                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-3253
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                            BRIAN WILLIAM WALPOLE,
                                                 Appellant
                                 _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. No. 10-cr-00340-001)
                           District Judge: Hon. Yvette Kane
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 18, 2013

              Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges

                                (Filed: October 23, 2013)
                                    _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Brian William Walpole appeals his conviction and the sentence imposed by the

United States District Court for the Middle District of Pennsylvania. He contends that

_______________
       * Honorable Kermit V. Lipez, United States Court of Appeals Senior Judge for the
First Circuit, sitting by designation.
the District Court erred in allowing an FBI agent to testify as both a lay witness and an

expert; in increasing the offense level and criminal history category applicable to him

under the United States Sentencing Guidelines’ (the “Guidelines”); and in imposing a

term of 50 years’ imprisonment. We conclude that there was an error in the calculation

of Walpole’s criminal history category, and we will therefore remand for resentencing.

In all other respects, we will affirm.

I.     Background

       On December 3, 2012, after failed plea negotiations, Walpole pled not guilty to a

three-count Indictment charging him with Sexual Exploitation of a Child, in violation of

18 U.S.C. § 2251(a)(1), (e), Receipt of Child Pornography, in violation of 18 U.S.C.

§ 2252A(a)(2), (b)(1), and Possession of Child Pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). Those charges arose from an FBI investigation involving

peer-to-peer file sharing of child pornography.

       Using the member account of an individual previously the subject of an FBI child

pornography investigation, the FBI logged into a peer-to-peer program and observed the

habits of an individual using the alias “Boyballs.” The FBI downloaded 62 images made

available online by Boyballs and thereafter subpoenaed Comcast, the local Internet

service provider, to learn the Internet Protocol (“IP”) address for Boyballs. That address

corresponded to a computer in the home of Mavis Walpole of York, Pennsylvania, where

Brian Walpole was also known to reside. On September 9, 2010, a search warrant was

executed at the Walpole residence, where the FBI seized two computer towers, two

laptop computers, numerous DVDs and CDs, four mini DVDs, a Panasonic mini-DVD

                                             2
recorder, and several flash drives. That same day, Brian Walpole was interviewed and

admitted to downloading “normal pornography.” (Presentence Investigation Report

[“PSR”] ¶ 7.) He then asked for an attorney.

      FBI agent Heather Thew was primarily responsible for reviewing the items seized

at the Walpole residence. In total, she reviewed over 200,000 images of the roughly

600,000 images from the computer towers, 13,373 of which met the Guidelines’

definition for child pornography. At least 52 of those also depicted children who were

bound, restrained, or suffering from other sadistic treatment. In addition, when reviewing

the four mini-DVDs, Thew learned that Walpole had secretly recorded a 14-year-old boy,

C.P., masturbating. Walpole’s face can be seen on the recording, as he adjusted the angle

of the camera while setting it up. C.P. corroborated that the individual shown on the

recording was him and that Walpole had set up a home office for C.P. to watch

pornography.

      During a proffer interview, Walpole admitted to possessing child pornography,

downloading child pornography, distributing child pornography through the use of peer-

to-peer programs, and surreptitiously videotaping C.P. In addition, he confessed to

having had sexual contact with his adopted brother in the early to mid-1990s, when

Walpole was in his late twenties and his brother was under the age of ten. Walpole’s

mother had caught Walpole as he was about to perform oral sex on the child and she




                                            3
subsequently called the police and Children and Youth Services. That episode resulted in

Walpole’s 1996 convictions for Indecent Exposure and Corruption of Minors. 1

       After a one-day jury trial on January 10, 2012, Walpole was convicted on all three

counts. A PSR was then prepared by the United States Probation Office. For the first

count, Sexual Exploitation of a Child, the PSR calculated Walpole’s offense level as 36.

