                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                         File Name: 09a0070p.06

                  UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 07-2430
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 JACK GROENENDAL,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
          No. 07-00093-001—Paul Lewis Maloney, Chief District Judge.
                                      Argued: January 22, 2009
                              Decided and Filed: February 26, 2009
                                                                                                        *
    Before: GIBBONS and McKEAGUE, Circuit Judges; SHADUR, District Judge.

                                         _________________

                                               COUNSEL
ARGUED: Jeffery S. Crampton, KOERNKE & CRAMPTON, Grand Rapids,
Michigan, for Appellant. B. Rene Shekmer, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jeffery S.
Crampton, KOERNKE & CRAMPTON, Grand Rapids, Michigan, for Appellant.
Andrew Byerly Birge, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee.
                                         _________________

                                               OPINION
                                         _________________

         JULIA SMITH GIBBONS, Circuit Judge. Defendant Jack Groenendal appeals
his forty-two month sentence for one count of possession of child pornography. The



         *
           The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois,
sitting by designation.


                                                      1
No. 07-2430         United States v. Groenendal                                      Page 2


United States District Court for the Western District of Michigan calculated
Groenendal’s base offense level pursuant to a cross-reference under the United States
Sentencing Guidelines (“Guidelines”) for trafficking. The district court imposed
enhancements for the distribution of prohibited materials in exchange for the receipt of
a thing of value and the sadistic or masochistic nature of the materials. The district court
also declined to reduce his sentence on account of his “minimal” or “minor”
participation. Groenendal claims that the district court erred in calculating his sentence
pursuant to the cross-reference to trafficking, applying these enhancements, and denying
him a reduction for his minimal role.

        For the reasons set forth below, we vacate Groenendal’s sentence and remand for
resentencing.

                                             I.

        The facts of this case are not disputed. Groenendal visited an online Yahoo site,
IngasPlace, which contained images of minors engaged in sexually explicit conduct.
The site required potential members to submit photographs in order to gain membership,
ordering interested individuals to “[p]ost 2 or more photos for invite.” Once a potential
member posted photographs, the electronic files were automatically emailed out to all
of the members. When a person gained membership, he received automatic emails of
photographs submitted by other potential members. Groenendal uploaded photographs
on May 3, 2003 in order to join IngasPlace. Within a few weeks, Groenendal voluntarily
deleted his Yahoo identification for IngasPlace, all of the emails in his IngasPlace inbox,
and his IngasPlace account. On May 26, 2003, the Norwegian National Criminal
Investigation Service (“KRIPOS”) submitted photographs in order to gain membership
to IngasPlace. KRIPOS conducted an investigation into the identity of the members of
the group and handed over information about twenty-six individuals, including
Groenendal, to the United States Immigration and Customs Enforcement (“ICE”) Cyber
Crimes Center.

        ICE deduced Groenendal’s identity and contacted Groenendal on January 19,
2005, almost two years after he had deleted his IngasPlace account. Groenendal
No. 07-2430          United States v. Groenendal                                            Page 3


confirmed that he had accessed pornography through several Yahoo accounts and
admitted that he possessed images depicting minors. He specifically acknowledged
possession of four photographs:                  Image13.jpg, Yc8.jpg, 063BJ.jpg, and
10breakingin.jpg. Groenendal admitted that he had a pornography addiction and had
sought professional help.        He estimated that he had viewed thousands of adult
pornography images over many years and belonged to between eighty and one hundred
Yahoo pornography groups. He claimed, however, that he possessed only a handful of
images involving children, which he used to gain access to pornography sites.

        After being interviewed by ICE but before any charges were brought, Groenendal
voluntarily sought help for his pornography addiction, confessing to his wife, his pastor,
and his boss. Groenendal joined a support group for pornography addicts and attended
weekly meetings for both individual and group counseling. Groenendal continued his
weekly counseling sessions for two years, spending more than seven thousand dollars
on therapy and becoming a mentor for other pornography addicts.

