US v. Johnny Lee

Filing 920090327

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4499 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHNNY RAY LEE, Defendant Appellant. 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: January 29, 2009 Decided: March 27, 2009 Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. separate concurring opinion. Judge Shedd wrote a ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Ethan A. Ontjes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Banumathi Rangarajan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Defendant imposition transmitting of Johnny a Ray Lee appeals the district his court's of 420-month sentence and upon conviction child pornography transporting obscene materials over the Internet. the advisory a guidelines Lee argues that, in calculating the district on the court erred by range, applying four-level enhancement ground that Lee's "offense involved material that portrays sadistic or masochistic conduct or other depictions of violence." U.S.S.G. 2G2.2(b)(4). images The district court based this enhancement upon by defendant. We conclude that the five possessed district court did not commit clear error in its findings that Exhibit sexually 5, one of the child images possessed by defendant, was explicit pornography portraying sadistic, masochistic, or other violent conduct. As such, it qualifies We therefore affirm defendant's arguments or the for the enhancement under any definition. defendant's regarding sentence scope without of reaching the section 2G2.2(b)(4)'s meaning section's constitutionality. I. In early 2006, Lee, a resident images to of an North Carolina, police Keene transmitted officer in child Keene, pornography New undercover in Hampshire. 3 Investigators contacted the North Carolina State Bureau of Investigation, which began its own investigation. An undercover officer made online contact with Lee, and determined that he was involved in exchanging 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 came to the meeting with disks containing child pornography, and subsequent searches of several online accounts revealed more image files. In total, Lee's collection contained between 275 and 295 child pornography images. A federal grand jury indicted Lee on five counts related to transmitting and possessing child pornography. Lee subsequently pled guilty to two of the counts: one count of transmitting child pornography in violation of 18 U.S.C. 2252(a)(1), and one count of transporting obscene matters over the internet in violation of 18 U.S.C. 1462. Lee waived his right to appeal a sentence of 293 months or fewer, but preserved his right to appeal a longer sentence. Lee's presentence report determined that the advisory guidelines range for Lee's offense was 360 to 480 months of imprisonment on the count for transmission of child pornography. This calculation included a four-level enhancement resulting from five images "portray[ing] sadistic or masochistic conduct or other depictions of violence." 4 U.S.S.G 2G2.2(b)(4). Without this enhancement, Lee's guideline range on the first count would have been 235 to 293 months. the The report also concluded that the guidelines advised maximum penalty authorized by statute, 60 months of imprisonment, on the count for transportation of obscene materials over the internet. At sentencing, defendant objected to the application of the enhancement based on the five images. that four of the images did not First, defendant argued depict sexually explicit content, and that the section can only apply to pornographic images when used to enhance a guidelines range for the offense of transmitting Exhibit 5, child while pornography. sexually Second, defendant not argued to that explicit, did appear depict an individual under 18 years of age, and that the image was not sadistic, masochistic, or violent. The district court rejected defendant's arguments, holding that section 2G2.2(b)(4) applies to images that are sadistic, masochistic, or violent, even if not sexually explicit. The court made several holdings in the alternative: first, that the third and fifth images were sexually explicit; second, that the fifth image alone would support the enhancement, and that the individual depicted in the image was a minor; and third, that the fifth image would support the enhancement even if the individual depicted was an adult. 5 The district court thus calculated Lee's advisory guideline range to be 360 to 480 months of imprisonment on the transmission of child pornography count, as had the presentence report. The district court then, after considering the sentencing factors enumerated in 18 U.S.C. 3553(a), sentenced defendant to a term of imprisonment of 420 months on the first count of the indictment, to be served concurrently with a term of 60 months on the second count. if the four-level enhancement The court also observed that, section 2G2.2(b)(4) were under improperly applied, the court would have sentenced defendant to the same sentence in light of the "unique nature and circumstances of this offense, the uniquely troubling history and characteristics of this defendant, and the unique need to protect the public from further crime of this defendant." 114. J.A. Defendant now appeals his sentence on the ground that the court procedurally erred when computing defendant's district advisory guidelines range. 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 reasonableness, an inquiry that "includes both procedural and 6 substantive components." 