The PSR grouped the second and third counts together, pursuant to § 3D1.2(c) of the

Guidelines. For those counts, Receipt of Child Pornography and Possession of Child

Pornography, the PSR calculated an offense level of 45. A multiple count adjustment

increased his offense level to 46. The PSR then credited Walpole’s initial admission of

responsibility, despite his later plea of not guilty, and so decreased the offense level to 44

and finally to 43, which is the maximum under the Guidelines. 2 As for Walpole’s

criminal history category, the PSR recommended that, although Walpole had “zero

criminal history points,” his criminal history category should be set at V because he is “a

Repeat and Dangerous Sex Offender Against Minors.” (PSR ¶70.) The Guidelines

generally recommend a life sentence based on an offense level of 43 and a criminal

history of V, but, because the combined statutory maximum term of imprisonment for

Walpole’s offenses is 60 years, the Guidelines sentence was calculated to be 720 months.




       1
        While the PSR notes that Walpole was convicted in 1995, he was actually
sentenced in 1996.
       2
        Pursuant to U.S.S.G. Ch. 5, Part A, Application Note 2, “[a]n offense level of
more than 43 is to be treated as an offense level of 43” for the purpose of determining a
Guidelines sentence. Id.
                                              4
       At sentencing, Walpole made a number of objections, which the District Court

considered but eventually overruled. First, he denied that he had any “supervisory

control” over C.P. that would, with respect to the Child Exploitation count, warrant

application of § 2G2.1(b)(5) of the Guidelines, which provides a two-level enhancement

if “the minor was otherwise in the custody, care, or supervisory control of the defendant.”

The Court disagreed, finding that Walpole had been “entrusted” with C.P. by C.P.’s

guardians and that Walpole need not have been “a caregiver in a technical sense” to meet

the requirements of “supervisory control.” (App. at 196a.) Second, Walpole objected to

the grouping of Counts 2 and 3 together since he believed doing so wrongly increased his

offense level for Count 3 from 36 to 45. The Court overruled that objection, holding that

the “offenses are properly grouped” in accordance with § 3D1.2(c), which provides that

counts “involving substantially the same harm” be grouped together in a single group

when “one of the counts embodies conduct that is treated as a specific offense

characteristic in, or other adjustment to, the guideline applicable to another of the

counts.” (App. at 203a.) Finally, Walpole challenged the addition of a five-level

enhancement under § 2G2.2(b)(5) to Counts 2 and 3, for engaging in a “pattern of

activity involving the sexual abuse or exploitation of a minor.” He argued that his prior

convictions were not on their face “sexual,” and therefore outside of the plain language of

§ 2G2.2(b)(5), although he conceded at sentencing (through counsel) that “the pattern of

activity is there.” (App. at 203a-205a.) Despite Walpole’s lengthy explanation, the

Court found the enhancement appropriate “whether or not there is a conviction for

[sexual abuse].” (App. at 210a.)

                                              5
       Ultimately, the Court did grant Walpole a variance from the Guidelines’

recommended sentence. Walpole had argued for a variance based on what he described

as his “impending deportation” to Canada, one of his countries of citizenship. 3 (App. at

223a, 240a.) He also asked for a variance based on his ongoing depression and other

mental health issues, and based on his proffer interview, which provided to the

government the identities of the child pornography Websites he frequented and the

usernames of the child pornography collectors he found online. Rather than imposing the

statutory maximum, the District Court committed Walpole to be imprisoned for a term of

360 months on Count 1, 240 months on Count 2, and 120 months on Count 3, with

Counts 1 and 2 to be served consecutively and Count 3 to be served concurrently, for a

total of 600 months’, or 50 years’, imprisonment.

       Walpole timely appealed.

II.    Discussion 4

       As earlier noted, Walpole contends that the District Court erred by admitting FBI

Agent Thew’s testimony without qualification; by applying certain Guidelines’ offense

level enhancements and increasing his criminal history category; and by imposing a

substantively unreasonable sentence. We consider the first two arguments in turn, but,

because remand is required to address the miscalculation of his criminal history category,

we leave Walpole’s other sentencing complaints for the District Court.