        Approximately two and one half years after being contacted by ICE, and four and
one half years after Groenendal deleted his IngasPlace account, Groenendal was charged
with possession of child pornography. On May 17, 2007, the United States District
Court for the Western District of Michigan accepted Groenendal’s guilty plea for one
count of possession of images involving minors engaging in sexually explicit conduct
in violation of 18 U.S.C. § 2252(a)(4)(B). He pled guilty to possession of three images
in his email account in April1 of 2003: 0143.jpg, 13.jpg, and sissy(19).jpg.

        The district court sentenced Groenendal to a total of forty-two months
imprisonment followed by three years of supervised release, a fine of $2,580, and a
special assessment fee of $100. Pursuant to a cross-reference in the former provision
U.S.S.G. § 2G2.4, the district court applied a base offense level of seventeen. The district



        1
         The governing statute was amended to increase the maximum sentence for possession of child
pornography from five to ten years, effective April 30, 2003. See 18 U.S.C. § 2252(b)(2). Although
KRIPOS detected the photographs that Groenendal uploaded to IngasPlace on May 3, 2003, Groenendal
was charged with possession of photographs in April of 2003, permitting him to benefit from the pre-
amendment statutory maximum of five years in exchange for his plea of guilty.
No. 07-2430        United States v. Groenendal                                      Page 4


court added five levels pursuant to U.S.S.G. § 2G2.2(b)(2)(B) because the offense
involved distribution for the receipt of a thing of value, but not for pecuniary gain; four
levels pursuant to U.S.S.G. § 2G2.2(b)(3) because the image 10breakingin.jpg portrayed
sadistic or masochistic conduct; two levels pursuant to U.S.S.G. § 2G2.2(b)(1) because
the material involved a prepubescent minor or a minor under the age of twelve; and two
levels pursuant to U.S.S.G. § 2G2.2(b)(5) because a computer was used for the
transmission of the material. The district court declined to adjust the sentence downward
pursuant to U.S.S.G. § 3B1.2 on account of Groenendal’s minimal or minor role. The
district court subtracted three levels for acceptance of responsibility and scored the case
at a total offense level of twenty-seven and a criminal history category of I. The
recommended Guidelines range was seventy to eighty-seven months, but the statutory
maximum, and thus the maximum under United States v. Booker, 543 U.S. 220 (2005),
for possession of child pornography is sixty months. 18 U.S.C.A. § 2252(b)(2)
(effective Oct. 30, 1998 to Apr. 29, 2003). In light of the small number of photographs
depicting minors that Groenendal possessed, the fact that he “took significant steps to
distance himself from child pornography [and] . . . did cancel himself out of those Yahoo
accounts, again, before the existence of the investigation was revealed to him,” the
evidence that Groenendal has rehabilitated himself, the voluminous affidavits stating that
Groenendal is a changed man and “a positive force in the counseling group,” and the
absence of a significant risk of re-offending, the district court departed downward from
sixty months to impose a forty-two month sentence. Sentencing Tr. at 66-69.

       Groenendal timely appealed his sentence to this court. Pursuant to an order from
this court on December 19, 2008, both Groenendal and the government stipulated that
the image 10breakingin.jpg is not part of the record before this court.

                                            II.

       We review a district court’s sentencing determination for reasonableness. Gall
v. United States, __ U.S. __, 128 S. Ct. 586, 594 (2007). A review for reasonableness
includes considering both procedural and substantive reasonableness. United States v.
Sedore, 512 F.3d 819, 822 (6th Cir. 2008) (citing United States v. Liou, 491 F.3d 334,
No. 07-2430           United States v. Groenendal                                             Page 5


337 (6th Cir. 2007)). Procedural error includes “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S. Ct.
at 597. In reviewing a sentencing calculation for procedural reasonableness, findings of
fact made by the district court for sentencing are reviewed for clear error. United States
v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006). Generally, the adjustments of sentences
by enhancements or reductions are mixed questions of law and fact and are reviewed de
novo by appellate courts. United States v. Georgia, 279 F.3d 384, 386-87 (6th Cir.
2002). However, whether a defendant is entitled to a sentence reduction pursuant to
U.S.S.G. § 3B1.2 “depends heavily on factual determinations, which we review only for
clear error.” United States v. Harris, 397 F.3d 404, 409 (6th Cir. 2005) (quoting United
States v. Solorio, 337 F.3d 580, 601 (6th Cir. 2003)). If the sentence is procedurally
sound, we then review the sentence for substantive reasonableness under an abuse of
discretion standard. Gall, 128 S. Ct. at 597.