210, 260 (4th legal Cir. United States v. Abu Ali, 528 F.3d However, after the guidelines The inquiry are not 2008). without procedure significance by the Booker. sentencing requires mandated reasonableness district judges to calculate the proper guidelines range for a defendant at the outset of sentencing. See Gall v. United States, 128 S. Ct. 586, 596 (2007). improperly calculated guidelines "A sentence based on an range will be found unreasonable and vacated." Abu Ali, 528 F.3d at 260. The advisory guidelines range calculated by the district court in this case included a four-level enhancement under section 2G2.2(b)(4). for applying the The district court's first justification was that section 2G2.2(b)(4) enhancement applies to material that is sadistic, masochistic, or violent, even if not sexually is which explicit. Defendant with "[i]f the the argues text that of this interpretation 2G2.2(b)(4), inconsistent states that section involved offense material that portrays sadistic or masochistic conduct or other depictions of violence, increase [the base offense level] by 4 levels." U.S.S.G. 2G2.2(b)(4). text requires that Defendant contends that the the sadistic, masochistic or provision's otherwise violent material triggering the enhancement must be part of "the offense" -- here, transmitting child pornography. Thus, defendant contends that only sexually explicit images of 7 children depicting sadism, masochism, or other violence can be used to enhance defendant's sentence under section 2G2.2(b)(4). In the alternative, 2G2.2(b)(4) defendant that argues an that that a reading for of section allows enhancement non- pornographic material that is sadistic, masochistic, or violent is unconstitutionally overbroad, because it would increase a defendant's advisory guidelines sentencing range for possessing films and images representing constitutionally protected speech. We need not address whether section 2G2.2(b)(4) applies to material that is not sexually explicit, or whether such a reading would implicate the First Amendment. The district court 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 properly triggered by an image that depicts a minor and is both sexually explicit and that portrays sadism, masochism, or other violent conduct. sexually Defendant never contested that Exhibit 5 is and on appeal now concedes that the explicit, individual depicted therein is a minor. Defendant thus only disputes the district court's factual finding that the image "portrays sadistic or masochistic conduct or other depictions of violence." U.S.S.G. 2G2.2(b)(4). While we review a district court's legal conclusions de novo, the court's findings of fact 8 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. Pornographic images depicting the bondage of children are sadistic within the meaning of section 2G2.2(b)(4). See, e.g., United States v. Hoey, 508 F.3d 687, 692 n.3 (1st Cir. 2007). around his Exhibit 5 depicts a boy wearing a leather strap torso 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 boy's hands behind his back -- an unusual position for someone to place his unbound hands -- give rise to an inference that the boy's hands are bound. least not clearly erroneous. This inference is at the very We thus cannot say that the district court, in finding the image sadistic, masochistic, or violent, clearly erred. Because we conclude that the district court's finding that Exhibit 5 was sadistic was not clearly erroneous, and because defendant concedes that the Exhibit was sexually explicit and depicted a minor, section 2G2.2(b)(4) clearly applies to it, even on the interpretation of the guideline advanced by defendant. The district court therefore calculated the advisory 9 guidelines range correctly. in defendant's sentencing. * Thus, there was no procedural error III. Defendant's sentence is therefore affirmed. AFFIRMED Defendant does not argue that, if the advisory guidelines range calculated by the court was in fact correct, the sentence was nonetheless substantively unreasonable. * 10 SHEDD, Circuit Judge, concurring: I am pleased to concur in the per curiam opinion. I write separately to note that, in my view, the sentence could also be affirmed on the alternate reasoning given by the district court. The district court calculated Lee's sentencing guidelines range and overruled his objection to the four-level enhancement. The court then sentenced Lee using the enhancement, but it also explained why it would sentence Lee to the same term of imprisonment even if the enhancement does not apply. Lee argues on he appeal does that the court the erred court in Although using the any enhancement, not argue that committed other error in the guidelines calculation. In imposing the alternate sentence, the district court followed the reasoning of United States v. Keene, 470 F.3d 1347 (11th Cir. 2006). In Keene, the district court sentenced the defendant using a contested sentencing enhancement, but it also stated impose that the even same if the enhancement On did not the apply Eleventh it would sentence. appeal, Circuit affirmed without deciding the enhancement issue because it found that the alternate "[I]t sentence make was no reasonable. sense to As set the aside court this explained: would reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the 11 same sentence, a sentence we would be compelled to affirm." at 1350. This agreed case is strikingly similar to Keene. a Even remand if to Id. we the with Lee regarding the enhancement, district court would lead to imposition of the same sentence. In this circumstance, where we are presented with a single disputed guideline calculation, the question that we could have addressed in lieu of the propriety of the enhancement is whether the sentence imposed (without the enhancement) is nonetheless reasonable. For the reasons set forth by the district court, I Therefore, alternate believe that the alternate sentence is reasonable. this case could have been affirmed simply on the sentence. See United States v. Shatley, 448 F.3d 264 (4th Cir. 2006) (affirming an alternate sentence that was identical to a sentence that violated United States v. Booker, 543 U.S. 220 (2005), because the Booker error was harmless). 12

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