In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4133

United States of America,

Plaintiff-Appellee,

v.

James P. Walton,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 141--Rudy Lozano, Judge.

Argued May 11, 2001--Decided June 28, 2001



  Before Bauer, Rovner and Evans, Circuit
Judges.

  Bauer, Circuit Judge. James P. Walton
was convicted by a jury on one count of
possession of child pornography in
violation of 18 U.S.C. sec.
2252(A)(a)(5)(B), and one count of
receiving child pornography in violation
of 18 U.S.C. sec. 2252A(a)(2). In
determining his sentence, the district
court applied various enhancements under
the Sentencing Guidelines, including a
four-level enhancement under U.S.S.G.
sec. 2G2.2(b)(3) for receiving an image
which "portrays sadistic or masochistic
conduct or other depictions of violence."
Walton challenges the enhancement and
asks us to vacate his sentence and to
remand for further proceedings. For the
reasons set forth below, we affirm
Walton’s sentence.

BACKGROUND

  Walton was an employee of Purdue
University who worked at the University’s
Herrick Laboratories. The University has
a large number of individual computers
which are connected with one another and
with Purdue’s Telecommunications Center
through various computer servers, and
which offer internet access. In November
of 1997, Joshua Bussert--the systems
administrator at Herrick Labs and
Walton’s immediate supervisor--performed
a routine back-up of the network server.
He did this by copying to a back-up tape
all of the files stored in the computers
connected to the server (including
Walton’s workstation computer). When
Bussert compared the files contained on
the back-up tape to those contained in
the original computers, he noticed that a
large number of files were present on the
back-up tape which were not longer
present on the original computer space.
Investigating this matter further,
Bussert discovered that 99% of the
missing files came from one location on
the server, a location that was assigned
to Walton. He also observed that these
files were organized into various
directories which carried different
labels, some of which suggested to him
that the files contained child
pornography. For example, one of the
directories, which contained a file named
"14-year-old model," was labeled
"users\jwalton\james\stories\incest."
Another directory was labeled
"users\jwalton\james\stories\pedophilia."

  Bussert notified the Purdue University
Police Department of his discovery. At
the request of the University police,
Scott Ksander, the Associate Director of
Purdue’s computer center, examined the
hard drive on Walton’s workstation
computer. Ksander discovered several
deleted files, and hundreds of "active"
(non-deleted) files which contained
sexually explicit images.

  During an interview with the Chief of
the University Police, Walton provided a
voluntary recorded statement in which he
admitted downloading child pornography
from the internet, including pictures of
children as young as five or six years
old. Walton also admitted that after he
downloaded the pornographic files, he
created subdirectories to store and
organize the files. On October 26, 1998,
FBI Special Agent Bruce Guider
interviewed Walton. During the interview,
Walton admitted that he searched the
internet for files involving pedophilia
and child pornography, and that he
downloaded approximately 50-150 such
images during a period of his life when
pedophilia was of interest to him. A
federal grand jury subsequently indicted
Walton on one count of possession of
child pornography and one count of
receiving child pornography. Walton
pleaded not guilty to the charges and his
case went to trial.

  At trial, however, Walton told a
different story. He testified that he
used a newsgroup reader program called
"Agent" to access pornography sites, some
of which contained child pornography.
However, he claimed that he downloaded
files in bulk without viewing them all,
that he deleted any files that appeared
to contain child pornography, and that he
never viewed any images of children
performing sex acts. He stated that the
child pornography images which were found
on his computer "came with the
downloads." Further, Walton asserted that
when he downloaded all of the files
available from the newsgroup entitled
"alt.sex.pedophilia," he thought that the
newsgroup involved a foot fetish, not
child pornography, and that he did not
discover that they contained child
pornography until two to three weeks
later. Nevertheless, Walton admitted
during cross-examination that he did not
delete the images. When asked why, he
stated that he might have been called
away from his desk and forgotten about
the images. Finally, when asked how the
"incest" and "pedophilia" subdirectories
were created, Walton testified that they
were created by an executable or "zip"
file which was attached to one of the
messages that he had retrieved. Walton
denied having anything to do with the
creation of the subdirectories.