       3
           Walpole is a citizen of Canada and the United Kingdom.
       4
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                             6
        A.      Agent Thew’s Testimony

        Walpole made no objections at trial to Agent Thew’s testimony, but now argues

that the evidence she gave “blurred the line between lay testimony and expert testimony.”

(Appellant’s Opening Br. at 10.) As he did not raise the issue at trial, we review it only

for plain error. 5

        With respect to Agent Thew’s testifying without having been qualified as an

expert, Walpole essentially makes five arguments directed at what he says were the

subjects of the improper expert testimony, namely, (1) the seized pornography’s

interstate-commerce nexus; (2) the distinct terms and procedures used in child

pornography prosecutions; (3) the ages of the individuals depicted in the pornographic

images; (4) the factors the agent used to make those age determinations; and (5) the

ultimate question of whether the seized images were indeed child pornography. Walpole

argues that while Thew’s testimony had “all of the hallmarks of expert testimony, [it]

failed to satisfy any of [its] prerequisites ... .” (Id. at 11.) 6

        Walpole also argues that Agent Thew’s testimony was unduly prejudicial because

she testified as both the arresting officer – testifying as to facts – and the officer who



        5
         “A defendant must satisfy a four-prong test to be successful under plain error
review: there must be (1) an error; (2) that is plain; (3) which affects substantial rights;
and (4) seriously impairs the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Saferstein, 673 F.3d 237, 241 (3d Cir. 2012) (internal
quotation marks omitted).
        6
        In the alternative, Walpole contends that, even if Thew were considered as a lay
witness, the agent nonetheless failed to possess the requisite “relevant specialized
knowledge” to offer the testimony she gave. Given the record, that argument is patently
without merit and requires no further comment.
                                                   7
uncovered the pornography – opining about the evidence. That dual role was, he

suggests, likely to confuse the jury. (Appellant’s Opening Br. at 15.) “Because ‘the jury

may unduly credit the opinion testimony of an investigating officer based on a perception

that the expert was privy to facts about the defendant not presented at trial,’” Walpole

maintains that the Court should have provided the jury with cautionary instructions. (Id.

(quoting United States v. Upton, 512 F.3d 394, 401 (7th Cir. 2008)).)

       None of Walpole’s arguments are persuasive on this record. Agent Thew made

clear that she was testifying as to her own knowledge of her own investigation. See Fed.

R. Evid. 701 (a witness may testify “based on the witness’s perception”); see also United

States v. Gaytan, 649 F.3d 573, 582 (7th Cir. 2011) cert. denied, 132 S. Ct. 1129 (2012)

(“A law-enforcement officer’s testimony is a lay opinion if it is ‘limited to what he

observed ... or to other facts derived exclusively from [a] particular investigation.’”

(internal citations omitted)). That she was permitted to describe what an IP address is or

what EXIF data are does not amount to plain error. While those terms may not be

common in everyday conversation, the prevalence of online photo-sharing – where IP

addresses and EXIF data are constantly used – indicates that it was not plainly erroneous

to allow the agent to name these commonly used features of computer communication

without being qualified as an expert, especially since her experience investigating online

crimes gave her familiarity with the terms. Cf. United States v. Ayala-Pizarro, 407 F.3d

25, 28 (1st Cir. 2005) (noting that testimony about how drug locations operate “was

based on the requisite personal knowledge under Fed. R. Evid. 602 and also met the

requirements of Fed. R. Evid. 701, because it was based on ‘particularized knowledge

                                              8
that the witness [had] by virtue of his ... position’ as a police officer assigned to patrol the

neighborhood” (quoting Fed. R. Evid. 701, advisory committee’s note)). Nor was Agent

Thew’s testimony as to the country of manufacture of the mini-DVDs such that any

particular expertise was in question: rather, she identified the country directly from the

“Made in ...” label on the DVDs. With respect to the ages of the individuals in the

images retrieved from Walpole’s computers, Agent Thew offered her opinion not as an

expert but as an ordinary, sensible person. In child pornography cases, expert testimony

may be necessary to establish the age of an individual depicted in an image, United States

v. Katz, 178 F.3d 368, 373 (8th Cir. 2001), but a lay witness can still express an opinion

regarding an individual’s age, United States v. Yazzie, 976 F.2d 1252, 1255-56 (9th Cir.

