                                             Filed:   June 19, 2001

                   UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 99-4882
                             (CR-99-133)



United States of America,

                                                 Plaintiff - Appellee,

          versus


Leslie Paul Williams,

                                                Defendant - Appellant.



                              O R D E R



     The court amends its opinion filed June 15, 2001, as follows:

     On page 4, first paragraph, line 4 -- the citation to United

States v. Daughtrey is corrected to begin “874 F.2d 213.”

                                       For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 99-4882

LESLIE PAUL WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-99-133)

Argued: November 1, 2000

Decided: June 15, 2001

Before MICHAEL, MOTZ, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Motz joined. Judge Michael wrote an opinion concurring
in part and concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: David Bruce Freedman, WHITE AND CRUMPLER,
Winston-Salem, North Carolina, for Appellant. Lawrence Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attor-
ney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________
OPINION

KING, Circuit Judge:

Leslie Paul Williams pleaded guilty in the Middle District of North
Carolina to an indictment charging that he mailed, transported, and
shipped child pornography in interstate commerce. Williams appeals
the sentence imposed on his conviction, contending that his conduct
did not involve "distribution" within the meaning of § 2G2.2(b)(2) of
the United States Sentencing Guidelines Manual. For the reasons that
follow, we reject this contention and affirm the district court's impo-
sition of sentence.

I.

On June 2, 1997, Williams mailed child pornography from his
home in Winston-Salem, North Carolina, to Michael Walton in
Brownsville, Texas. The materials were photocopies of magazine pic-
tures, one of which depicted a nude boy bound and held upside-down
by another, while a third looked on. A UPS employee opened the
mailing and discovered the pictures after a drug dog had alerted to the
package.

Williams pleaded guilty to a single count of violating 18 U.S.C.
§ 2252A(a)(1) and (b)(1), which together provide that "[a]ny person
who . . . knowingly mails, or transports or ships in interstate or for-
eign commerce by any means . . . any child pornography . . . . shall
be fined under this title or imprisoned not more than 15 years, or both
. . . ." Subsection (a)(2) of the same statute, of which Walton was ulti-
mately convicted in the Southern District of Texas, prohibits the
knowing receipt of such materials.

Williams was sentenced pursuant to U.S. Sentencing Guidelines
Manual § 2G2.2 (1998), entitled "Trafficking in Material Involving
the Sexual Exploitation of a Minor; Receiving, Transporting, Ship-
ping, or Advertising Material Involving the Sexual Exploitation of a
Minor; Possessing Material Involving the Sexual Exploitation of a
Minor with Intent to Traffic," which carries a base offense level of 17.1
                                                                        1
_________________________________________________________________

1 By comparison, § 2G2.4 applies in cases involving the mere "Posses-
sion of Materials Depicting a Minor Engaged in Sexually Explicit Con-

                   2
The district court adopted the probation officer's recommendations
that the base offense level be increased by two because a prepubes-
cent minor was involved [§ 2G2.2(b)(1)]; increased another four
levels because at least some of the material portrayed sadistic or mas-
ochistic conduct [§ 2G2.2(b)(3)]; and increased five more levels with
the application of § 2G2.2(b)(2), which provides:

       If the offense involved distribution, increase by the number
       of levels from the table in § 2F1.1 corresponding to the retail
       value of the material, but in no event by less than 5 levels.2
                                                                    2

In partial offset, Williams received a three-level reduction for
acceptance of responsibility. The adjusted offense level of 25, com-
bined with Williams's lack of prior convictions (Criminal History
Category I), produced a sentencing range of 57-71 months. In accor-
dance with the specified range, the district court imposed a sentence
of sixty months' imprisonment. Williams appeals, contesting only the
five-level increase under § 2G2.2(b)(2) for "distribution."

II.