  The government called Mark Sidell, who
wrote and developed the Agent newsreader
program, and FBI forensic computer
examiner Russell Fox. Both witnesses
testified that the files on Walton’s
computer could only have gotten there
because a user of the computer employed a
series of specific manual commands to
retrieve and store the files. Both also
testified that the Agent program could
not have organized the network file space
into subdirectories on its own without
user command. Moreover, Fox testified
that the "audit trail" of the Agent
program installed on Walton’s computer
(which records the newsgroups and files
accessed by the program) revealed that of
the many newsgroups available, the only
newsgroup that had been accessed from
Walton’s computer was
"alt.sex.pedophilia."
  FBI examiners retrieved 325 non-deleted
individual files which had been
downloaded to Walton’s computer from the
"pedophilia" newsgroup. Fox testified
that of the 325 images retrieved, every
image that he examined "appear[ed] to be
children . . . under the age of 18
engaged in some sex act or some other
lascivious display." Trans. at 306. A
number of printouts of these computer
images were admitted as government’s
exhibits 10(a) and 10(b). Exhibit 10(a)
consisted of 21 pages containing
approximately 240 separate images which
were retrieved from Walton’s computer,
and exhibit 10(b) was 31 pages long and
contained approximately 352 separate
images which were originally found on
Walton’s network server file space. The
majority of the images contained in
exhibits 10(a) and 10(b) depict young,
prepubescent girls who are either engaged
in sexually explicit conduct (some with
adult males) or striking lascivious
poses. These images were displayed on a
screen at trial in full view of the judge
and jury. One of the images in exhibit
10(a) depicts a prepubescent girl who is
blindfolded and suspended from the
ceiling by her wrists, with her ankles
bound to her thighs.

  The jury returned a verdict of guilty on
both counts, and Walton proceeded to
sentencing. In calculating Walton’s
sentence, the court determined Walton’s
base offense level to be 17, and then
applied a number of guideline
enhancements which brought his total
offense level up to 27. One of the
enhancements that the court applied was
sec. 2G2.2(b)(3), which prescribes a 4-
level increase for the offense of
receiving child pornography "if the
offense involved material that portrays
sadistic or masochistic conduct or other
depictions of violence." Following the
recommendation of the Probation
Department in the Presentence
Investigation Report, the court applied
this enhancement based on the single
image of the bound and blindfolded girl,
which was introduced as part of
government exhibit 10(a). During the
sentencing hearing, Walton conceded that
the image depicted the bondage of a girl
under the age of 12, but he challenged
the application of this enhancement to
his case on the ground that the sec.
2G2.2(b)(3) enhancement requires that the
defendant possess more than one image
portraying sadism, masochism, or violent
conduct. When the court asked Walton’s
counsel if that was the sole issue that
Walton wished to raise regarding the sec.
2G2.2(b)(3) enhancement, he responded
that "[t]he whole issue is that you have
to have more than one [qualifying
image]."

  With a total offense level of 27 and a
criminal history category of 3, Walton
was eligible to receive between 87 and
108 months imprisonment. The court
sentenced Walton at the low end of this
range, imposing sentences of 60 months on
count 1, and 87 months on count 2, to be
served concurrently. Walton appeals his
sentence, challenging only the district
court’s decision to enhance his sentence
under sec. 2G2.2(b)(3).

DISCUSSION

  Walton asserts that the district court
did not make a finding on the record that
the image in question depicted sadistic,
masochistic or violent conduct under
U.S.S.G. sec. 2G2.2(b)(3), and in light
of this "error" Walton urges us to vacate
his sentence and to remand with
instructions for the district court to
make such a finding. Walton maintains
that the record is bereft of any
indication that the district court ever
even examined the image in question, much
less that it concluded (upon analyzing
the image and applying the proper legal
standards) that it depicted sadism,
masochism or violence as contemplated by
sec. 2G2.2(b)(3). Walton claims that the
sentencing record reveals only the state
ment that the single image in question
"contained bondage, a young girl under
the age of 12 years of age." The
guideline in question does not define the
terms "sadistic," masochistic" or
"violent conduct," and the district court
made no effort to come up with a
definition and to evaluate the image in
question in light of it. Indeed, Walton
argues that the record does not show that
the government made any attempt to prove
that the picture was sadistic,
masochistic or violent in nature beyond
merely describing the picture as
"containing bondage." Walton suggests
that the court merely assumed that the
bondage of a young girl was sadistic,
masochistic or violent within the meaning
of sec. 2G2.2(b)(3) as a matter of law,
and that the case law construing the
section does not support this approach.
Walton notes that the enhancement that he
received under sec. 2G2.2(b)(3) resulted
in between 16 and 27 months additional
imprisonment for him, and he argues that
such a substantial enhancement cannot be
based on a "mere assumption." Therefore,
Walton urges us to vacate his sentence
and to remand for the fact-finding and
analysis that the law requires.