1992). Moreover, many of the images were unquestionably of children. Walpole

admitted as much during his proffer interview, and, sadly, some of the images, being of

toddlers and infants, make it obvious that children are depicted. Finally, Walpole’s

argument that Agent Thew’s “dual role” may have confused the jury is unsupported by

the record and certainly does not establish plain error.

       B.     Guidelines Enhancements

       Walpole contends that the District Court erred by applying § 2G2.2(b)(5) to effect

a five-level sentencing enhancement to the child pornography counts based on a “pattern

of activity involving the sexual abuse or exploitation of a minor,” and by imposing under

§ 4B1.5 an increase in Walpole’s criminal history category from I to V. (PSR ¶ 50.)

“Where, as here, a challenge is made to the calculation of the Guidelines range, [we]

review[] the District Court’s interpretation of the Sentencing Guidelines de novo, and

                                               9
scrutinize[] any findings of fact used in the calculation for clear error.” United States v.

Wood, 526 F.3d 82, 85 (3d Cir. 2008) (citations omitted).

              1.     Pattern of Activity Involving the Sexual Abuse or Exploitation of a
                     Minor

       Walpole contests the five-level increase under § 2G2.2(b)(5) because he says it

effectively “double counts” his sexual exploitation of minors. As he sees it, applying that

enhancement to the grouped-together child pornography counts, Counts 2 and 3, is unfair

because he faces punishment for sexual exploitation under Count 1. He also says that no

“pattern of activity” existed since his prior convictions “stem[] from the same criminal

episode,” that his prior convictions “do[] not rise to the level of sexual abuse or

exploitation,” and that “[n]o testimony was offered at sentencing in support of this

enhancement.” (Appellant’s Opening Br. at 20.)

       Walpole’s arguments ignore both the record and the import of the particular

Guideline in question. First, during his proffer interview, Walpole admitted to “touching

[his younger brother’s] genitals and having [his younger brother] touch [his].” (PSR

¶ 24.) His younger brother corroborated that criminal conduct. Walpole claims that the

molestation was only a single incident, and therefore not a pattern, but the District Court,

relying on the brother’s statement, found that Walpole’s behavior had “gone on for some

time” (App. 212a), and qualified as a pattern. The commentary to § 2G2.2(b)(5) notes

that a pattern means “any combination of two or more separate instances of the sexual

abuse or sexual exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5) cmt. n.1 (emphasis

added). It is clear from both Walpole’s and his younger brother’s interviews that the


                                             10
molestation their mother stumbled upon was not the first and only incident of its kind. At

sentencing, Walpole’s counsel conceded, as the record demands, that “the pattern of

activity is there.” (App. at 205a.)

       Second, although Walpole continues to assert that the “activity” he engaged in

with his little brother was not sexual abuse or sexual exploitation of a minor, it obviously

was. It is, indeed, deeply disturbing that anyone would even claim the contrary. While

Walpole is correct that his prior convictions are not “covered sex crime[s]” under the

terms of § 4B1.5 of the Guidelines, they need not be for the enhancement under

§ 2G2.2(b)(5) to apply. A pattern of abuse may exist with or without sex crime

convictions. See U.S.S.G. § 2G2.2(b)(5) cmt. n.1 (“‘Pattern of activity involving the

sexual abuse or exploitation of a minor’ means any combination of two or more separate

instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether

or not the abuse or exploitation ... resulted in a conviction for such conduct.”).

