                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 07-15425                ELEVENTH CIRCUIT
                                                          DECEMBER 31, 2008
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                    D. C. Docket No. 05-00256-CR-C-S

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

GREGORY JAMES SHIVER,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________

                            (December 31, 2008)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     Gregory James Shiver appeals from his conviction and sentence for
knowingly possessing images of child pornography that had been transported in

interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2004).1                     On

appeal, Shiver argues that the district court erred in denying his motion for

judgment of acquittal because: (1) there was insufficient evidence that the images

of child pornography found on his computer had traveled in interstate commerce;

and (2) there was insufficient evidence that he “knowingly possessed” the illicit

images. Shiver also contends that the district court erred in enhancing his sentence

pursuant to 18 U.S.C. § 2252A(b)(2) based on his conviction for another offense

that occurred after he committed the offense at issue in this case. After thorough

review, we affirm Shiver’s conviction but remand for resentencing.

       We review de novo the denial of a defendant’s motion for judgment of

acquittal. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir. 1994). We

view “the evidence in the light most favorable to the government, with all


       1
           At the time of Shiver’s offense, § 2252A(a)(5)(B) made it a crime for anyone to

                 knowingly possess[] any book, magazine, periodical, film,
                 videotape, computer disk, or any other material that contains an
                 image of child pornography that has been mailed, or shipped or
                 transported in interstate or foreign commerce by any means,
                 including by computer, or that was produced using materials that
                 have been mailed, or shipped or transported in interstate or foreign
                 commerce by any means, including by computer[.]

28 U.S.C. § 2252A(a)(5)(B). As explained below, see infra note 4, Congress significantly
amended the statute in October 2008.


                                                  2
reasonable inferences and credibility choices made in the government’s favor,”

United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990), and ask whether “a

reasonable fact-finder could conclude that the evidence established the defendant’s

guilt beyond a reasonable doubt,” United States v. Pistone, 177 F.3d 957, 958

(11th Cir. 1999). “It is not necessary that the evidence exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt, provided a reasonable trier of fact could find that the evidence

establishes guilt beyond a reasonable doubt.” United States v. Henry, 920 F.2d

875, 877 (11th Cir. 1991) (quotation omitted).

       First, we reject Shiver’s claim that the evidence was insufficient to support

the jury’s conclusion that the child pornography found on his computer had been

“transported in interstate or foreign commerce.” 18 U.S.C. § 2252A(a)(5)(B). The

government’s computer expert testified that the file names and resolution of certain

of the images indicated that they had arrived on Shiver’s computer via the

Internet.2   Since it is well-settled that “[t]he internet is an instrumentality of

interstate commerce,” United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.

2004), this fact alone satisfies § 2252A(a)(5)(B)’s jurisdictional requirement.


       2
         The exact number of illegal images is not entirely clear from the record. At trial, the
government presented evidence of 297 “suspected images” of child pornography. At Shiver’s
sentencing, however, the parties stipulated that between 150 and 299 of the images constituted
child pornography.

                                                3
Moreover, a receipt indicating the cancellation of a subscription to an Internet web

site called “Pure Teen Porn” was found in Shiver’s home. Regardless of whether

the images on the site constituted child pornography, the receipt shows Shiver’s

familiarity with making commercial transactions for pornographic images on the

Internet.    The government also presented evidence specifically showing that the

image of one child in particular had been produced in North Carolina. That the

latter image ended up on Shiver’s computer in Florida strongly suggests that it

traveled in interstate commerce.

       We likewise reject Shiver’s contention that the government’s evidence was

insufficient to support the jury’s conclusion that he “knowingly possessed” the

images of child pornography on his computer. Although we have interpreted the

meaning of “knowing possession” in other contexts, see, e.g., United States v.

Glover, 431 F.3d 744, 748 (11th Cir. 2005) (holding that “[k]nowing possession

can be demonstrated by proof of either actual or constructive possession”)

(quotation omitted), we have not yet had occasion to address what constitutes the

“knowing possession” of computer images for purposes of § 2252A(a)(5)(B).3 We

       3
          Several of our sister circuits have addressed the meaning of “knowing possession”
under § 2252A(a)(5)(B), but their interpretations have not been univocal. Compare United
States v. Romm, 455 F.3d 990, 998 (9th Cir. 2006) (defendant knowingly possessed images
because he “exercised dominion and control over the images in his cache by enlarging them on
his screen, and saving them there for five minutes before deleting them”), with United States v.
Stulock, 308 F.3d 922, 925 (8th Cir. 2002) (noting district court’s holding that “one cannot be
guilty of possession for simply having viewed an image on a web site, thereby causing the image

