,000 images
of children on the hard drive, and an expert witness testified that about half met the
federal definition of child pornography. For example, the hard drive included an
image of a prepubescent female standing with her legs spread apart and displaying
her vagina and buttocks, with the logo “lsmodels.com” at the top right. The thumb
drive contained 70 videos of child pornography.
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The government also introduced statements Love made during an interview
with law enforcement.

Love admitted having “nude photos of prepubescent

children.” He stated that he viewed downloaded images roughly once per week.
He explained that, to find the material, he had been using specific search terms,
“teen,” “lolita,” “ls,” “ls model,” and “ls dream,” for the previous six to nine
months. An expert witness testified that these search terms were “consistent with
the search terms that are used to search for child pornography.”
Love does not dispute that the evidence is sufficient to show that he
possessed, received, and distributed child pornography.

He challenges only

whether he did so “knowingly.” That is, Love argues that the government failed to
prove his knowledge because the evidence was equally consistent with an
interpretation that he knowingly possessed, received, and distributed only “legal
child erotica”—i.e. images of minors which did not depict “sexually explicit
conduct” as defined in § 2256(2)(A). See Cosby v. Jones, 682 F.2d 1373, 1383
(11th Cir. 1982) (“[I]f the evidence viewed in the light most favorable to the
prosecution gives equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged, then a reasonable jury must
necessarily entertain a reasonable doubt.”). Love maintains that any images of
child pornography on his hard drive or thumb drive were there inadvertently as a

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result of his searches for child erotica and that he did not know of the images
because he did not view all the images he downloaded.
Viewing the evidence and drawing all reasonable inferences in favor the
government, however, the circumstantial evidence of Love’s knowledge was more
than sufficient to establish his guilt beyond a reasonable doubt. This evidence
included roughly 2,000 images of children on Love’s hard drive, about half of
which constituted child pornography; the 70 videos of child pornography that he
manually transferred to a thumb drive; Love’s use of search terms, for a period of
six to nine months, which were consistent with search terms used to search for
child pornography; his weekly viewing of downloaded images; and his admission
that he possessed nude photos of prepubescent children. From this evidence, a
reasonable jury could conclude that Love possessed, received, and distributed child
pornography knowingly and not merely inadvertently or mistakenly.