                                                 A.

        Groenendal claims that the district court erred in using the trafficking provision
instead of the possession provision of the Guidelines to determine the applicable base
level for his sentence.2 Section 2G2.2 was formerly entitled “Trafficking in Material
Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or
Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material
Involving the Sexual Exploitation of a Minor with Intent to Traffic” and provided a base
offense level of seventeen. § 2G2.2 (amended 2004) (“Trafficking Provision”). By
contrast, § 2G2.4 was entitled “Possession of Materials Depicting a Minor Engaged in
Sexually Explicit Conduct” and provided a base offense level of fifteen. § 2G2.4
(repealed 2004) (“Possession Provision”). However, the Possession Provision contained
a cross-reference to the Trafficking Provision, directing courts to apply the Trafficking

        2
         The trafficking and possession provisions have since been consolidated. See U.S.S.G. § 2G2.2
(2008). Because the offense occurred in early 2003, the district court applied the 2002 version of the
Sentencing Guidelines, which contained separate provisions for trafficking and possession.
No. 07-2430           United States v. Groenendal                                                Page 6


Provision “[i]f the offense involved trafficking in material involving the sexual
exploitation of a minor (including receiving, transporting, shipping, advertising, or
possessing material involving the sexual exploitation of a minor with intent to traffic).”
§ 2G2.4(c)(2) (repealed 2004). Through this cross-reference, the district court applied
the Trafficking Provision’s base offense level of seventeen, even though Groenendal was
charged with and pled guilty to a violation of the Possession Provision, which has a base
offense level of fifteen.

         Whether conduct amounts to “trafficking” is a legal question, which this court
reviews de novo. The Guidelines themselves offer no guidance as to what constitutes
“trafficking.” Indeed there is very little case law on point, particularly since the offenses
of trafficking and possession have since been merged. See § 2G2.2 (2008). Groenendal
urges this court to rely on United States v. Farrelly, 389 F.3d 649 (6th Cir. 2004), which
reversed the district court’s application of the pre-amendment Trafficking Provision
because the defendant had only been an “end user” of child pornography and had no
intent to traffic.3 389 F.3d at 657. Farrelly found that an expansive reading of the
Trafficking Provision was “illogical” because it would include all possession offenses:
“Only a sterile formalism could require us to apply the guideline for ‘receiving,’ clearly
ensconced as it is in the context of trafficking, when there is no evidence of trafficking
beyond the receipt that is inherent every time there is evidence of less culpable
‘possession.’” 389 F.3d at 657.

         In this case, however, there is evidence of trafficking beyond mere receipt.
Groenendal both intended to traffic and engaged in trafficking. See United States v.
Sromalski, 318 F.3d 748, 751 (7th Cir. 2003) (“There is no doubt that the use of a
‘trading’ server . . . coupled with actions of both uploading and downloading files, is the
kind of trafficking activity to which the cross-reference found in § 2G2.4(c)(2) refers.”).4

         3
          Farrelly analyzes the differences between the Trafficking Provision and the Possession
Provision as they existed before being merged in 2004 and is thus relevant for this analysis.
         4
          Groenendal relies on Sromalski because it reversed the application of the Trafficking Provision
to a defendant convicted only of possession. This case is readily distinguishable because the government
in Sromalski agreed that the defendant’s uploading and downloading of the material should not be relevant
conduct for sentencing purposes. The Seventh Circuit noted in dicta that had the uploading and
No. 07-2430            United States v. Groenendal                                                Page 7