We employ a fluid standard of review with respect to sentences
imposed under the Guidelines Manual. Insofar as the proper applica-
tion of the Guidelines turns predominantly on one or more findings
of fact, we review the district court's findings for clear error. United
States v. France, 164 F.3d 203, 209 (4th Cir. 1998) (citations omit-
ted). Conversely, to the extent that the dispute involves a legal deter-
mination, our review is de novo. Id. Mixed questions of law and fact
are reviewed along the resultant continuum, i.e.,"a sliding scale
depending upon whether the issues are essentially factual or legal in
_________________________________________________________________

duct," and it assigns a base offense level of 15. The simple possession
of such materials that have been mailed, shipped, or transported in inter-
state commerce is proscribed by § 2252A(a)(5).

2 Section 2F1.1(b)(1) increases the base offense level in fraud cases up
to an additional 18 levels, depending on the amount of loss. An increase
beyond the minimum five levels is reserved for losses exceeding
$70,000. It is undisputed that the retail value of the materials involved
in this case is nominal.

                  3
nature[.]" United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994).
In these hybrid situations, we give due deference to the district court's
application of the Guidelines to the pertinent facts. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

III.

A.

Williams maintains that, because the effect of applying
§ 2G2.2(b)(2) varies depending on the retail value of the materials
involved, the "distribution" referenced therein must be one for pecuni-
ary gain. In support of his argument, Williams directs our attention to
Application Note 1 of the guideline, which provides that
"[d]istribution includes any act related to distribution for pecuniary
gain, including production, transportation, and possession with intent
to distribute." U.S. Sentencing Guidelines Manual§ 2G2.2, cmt. n.1
(1998) (emphasis added).

We agree that distributions for pecuniary gain are "distributions"
within the meaning of the guideline. It does not necessarily follow,
however, that distributions effected without a profit motive are
thereby excluded. See id. § 1B1.1, cmt. n.2 (noting that, in setting
forth general application principles for the Guidelines, "[t]he term
`includes' is not exhaustive").

Five courts of appeals have concluded that the word "distribution"
in § 2G2.2 should be accorded its "ordinary meaning," that is, the
increase applies to a broader range of disseminations than those made
solely for pecuniary gain. See United States v. Probel, 214 F.3d 1285,
1287-91 (11th Cir.), cert. denied, 121 S. Ct. 331 (2000); United States
v. Imgrund, 208 F.3d 1070, 1072-73 (8th Cir. 2000); United States v.
Lorge, 166 F.3d 516, 518-19 (2d Cir.), cert. denied, 526 U.S. 1058
(1999); United States v. Hibbler, 159 F.3d 233, 237-38 (6th Cir.
1998) (2-1 decision), cert. denied, 526 U.S. 1030 (1999); United
States v. Canada, 110 F.3d 260, 263-64 (5th Cir.), cert. denied, 522
U.S. 875 (1997).3
                3
_________________________________________________________________

3 In the Second and Eleventh Circuits, it appears that any dissemination
is a distribution. See Lorge, 166 F.3d at 518 ("The ordinary meaning of

                  4
Two circuits have held to the contrary. See United States v. Laney,
189 F.3d 954, 958-61 (9th Cir. 1999) (2-1 decision); United States v.
Black, 116 F.3d 198, 202-03 (7th Cir.) (2-1 decision), cert. denied,
522 U.S. 934 (1997). The district court here adopted the minority
view of the Seventh and Ninth Circuits, but it nonetheless found the
distribution made by Williams to have been for pecuniary gain.

Each of the courts expressing the majority view have relied on the
"ordinary meaning" and "non-exhaustive application of `includes'"
rationales explained above. In addition, one judge has argued for a
broad reading of the § 2G2.2(b)(2) distribution enhancement by com-
paring it to its analogue in the obscenity trafficking guideline. See
Laney, 189 F.3d at 967-68 (Nelson, J., specially concurring). That
provision, § 2G3.1(b)(1), accords a five-or-more-level increase only
_________________________________________________________________

distribution involves an act or series of acts without regard to the actor's
motive."); Probel, 214 F.3d at 1288 ("[B]ased on the plain language of
the Guidelines and the application notes, pecuniary or other gain is not
required."). The Eleventh Circuit in Probel broadened its prior holding
in United States v. Garrett, 190 F.3d 1220, 1223 (11th Cir. 1999), in
which the court upheld the five-level enhancement as applied to a distri-
bution for "valuable" gain, i.e., the nonpecuniary purpose of luring a
minor female into sexual relations.

