United States v. Robert Ellison

Citations: 113 F.3d 77; 1997 WL 213982Docket: 96-2891

Court: Court of Appeals for the Seventh Circuit; June 18, 1997; Federal Appellate Court

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Robert Ellison pled guilty to knowing receipt of child pornography under 18 U.S.C. § 2252(a)(2), stemming from a federal sting operation targeting individuals for purchasing illegal materials through the mail. The district court sentenced him to 33 months in prison, utilizing Sentencing Guideline 2G2.2, which set his base offense level at 15, and included an enhancement for possessing magazines depicting minors in sadomasochistic acts. Ellison's involvement began when Postal Inspectors, using evidence from an international distributor, mailed him promotional materials from a fictitious company, "Island Male." After expressing interest and ordering a videotape featuring minors, Ellison received the tape, leading to his arrest following a search warrant execution at his home, where inspectors found the tape and additional illegal materials. A grand jury indicted him with two counts under 18 U.S.C. § 2252, but he pled guilty to the receipt charge, with the possession charge dropped in exchange. The 33-month sentence was the maximum within the specified range of 27-33 months. The appellate court affirmed the sentence, finding no merit in Ellison's challenges.

The district court set Ellison's base offense level at 15 using Guideline 2G2.2, applying several adjustments, including a four-level enhancement for possessing sadomasochistic magazines. Ellison contends this was erroneous for two reasons: he argues that Guideline 2G2.4 should have been applied instead of 2G2.2, and he claims the enhancement for sadomasochistic portrayals was improper since the videotape related to his conviction contained no such acts. The court's jurisdiction over these challenges is established under 18 U.S.C. 3742(a) and 28 U.S.C. 1291. 

The central issue on appeal is the appropriate Guideline to set Ellison's base offense level. The district court justified its choice of 2G2.2 by referencing its inclusion of 2252(a)(2) in the Guideline's Commentary. Ellison argues for discretion in applying either Guideline, favoring 2G2.4 due to its lower base offense level of 13. However, the Commentary of 2G2.4 only pertains to subsection (a)(4) of 2252, while subsections (a)(1) and (a)(3) are assigned to 2G2.2. The court concluded that it correctly applied 2G2.2 for determining Ellison's base offense level, as it aligns with the statutory provisions of his conviction under 18 U.S.C. 2252(a)(2).

The Sentencing Guidelines instruct sentencing courts to apply the offense guideline most applicable to the conviction, specifically directing the use of the guideline section in Chapter Two. For convictions under 18 U.S.C. 2252(a)(2), the district court identified the appropriate guideline as 2G2.2, as indicated in the "Statutory Provisions" section of its commentary. In contrast, guideline 2G2.4, which Ellison preferred, only references subsection (a)(4) of 2252, not applicable to his conviction. Commentary that clarifies guideline application is generally binding unless it contradicts constitutional or statutory law or is a plainly erroneous interpretation. 

Ellison argued that the district court had discretion to apply 2G2.4 based on Application Note 3 of Guideline 1B1.1, which states that the "Statutory Provisions" listing may not encompass all statutes covered by a guideline. However, the court disagreed, asserting that this note does not permit the disregard of specific commentary when the Sentencing Commission has clearly delineated guidelines for each subsection of 2252(a). The history of amendments to these guidelines reflects a deliberate assignment of subsections to their respective guidelines. Furthermore, the title change for guideline 2G2.4, which removed "Receipt or," was justified as receipt was already covered under 2G2.2. Thus, Application Note 3 does not grant the district court the authority to ignore the Commission's explicit assignments in this case.

Application Note 3 indicates that some statutes may be applicable to multiple guidelines; however, this does not support Ellison's claim to disregard the "Statutory Provisions" Commentary. Ellison argues both U.S.S.G. 2G2.2 and 2G2.4 apply to him, as the Statutory Index lists both in relation to his offense under "28 U.S.C. 2252." This argument is misleading because the Index does not detail the subsections of 2252(a), unlike the specific Guideline Commentary, suggesting the Index is less specific rather than conflicting. The Sentencing Commission clarifies that 2252(a)(2) does not involve multiple applicable Guidelines between 2G2.2 and 2G2.4. 

Ellison further contends that 2G2.2 should not apply since he was not a "trafficker" and only received materials for personal use. This interpretation misreads 2G2.2, which explicitly includes "receiving" as a relevant action. Ellison attempts to limit the term to imply that only those intending to traffic should be penalized under 2G2.2, but lacks supporting case law for this argument. The differentiation of 2252(a) subsections between 2G2.2 and 2G2.4 suggests that 2G2.2 is designed to combat activities that foster the market for child pornography, including receiving materials, even for personal use. 

The district court's decision to apply 2G2.2 to Ellison's case aligns with the Sentencing Commission's Commentary, which clearly delineates how to apply each Guideline to the subsections of 18 U.S.C. 2252(a). Moreover, the court's application of the enhancement under 2G2.2(b)(3) for materials depicting sadistic or masochistic conduct was appropriate, based on the magazines found in Ellison's possession at the time of his arrest.

Ellison contests the enhancement of his sentence by arguing that "the offense" refers solely to "the offense of conviction," which he interprets as excluding any uncharged conduct. He claims that since he was convicted for receiving a child pornographic videotape that did not depict sadomasochism, the enhancement should not apply, as only the magazines found in his home portrayed sadomasochism and were not part of his charged offense. However, his legal interpretation is flawed. The Guidelines explicitly define "offense" to include all relevant conduct as described in Section 1B1.3, unless otherwise specified. 