It is undisputed that Groenendal uploaded three pictures, each three times, in order to
join a pornography site. Although this entire conduct took place within a time span of
less than five minutes, Groenendal did “ship” pornographic materials by sending these
three pictures over the internet, engaging in conduct beyond mere possession. Indeed
Farrelly supports this finding because the court reversed Farrelly’s conviction under the
Trafficking Provision only because there was “no indication that he ever trafficked,
transported, shipped, or advertised such material.” 389 F.3d at 657; see also United
States v. Holm, 326 F.3d 872, 876 (7th Cir. 2003) (same). Groenendal did traffic,
transport, or ship materials by posting them to a pornographic website. We therefore
affirm the district court’s application of the Trafficking Provision and the corresponding
base offense level of seventeen.

                                                   B.

         Groenendal challenges his enhancement pursuant to § 2G2.2(b)(2)(B) for
receiving a thing of value because this enhancement does not apply to possession
offenses. Groenendal concedes that if we determine that the Trafficking Provision
applies, this argument is moot. Because the Trafficking Provision does apply as a cross-
reference from the Possession Provision, the district court did not err in enhancing
Groenendal’s sentence under the Trafficking Provision for receipt of a thing of value.



                                                   C.

         The district court increased Groenendal’s offense level by four because it found
that 10breakingin.jpg involved sadistic or masochistic conduct. Both parties stipulated
that the image was not part of the record before the district court or on appeal because
the charges against Groenendal never included the image 10breakingin.jpg. Without the
image before us, we must determine whether the record contains enough information



downloading of the images “been part of Sromalski’s relevant conduct, we have no doubt that our prior
cases would have required the application of the cross-reference [to the Trafficking Provision].” 318 F.3d
at 751.
No. 07-2430         United States v. Groenendal                                   Page 8


about the content of the image in question to support the enhancement for sadistic or
masochistic conduct.

         As a threshold matter, there is a no factual dispute as to whether Groenendal
possessed 10breakingin.jpg. Groenendal identified 10breakingin.jpg as an image
associated with his pornographic activity years earlier when he was initially interviewed
by ICE on January 21, 2005. Although Groenendal did not plead guilty to possession
of 10breakingin.jpg, “sentencing courts may still find facts using the preponderance-of-
the-evidence standard.” See United States v. White, 551 F.3d 381, 383 (6th Cir. 2008)
(en banc) (quoting United States v. Mendez, 498 F.3d 423, 426-27) (6th Cir. 2007) (per
curiam)). The district court found that the content of the image was relevant conduct for
sentencing purposes because the image was located on Groenendal’s computer.

         Significantly, the parties also do not dispute that the image portrays vaginal
intercourse between an adult male and a prepubescent child.            The presentence
investigation report describes the image as depicting “no dominance, bondage, or other
level of torture,” but “portray[ing] an adult male sexually penetrating a prepubescent
female child vaginally.” Presentence Investigation Report Addendum at 2. Although
Groenendal challenged his sentence enhancement for sadistic conduct before both the
district and appellate courts, he never disputed the characterization of the content and
indeed conceded in oral argument on appeal that the child in the image was
prepubescent. We must therefore determine whether a court can apply an enhancement
for sadistic or masochistic conduct when there is no material evidence of the image in
question before the court, but both parties stipulate as to the conduct portrayed by the
image.

         Because the Guidelines do not define what is meant by “sadistic or masochistic
conduct,” “courts must look to the common meaning of those terms to determine their
application.” United States v. Quinn, 257 F. App’x 864, 866-67 (6th Cir. 2007).
Looking to Webster’s Third New International Dictionary, the Fifth Circuit described
“sadism” as “the infliction of pain upon a love object as a means of obtaining sexual
release.” United States v. Lyckman, 235 F.3d 234, 238 n.19 (5th Cir. 2000). Other
No. 07-2430        United States v. Groenendal                                      Page 9


courts have held that “the application of 2G2.2(b)(3) is warranted when the offense
involves the depiction of a sexual act that is ‘likely to cause pain in one so young.’”
Lyckman, 235 F.3d at 238-39 (footnote omitted).

