Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3:07-cr-117) District Judge: Honorable Edwin M. Kosik.
The opinion of the court was delivered by: Pollak, District Judge.
Argued Monday, January 12, 2009
Before: SLOVITER and BARRY, Circuit Judges, and POLLAK,*fn1 District Judge
Daniel Brown pled guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). He was sentenced to 180 months of incarceration. Because it is unclear whether the District Court sentence was the result of an upward departure authorized by the United States Sentencing Guidelines or a variance from those guidelines pursuant to 18 U.S.C. § 3553, we will remand to the District Court for resentencing.*fn2
FBI agents recovered images of child pornography from Brown's home. After Brown entered his guilty plea, the Probation Office prepared a Pre-Sentence Report ("PSR"). Applying the 2007 edition of the advisory Sentencing Guidelines, the PSR calculated Brown's offense level to be 30 and his corresponding sentencing range to be between 97 and 121 months of incarceration. Neither party objected to this calculation of the guidelines sentence.
When calculating that the total offense level under the guidelines -- apart from any potential departure or variance -- was 30, the PSR applied the following reductions and enhancements to defendant's base offense level of 22: (1) a two-level reduction pursuant to § 2G2.2(b)(1) because the evidence did not establish an intent to traffic or distribute the illicit images; (2) a two-level enhancement pursuant to § 2G2.2(b)(2) because some of the images involved a prepubescent minor or a minor under the age of 12 years; (3) a four-level enhancement pursuant to § 2G2.2(b)(4) because some of the images portrayed sadistic or masochistic conduct; (4) a two-level enhancement pursuant to § 2G2.2(b)(6) because a computer was used for the receipt and possession of the images; (5) a five-level enhancement pursuant to § 2G2.2(b)(7)(D) because the offense involved 600 or more images; (6) a two-level reduction for acceptance of responsibility pursuant to § 3E1.1(a); and (7) a one-level reduction for timely notifying the government of the intention to plead guilty pursuant to § 3E1.1(b). Starting from the base offense level of 22, these reductions and enhancements yielded the agreed total offense level of 30.
The five-level enhancement for possession of 600 or more images is at the core of this appeal. U.S.S.G. § 2G2.2(b)(7) (also referred to as "subsection (b)(7)" or "(b)(7)") provides that a defendant convicted of possessing child pornography is subject to the following schedule of potential sentencing enhancements under the guidelines:
If the offense involved --
(A) at least 10 images, but fewer than 150, increase by 2 levels;
(B) at least 150 images, but fewer than 300, increase by 3 levels;
(C) at least 300 images, but fewer than 600, increase by 4 levels; and
(D) 600 or more images, increase by 5 levels.
Application Note 4 to subsection (b)(7) gives instruction as to how a court is to count images.*fn3 (As discussed infra in Section IV of this opinion, the counting procedure set forth in Application Note 4 has no function other than as an adjunct to (b)(7).) Pursuant to Application Note 4, a still photograph counts as one image (unless that "substantially underrepresents the number of minors depicted," in which case "an upward departure may be warranted"). Further, also pursuant to Application Note 4, a video ...