The positions taken by the Fifth and Eighth Circuits have been, to this
point, somewhat more narrow. See Canada, 110 F.3d at 263 (enhance-
ment appropriate where defendant motivated not by pecuniary gain, but
"with a purpose of enticing another person to have sex with him");
Imgrund, 208 F.3d at 1072 ("`[D]istribution' is not limited to cases in
which a defendant obtained a pecuniary gain by disseminating child por-
nography. . . . Purely gratuitous dissemination, however, will not trigger
the § 2G2.2(b) enhancement. . . .") (citing United States v. Horn, 187
F.3d 781, 791 (8th Cir. 1999), cert. denied, 120 S. Ct. 1442 (2000), for
the former proposition).

The Sixth Circuit adopted the general reasoning of Canada in holding
that the enhancement was "not limited solely to instances involving dis-
tribution for pecuniary gain," Hibbler, 159 F.3d at 238, but it did not fol-
low the Fifth Circuit's lead to the extent that Canada can be read to
require identification of some purpose behind the defendant's dissemina-
tion. Consequently, we believe the rule in the Sixth Circuit to be com-
mensurate with the broader version espoused by the Second and Eleventh
Circuits.

                   5
"[i]f the offense involved an act related to distribution for pecuniary
gain." According to Judge Nelson, the lack of similarly restrictive lan-
guage in § 2G2.2(b)(2) evinces the drafters' "clear choice to give
heavier sentences to those who engage in child pornography
offenses." Laney, 189 F.3d at 968; see also United States v. Horn, 187
F.3d 781, 791 (8th Cir. 1999) ("If Congress had intended
§ 2G2.2(b)(2) to apply only to distribution for pecuniary gain, it could
easily have said so directly."), cert. denied, 120 S. Ct. 1442 (2000).

We are inclined toward the more expansive, "natural" reading
favored by the majority of our sister circuits. But we must first satisfy
ourselves that (1) the application of the enhancement does not swal-
low the basic conduct, i.e., there are a significant number of situations
where the increase would not apply; and (2) there is a sufficient rea-
son -- grounded in logic, policy, or both -- to apply the increase to
all distributions, not just those made for pecuniary gain.

Both of these conditions exist here. The enhancement would not
apply to those in the trafficking chain who are convicted under the
applicable statutes of merely receiving or advertising child pornogra-
phy. The distinction is far from hypothetical; as a consequence of the
mailing at issue in this very case, Walton was convicted of receipt in
the Southern District of Texas. Inasmuch as Walton was not subject
to the five-level increase, his resultant sentence of forty months'
imprisonment was considerably more lenient than that imposed on
Williams.

The difference in treatment makes sense, however, because those
who dispense child pornography ought to be punished more severely
than those who do not. Indeed, in both Canada and Garrett, see supra
note 3, the defendant distributed the prohibited materials for the pur-
pose of persuading a minor to engage in sexual relations. If
§ 2G2.2(b)(2) were to be read in the narrowly circumscribed fashion
urged by Williams, these dangerous types of defendants would face
no greater penalty than Walton did for simply receiving a package.
The less restrictive reading that we endorse today, however, will
appropriately facilitate the government's overriding interest in
"shield[ing] all children from sexual exploitation resulting from child
pornography[.]" United States v. Mento, 231 F.3d 912, 920 (4th Cir.

                  6
2000), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Jan. 22, 2001)
(No. 00-8114).4
              4
_________________________________________________________________

4 Congress has recently reaffirmed this interest through its actions
regarding the very guideline at issue here. See Protection of Children
from Sexual Predators Act of 1998, Pub. L. No. 105-314, § 506, 112
Stat. 2980, 2982, reprinted in 28 U.S.C. § 994 Historical and Statutory
Notes. Therein, Congress directed the Sentencing Commission to amend
the Guidelines to clarify that the term "distribution," as it is used in
§ 2G2.2(b)(2), means distribution either for monetary remuneration or
for a nonpecuniary interest.