       Using these and similar definitions, the First, Second, Fifth, Seventh, Eighth,
Ninth, Tenth, and Eleventh Circuits have found that images involving penetrative sex
between a prepubescent child and an adult male are per se sadistic. See, e.g., United
States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007) (“We agree with the many circuits
which have found that images depicting the sexual penetration of young and
prepubescent children by adult males represent conduct sufficiently likely to involve
pain such as to support a finding that it is inherently ‘sadistic’ or similarly
‘violent’. . . . ); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (“[S]ubjection
of a young child to a sexual act that would have to be painful is excessively cruel and
hence is sadistic. . . .”); Lyckman, 235 F.3d at 240 (“We are comfortable in following the
lead of the Second, Seventh, and Eleventh Circuits by holding that the application of
§ 2G2.2(b)(3) is warranted when the sexual act depicted is the physical penetration of
a young child by an adult male.”); United States v. Myers, 355 F.3d 1040, 1043 (7th Cir.
2004) (finding vaginal intercourse between a prepubescent girl and an adult male
sadistic); United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (“[I]mages
involving the sexual penetration of a minor girl by an adult male and images of an adult
male performing anal sex on a minor girl or boy are per se sadistic or violent within the
meaning of U.S.S.G. § 2G2.2(b)(3).”); United States v. Rearden, 349 F.3d 608, 616 (9th
Cir. 2003) (“We join these circuits, and hold that the district court did not improperly
apply § 2G2.2(b)(3) after finding that the images depicted subjection of a child to a
sexual act that would have to be painful, and thus sadistic.”); United States v. Kimler,
335 F.3d 1132, 1143 (10th Cir. 2003) (finding no expert testimony necessary for a
sentence enhancement when the images depicted penetration of prepubescent children
by adults); United States v. Hall, 312 F.3d 1250, 1262-63 (11th Cir. 2002) (holding that
images of an adult male vaginally or anally penetrating a young child are per se sadistic
and do not require expert testimony “because such penetration would necessarily be
painful”). In our own court, we have twice adopted this reasoning in unpublished
No. 07-2430            United States v. Groenendal                                              Page 10


dispositions. United States v. Quinn, 257 F. App’x 864, 867 (6th Cir. 2007) (relying on
Lyckman to conclude that “penetrative sex between adults and prepubescent children is
inherently sadistic”); United States v. Fuller, 77 F. App’x 371, 383 (6th Cir. 2003)
(same).

          Groenendal challenges his sentencing enhancement, claiming that a photograph
of a minor engaged in sexual intercourse with an adult male may be revolting, but it is
not per se sadistic or masochistic for purposes of U.S.S.G. § 2G2.2(b)(3).                    Based on
this court’s precedent and that of our sister circuits, we find overwhelming support for
the district court’s determination that the image depicted a sexual act that is likely to
have been painful, and we hold today that penetration of a prepubescent child by an adult
male constitutes inherently sadistic conduct that justifies the application of
§ 2G2.2(b)(3). Because the image 10breakingin.jpg depicted vaginal intercourse
between a prepubescent girl and an adult male, we find that the enhancement for sadistic
conduct was properly applied.5

                                                   D.

          Groenendal argues that the district court improperly denied his request for a
downward adjustment pursuant to U.S.S.G. § 3B1.2.                       Section 3B1.2 allows for
adjustment of a defendant’s sentence by four levels if he can show by a preponderance
of the evidence that he was a “minimal” participant and by two levels if he can show that
he was a “minor” participant in the criminal activity. See United States v. Bailey, 488
F.3d 363, 369 (6th Cir. 2007).

