                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4285


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TERRY DAVID MCVEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Robert C. Chambers,
Chief District Judge. (6:12-cr-00179-1)


Argued:   January 30, 2014                 Decided:   April 23, 2014


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer wrote       the
opinion, in which Judge Wilkinson and Judge Duncan joined.


ARGUED:    Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.    Jennifer
Lynn Rada, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.     ON BRIEF:  Mary Lou Newberger,
Federal Public Defender, George H. Lancaster, Jr., Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
NIEMEYER, Circuit Judge:

      Terry David McVey pleaded guilty to knowingly possessing

300 to 600 images of child pornography, including images and

videos    of   prepubescent     minors,         in    violation     of   18   U.S.C.   §§

2252A(a)(5)(B)         and   2252A(b)(2).                 After     applying     several

enhancements, including a two-level enhancement under U.S.S.G. §

2G2.2(b)(3)(F)       for     distribution            of   child     pornography,       and

crediting McVey for acceptance of responsibility and cooperation

with authorities, the district court entered a downward variance

sentence of 78 months’ imprisonment.                      McVey now challenges his

distribution     enhancement,         arguing         that    his    only     documented

instance of distribution “occurred more than two years prior to

his offense of conviction” and thus was not relevant conduct

under U.S.S.G. § 1B1.3.

      We reject McVey’s challenge, concluding that the district

court    did   not   clearly    err    in       applying     the    enhancement,       and

affirm his sentence.


                                            I

      On December 12, 2010, McVey sent an email to an individual

he believed to be the stepfather of three girls, ages 8, 11, and

14.      The   email    recipient     was       actually     an     undercover   police

officer assigned to the Internet Crimes Against Children Task

Force in Birmingham, Alabama.               McVey and the undercover officer


                                            2
communicated for several months about sexual acts that McVey

wanted to perform with the daughters.                  At one point, the officer

told McVey that the price for sexual intercourse with the two

older daughters was $150 per hour per girl with a minimum two-

hour charge, and McVey stated that he thought that price would

be well worth it.

      On February 4, 2011, McVey asked the undercover officer if

he had videos of the three girls and, if so, how McVey could

obtain them.          The officer offered to sell McVey a DVD for $10.

On May 31, 2011, the officer received (in his undercover post

office box) an envelope containing a $10 bill with a return

address   for    McVey’s      residence    in    Parkersburg,         West    Virginia.

The   officer    prepared      a   DVD   containing         child    pornography     and

mailed    it   to     McVey   at   the   address       he    gave.      The    DVD   was

delivered on July 28, 2011, and, later that day, police obtained

and executed a federal search warrant for McVey’s residence,

seizing McVey’s computer and several CDs.                    Soon afterward, McVey

returned home and agreed to be interviewed.                     McVey admitted to

purchasing      the    pornographic      DVD    from   the    undercover       officer,

explaining that he had been interested in having sex with the

purported eight-year-old daughter, but that he could not afford

the $1,000 fee.

      McVey also admitted that he had possessed and distributed

child pornography over the course of the previous ten years and

                                          3
that, during that time, he had uploaded child pornography to

various Yahoo! Groups on “at least six occasions.”

        The        CDs     seized        from        McVey’s        residence          contained

approximately fourteen image files and two video files, and the

computer contained approximately seventeen image files and four

videos.       The images and videos included known child victims and

prepubescent minors.

     During         the    course    of    the       investigation,        detectives         also

learned of a “CyberTipline Report” from the National Center for

Missing and Exploited Children, which indicated that McVey had

previously uploaded a video to a child pornography website.                                   The

upload took place on December 31, 2008.                            A detective viewed the

video and confirmed that it contained child pornography.                                      That

video, however, did not appear on the hard drive of McVey’s

computer.            Although       McVey       did     not        specifically         remember

uploading          the    video,    he    explained         that    his    hard    drive       had

crashed       in    September      2010    and       that   he     had    lost    all    of    its

contents.