Ellison further argues that enhancements listed under "specific offense characteristics" should pertain only to the charged offense. This interpretation is incorrect, as Section 1B1.3 allows for the inclusion of relevant conduct beyond the charged offense. He also contends that the possession of the sadomasochistic magazines at his arrest was too remote to be considered relevant conduct. The court reviews factual findings regarding relevant conduct for clear error. According to Section 1B1.3, all acts by the defendant during the commission of the offense of conviction should be considered relevant. Ellison's possession of the magazines occurred simultaneously with his offense of conviction, which involved receiving the videotape.

Although he cites United States v. Ritsema to support his argument that not all contemporaneous conduct should be deemed relevant, the circumstances in Ritsema were distinct, as the conduct in question had no relation to the charged offense. In contrast, Ellison's actions of receiving new pornography and possessing older pornography are directly related, and thus should be considered relevant conduct for sentencing.

The district court properly applied a sentence enhancement for Ellison due to his uncharged conduct related to child pornography, which underscored the seriousness of his charged offenses. Ellison's receipt and possession of child pornographic materials were deemed relevant under the same criminal statute, indicating his dangerous tendencies in sexual exploitation of minors. The inclusion of sadomasochistic magazines in the enhancement was upheld, referencing a precedent where similar conduct was considered relevant in the context of child pornography convictions. The court affirmed the sentencing decision, noting that violations under § 2252(a)(1)-(4) carry varying penalties, with subsections (a)(1), (a)(2), and (a)(3) resulting in harsher sentences than mere possession under (a)(4). The applicable Sentencing Guidelines indicated a base offense level of 15 for trafficking-related offenses, aligning with Ellison's conviction, while he sought a lower base level of 13 under a different guideline that pertained solely to possession. The decision reinforced the correct application of the guidelines by the district court as it related to Ellison's specific conduct and convictions.

The district court determined that the Sentencing Commission has clearly indicated the applicable Guideline for a conviction under 18 U.S.C. § 2252(a)(2) in the "Statutory Provisions" section of Commentary to Guideline 2G2.2. In contrast, the Commentary to Guideline 2G2.4, which Ellison prefers, only pertains to subsection (a)(4) of § 2252. Commentary that clarifies Guideline application is generally binding unless it conflicts with constitutional or federal law or is plainly erroneous (Stinson v. United States). Ellison argues that the district court had the discretion to apply Guideline 2G2.4 based on Application Note 3 of Guideline 1B1.1, which states that the "Statutory Provisions" list may not include every statute covered by a guideline and some statutes may be applicable to multiple guidelines. However, the court disagrees, asserting that Application Note 3 does not permit the sentencing court to disregard the specific "Statutory Provisions" Commentary in this case. The Sentencing Commission provided a clear breakdown of the subsections of § 2252, which was deliberate and not all-inclusive. The historical context shows that the Commission intended for each subsection to be assigned to specific Guidelines. The removal of "Receipt or" from the title of Guideline 2G2.4 supports this interpretation. Additionally, Ellison's argument that both Guideline 2G2.2 and 2G2.4 apply to his offense, as indicated in the Statutory Index, is seen as misleading. The court emphasizes the importance of adhering to the Commission's explicit instructions regarding Guideline applicability.

The Index recognizes both Guidelines for violations of 28 U.S.C. § 2252 without detailing the four subsections of § 2252(a), making it less specific than the Guideline Commentary. The Commission clarified that § 2252(a)(2) applies singularly between Guidelines 2G2.2 and 2G2.4. Ellison's contention that Guideline 2G2.2 should not apply to him because he was not a "trafficker" is rejected; he misinterprets 2G2.2's language, which includes "receiving" material as a qualifying action. Despite Ellison's argument that intent behind receipt matters, the lack of case support for this view and the Guidelines' design to penalize actions that perpetuate the market for child pornography confirm that even personal use of such materials supports application of 2G2.2. The Sentencing Commission's Commentary explicitly directs the application of Guidelines to the respective subsections of 18 U.S.C. § 2252(a). The district court appropriately applied Guideline 2G2.2 to set Ellison's base offense level. Furthermore, regarding enhancements under Guideline 2G2.2, one specific enhancement allows for a four-level increase if the material involved depicts sadistic or masochistic conduct or violence.

The district court enhanced Ellison's sentence based on sadomasochistic magazines found in his possession during his arrest for receiving an illegal videotape. Ellison contests this enhancement, arguing that "the offense" should refer only to the specific charge of receiving the child pornographic videotape, which did not contain sadomasochism, rather than including uncharged relevant conduct. Despite the uncontested facts, his legal interpretation is flawed. The Guidelines define "offense" to include both the offense of conviction and all relevant conduct as outlined in Section 1B1.3. Ellison argues that specific offense characteristic enhancements should only apply if they pertain to the charged offense; however, this interpretation contradicts the Guidelines, which allow for consideration of relevant conduct beyond the charged offense. Additionally, Ellison claims that the magazines' possession was too remote to be relevant conduct. The district court's factual findings on relevant conduct are reviewed for clear error, and the Guidelines direct that all acts committed by the defendant during the commission of the offense of conviction must be considered relevant.

Ellison was convicted for receiving a pornographic videotape while simultaneously possessing child pornographic magazines, which constitutes a violation under 18 U.S.C. § 2252(a)(4). Although he contends that his possession of the magazines should not be considered relevant conduct based on the precedent set in United States v. Ritsema, the court distinguishes Ellison's case from Ritsema's narrow facts. The court clarifies that Ellison's receipt of new pornography and possession of older pornography are interconnected and indicative of his dangerous tendencies related to the sexual exploitation of minors. The district court's enhancement of Ellison's sentence under U.S.S.G. § 2G2.2(b)(3) was thus upheld, as both actions violated the same statute, and the magazines were not considered temporally remote, despite their prior legality. Ellison's additional arguments against the enhancement were deemed without merit. The sentencing determination of the district court is affirmed.