United States v. Jonathan Morehouse

Citation: Not availableDocket: 20-4389

Court: Court of Appeals for the Fourth Circuit; May 20, 2022; Federal Appellate Court

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Jonathan Kyle Morehouse appeals his 84-month sentence for distributing child pornography, contending that the district court committed procedural errors by applying two enhancements that raised the suggested sentencing range under the Sentencing Guidelines. The Fourth Circuit Court agreed with Morehouse regarding one enhancement—a five-level increase under Guideline 2G2.2(b)(3)(B)—resulting in the vacating of his sentence and remand for resentencing. 

The investigation into Morehouse began in September 2019, initiated by the United States Army Criminal Investigation Division following a tip from the National Center for Missing and Exploited Children regarding child pornography uploaded on Snapchat. The investigation linked the uploads to Morehouse's phone number. During the search of his residence, investigators found fewer than ten child pornography images on his phone; no materials were found on other electronic devices. Morehouse made several incriminating statements, acknowledging his knowledge of the search's purpose and admitting to downloading and distributing child pornography from various websites, including "321 Sex Chat." He confirmed that the Snapchat username and phone number tied to the uploads were his.

In October 2019, Morehouse was indicted for one count of distribution of child pornography under 18 U.S.C. 2252A(a)(2) and (b)(1). He pleaded guilty in January 2020, without a plea agreement, but with an agreed Statement of Facts, which acknowledged that it did not encompass all his related conduct. The Presentence Investigation Report (PSR) revealed that nine CyberTips linked to Morehouse's registered IP address confirmed the possession of six images of child pornography, with a total of thirty-six images attributed to him. Morehouse had used a Kik account featuring a profile picture of two nude adolescent girls and admitted to possessing child pornography to report it to law enforcement, claiming he aimed to build a case against distributors. However, he also confessed to distributing child pornography through the app Wickr Me to receive other illicit materials, rationalizing his actions as part of an "investigative" effort. In subsequent interviews, Morehouse acknowledged viewing child pornography for years, recognizing its wrongfulness. The PSR set a baseline offense level of 22, applying enhancements for prepubescent material, computer use, and the number of images. After further adjustments for distribution and acceptance of responsibility, his total offense level was calculated at 30. With no prior criminal history, Morehouse was placed in criminal-history category I, resulting in a sentencing range of 97 to 121 months’ imprisonment.

Morehouse objected to two sentencing enhancements in his Pre-Sentence Report (PSR): a two-level enhancement for the number of images he possessed and a five-level enhancement for distribution in exchange for valuable consideration. He later withdrew his objection to the image-quantity enhancement, agreeing that the PSR should state he possessed ten or more images without specifying the exact number. However, he maintained his objection to the five-level enhancement, arguing that his motive for distributing child pornography—to catch other perpetrators—was not credible and that a mere expectation of receiving something of value was insufficient for the enhancement. The district court rejected his objection, determining that Morehouse's act of distribution to receive more child pornography met the criteria established in United States v. McManus. The court upheld the PSR’s calculated Guidelines sentencing range of 97 to 121 months but imposed a downward variance, sentencing Morehouse to 84 months based on his age, mental health, and military record.

On appeal, Morehouse contended that the district court erred in applying both enhancements. The appellate court reviews sentences for reasonableness and procedural errors, such as incorrect Guidelines calculations. It noted that an appeal of a procedural error previously raised in the district court is reviewed for abuse of discretion. The five-level enhancement's application was based on the McManus decision, but the court recognized that a 2016 amendment to the Guidelines had overridden McManus for defendants sentenced after its effective date. Consequently, the appellate court found the district court's application of the five-level enhancement to be erroneous and not harmless, leading to a reversal of that enhancement, a vacating of Morehouse's sentence, and a remand for resentencing.

The defendant in McManus was sentenced in October 2012 under the 2011 Sentencing Guidelines, which mandated a five-level increase for distributing material involving the sexual exploitation of a minor if the offense included distribution for the expectation of receiving something of value, not for pecuniary gain. The interpretation of 'expectation' was clarified as being something reasonably likely to occur, rather than a mere hope. The term 'thing of value' was defined in the application notes as encompassing 'anything of valuable consideration,' specifically in cases involving the barter of child pornography. The court determined that to apply the enhancement under U.S.S.G. 2G2.2(b)(3)(B), the Government needed to prove that the defendant 1) knowingly made child pornography available to others, and 2) did so with the intent to obtain something of value in return. In McManus, the defendant met the first requirement by creating a shared folder of child pornography, but the Government failed to show evidence for the second requirement, such as proof of barter or trade. 

In contrast, in the current case involving Morehouse, the nature of the evidence differed significantly. Morehouse admitted to distributing child pornography explicitly for the purpose of receiving other child pornographic material in return. The district court found it reasonable to credit Morehouse's statements during the sentencing factfinding process, indicating that the exchange-for-value enhancement would apply to Morehouse’s conduct.

Morehouse is accused of knowingly distributing child pornography to others in exchange for valuable consideration, such as more pornography. He contests the district court's reliance on his admission, arguing that his claim of distribution to build a case against other distributors was not credible. However, the district court accepted his admission as evidence of the distribution for the purpose of obtaining additional pornography, which meets the criteria established in McManus. Even if the court doubted his reasoning, the fundamental facts remain unaffected.