     McVey was subsequently indicted on one count of knowingly

possessing images and videos of child pornography on July 28,

2011,    that       had    been    shipped      and    transported        in     and    affected

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

and 2252A(b)(2).             McVey pleaded guilty to the charge under a

plea agreement, in which he accepted sentencing enhancements for

                                                 4
using a computer (U.S.S.G. § 2G2.2(b)(6)); for possessing images

depicting prepubescent minors (U.S.S.G. § 2G2.2(b)(2)); and for

possessing 300 to 600 images (U.S.S.G. § 2G2.2(b)(7)(C)).                         The

agreement indicated a final offense level of 26 but noted that

the sentencing court would not be bound by its terms.

      In    the   presentence     investigation       report,     the    probation

officer recommended applying the enhancements accepted by McVey

in the plea agreement, as well as two additional enhancements --

one   for   possessing    images    portraying     sadistic     or      masochistic

conduct (U.S.S.G. § 2G2.2(b)(4)) and one for distribution of

child pornography (U.S.S.G. § 2G2.2(b)(3)(F)).                    The probation

officer      also     recommended        reductions      for    acceptance         of

responsibility and cooperation with authorities.

      At the sentencing hearing, McVey contested the enhancement

for   distribution       of     child     pornography     under        U.S.S.G.    §

2G2.2(b)(3)(F),       arguing   that     his   distribution     activities      were

too remote in time and did not amount to “relevant conduct” to

his possession       offense.      He    argued   that   the    only    documented

instance of his distribution was on December 31, 2008, which was

23 months before McVey first contacted the undercover police

officer and over two years before the offense of conviction for

possession.       The government, however, noted that McVey had also

admitted     to     uploading    child     pornography     on    at     least     six

different occasions.

                                          5
      The district court overruled McVey’s objection.                           While the

court acknowledged that there had been “a significant passage of

time” between the documented December 2008 distribution activity

and   the   July    2011     offense   of        conviction       for    possession,     it

nonetheless saw the distribution and the possession as “the same

crime,   the    same   sort    of    activity,         the   same       sort   of   conduct

continuing     over    the    entire    period.”             Ultimately,        the   court

applied five enhancements -- the three that McVey had accepted

in his plea agreement and the two additional ones recommended by

the probation officer.             It also credited McVey with acceptance

of    responsibility         and    cooperation            with    authorities,        thus

reaching an overall offense level of 29.                      Together with McVey’s

criminal     history    category       of        I,    the   resulting         recommended

Guidelines sentencing range was 87 to 108 months’ imprisonment.

For   various      reasons    not    related          to   this   appeal,       the   court

entered a downward variance sentence of 78 months’ imprisonment,

followed by 15 years of supervised release.

      McVey noticed this appeal, challenging only the two-level

enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for the distribution

of child pornography.


                                            II

      As an initial matter, McVey contends that we should review

the district court’s application of the distribution enhancement


                                            6
de novo.      The government responds that the court’s ruling that

the   prior   distribution            activity      was     relevant      conduct         was    a

factual finding that we review for clear error.

      The resolution of the parties’ difference on the standard

of review depends on whether the issue “turns primarily on a

factual    determination,”            in    which    case     we    should         review    the

district court’s findings for clear error or whether it “turns

primarily on the legal interpretation of a guideline term,” in

which case our review “moves closer to de novo review.”                                   United

States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (quoting

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989)).

Consequently, we must focus more closely on the nature of the

district court’s decision.

      Sentencing         under        the     Sentencing          Guidelines          involves

consideration       of     the    actual          conduct    in     which      a    defendant

engaged, “regardless of the charges for which he was indicted or

convicted.”         U.S.S.G.      §     1A1.4(a);      see    also       id.    §    1B1.3(a).