See

Woodruff, 296 F.3d at 1047. For instance, as even Love recognizes, the search
terms he used “can produce both legal and illegal images.” So it is unlikely that
Love could, over a period of six to nine months, search for, download, and
regularly view images of child erotica without also encountering images that
depicted children engaged in sexually explicit conduct.
While Love’s conduct is also consistent with possession, receipt, and
distribution of child erotica, “[t]he evidence need not be inconsistent with every
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reasonable hypothesis except guilt, and the jury is free to choose between or
among the reasonable conclusions to be drawn from the evidence presented at
trial.” Rodriguez, 732 F.3d at 1303. And, here, we agree with the government that
“the far more reasonable interpretation of the trial evidence is simply that Love
was interested in both child erotica and child pornography.” The jury was free to
choose that reasonable interpretation and to conclude that Love knowingly
possessed, received, and distributed child pornography.
Because sufficient evidence supports Love’s convictions, the district court
did not err in denying his motion for judgment of acquittal.
II. Jury Instruction
Next, Love argues that the district court erroneously instructed the jury by
providing an overbroad definition of what it means to “distribute” child
pornography for purposes of 18 U.S.C. § 2252A(a)(2). In Love’s view, the court’s
instruction permitted the jury to find distribution based on “mere downloading of
images to a shared folder,” which Love says is insufficient because a user could
download an image to a shared folder “and immediately move[] it out of the shared
folder” or disable file sharing altogether.
We review de novo the legal correctness of a jury instruction challenged
before the district court. United States v. Isnadin, 742 F.3d 1278, 1296 (11th Cir.
2014). Nevertheless, “[d]istrict courts enjoy broad discretion in formulating jury
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instructions.” Id. “We will not reverse a defendant’s conviction based on a
challenge to the jury charge unless we are left with a substantial and ineradicable
doubt as to whether the jury was properly guided in its deliberations.” United
States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013) (internal quotation marks
omitted). When the challenged instruction, viewed as a whole and in the context
of the entire trial, “accurately expresses the applicable law, there is no reason for
reversal even though isolated clauses may, in fact, be confusing, technically
imperfect, or otherwise subject to criticism.” United States v. Gonzalez, 834 F.3d
1206, 1222 (11th Cir. 2016) (internal quotation marks omitted); see United States
v. Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016), petition for cert. filed, (U.S.
Feb. 16, 2017) (No. 16-8072) (noting that isolated statements from a charge, even
if seemingly prejudicial on their face, may not be so when viewed in the context of
the entire record of the trial).
“[A] defendant ‘distributes’ child pornography within the meaning of [18
U.S.C. § 2252A(a)(2)] when he either transfers it to another person or makes it
accessible to others through a file-sharing website or peer-to-peer network.”
United States v. Grzybowicz, 747 F.3d 1296, 1308 (11th Cir. 2014). In this case,
the district court, relying on Grzybowicz, instructed the jury as follows:
To “distribute” something means to deliver or transfer possession of it
to someone else, with or without money involved in the transaction.
Uploading, downloading, and/or storing images and videos of child
pornography into a shared folder which is fully accessible for other
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users of peer-to-peer file sharing software constitutes distribution.
However, the Government must prove beyond a reasonable doubt that
the Defendant knew that his files would be shared.
Love wanted the instruction limited to “storing” images in a shared folder. The
court indicated that it included the language “[u]ploading, downloading, and/or
storing” because it wanted to “take[] into account the various ways that the item
could have turned up in the shared folder.” Nevertheless, both the government and
the district court agreed that the mere act of downloading a file to a shared folder
was not sufficient to constitute distribution.
Here, viewing the instruction as a whole and in the context of the entire trial,
we are not left with any substantial doubt as to whether the jury was properly
guided in its deliberations. See Gibson, 708 F.3d at 1275. The instruction informs
the jury that distribution occurs when a defendant places images of child
pornography—whether by “[u]ploading, downloading, and/or storing” them—
“into a shared folder which is fully accessible for other users of peer-to-peer file
sharing software” and the defendant “knew that his files would be shared.”
Contrary to Love’s arguments, as the district court pointed out, the instruction does
not treat the mere act of downloading a file into a shared folder as distribution.
Rather, the instruction requires proof that the defendant, by downloading images to
a shared folder fully accessible to other users of the peer-to-peer file-sharing

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program, knew that the files would be shared. Viewed as a whole, the instruction
accurately expresses the applicable law. See Gonzalez, 834 F.3d at 1222.
More broadly, viewing the charge in the context of the whole trial confirms
that the charge was not misleading and that it accurately guided the jury’s
determination. See Seabrooks, 839 F.3d at 1333. Based on the evidence presented
at trial and the parties’ closing arguments, it was clear that the distribution count
referred to the images downloaded by the agent from Love’s IP address in July
2014.