The amended guideline, in effect since November 1, 2000, retains the
minimum five-level enhancement under the cross-reference to § 2F1.1 if
the distribution was for pecuniary gain [§ 2G2.2(b)(2)(A)]; provides a
flat five-level increase for a nonpecuniary distribution made for the
receipt (or in the expectation of receipt) of a "thing of value"
[§ 2G2.2(b)(2)(B)]; specifies a five-level enhancement for any distribu-
tion to a minor [§ 2G2.2(b)(2)(C)], unless such distribution "was
intended to persuade, induce, entice, coerce, or facilitate the travel of[ ]
the minor to engage in prohibited sexual conduct," in which case the
enhancement is seven levels [§ 2G2.2(b)(2)(D)]. For all other distribu-
tions, the Commission has mandated a two-level increase
[§ 2G2.2(b)(2)(E)]. Application Note 1 has likewise been amended to
define "distribution" as "any act . . . related to the transfer of material
involving the sexual exploitation of a minor."

A clarification, of course, is just that -- an explanation of a perceived
ambiguity; the need for clarifying language does not necessarily work a
change in the guideline's original meaning. Indeed, if we believed that
Congress's instructions to the Commission amounted to a substantive
amendment of § 2G2.2(b)(2), we would be constrained to vacate the
five-level enhancement and remand this case to the district court for Wil-
liams to be resentenced.

Unfortunately, clear evidence of the original intent behind the guide-
line simply does not exist. In a 1991 letter to Congress, our colleague
Judge Wilkins, then-Chairman of the Sentencing Commission, stated his
view that the five-level adjustment under § 2G2.2(b)(2) applied "if the
offense involved for-profit distribution." 137 Cong. Rec. H6736-02,
H6737, cited in Laney, 189 F.3d at 960 n.6. Though making plain that
distributions for pecuniary gain merit the increase, the letter does not
indicate that the Commission intended the guideline to apply exclusively
to such distributions.

                   7
Other potential disparities in treatment among certain classes of
defendants sentenced under § 2G2.2(b)(2) do not tilt us toward the
minority view. The Ninth Circuit pointed out two such scenarios in
Laney. The first is attributable to the minimum five-level enhance-
ment under the cross-reference to § 2F1.1(b)(1). See supra note 2. In
fraud cases, the enhancement ranges from zero levels (for losses of
$2,000 or less) to eighteen levels (for losses exceeding $80 million).
A five-level increase is prescribed for losses ranging in excess of
$40,000 up to $70,000. By its cross-reference to the fraud guideline,
§ 2G2.2(b)(2) adopted, for child pornography convictions, the speci-
fied ranges corresponding to the retail value of the materials distrib-
uted, except to the extent that the minimum enhancement was
mandated. Consequently, a five-level increase applies to all distribu-
tions of $70,000 or less.

The Ninth Circuit opined that the Commission's gradation of pun-
ishment depending on retail value was evidence of its intent to apply
§ 2G2.2(b)(2) only to transactions for pecuniary gain; it then rejected
the Second Circuit's contrary conclusion that the sentencing scheme
was fundamentally a proxy for quantity:

        We are not persuaded that, as the Lorge court suggests, the
        drafters saw a need to distinguish between a commercial
        pornographer who sells $40,000 worth of material and one
        who sells $80,000 worth, but not between a person who
        gives away a magazine and one who markets $40,000 worth
        of magazines.

Laney, 189 F.3d at 960. This analysis misses the point. Although the
guideline fails to distinguish a for-profit distribution of $40,000 (or
even $70,000) from one made wholly gratuitously, it also accords pre-
cisely the same punishment to a commercial pornographer who dis-
tributes materials worth only a few dollars. The value of the illicit
goods -- correlating to the harm caused by their distribution -- is the
basis for the distinction, not the character of the transaction.