Thus,     despite    the      limited       scope     of     conduct      for       which    the

defendant was convicted, he may nonetheless be sentenced more

broadly    for   relevant        conduct      --     i.e.,    the    conduct         of     other

offenses    insofar      as      they      were    “part    of     the   same       course      of

conduct . . . as the offense of conviction.”                         Id. § 1B1.3(a)(2).

The Application Notes to § 1B1.3 instruct that the “[f]actors

that are appropriate to the determination of whether offenses

                                              7
are    sufficiently           connected     or       related    to     each       other       to   be

considered as part of the same course of conduct include the

degree     of        similarity        of        the    offenses,           the     regularity

(repetitions) of the offenses, and the time interval between the

offenses.”        Id. § 1B1.3 cmt. n.9(B) (emphasis added); see also

United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir. 1992)

(identifying “similarity, regularity, and temporal proximity” as

the   “significant        elements”         in    the   course-of-conduct             inquiry).

“When one of the above factors is absent, a stronger presence of

at least one of the other factors is required.”                                     U.S.S.G. §

1B1.3 cmt. n.9(B); see also Mullins, 971 F.2d at 1144.

       When   a    district       court       interprets        the    meaning       and      legal

components      of      the    term    “relevant        conduct,”      it     makes       a   legal

determination that we review de novo.                          See, e.g., United States

v.    Fullilove,        388    F.3d    104,      106    (4th    Cir.    2004).            But      the

application of the relevant conduct standard typically involves

consideration of factual circumstances, such as whether acts or

omissions         are      sufficiently              similar;        whether        they           are

sufficiently         regular;     whether        they    are     sufficiently           close       in

time; and whether, when one factor is particularly weak or even

lacking,      another         factor    compensates        to     satisfy         the     factual

requirements         of   relevant      conduct.          Such    analysis         constitutes

factfinding that we review for clear error.



                                                 8
       In   this        case,        McVey    does       not    contend       that      the       district

court applied the incorrect legal rule.                                 Rather, his challenge

centers on the factual analysis the district court conducted in

applying         the       relevant          conduct           Guideline.               The        court’s

application of U.S.S.G. § 1B1.3 depended on an evaluation and

weighing         of    the      factual        details,         even     though             the   details

themselves may have been undisputed.                                 As such, we review the

court’s decision for clear error.

       This conclusion is consistent with our decision in United

States v. Pauley, 289 F.3d 254 (4th Cir. 2002), as well as the

decisions of other courts.                     In Pauley, the district court found

that   a    series         of    four       thefts    were      sufficiently            connected         to

constitute            relevant        conduct        for       purposes        of       a     sentencing

enhancement,           and      we    reviewed       the       court’s       decision         for     clear

error because the inquiry was primarily factual, turning on the

purpose,         timing,        and    modus     operandi         of    the        thefts,        and    the

weight that should be attached to those facts in the relevant

conduct analysis.                See id. at 259-60; see also United States v.

Hodge,      354       F.3d      305,     313    (4th       Cir.        2004)       (“We       review     an

application           of   [the       relevant       conduct]         test     .    .     .    for    clear

error”).          Other courts have reached similar conclusions.                                         See

United States v. Pica, 692 F.3d 79, 88 (2d Cir. 2012) (“Findings

of   relevant          conduct        are     reviewed         for     clear       error”);          United

States      v.    Boroughf,           649    F.3d    887,       890    (8th        Cir.       2011)     (“We

                                                     9
review    a     district     court’s         relevant-conduct            determination        for

clear    error,       remembering          that    such    a     determination         is   fact-

intensive       and    ‘well      within       the       district       court’s    sentencing

expertise       and    greater         familiarity        with    the     factual      record’”

(quoting United States v. Stone, 325 F.3d 1030, 1031 (8th Cir.