  In spite of Walton’s wishes, we cannot
reach the merits of his argument because
he waived the argument during the
sentencing hearing. Waiver occurs when a
defendant "intentionally relinquishes or
abandons a known right." See United
States v. Harris, 230 F.3d 1054, 1058
(7th Cir. 2000). A waiver is "the
manifestation of an intentional choice
not to assert [a] right," distinguishing
it from forfeiture, which is an
accidental or negligent omission (or "an
apparently inadvertent failure to assert
a right in a timely fashion"). See United
States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001). While forfeited issues are
reviewable on appeal for plain error, a
waived issue is unreviewable because a
valid waiver leaves no error to correct
and extinguishes all appellate review of
the issue. Cooper, 243 F.3d at 415;
Harris, 230 F.3d at 1058-59. We have
found waiver where "either a defendant or
his attorney expressly declined to press
a right or to make an objection" See
Cooper, 243 F.3d at 416 (citations
omitted). See, e.g., Harris, 230 F.3d at
1059 (holding that a defendant waived any
objection to the district court’s failure
to adjust his sentence downward two
levels pursuant to U.S.S.G. sec.sec.
5C1.2 and 2D1.1(b)(6) where the PSR did
not mention these guideline sections and
where both the defendant and his attorney
when queried by the district court
"affirmatively stated that they had no
objections to the PSR" apart from
another, different objection); United
States v. Richardson, 238 F.3d 837, 841
(7th Cir. 2001) (holding that a defendant
waived an objection to a sentencing
enhancement where at sentencing the court
asked the defendant’s lawyer whether he
had an objection to the enhancement and
the lawyer said "no"); United States v.
Staples, 202 F.3d 992, 995 (7th Cir.
2000) (holding that the defendant waived
his right to appeal the calculation of
his criminal history at his sentencing
hearing where the defendant had advanced
notice of the content of the PSR and an
opportunity to object but where his
attorney stated during the sentencing
hearing that neither he nor the defendant
had any objections to the PSR); United
States v. Valenzuela, 150 F.3d 664, 667-
78 (7th Cir. 1998) (holding that the
defendant waived his right to appeal the
issue of whether he had dealt crack
cocaine as opposed to some other form of
cocaine base where the defendant’s
counsel "carelessly" conceded at
sentencing that the defendant had dealt
crack and did not include any limiting
language in his concession); see also
United States v. Scanga, 225 F.3d 780,
783 (7th Cir. 2000); United States v.
Redding, 104 F.3d 96, 99 (7th Cir. 1996).

  Applying these standards, it is clear
that Walton has waived the argument that
he raises on appeal. In response to the
Probation Department’s recommendation
that Walton’s sentence be enhanced under
sec. 2G2.2(b)(3), Walton filed a written
objection admitting that he had
downloaded one image depicting bondage,
but arguing that the enhancement applied
only to those defendants who receive
three or more images depicting sadism,
masochism, or other violent conduct.
Walton’s written objections raised no
other issue regarding the application of
sec. 2G2.2(b)(3). Moreover, after
admitting during the sentencing hearing
that "there was one picture that
continued [sic] bondage, a girl under the
age of 12 years of age," Walton’s counsel
affirmatively renounced any argument
against the application of sec.
2G2.2(b)(3) save for the argument raised
in his previously filed written
objections. When the district court
asked, "[c]ounsel, is the sole issue here
whether or not you have to have more than
one [qualifying image]?," Walton’s
counsel responded, "[t]he whole issue is
that you have to have more than one." By
expressly disavowing any other objection,
Walton’s counsel waived appellate review
of the argument he raises on appeal. See
Harris, 230 F.3d at 1059. While the mere
failure to make a particular objection on
a specified ground during a sentencing
hearing will typically result in plain
error review on appeal, see United States
v. McClellan, 165 F.3d 535, 551-52 (7th
Cir. 1999), Walton’s counsel did more
than this; he affirmatively indicated
that his argument that sec. 2G2.2(b)(3)
required more than one qualifying image
was the sole objection that he was
raising regarding the application of the
enhancement. This may have been a sound
tactical decision, and we will not
"override the clearly expressed wish of a
party or his lawyer, which may be backed
by excellent strategic reasons, not to
invoke a particular right." Richardson,
238 F.3d at 841. Moreover, the record
suggests that the district court did not
expressly find that the image was
sadistic, masochistic or violent within
the meaning of sec. 2G2.2(b(3) because
Walton’s counsel clearly implied that he
was not contesting that issue. A party
may not by his own actions lull the court
into believing that an express finding is
unnecessary and then object when it makes
no such finding.