The 2016 amendment to the relevant Sentencing Guideline, which conflicts with the McManus ruling, necessitates a reevaluation of the application of 2G2.2(b)(3)(B) for defendants like Morehouse sentenced after this amendment. The amendment changes the wording from "for the receipt, or expectation of receipt, of a thing of value" to "in exchange for any valuable consideration," reflecting a significant shift in interpretation. Although the distinction between clarifying, substantive, and hybrid amendments is noted, it is not crucial in this case since Morehouse was sentenced post-amendment and is entitled to its application. The revised commentary clarifies that "valuable consideration" can include other child pornography, and the change in terminology from "expectation" to "in exchange for" is pivotal for the case's assessment.

An expectation must pertain to events that are "reasonably likely to occur," particularly with regard to the distribution of child pornography. It is reasonable for someone to expect that distributing child pornography could lead to receiving further materials, either through specific communication with another individual or based on the general practices of a program or website. In the case of McManus, the court emphasized that the Government's lack of evidence regarding a barter or trade arrangement did not solely determine the outcome; evidence of community practices or rules regarding file sharing was also insufficient. The 2016 amendment to the Guideline changed the terminology from "for the receipt, or expectation of receipt" to "in exchange for," defining "exchange" as a mutual trade involving an agreement between parties. This revision clarifies that the Government must demonstrate the defendant agreed to exchange child pornography with another specific person for something of value, such as additional child pornography. The amendment restricts the application of the enhancement, necessitating proof of a two-sided exchange rather than a unilateral expectation. This interpretation aligns with rulings from other circuits, which assert that an "exchange" requires more than just a personal expectation; it necessitates a mutual agreement or understanding between the parties involved.

The district court erred by relying on a pre-amendment ruling instead of the amended Guideline, which mandates that a court must determine whether the defendant agreed to an exchange with another person. The amended Guideline retains elements from the McManus decision, requiring that the defendant knowingly distributed child pornography with the specific aim of obtaining something of value. The Government must establish four criteria: 1) the defendant agreed to an exchange with another person; 2) the defendant knowingly distributed child pornography to that person; 3) the distribution was for the specific purpose of obtaining something valuable; and 4) the value was to be received from that same person. The amendment does not restrict itself to peer-to-peer file-sharing cases, contrary to the Government's assertion. The Sentencing Commission highlighted that conflicts regarding this enhancement arise broadly, not just in peer-to-peer contexts, and emphasized that the amendment reflects a higher culpability level when a defendant distributes child pornography in exchange for valuable consideration. Consequently, the court concludes that the 2016 amendment supersedes the McManus ruling for sentences applied post-amendment, establishing a four-part test for such cases.

The district court incorrectly increased Morehouse’s Guidelines range by five levels based on an exchange-for-value enhancement. Morehouse admitted to distributing child pornography to receive similar materials from unidentified users, which met parts of the revised test's prongs but lacked a specific agreement with an identifiable individual, essential for fulfilling all required prongs. The appropriate enhancement should be a two-level increase for "knowingly engaging in distribution" under 2G2.2(b)(3)(F). The district court had already found that Morehouse knowingly engaged in distribution, satisfying the first McManus requirement. The Government's argument that an agreement could be implied from Morehouse's actions was insufficient, as there was no evidence of an actual agreement or identification of a counterpart in the exchange. The Government bore the burden to prove any error was harmless but failed to do so; thus, the court determined the district court’s error was not harmless. With the five-level enhancement, Morehouse faced a total offense level of 30 and a Guidelines range of 97 to 121 months. A two-level enhancement would have resulted in a total offense level of 27 and a reduced range of 70 to 87 months. The case is remanded for the application of the correct enhancement.

The district court sentenced Morehouse to 84 months of imprisonment, which was a downward variance from the advised minimum of 97 months. The court mistakenly believed this sentence was significantly below the minimum due to a miscalculation in the Guidelines; it applied a two-level enhancement instead of a five-level enhancement. The sentence, however, was at the top end of the corrected Guidelines range, and the court’s transcript did not indicate that it would have imposed the same sentence irrespective of the Guidelines calculation. Therefore, the appellate court determined that the district court erred by applying the five-level enhancement under 2G2.2(b)(3)(B) and instead supported only a two-level enhancement under 2G2.2(b)(3)(F). Consequently, the appellate court reversed the five-level enhancement, vacated Morehouse's sentence, and remanded for resentencing.

Regarding Morehouse's appeal on the two-level image-quantity enhancement under 2G2.2(b)(7)(A), he argued that he should not be subject to this enhancement since fewer than ten images were found on his phone. Morehouse claimed that he had bargained for a statement of facts that would support this position in exchange for his guilty plea. However, he had waived this argument by explicitly withdrawing it before sentencing, which the appellate court noted was not reviewable on appeal. Morehouse had clearly stated in his written position paper that he was withdrawing his objection to the image-quantity enhancement, making it a matter of law subject to de novo review. The waiver of his right to contest the quantity of images was valid, as he had previously communicated this withdrawal explicitly.

After Morehouse objected to the number of images involved in his case, the Probation Officer cautioned that if the court found he was falsely denying relevant conduct, it could remove his reduction for acceptance of responsibility per U.S.S.G. 3E1.1 cmt. n.1(A). Morehouse's counsel later requested that the Presentence Report (PSR) be amended to indicate possession of "ten or more images," acknowledging that the exact number was disputed. The court noted that Morehouse, having made a choice at sentencing, could not now argue that the district court erred by accepting this choice, leading to a waiver of his argument, as referenced in Robinson v. United States. Consequently, the court reversed the application of a five-level enhancement for exchange-for-value, vacated Morehouse's sentence, and remanded the case for resentencing in accordance with this opinion. It was clarified that a defendant's unsuccessful challenge does not automatically mean their denial was false or frivolous.