       As for the “double-counting” of his sexual exploitation – an argument that

Walpole failed to make before the District Court so we review only for plain error 7 –

Walpole again ignores the record. The exploitation enhancement under § 2G2.2(b)(5) for

Counts 2 and 3 is not a repeat of the exploitation charged in Count 1. The enhancement

at issue relates to his actions toward his younger brother, whereas Count 1 involves his

surreptitious recording of C.P. The § 2G2.2(b)(5) enhancement was fully justified.


       7
        “[W]here a defendant has failed to object to a purported error before the
sentencing court, our review on appeal is only to ensure that plain error was not
committed.” United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001).

                                             11
              2.     Criminal History Enhancement

       Walpole also contends that the PSR improperly considered his prior misdemeanor

convictions in determining that he had a criminal history category of V. The PSR

initially noted that Walpole “has zero criminal history points resulting in a Criminal

History Category I.” (PSR ¶ 70.) However, by concluding that Walpole is a “Repeat and

Dangerous Sex Offender Against Minors,” the PSR “automatically” increased his

criminal history category to V, despite his having no record of prior sex offense

convictions. (Id.) The government concedes that the Probation Office erred in this

regard, saying that, “given § 4B1.5(a)(2)’s requirement of a sex offense conviction, and

the way the Application Notes to that guideline define a ‘sex offense conviction,’ the use

of the fact of Walpole’s state convictions for indecent exposure and corruption of a

minor, without more, ... is problematic ... .” (Appellee’s Br. at 40-41.) Indeed, the PSR

was unquestionably wrong: Walpole should have been placed in criminal history

category I, since his prior convictions are not “covered sex crime[s]” under Guidelines

§ 4B1.5.

       While the government claims that the criminal history error is harmless, we cannot

agree. “An erroneous calculation of the Guidelines will frustrate the sentencing court’s

ability to give meaningful consideration to ‘the kinds of sentence and the sentencing

range established for ... the applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines.’” United States v. Langford, 516

F.3d 205, 212 (3d Cir. 2008) (citations omitted). That standard applies not only to a

defendant’s offense level calculation but also to an erroneous determination of a

                                            12
defendant’s criminal history category, since both are necessary to determine the

recommended Guidelines range. Although the government is correct that we have left

the door open to the possibility that error in such calculations may be harmless, here the

District Court did not, as has occurred in other cases, give any assurance “that the

[criminal history] enhancement had no effect on the sentence imposed.” United States v.

Zabielski, 711 F.3d 381, 389 (3d Cir. 2013). On the contrary, the District Court

compared Walpole’s criminal history to the history of other defendants, which indicates

that the criminal history categorization in this case may have played a role in the Court’s

judgment. Further, even though Walpole’s total offense level of 43 corresponds to a

recommended sentence of life imprisonment regardless of his criminal history category,

that does not assure that the error here was harmless. Rather, before a non-constitutional

error can be held harmless, a court must “possess a sure conviction that the error did not

prejudice the defendant.” Langford, 516 F.3d at 215 (internal citations omitted). We do

not have that conviction. Walpole argues that a criminal history category of V led “the

district court [to] perceive[] [him] in [a] certain light” (Appellant’s Reply Br. at 10), and

he may be right. We cannot now speculate about how the District Court might have

perceived Walpole differently, if the Guidelines calculation had been correct. While it is

certainly possible that the facts of Walpole’s criminal activities, not his criminal history

score, were the object of the District Court’s thoughtful consideration in designing the

sentence it imposed, we do not possess a sure conviction that the criminal history error

did not play some part. A remand for resentencing is thus required. 8

       8
           While Walpole also raises questions about the reasonableness of his sentence,
                                              13
III.   Conclusion

       For the foregoing reasons, we will affirm Walpole’s conviction but will remand

for resentencing in light of a corrected Guidelines calculation.




that issue is no longer properly before us given our decision to remand. Suffice it to say
that we “will affirm [a sentence] unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the reasons the district court
provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Nothing
we have said here should be taken as indicating either approval or disapproval of the
period of incarceration previously imposed. It is for the District Court to determine the
appropriate sentence, after a proper Guidelines calculation and consideration of the
parties’ arguments.
                                             14