  Walton also challenges the manner in
which this Circuit determines a
defendant’s eligibility to receive the
sec. 2G2.2(b)(3) sentencing enhancement.
In Richardson, we held that "liability
for receiving violent child pornography
is strict," see 238 F.3d at 840, meaning
that once a defendant has been convicted
of knowingly receiving child pornography
under 18 U.S.C. sec. 2252(a)(2), a court
may enhance his sentence under sec.
2G2.2(b)(3) if it finds that some of the
child pornography received by the
defendant involves "sadism, masochism, or
other violent conduct," even if it does
not find that the defendant intended to
receive such images. Walton urges us to
overrule Richardson, arguing that the
holding is inconsistent with the
underlying statute, with Supreme Court
precedent, and with decisions of the 5th
and 11th Circuits. Specifically, Walton
notes that 18 U.S.C. sec. 2252 proscribes
only the knowing receipt and possession
of child pornography, and that in
construing 18 U.S.C. sec. 2252(a), the
Supreme Court determined that Congress
intended the term "knowingly" to "extend[
] both to the sexually explicit nature of
the material and to the age of the
performers." See United States v. X-
Citement Video, Inc., 513 U.S. 64, 78
(1994). In so holding, the Court relied
on prior precedent which established that
common law offenses against the state,
the person, property, or public morals
"presume a scienter requirement in the
absence of express contrary
[Congressional] intent." See id., at 71-
72 (citing Morissette v. United States,
342 U.S. 246, 255 (1952)). After
concluding that a violation of sec. 2252
was akin to such a common law offense,
the Court applied Morissette and its
progeny and ruled that "the presumption
in favor of scienter requirement should
apply to each of the statutory elements
that criminalize otherwise innocent
conduct." X-Citement Video, 513 U.S. at
72. Therefore, Walton argues that holding
a defendant strictly liable for receipt
or possession of sadistic, masochistic,
or violent child pornography without
requiring the government to prove that
the defendant intended to receive or
possess child pornography of such a
character punishes conduct that Congress
did not intend to punish, and is
therefore inconsistent with the Supreme
Court’s reading of the statute that the
guideline section implements. Moreover,
Walton points to the decisions of the 5th
and 11th circuits, which hold or assume
that enhancement under sec. 2G2.2(b)(3)
has an intent requirement. See, e.g.,
United States v. Tucker, 136 F.3d 763,
764 (11th Cir. 1998); United States v.
Kimbrough, 69 F.3d 723, 734 (5th Cir.
1995). In light of all of this, Walton
asks us to vacate his sentence and to
remand to the district court for a
determination of whether he knowingly and
intentionally obtained an image depicting
sadistic, masochistic or violent conduct
under sec. 2G2.2(b)(3).