The second potential disparity addressed by the Ninth Circuit con-
cerns the Application Note 1 language that distribution "includes any
act related to distribution for pecuniary gain," identifying specifically
the prefatory acts of production, transportation, and possession with

                   8
intent to distribute.5
                     5 Because these same acts would presumably be
immune from the enhancement if they instead facilitated a gratuitous
distribution, the Ninth Circuit reasoned:

        If the Guidelines' drafters intended section 2G2.2(b)(2) to
        penalize the person who gratuitously gives a single porno-
        graphic image to another person as severely as the commer-
        cial retailer of child pornography, we see no convincing
        reason why they would not similarly have chosen to penal-
        ize the former person's acts of production, transportation,
        and possession.

Laney, 189 F.3d at 959-60.

The answer to the Ninth Circuit's query lies in its overstated prem-
ise. Contrary to the concern expressed by our sister circuit, the person
who gives away a single photograph will generally not be punished
as severely as the commercial pornographer. Indeed, we suspect that
in most trafficking prosecutions, the participants' inventories will be
more than sufficient to exceed the $70,000 ceiling on the five-level
enhancement. See Black, 116 F.3d at 203 n.1 (Manion, J., dissenting)
("The cross-reference to [§ 2F1.1] for sexual exploitation of minors
targets large distributors who could be trafficking in pornography
worth hundreds of thousands, even millions, of dollars."); United
States v. Kemmish, 120 F.3d 937, 940 (9th Cir. 1997) (child pornogra-
phy seized with retail value in excess of $2.9 million). Granting the
possibility, however, that the occasional small-time retailer may be
fortunate enough to receive only the minimum enhancement, we are
hardly convinced that the logical consequence thereof is the immuni-
_________________________________________________________________

5 The Application Note does not mention "shipping," although the ship-
ping of child pornography is among those activities prohibited by the
underlying statute and -- like production, transportation, and possession
with intent to distribute -- clearly within the ambit of § 2G2.2. The
Note's omission gives us no pause, however, because the drafters' use
of the word "includes" reveals their intent that the list be merely illustra-
tive. Just as distributions for pecuniary gain are not the only distributions
subject to an offense level enhancement, the acts of trafficking listed in
Application Note 1 are not the only ones "related to distribution for pecu-
niary gain."

                   9
zation of those who, motivated by reasons other than profit, cause
equivalent harm.

B.

1.

Even if Williams is correct that the § 2G2.2(b)(2) enhancement
requires the referenced distribution to be one for pecuniary gain, he
would not be entitled to resentencing. Though Williams maintains
that his transaction with Walton did not qualify as a distribution for
pecuniary gain, the lower court concluded otherwise, and we agree.

The district court found that Williams mailed the pornography to
Walton in the expectation that he would receive similar materials in
return. This type of bartering transaction is a distribution for pecuni-
ary gain to the extent that the items bargained for have any value at
all. See Black, 116 F.3d at 202-03 ("[P]ecuniary gain is a broad con-
cept itself, and it does not exclude the possibility of swaps, barter, in-
kind transactions, or other valuable consideration."); cf. U.S. Sentenc-
ing Guidelines Manual § 2Q2.1, cmt. n.1 (1998) (defining offense-
level increase "for pecuniary gain" in context of fish, wildlife, and
plant offenses as "for receipt of, or in anticipation of receipt of, any-
thing of value, whether monetary or in goods or services. Thus,
offenses committed for pecuniary gain include both monetary and
barter transactions.").

2.

The district court based its decision that a barter occurred on the
probation officer's testimony recounting her interview of Williams.
During his conversation with the probation officer, Williams men-
tioned that he liked art and photography, and that he and Walton had
"decided that they were gonna swap a few things." J.A. 69. Although
Williams now asserts that he was referring to comic books, the proba-
tion officer testified that she understood Williams to instead mean
pictures of the same type that he had sent to Walton. See Fed. R. Evid.
701 (permitting lay testimony in the form of opinions or inferences
that are "rationally based on the perception of the witness" and "help-

                   10
ful to a clear understanding of the witness' testimony or the determi-
nation of a fact in issue"). The district court did not err, legally or
factually, in crediting the probation officer's testimony. Moreover,
her testimony is sufficient to establish that a barter of pornography
was intended.

