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U.S. v. Ketcham

March 29, 1996

UNITED STATES OF AMERICA

v.

BASIL KETCHAM APPELLANT



On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. Action No. 94-cr-00131-2)

BEFORE: BECKER and STAPLETON *fn*, Circuit Judges, and LANCASTER, *fn** District Judge

STAPLETON, Circuit Judge

Argued: September 21, 1995

Filed March 29, 1996)

OPINION OF THE COURT

Basil Ketcham *fn1 appeals his sentence. Ketcham argues that the district court erred when it failed to group the four counts of his conviction pursuant to United States Sentencing Guidelines ("U.S.S.G.") Section(s) 3D1.2. *fn2 While we agree with the district court that grouping is inappropriate in this case, we conclude that the challenged sentence cannot stand because the court's decision with respect to grouping was inconsistent with another portion of its calculation of the appropriate guideline range. We will, accordingly, reverse the judgment and remand for resentencing. *fn3

I.

Ketcham pleaded guilty to transporting child pornography in interstate commerce in violation of 18 U.S.C. Section(s) 2252(a)(1) (count 3); receiving, distributing, and reproducing child pornography that had been shipped in interstate commerce in violation of 18 U.S.C. Section(s) 2252(a)(2) (counts 4 and 5); and possessing child pornography that had been shipped in interstate commerce in violation of 18 U.S.C. Section(s) 2252(a)(4)(B) (count 6). Ketcham did not plead guilty to, and denies, any involvement with the production of child pornography.

The plea agreement stipulated that: (1) the applicable guideline for counts 3, 4, and 5 is U.S.S.G. Section(s) 2G2.2; *fn4 (2) the 2 level enhancement in U.S.S.G. Section(s) 2G2.2(b)(1) is appropriate; (3) Ketcham engaged "in a pattern of activity involving the sexual exploitation of minors for purposes of the 5 level enhancement in U.S.S.G. 2G2.2(b)(4);" (4) the applicable guideline for count 6 is U.S.S.G. 2G2.4; *fn5 (5) the 2 level enhancements in U.S.S.G. Section(s) 2G2.4(b)(1) & 2G2.4(b)(2) are appropriate; and (6) the cross reference in U.S.S.G. Section(s) 2G2.2(c)(1), relating to offenses involving the production of child pornography, is not applicable.

First, the district court accepted the stipulations that the appropriate guideline for counts 3, 4, and 5 is U.S.S.G. Section(s) 2G2.2 and that there should be a 2 level increase under U.S.S.G. Section(s) 2G2.2(b)(1) because of the age of the children depicted in the pornographic materials. Second, the district court accepted the agreement of the parties that Ketcham's offense did not involve the production of child pornography. Third, contrary to the plea agreement, the district court concluded that U.S.S.G. Section(s) 2G2.2 is the appropriate guideline for count 6 via the cross reference in U.S.S.G. Section(s) 2G2.4(c)(2). Finally, the district court did not rely upon the stipulation to the 5 level increase under U.S.S.G. Section(s) 2G2.2(b)(4). Rather, it conducted an independent analysis and independently concluded that the enhancement was appropriate because the possession, transportation, reproduction, and distribution alleged in counts 3, 4, 5, and 6 constituted "a pattern of activity involving the sexual abuse or exploitation of a minor" within the meaning of U.S.S.G. Section(s) 2G2.2(b)(4). *fn6

The district court calculated the total offense level in the following manner. Each count had a base offense level of 15 under U.S.S.G. Section(s) 2G2.2. The increases provided for in U.S.S.G. Section(s) 2G2.2(b)(1) & (b)(4) raised the offense level of each count to 22. Since the court deemed grouping under U.S.S.G. Section(s) 3D1.2 inappropriate, *fn7 each count generated 1 unit under U.S.S.G. 3D1.4. *fn8 Four units resulted in a 4 level increase. Adding 4 to the highest adjusted offense level of 22 resulted in a combined adjusted offense level of 26. Finally, pursuant to U.S.S.G. Section(s) 3E1.1, Ketcham was entitled to a 3 level decrease for acceptance of responsibility, producing a total offense level of 23.

II.

Section 3D1.2 of the Guidelines provides in relevant part: All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially ...


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