                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                                       PUBLISH
                                                                               FEB 12 1999
                      UNITED STATES COURT OF APPEALS
                                                                          PATRICK FISHER
                                                                                   Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.
                                                            No. 98-4096
 DAVID L. WILKINSON,

          Defendant - Appellant.


                    Appeal from the United States District Court
                              for the District of Utah
                               (D.C. No. 95-CR-33)


Submitted on the briefs: *

Paul M. Warner, United States Attorney, and Richard Lambert, Assistant United
States Attorney, for Plaintiff-Appellee

James C. Bradshaw, for Defendant-Appellant


Before BRORBY, EBEL and LUCERO, Circuit Judges.


EBEL, Circuit Judge.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause therefore is
ordered submitted without oral argument.
      David Wilkinson pled guilty to charges that he possessed a number of

videotapes and photographs depicting minors engaged in sexually explicit

conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). The sentencing guideline

governing Wilkinson’s conviction is U.S.S.G. § 2G2.4 (1995), which established

a base offense level of 13. 2 Because Wilkinson produced the pornographic visual

depictions in his possession, the district court at sentencing cross-referenced and

applied U.S.S.G. § 2G2.1 (1995), which established a higher offense level of 25.

Wilkinson produced the videos and photographs while in Thailand. Wilkinson

appeals, arguing that courts cannot cross-reference to U.S.S.G. § 2G2.1 if the

production took place outside of the United States; that his counsel at sentencing

was constitutionally ineffective for not objecting to the court’s use of foreign

conduct to determine Wilkinson’s base offense level; and that there was

insufficient evidence at sentencing to apply a four-level enhancement for offenses

involving minors under the age of twelve. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we affirm.




      2
         Although Wilkinson was sentenced in May 1998, the guidelines then in
effect had a higher base offense level for Wilkinson’s crime than the base offense
level in the guidelines in effect in January 1995, when Wilkinson committed his
crime. Accordingly, the pertinent January 1995 guidelines apply. See United
States v. Svacina, 137 F.3d 1179, 1186 (10th Cir. 1998).

                                        -2-
      We review a district court’s legal interpretations of the Sentencing

Guidelines de novo. See United States v. Moore, 130 F.3d 1414, 1416 (10th Cir.

1997). Moreover, because Wilkinson failed to raise his § 2G2.4 and § 2G2.1

issue in the court below, we review the trial court’s decision only for plain error.

See United States v. Moudy, 132 F.3d 618, 621 (10th Cir.), cert. denied, 118 S.Ct.

1334 (1998).

      Section 2G2.4, in relevant part, provides:

               (c) Cross References

                     (1)    If the offense involved causing, transporting, permitting,
                     or offering or seeking by notice or advertisement, a minor to
                     engage in sexually explicit conduct for the purpose of
                     producing a visual depiction of such conduct, apply § 2G2.1
                     (Sexually Exploiting a Minor by Production of Sexually
                     Explicit Visual or Printed Material; Custodian Permitting
                     Minor to Engage in Sexually Explicit Conduct; Advertisement
                     for Minors to Engage in Production).

The guidelines define “offense” to mean “the offense of conviction and all

relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is

specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1 (commentary)

(n. 1(l)) (1995). Obviously, Wilkinson’s sexual exploitation of the minors

depicted in the videotapes and photographs that he possessed is relevant conduct.

Since neither the language of U.S.S.G. § 2G2.4 nor § 2G2.1 3 carves out an


      3
          U.S.S.G. § 2G2.1 reads:
                                                                        (continued...)

                                         -3-
exception for defendants who produced the proscribed child pornography outside

of the United States, the district court properly cross-referenced and applied the

enhanced punishment in § 2G2.1.

      Wilkinson argues that applying § 2G2.1 to conduct that occurs wholly

outside of the United States violates the long-standing principle that “legislation

of Congress, unless a contrary intent appears, is meant to apply only within the

territorial jurisdiction of the United States.” E.E.O.C. v. Arabian American Oil

Co., 499 U.S. 244, 248 (1991) (quotation omitted) (superseded by statute).



      3
          (...continued)

               (a)    Base Offense Level: 25

               (b)    Specific Offense Characteristics

                      (1)    If the offense involved a minor under the age of twelve
                      years, increase by 4 levels; otherwise, if the offense involved a
                      minor under the age of sixteen years, increase by 2 levels.

                      (2)    If the defendant was a parent, relative, or legal guardian
                      of the minor involved in the offense, or if the minor was
                      otherwise in the custody, care, or supervisory control of the
                      defendant, increase by 2 levels.