          The threshold issue is whether § 3B1.2 can apply to a conviction involving only
one participant charged with criminal conduct. Section 3B1.2 states that it “is not
applicable unless more than one participant was involved in the offense.” § 3B1.2, cmt.
n.2. However, § 3B1.2 does not require that the other “participants” be charged with the



          5
          We note that the other courts to consider this question had the images before them and
emphasize that our holding today is permitted only by the stipulation of both parties as to the content of
the image. If Groenendal had disputed whether the image depicted penetration or whether the minor was
prepubescent, such a determination could not have been reached.
No. 07-2430        United States v. Groenendal                                     Page 11


crime. United States v. Allen, Nos. 06-1318 /1496, 2007 WL 2446013, at *7 (6th Cir.
Aug. 29, 2007); see United States v. Sanchez, 85 F. App’x 463, 467 (6th Cir. 2003) (“[A]
defendant’s eligibility for a reduction under this section is not determined solely on the
basic elements and acts cited in the count of the conviction.”) (internal quotation marks
and citation omitted). The district court must look beyond the defendant’s conviction
to all relevant conduct in making its determination. Allen, 2007 WL 2446013, at *7.
Even a sole defendant charged with criminal conduct is entitled to a reduction under
§ 3B1.2 if his conduct is less culpable than others involved in relevant conduct. Id.
(holding that “the district court did not err in determining that the [§ 3B1.2] guideline
was applicable . . . even though the defendant was the sole participant of the offense”
when it also found another individual more culpable in the offense than the defendant);
United States v. Snoddy, 139 F.3d 1224, 1233 (8th Cir. 1998) (“[T]he sentencing judge’s
conclusion that U.S.S.G. § 3B1.2 did not permit a ‘minor participant’ reduction to a
defendant pleading guilty to a ‘sole participant’ offense is inconsistent with current law
and must be reversed.”); United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir.
1991) (“[W]e see no barrier to a trial court’s conclusion that a defendant convicted of
[possession] can be a ‘minor’ participant.”).

       The district court in this case denied the application of § 3B1.2, stating its ruling
as follows: “There is, in the Court’s judgment, only one participant in this case, and
that’s Mr. Groenendal, and Note 2 [of § 3B1.2] clearly requires, in the Court’s judgment,
that more than one participant be involved in a particular crime in order to allow the
application of minimal role.” Sentencing Tr. at 18. The district court’s statement is
ambiguous and susceptible to multiple interpretations. As a statement of law, the district
court, in finding “one participant in this case,” erred by precluding application of
§ 3B1.2 to Groenendal’s possession offense due to his status as sole participant. Section
3B1.2 can apply, as explained above, even when only one participant is charged in the
offense. See, e.g., United States v. Bowen, 437 F.3d 1009, 1020 (10th Cir. 2006)
(considering whether “the district court based its ruling on an erroneous conclusion that
it was without authority to grant a [§ 3B1.2] mitigating role adjustment” when defendant
was the only one charged with the criminal conduct); United States v. Yater, 328 F.3d
No. 07-2430        United States v. Groenendal                                    Page 12


1008, 1009 (8th Cir. 2003) (reversing and remanding for resentencing on the following
grounds: “The Court seems to have thought that a minor-role adjustment was ruled out
as a matter of law because defendant was the only participant in the crime charged as it
was alleged in the indictment. We do not believe that the law imposes such an absolute
limitation.”).

        Under a separate permissible reading, the district court’s statement could have
been a finding of fact that Groenendal was the sole participant in not only the charged
offense, but also in all relevant conduct, prohibiting application of § 3B1.2. See United
States v. Anderson, 526 F.3d 319, 328 (6th Cir. 2008) (reversing the application of
§ 3B1.2 when the defendant was solely responsible for the criminal activity). Such a
factual conclusion, however, is inconsistent with the district court’s other findings:
Groenendal cannot both be guilty of trafficking and also be the only participant in all
relevant conduct. In other words, he cannot be guilty of trafficking for purposes of
sentencing enhancements and guilty of only possession for purposes of sentencing
reductions. Even under the deferential standing of clear error, Bailey, 488 F.3d at 369,
we find such a conclusion erroneous. The offense of trafficking, statutorily described
as “including receiving, transporting, shipping, advertising, or possessing material
involving the sexual exploitation of a minor with intent to traffic,” § 2G2.4(c)(2),
necessarily involves more than one person. As conceded by the government at oral
argument on appeal, Groenendal’s criminal conduct included both uploading images and
downloading images. Such activity cannot happen in isolation; the images must be sent
to someone and received from someone. Once the district court found that Groenendal
participated in trafficking, it erred by not considering a reduction under § 3B1.2.