                                               4
need not formulate a definitive interpretation of the requirement here, however,

because we conclude that, even on Shiver’s own view, there was ample evidence

that he knowingly possessed the images on his computer.4

       Shiver contends that merely viewing images of child pornography on a

computer is not enough to show knowing possession of those images. Rather, he

claims, the government must prove that he purposely downloaded, stored, or in

some way exercised dominion and control over the images. Shiver argues that the


to be automatically stored in the browser’s cache, without having purposely saved or
downloaded the image”); see also United States v. Miller, 527 F.3d 54, 67 (3d Cir. 2008)
(identifying four factors used by courts in determining whether a defendant’s possession of
images was knowing under § 2252A(a)(5)(B): “(1) whether images were found on the
defendant’s computer; (2) the number of images of child pornography that were found; (3)
whether the content of the images was evident from their file names; and (4) defendant’s
knowledge of and ability to access the storage area for the images”) (internal quotations and
citations omitted); Ty E. Howard, Don’t Cache out Your Case: Prosecuting Child Pornography
Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J.
1227 (2004) (reviewing varying court decisions regarding whether images stored in a computer’s
temporary Internet files is punishable under § 2252A(a)(5)(B)).
       4
         In this connection, we also note that in October 2008, Congress amended §
2252A(a)(5)(B) by inserting “or knowingly accesses with intent to view,” after “possesses.”
Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. 110-358, Title II
§ 203(b), 122 Stat. 4001, 4003 (2008). As currently worded, therefore, the statute applies to
anyone who

       knowingly possesses, or knowingly accesses with intent to view, any book,
       magazine, periodical, film, videotape, computer disk, or any other material that
       contains an image of child pornography that has been mailed, or shipped or
       transported using any means or facility of interstate or foreign commerce or in or
       affecting interstate or foreign commerce . . . .

18 U.S.C. § 2252A(a)(5)(B). This amendment has essentially settled the question in this case of
whether a defendant must exercise control or dominion over an image for purposes of §
2252A(a)(5)(B). Under the statute’s present language, control appears unnecessary, so long as
an individual knowingly accesses the illicit images.

                                                5
government failed to show that he was aware of the images or that he exercised any

control over them. Instead, he maintains that they were placed on his computer

without his knowledge by a virus or by “pop-up” windows that appeared on his

computer screen unbidden. We are not persuaded.

      To begin with, Shiver himself provided direct evidence that he knowingly

possessed child pornography when he was interviewed by the police. Upon being

asked by investigators, “Do you have any child pornography?” Shiver responded,

“I had a small amount but I think I pretty much well have gotten rid of it.”

Shiver’s claim that in answering the question he was referring only to adult

pornography is flatly contradicted by the record.

      The government also produced substantial indirect evidence that Shiver

knowingly possessed the images.         For example, during an interview with

authorities, Shiver referred to himself as a “pedophile.”        In addition, the

government’s computer expert testified that Internet searches conducted on

Shiver’s computer used words and terms that were likely to return pornographic

images of children, and that many of the illicit images on Shiver’s computer had

been accessed on multiple occasions, thus belying Shiver’s contention that a virus

had placed the images on his computer without his knowledge. The government’s

expert also opined that, as a technological matter, the images on Shiver’s computer



                                          6
could not plausibly be accounted for by pop-up windows.

      Shiver insists that since all of the images had been deleted and stored in his

computer’s unallocated files, and since he lacked the “forensic software” to access

or retrieve the images from that location, he consequently lacked the ability to

exercise dominion or control over the images. But even assuming that Shiver was

in fact unable to retrieve the images from the unallocated files, he was able to

exercise control over the images by deleting them from his computer’s cache. See

Romm, 455 F.3d 1000-01 (observing that deleting images is a form of exercising

control over them). Shiver suggests that viewing images and deleting them from a

computer’s cache cannot be sufficient to constitute knowing possession under the

statute, for such a rule would create a perverse incentive for individuals who

innocently discover child pornography on their computers to leave the illicit

material in place.    Whatever concern such a prospect might raise in other

circumstances, it presents no problem here, given the wealth of evidence indicating

that Shiver actively sought to access child pornography.

      In short, when viewed in the light most favorable to the government, the

evidence supports the jury’s conclusion that the images found on Shiver’s

computer had been transported in interstate commerce and that Shiver possessed

the images knowingly.



                                         7
      Although we affirm Shiver’s conviction, we conclude that the district court

erred in applying an enhancement to Shiver’s sentence based on his prior

conviction for another offense. A “prior” conviction for enhancement purposes

“must occur before the conduct violating § 2252A(a)(5), and not merely before the

§ 2252A(a)(5) conviction occurs.” United States v. King, 509 F.3d 1338, 1343

(11th Cir. 2007) (emphases added). The putative prior conviction here -- Shiver’s

conviction in state court on sexual abuse charges -- occurred on June 2007, well

after the conduct forming the basis for Shiver’s prosecution in the instant case

(December 2004). Indeed, the government concedes that the enhancement was

improper. Accordingly, we vacate Shiver’s sentence and remand for resentencing

without the enhancement.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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