And the agent’s testimony established that she downloaded child

pornography from Love’s computer that was accessible through a peer-to-peer
network. Other testimony established that Love understood that the file-sharing
program he used allowed other users to access the files in his shared folder. In
light of these facts, there is nothing to suggest the jury found that Love distributed
child pornography on any basis other than by “mak[ing] it accessible to others
through a . . . peer-to-peer network.” See Grzybowicz, 747 F.3d at 1308.
III. Sentencing
Finally, Love challenges the procedural and substantive reasonableness of
his sentence. He argues that the court treated his guideline range of 135 to 168
months of imprisonment as presumptively reasonable by anchoring the sentence in
the guideline range and failing to consider the § 3553(a) factors and evaluate
whether the child-pornography guideline, U.S.S.G. § 2G2.2, serves its stated
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purpose. Love further argues that § 2G2.2 produces unreasonably harsh guideline
ranges for non-production child-pornography offenses and does not serve the
purposes of sentencing. By relying on the guideline range produced by § 2G2.2 in
his case, Love contends, the court imposed a substantively unreasonable sentence.
We review a district court’s sentence, whether inside or outside the
applicable guideline range, under a deferential abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). We first ensure that the district court
followed the proper sentencing procedures and then consider whether the sentence
is a reasonable one based on the totality of the circumstances and the 18 U.S.C.
§ 3553(a) sentencing factors. United States v. Johnson, 803 F.3d 610, 618 (11th
Cir. 2015).
The district court must impose a sentence that is “sufficient, but not greater
than necessary, to comply with the purposes” of sentencing listed in § 3553(a)(2),
and the court must consider numerous factors relevant to that determination,
including the applicable guideline range. See 18 U.S.C. § 3553(a)(1)–(7). The
court may, in its discretion, give greater weight to some § 3553(a) factors over
others. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).
The guideline range is the “starting point and the initial benchmark,” but the
court must consider all of the § 3553(a) factors in light of the totality of the
circumstances. Gall, 552 U.S. at 49–50. In doing so, the court may not treat the
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guideline range as presumptively reasonable. United States v. Hill, 643 F.3d 807,
880 (11th Cir. 2011). Rather, the court “must make an individualized assessment
based on the facts presented.” Gall, 552 U.S. at 50. Nevertheless, the Sentencing
Guidelines are the “lodestar” of federal sentencing proceedings and they “inform
and instruct the district court’s determination of an appropriate sentence.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1346 (2016).
The district court enjoys broad discretion in determining an appropriate
sentence. “Abuse-of-discretion review allows a range of choice for the district
court, so long as that choice does not constitute a clear error of judgment.” United
States v. Carpenter, 803 F.3d 1224, 1234 (11th Cir. 2015) (internal quotation
marks omitted). A district court abuses its discretion when it (1) fails to afford
consideration to relevant factors, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in weighing the proper
factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
Because we may not substitute our own judgment for the district court’s, “we may
only vacate a defendant’s sentence if we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” Carpenter, 803 F.3d at
1234 (internal quotation marks omitted). The party challenging the sentence bears
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the burden of demonstrating that the sentence is unreasonable “in light of the entire
record, the § 3553(a) factors, and the substantial deference afforded to sentencing
courts.” Rosales-Bruno, 789 F.3d at 1256.
Love’s arguments are based mainly on a report to Congress that the U.S.
Sentencing Commission released in February 2013. See United States v. Cubero,
754 F.3d 888, 898 (11th Cir. 2014) (discussing United States Sentencing Comm’n,
Special Report to Congress: Federal Child Pornography Offenses (Dec. 2012)).
Among other findings, the report “questions the appropriateness of the current
guidelines scheme in § 2G2.2 for non-production cases where the offender used
peer-to-peer file sharing and the Internet to receive and distribute pornography.”
Id. at 899. Although it recommends amending § 2G2.2, the Commission’s report
indicates that Congress needs to act first before the guideline could be amended
because § 2G2.2, unlike most other guidelines, was promulgated pursuant to
specific congressional directives. Id.
We have held that the Commission’s report, despite its criticisms of § 2G2.2,
does not render that guideline “invalid or illegitimate,” nor does it alter the district
court’s duties to calculate the advisory guideline range under § 2G2.2. Id. at 900.
Moreover, “[w]hile a district court may certainly consider the 2013 report in
choosing the ultimate sentence,” the court’s use of § 2G2.2 “does not render [the
defendant’s] sentence procedurally or substantively unreasonable.” Id. Nor does
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the report “require the district court to vary from the § 2G2.2-based guidelines
range.” Id. Likewise, the report does not alter this Court’s duties in reviewing
sentences based on § 2G2.2, and it does not abrogate “binding precedent about §
2G2.2 in this Circuit.” Id.
Here, Love’s sentence is procedurally and substantively reasonable. To
begin with, the district court did not presume that the guideline range was
reasonable or fail to “make an individualized assessment based on the facts
presented.” Gall, 552 U.S. at 50. The court’s use of the § 2G2.2-based guideline
range does not alone “render [Love’s] sentence procedurally or substantively
unreasonable.” Cubero, 754 F.3d at 900. And that the court sentenced him within
the guideline range also raises no red flags. See Molina-Martinez, 136 S. Ct. 1347
(noting that the guideline range “anchor[s] the court’s discretion in selecting an
appropriate sentence”); Hill, 643 F.3d at 880 (“That a judge imposes sentences
within the guidelines range in most cases is not a cause for concern.”). Indeed, we
ordinarily expect sentences within the guideline range to be reasonable.