2003))); United States v. West, 643 F.3d 102, 105 (3d Cir. 2011)

(“We     also     review         for       clear       error     the     District        Court’s

determination         of   what       constitutes        ‘relevant       conduct’       for   the

purposes of sentencing”); United States v. Salem, 597 F.3d 877,

884 (7th Cir. 2010) (“[W]e review the district court’s relevant

conduct determinations for clear error”); United States v. Mann,

493     F.3d    484,       497    (5th       Cir.       2007)     (“A     district       court’s

determination of what constitutes relevant conduct is reviewed

for clear error”).               But see United States v. Smith, 705 F.3d

1268, 1274 (10th Cir. 2013) (“We review the factual findings

supporting this determination for clear error, but review the

ultimate       determination          of    relevant      conduct       de     novo”);      United

States     v.    McCrimmon,           362    F.3d       725,     728     (11th    Cir.      2004)

(“Although       findings        as    to    the       amount    of     loss    from   a    money

laundering offense are reviewed for clear error, whether the

district court misapplied U.S.S.G. § 1B1.3 is a purely legal

question that we review de novo”).




                                                  10
                                                 III

      On    the    merits,          McVey    contends          that      the      district         court

erred -- or, necessarily, that the court clearly erred -- by

applying the enhancement for distribution of child pornography.

He argues that his “uploading of child pornography years before

his   offense      of    conviction          is    not       relevant       conduct          for    that

offense,”     reasoning         that    “[t]hat         prior      conduct            is    temporally

distant, was not engaged in with any regularity, and is not

sufficiently similar to the offense of conviction.”

      The   government          argues       in    response        that        the     “substantial

similarity between the distribution and the possession” and the

“number of times [McVey] engaged in distribution” support the

district court’s finding that McVey’s “prior distribution was

relevant      conduct         for     purposes         of     determining             his    advisory

Guideline range.”             Alternatively, the government argues that any

error on the part of the district court was harmless.

      McVey      pleaded       guilty       to    possession          of    child          pornography

under 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), and the base

offense     level       for     his     sentence            was   therefore            governed         by

U.S.S.G. §        2G2.2(a)(1).              Because      the      base      offense         level    was

subject     to    an    enhancement          for       distribution,             as    stated      in    §

2G2.2(b)(3)(F),         we     must    determine            whether        the    district         court

clearly erred in finding that McVey’s distribution conduct was



                                                  11
part of the same “course of conduct . . . as the offense of

conviction.”     U.S.S.G. § 1B1.3(a)(2).

      The concept of “same course of conduct” does not require

that acts be connected together by common participants or by a

singular overall scheme.                Rather, it requires only “that the

defendant [be] engaged in an identifiable pattern of certain

criminal activity.”           Hodge, 354 F.3d at 312.              To determine if

McVey’s distribution activities were sufficiently connected or

related to his possession offense to be part of the same course

of conduct, we evaluate, as noted above, the similarity of the

offenses, their regularity, and the time interval between them.

See U.S.S.G. § 1B1.3 cmt. n.9(B); Mullins, 971 F.2d at 1144.

And when one of those factors is absent, a stronger presence of

another must exist.          Id.

      Focusing     on    his       December     31,     2008   upload      of    child

pornography, McVey argues that his prior distribution conduct

“did not occur close in time with his offense” -- i.e., his July

28,     2011   possession          of   child     pornography.        Taking      that

proposition alone, we acknowledge that the roughly two-and-one-

half-year interval between the two offenses does exceed the six-

month interval that we found too long in Mullins.                     See 971 F.2d

at 1144.       And indeed, the district court acknowledged that the

gap between those offenses was “significant.”                  But the court had

other     evidence      to     support      its       conclusion    that        McVey’s

                                           12
distribution of child pornography was part of the same course of

conduct as his July 2011 possession of child pornography.