IV.

Pursuant to the foregoing, we affirm the sentence imposed on Wil-
liams.

AFFIRMED

MICHAEL, Circuit Judge, concurring in part and concurring in the
judgment:

I respectfully disagree with the majority's conclusion that the "dis-
tribution" referred to in U.S.S.G. § 2G2.2(b)(2) (1998) does not have
to be for pecuniary gain. Section 2G2.2(b)(2) calls for an enhance-
ment "[i]f the offense involved distribution" of child pornography.
"Distribution," according to Application Note 1, "includes any act
related to distribution for pecuniary gain, including production, trans-
portation, and possession with intent to distribute." One question in
this appeal is whether pecuniary gain must be a goal of distribution
before § 2G2.2(b)(2)'s enhancement is triggered. I am convinced that
it must be.

The majority's interpretation of the guideline and the application
note -- that a showing of pecuniary gain is not required -- boils
down to two steps. First, the majority points out that the guideline
itself, § 2G2.2(b)(2), does not mention pecuniary gain. It simply pro-
vides for an enhancement if the defendant engaged in distribution.
Thus, unless the application note says otherwise, a showing of pecuni-
ary gain is not required. Second, the majority states that the applica-
tion note's use of the word "includes" in"`Distribution' includes any
act related to distribution for pecuniary gain" is not exhaustive. The
note, according to the majority, simply provides an example of what
constitutes distribution, that is, an "act related to distribution for pecu-
niary gain." The majority therefore reduces the reference to pecuniary

                   11
gain to a needless reminder that if the distribution is for pecuniary
gain, it is still distribution and qualifies for the enhancement. There
is nothing in the guideline that makes this reminder necessary, espe-
cially since the guideline by itself would cover all distribution. Thus,
under the majority's interpretation the words "for pecuniary gain" in
the application note become meaningless and useless. The majority's
interpretation violates a fundamental canon of statutory construction
-- "that significance and effect shall, if possible, be accorded to every
word." Washington Market Co. v. Hoffman, 101 U.S. 112, 115
(1879).

Our charge is to interpret the application note so that the term "for
pecuniary gain" is given meaning. "For pecuniary gain" can be given
meaning only if the words serve as a limitation on conduct that consti-
tutes distribution. What then is the extent of the limitation? It might
be said that this limitation should apply only to the conduct that is
added in the application note. Specifically, a showing of pecuniary
gain would be required only when the defendant engages in an "act
related to distribution . . . [such as] production, transportation, and
possession with intent to distribute." This approach, however, would
create an unsupportable distinction between "acts related to distribu-
tion" and "actual distribution." There is no reason why a defendant
who engages in an act related to distribution must act with pecuniary
motive, but a defendant who actually distributes need not. Because
this distinction is unsupportable, we should interpret "for pecuniary
gain" as a limitation on all conduct constituting distribution. In short,
the only logical reason for using the words "for pecuniary gain" is to
limit the meaning of distribution. Distribution therefore means distri-
bution for pecuniary gain.

This interpretation is consistent with the plain language of the
application note. The note states that distribution "includes any act
related to distribution for pecuniary gain." The word "includes" sig-
nals that an "act related to distribution" is simply an illustration of
what constitutes distribution. In other words, the use of "includes"
indicates that other conduct, in addition to actual distribution, may
constitute distribution. The word "includes," however, has no impact
on the term "for pecuniary gain." The term "for pecuniary gain" modi-
fies "distribution" and signifies that the core conduct under the guide-
line is "distribution for pecuniary gain," not simply distribution.

                   12
Application Note 1 is not a model of clarity. Nevertheless, the only
fair and sensible reading of the note is that the words "for pecuniary
gain" limit "distribution" to "distribution for pecuniary gain." For this
reason, I must respectfully decline to join part II.A. of the majority
opinion. Because I agree with the majority's conclusion that Wil-
liams's transaction qualifies as a distribution for pecuniary gain, I
concur in part II.B. and in the judgment.

                   13