               (c)    Special Instruction

                      (1)    If the offense involved the exploitation of more than one
                      minor, Chapter Three, Part D (Multiple Counts) shall be
                      applied as if the exploitation of each minor had been contained
                      in a separate count of conviction.


                                            -4-
      We reject this argument because it wrongly conflates two distinct concepts.

As the Seventh Circuit has explained, applying the extraterritoriality presumption

to § 2G2.4’s cross-reference to § 2G2.1 assumes that because the defendant “was

sentenced as if he were convicted for producing the pornography, he was

sentenced in fact for producing child pornography.” United States v. Dawn, 129

F.3d 878, 883 (7th Cir. 1997). This is a flawed assumption. “ < [C]onsideration of

information about the defendant’s character and conduct at sentencing does not

result in “punishment” for any offense other than the one of which the defendant

was convicted.’ Rather, the defendant is < punished only for the fact that the

present offense was carried out in a manner that warrants increased punishment.’”

United States v. Watts, 519 U.S. 148, 155 (1997) (per curiam) (quoting Witte v.

United States, 515 U.S. 389, 401, 403 (1995)).

      As a result, § 2G2.4 and § 2G2.1 as interpreted by the district court

properly applied only to conduct that occurred within the United States.

Wilkinson was held criminally culpable only for his conduct (possession of child

pornography) that occurred within the territorial jurisdiction of the United States.

But, Wilkinson’s sentence was increased because of how he committed his crime.

Cf. Watts, 519 U.S. at 154 (“[S]entencing enhancements do not punish a

defendant for crimes of which he was not convicted, but rather increase his

sentence because of the manner in which he committed the crime of conviction.”).


                                         -5-
“The cross-reference merely implements the common sense notion that a receiver

or possessor who has manufactured the pornography in his possession is both

more culpable and more dangerous than one who has received or possessed the

pornography and no more.” Dawn, 129 F.3d at 884. It would be absurd to

suggest that there is a long-standing principle that judges cannot consider in

calculating a sentence relevant conduct committed outside of the United States.

In fact, 18 U.S.C. § 3661 clearly states otherwise, requiring that, “No limitation

shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an appropriate sentence.”

(emphasis added); see also, Watts, 519 U.S. 148 at 152 (conduct for which

defendant is acquitted may be considered for sentencing); Moore, 130 F.3d at

1416. Thus, we hold it appropriate for courts, when applying the cross-reference

to § 2G2.1 from § 2G2.4, to consider the relevant conduct that occurs wholly

outside of the United States.

      Along the same lines, Wilkinson argues that U.S.S.G. § 2G2.4 and § 2G2.1

are unconstitutionally vague because they provide no notice of punishment for

criminal conduct that occurs outside of the United States. However, as discussed

above, Wilkinson was not punished for his production of the videotapes and

photographs outside of the Untied States; rather, he was convicted and sentenced


                                        -6-
for possession of child pornography within the United States. See Dawn, 129

F.3d at 881 n.3. We likewise reject Wilkinson’s ineffective assistance of counsel

claim regarding this extraterritorial issue. Since Wilkinson’s argument fails on

the merits, he could not have suffered prejudice under Strickland v. Washington,

466 U.S. 668 (1984), from counsel’s failure to raise the issue below.

      Wilkinson lastly argues that there was insufficient evidence at sentencing

for the district court to apply a four-level enhancement under § 2G2.1(b)(1) for

offenses involving minors under the age of twelve. Wilkinson argues that the

children depicted in his pornographic material were older than twelve (but

concedes they were younger than eighteen). He therefore asks that we recalculate

his sentence without the four-level enhancement.

      We need not decide this sufficiency of the evidence question as it is moot.

The district court’s sentence calculation was as follows: a base offense level of

25, plus 5 points for multiple counts, plus 4 points for involving minors under the

age of twelve, minus 3 points for acceptance of responsibility. Wilkinson’s base

offense level totaled 31 which, given a Criminal History Category I, results in a

sentence range of 108-135 months. If the 4 level enhancement that Wilkinson

challenges is eliminated, his base offense level totals 27, which results in a

sentence range of 70-87 months.




                                         -7-
      Under either result, the low end of the guideline sentence (108 months or

70 months) is higher than the statutory maximum sentence of 60 months. Since

the statutory maximum sentence is less than the minimum of either applicable

guideline range, the statutorily authorized maximum controls. See U.S.S.G. §

5G1.1(a). Therefore, even if Wilkinson’s sufficiency of the evidence argument is

true, this court could grant no meaningful relief.

      The district court’s judgment is AFFIRMED.




                                         -8-