  We deny Walton’s request for two
reasons. First, he waived the argument
during the sentencing hearing. As we have
noted, Walton told the sentencing court
that the "whole issue" that he was
raising with respect to the application
of sec. 2G2.2(b)(3) to his sentence was
the question of whether that guideline
section required the defendant to receive
more than one qualifying image. In so
doing, he affirmatively abandoned all
other arguments against the application
of the enhancement in his case. See
Harris, 230 F.3d at 1059; see generally
Holmes v. Pension Plan of Bethlehem Steel
Corp., 213 F.3d 124, 139 (3d Cir. 2000)
(citation omitted) (declining to
entertain a challenge to the court’s
opinion in a prior case where, inter
alia, the appellant failed to raise the
issue below and therefore waived it on
appeal). Second, even if we were to
review Walton’s legal challenges to
Richardson de novo, we would find them
unavailing. We may not overturn Circuit
precedent without compelling reasons. See
In re Bentz Metal Prods. Co., Inc., 231
F.3d 1029, 1033 (7th Cir. 2000) (vacated
on other grounds, No. 00-1320, slip op.
(7th Cir. June 7, 2001)). While we are
not absolutely bound by the holdings in
our prior decisions and "must give fair
consideration to any substantial argument
that a litigant makes for overruling a
previous decision," see id. (quoting
Colby v. J.C. Penney Co., Inc., 811 F.2d
1119, 1123 (7th Cir. 1987)), we are
obliged to "give considerable weight to
[our prior] decisions unless and until
they have been overruled or undermined by
the decision of a higher court, or other
supervening developments, such as
astatutory overruling." Id. There have
been no such supervening developments
here, and Walton gives us no good reason,
much less a "compelling" reason, to
overturn Richardson. Richardson is fully
consistent with X-Citement Video, and
contrary to Walton’s suggestion it does
not eliminate or diminish the scienter
requirement of 18 U.S.C. sec. 2252.
Indeed, we emphasized this very point in
Richardson by noting that because
Richardson was convicted of knowingly
receiving child pornography under 18
U.S.C. sec. 2252(a)(2), the "usual
requirement that mens rea be proved to
convict a person of a serious offense"
was satisfied. See Richardson, 238 F.3d
at 840. We were careful to note that it
was his conviction for knowing receipt of
child pornography that exposed Richardson
to the statutory maximum of 15 years, and
that the application of sec. 2G2.2(b)(3)
merely "enhanced his sentence within that
range to reflect the fact that receiving
bondage and torture pictures aggravates
the offense." See id. Therefore,
Richardson did not flout X-Citement
Video’s ruling that "the presumption in
favor of scienter requirement should
apply to each of the statutory elements
that criminalize otherwise innocent
conduct"; rather, it merely authorized
the enhancement of punishment (within the
prescribed statutory maximum) for conduct
that had already been determined to be
knowingly criminal. For the same reason,
applying Richardson in this case and
enhancing Walton’s sentence under sec.
2G2.2(b)(3) without requiring any proof
that Walton intentionally received images
depicting sadism, masochism, or other
violent conduct does not deprive Walton
of sec. 2252’s scienter requirement. As
the government notes, Walton’s knowledge
and intent regarding his receipt and
possession of prohibited child
pornography has been proven. His
knowledge that he received and possessed
such pornography was an element of the
charged offense, and in convicting Walton
the jury necessarily found that he had
the requisite intent. Indeed, Walton does
not appeal the fact of his conviction or
argue that the evidence that he intended
to receive and possess child pornography
was insufficient to sustain the
conviction. Therefore, the application of
the sentencing enhancement under sec.
2G2.2(b)(3) did not somehow skirt the
statutory intent requirement, but merely
increased the punishment within the range
authorized for a proven violation of the
statute (which entails proof of the
requisite intent). In short, Walton was
not convicted of a strict liability crime
(in violation of X-Citement Video), but
instead was merely subject to a strict
liability sentencing enhancement. Cf.
United States v. Singleton, 946 F.2d 23,
26 (5th Cir. 1991).

  In addition, the fact that other
circuits have come to a different
conclusion and have imposed an intent
requirement on sec. 2G2.2(b)(3) is not a
sufficiently compelling reason, standing
alone, to prompt us to overturn
Richardson. We decided Richardson only a
few months ago, at which time no judge in
active service voted to hear the case en
banc even though every judge was aware of
the circuit split that the opinion would
create. See Richardson, 238 F.3d at 840-
41. Upon reconsidering Richardson, we
find it to be well-reasoned and based
upon the sound observation that
sentencing enhancements are frequently
imposed on the basis of strict liability
or on the basis of the degree of harm
caused by the conduct at issue rather
than the defendant’s intentions. See,
e.g., United States v. Fry, 51 F.3d 543,
546 (5th Cir. 1995) (affirming the
enhancement of a defendant’s sentence
under sec. 2K2.1(a)(3) based upon
possession of a machine gun despite the
argument that the defendant did not know
that the gun he possessed had become a
machine gun by alteration); United States
v. Williams, 49 F.3d 92, 93 (2d Cir.
1995) (affirming a sentencing enhancement
under sec. 2K2.1(b)(4) for possession of
a firearm with an altered or obliterated
serial number where the defendant argued
that he was unaware of the condition of
the serial number, and ruling that sec.
2K2.1(b)(4) is a strict liability
provision); Singleton, 946 F.2d at 25-27
(holding that an upward adjustment could
be assessed under sec. 2K2.1(b)(1)
against a felon who possessed a stolen
gun whether or not he knew the gun was
stolen). Therefore, even if he had not
waived his arguments, we would decline
Walton’s invitation to overrule
Richardson.

CONCLUSION

  For the foregoing reasons, we AFFIRM
Walton’s sentence.