See

Carpenter, 803 F.3d at 1234 (citing the defendant’s sentence “at the very bottom”
of the guideline range as a “factor[] which indicate[s] reasonableness”).
Plus, the record demonstrates that the district court considered Love’s
arguments that the guideline range was too harsh but ultimately found no reason to
vary from the guideline range based on the facts of the case. After hearing from
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the parties regarding the appropriateness of the guideline range in Love’s case, the
court expressly recognized that the range was advisory and then explained its
reasons for not varying downward. While the court agreed with Love that the
images “certainly [were] less offensive than others the Court has seen,” the court
weighed that fact against the number of images involved, Love’s “weekly
sessions” of searching for and downloading child pornography, and the fact that
the guideline range accounted for the “less offensive” nature of images. Thus, the
record shows that the court “grappled with [Love’s] argument against a Guidelines
sentence, and ultimately rejected it.” See Carpenter, 803 F.3d at 1233.
To the extent Love argues that the district court was required to vary
downward based on the Sentencing Commission’s report, he is incorrect. While
the court was empowered to consider the 2013 report and to grant a downward
variance for reasons expressed therein, the court was not “compelled” to do so.
See Cubero, 754 F.3d at 900–01. Nor was the court required to provide any
additional explanation for its decision not to vary downward in light of the report.
See Carpenter, 803 F.3d at 1234.
Finally, the district court did not abuse its considerable discretion in
sentencing Love to 135 months of imprisonment in reliance on the § 2G2.2-based
guideline range. Love’s sentence falls at the very low end of his guideline range of
135 to 168 months and is well below the statutory maximum sentence of 240
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months, “two factors which indicate reasonableness.” See id. “Moreover, we have
emphasized the seriousness of child pornography offenses, and the harm they
inflict on their victims, time and again.” Id.; see United States v. Yuknavich, 419
F.3d 1302, 1309 (11th Cir. 2005) (“It goes without saying that possession of child
pornography is not a victimless crime.”); United States v. Turner, 626 F.3d 566,
674 (11th Cir. 2010) (“receiving and possessing child pornography helps create a
market for more pornography, encouraging the victimization of more children”).
In addition, the district court did not commit a clear error of judgment in
concluding that a low-end guideline-range sentence reflected the nature,
circumstances, and seriousness of his offenses.

See 18 U.S.C § 3553(a)(1),

(a)(2)(a). Love’s conduct entailed the sexual exploitation of young children, and
he possessed the equivalent of 7,454 images. That is more than twelve times the
threshold number of images for the five-level enhancement under U.S.S.G.
§ 2G2.2(b)(7)(D).

See Carpenter, 803 F.3d at 1235 (affirming substantive

reasonableness of defendant’s low-end sentence of 97 months where, among other
things, he had eight times the threshold number of images for the same five-level
enhancement). While Love’s videos and images were “less offensive” than in
other cases, the guideline range took that factor into account because Love did not
receive a four-level enhancement for “sadistic or masochistic conduct or other
depictions of violence.” U.S.S.G. § 2G2.2(b)(4). Based on the totality of the
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circumstances and the § 3553(a) sentencing factors, Love has not shown that the
district court imposed a sentence “that lies outside the range of reasonable
sentences dictated by the facts of the case.” Carpenter, 803 F.3d at 1234; see
Rosales-Bruno, 789 F.3d at 1256.
For these reasons, we affirm Love’s convictions and his total sentence of
135 months of imprisonment.
AFFIRMED.

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