      First, McVey admitted on the day of his arrest that he had

possessed and distributed child pornography during the last ten

years.        This admission alone strongly suggests a single course

of    conduct.         McVey     further       admitted    to    distributing         child

pornography to various Yahoo! Groups on at least six occasions,

and     the    CyberTipline          Report    documents      him       uploading     child

pornography       to     yet     a    different      website       on    an     additional

occasion.        Moreover,       during       conversations      from        late   2010   to

early    2011,       McVey     actively     solicited      images       of    prepubescent

children with whom he wished to have sex, constituting a further

extension of his course of conduct.                       Relying on all of these

facts, the district court found that McVey’s distribution and

possession of child pornography were closely related.                               Indeed,

the court found that they were “the same crime, the same sort of

activity, the same sort of conduct continuing over the entire

period.”        We     conclude      that     the   court’s     factual       finding      was

supported by the record and therefore was not clearly erroneous.

      Bolstering the district court’s factual conclusion, we note

that, as a matter of logic, possession and distribution of child

pornography are tightly connected.                    Possession is a necessary

prerequisite for distribution, which means that every time McVey

uploaded        pornographic          material,      he     also        possessed       that

                                              13
pornographic       material.            This     perfect       overlap     suggests      a

substantial similarity between McVey’s distribution activities

and his possession of child pornography.                       Moreover, the Third

Circuit has observed that possession and distribution of child

pornography share many characteristics, as the activities have a

“commonality       of     purpose         in      the     [defendant’s]         prurient

interest[s].”       United States v. Sullivan, 414 F. App’x 477, 480

(3d Cir. 2011).         They also share a common offender (McVey) and a

common    modus    operandi       (use    of     a     computer),    reinforcing       the

conclusion that possession and distribution are highly similar.

See United States v Cote, 482 F. App’x 373, 375 (11th Cir. 2011)

(per curiam) (“Here, Cote’s possession of over 2,700 images of

child pornography on his computer and his sharing of almost 700

of these images . . . using the same peer-to-peer file sharing

program are relevant conduct . . . .                     These acts are similar in

degree to the charged offense and are substantially connected to

the   charged     offense    given       that    one    must   first     possess    child

pornography     before      one   can     transport       it”);     Sullivan,    414    F.

App’x at 480-81 (finding that possession of pornographic images

was related to the offense of distribution of such images in

part because of the similarity of the two activities); United

States v. Gerow, 349 F. App’x 625, 627 (2d Cir. 2009) (per

curiam)    (“[T]here        was    sufficient           evidence    from    which      the

District   Court     could    conclude          that    defendant’s      possession     of

                                           14
child pornography was part of a common scheme or plan, or part

of   the   same    course     of    conduct,      as    his    distribution     of     the

same”).    McVey’s admission that he had possessed and distributed

child pornography for the previous 10 years appears to confirm

these courts’ conclusions.

      McVey nonetheless relies on United States v. Sykes, 7 F.3d

1331 (7th Cir. 1993), to argue that his distribution was not

sufficiently regular to support a finding that it was connected

to his ongoing possession.              In Sykes, the court held that a

defendant who had committed credit card fraud four times over

the course of three years had not acted with regularity.                          Id. at

1337.      But     the     circumstances         in    Sykes     were   substantially

different from those presented in this case.                          The Sykes court

concluded that the credit card fraud consisted of four distinct

offenses that did not occur at any fixed or certain intervals or

in accordance with any consistent or periodical rule or practice

and therefore were not connected.                In this case, however, all of

McVey’s distribution activities were connected by his ongoing

possession of child pornography.

      In   sum,    where     an    individual      continually        possesses    child

pornography       over   a   period    of    ten       years   and    admits    that    he

distributed       that   pornography        over       the     same   period,     it   is

reasonable for a district court to conclude that seven specific

distributions during that period are closely connected with the

                                            15
ongoing offense of possession.        Accordingly, we conclude that

the district court in this case did not clearly err in finding

that McVey’s distribution activity was part of the same course

of conduct as his offense of conviction.

     The judgment of the district court is

                                                          AFFIRMED.




                                 16