        On remand, the district court must determine whether Groenendal has shown by
a preponderance of the evidence that he was a “minimal” or “minor” participant in
trafficking child pornography. “A minimal participant is one who is ‘plainly among the
least culpable of those involved in the conduct of a group,’ and a minor participant is one
who ‘is less culpable than most other participants, but whose role could not be described
as minimal.’” United States v. Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002) (quoting
No. 07-2430            United States v. Groenendal                                                Page 13


§ 3B1.2, cmt. nn.1, 3 (1998)); see also United States v. Allen, 516 F.3d 364, 374 (6th Cir.
2008). The statutory commentary clarifies that § 3B1.2 is applicable for a defendant
who is “substantially less culpable than the average participant.” § 3B1.2, cmt. n.3(A).
Groenendal was charged with uploading three images, three times, in a span of less than
five minutes. He swiftly abandoned his criminal conduct, deleting his account at
IngasPlace two years before any knowledge of a criminal investigation into his activities.
At sentencing, the government agreed that if the district court found that the trafficking
cross-reference applied, Groenendal’s position that he was “substantially less culpable
than the average participant,” who may upload or download far more images, had “some
logic”:

          Your Honor, it is the opinion of the agent and myself that the number of
          images involved here is less than a norm – than the normal is a case of
          this type. And it is true that the defendant is caught – was caught and is
          before the Court here basically because he sent three images to a
          Norwegian undercover officer who referred the matter through channels
          to the United States. So if we do expand it to the idea of trafficking,
          there is some logic to the defendant’s position.
Sentencing Tr. at 17. Of importance is also Groenendal’s undisputed and remarkable
repentance; unlike most pornography addicts, he sought professional help on his own
initiative and has reformed his behavior.6 See United States v. Jackson, 55 F.3d 1219,
1225 (6th Cir. 1995) (“[Defendant’s] actions must be compared with those of the
average participant in a similar scheme.”). A determination of whether to apply § 3B1.2
“is heavily dependent upon the facts of the particular case.” § 3B1.2 cmt. n.3(C).



          6
           Commentary to § 3B1.2 states that “[i]f a defendant has received a lower offense level by virtue
of being convicted of an offense significantly less serious than warranted by his actual criminal conduct,
a reduction for a mitigating role . . . ordinarily is not warranted.” § 3B1.2 cmt. n.3(B). On appeal, the
government relied on this language to argue that § 3B1.2 was inapplicable because Groenendal was
charged with a less serious offense than warranted by his criminal conduct. The government argued that
because Groenendal was sentenced under the comparatively more lenient 2002 Guidelines, he was
convicted of a less serious offense. Groenendal’s conviction was made neither more nor less serious by
the application of the 2002 Guidelines. That the government agreed to backdate the charge in exchange
for a plea of guilty is an aspect of the plea bargain that we will not review. See United States v. Bradley,
400 F.3d 459, 464-65 (6th Cir. 2005) (discussing the risks of courts disturbing plea agreements).
          Any argument that Groenendal’s conviction for possession qualifies as a less serious offense
similarly fails because Groenendal was sentenced under the trafficking provision. The government cannot
have it both ways and view Groenendal’s conviction as trafficking for the applicability of sentencing
enhancements but as possession for the applicability of reductions.
No. 07-2430        United States v. Groenendal                                   Page 14


Accordingly, we remand the inquiry to the district court to decide the matter in the first
instance.

                                           III.

       For the foregoing reasons, we vacate Groenendal’s sentence because the district
court erred in failing to consider whether a reduction under § 3B1.2 is appropriate and
remand the case for resentencing consistent with this opinion.
