                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0792n.06

                                             No. 09-3474                                   FILED
                                                                                        Dec 28, 2010
                             UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )         ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE NORTHERN
v.                                                         )         DISTRICT OF OHIO
                                                           )
ALLEN L. KEEFER,                                           )                            OPINION
                                                           )
       Defendant-Appellant.                                )




BEFORE:        KENNEDY, COLE, and ROGERS, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Allen L. Keefer pled guilty to one count of

distributing visual depictions of a minor engaged in sexually explicit conduct in violation of 18

U.S.C. § 2252(a)(2), one count of distributing child pornography in violation of 18 U.S.C.

§ 2252A(a)(2)(A), and one count of possession of child pornography under 18 U.S.C.

§ 2252A(a)(5)(B). Keefer argues that his within-Guidelines sentence is unreasonable because: (1)

the district court erred in applying a five-level enhancement for an offense involving 600 or more

images; (2) the district court failed to consider the need to avoid unwarranted sentencing disparities;

(3) the sentence was greater than necessary to comply with the 18 U.S.C. § 3553(a) factors because

the district court failed to meaningfully consider relevant factors; and (4) the sentence itself created

an unwarranted sentence disparity. Because we find the district court erroneously applied the five-
No. 09-3474
United States of America v. Allen L. Keefer

level enhancement for an offense involving 600 or more images, we VACATE Keefer’s sentence

and REMAND to the district court for resentencing.

                                                 I.

       On October 12, 2007, Keefer engaged in real-time electronic communication on the internet

with a detective of the Miami Beach Police Department posing as a mother of a ten-year-old girl

from Miami, Florida. The conversation began when Keefer entered an internet chatroom and sent

a public message stating he “want[ed to] chat with REAL FEMALE about enjoying young girls

together.” (Presentence Investigation Report (“PSR”) 4.) In response to this public message, the

detective sent Keefer a private message, and they began to chat via private messages. During this

conversation and later that day, Keefer electronically sent thirty-one images to the detective, which

depicted adult males engaged in intercourse with prepubescent females and prepubescent females

exposing their genitals.

       On January 22, 2008, federal agents executed a search warrant at Keefer’s home and seized

three computers, compact discs, and a digital camera. A forensic analysis of Keefer’s computer

revealed thirty-nine images of child pornography saved on the computer’s hard drive, and an

additional 1,215 images in the computer’s “unallocated space.”

       The United States Probation Office completed a PSR on Keefer. The PSR calculated

Keefer’s base offense level as twenty-two and then recommended application of the following

enhancements: (1) two levels because the images contained prepubescent minors or a minor under

the age of twelve under the United States Sentencing Guidelines Manual (“U.S.S.G.” or

“Guidelines”) § 2G2.2(b)(2) (2008); (2) five levels because Keefer distributed child pornography for

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No. 09-3474
United States of America v. Allen L. Keefer

receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, under U.S.S.G.

§ 2G2.2(b)(3)(B) (2008); (3) four levels because at least one of the images portrayed sadistic or

masochistic conduct under U.S.S.G. § 2G2.2(b)(4) (2008); (4) two levels because Keefer used a

computer for the transmission, receipt, or distribution of the child pornography under U.S.S.G. §

2G2.2(b)(6) (2008); and (5) five levels because the offense involved 600 or more images under

U.S.S.G. § 2G2.2(b)(7)(D) (2008). The PSR thus calculated an adjusted offense level of forty, but

then reduced it by three levels for Keefer’s acceptance of responsibility, resulting in a total offense

level of thirty-seven. Keefer had no prior criminal convictions and fell within criminal history

category I.

       Keefer filed a response to the PSR, and, in relevant part, objected to the five-level

enhancement under § 2G2.2(b)(7)(D) for an offense involving 600 or more images. After hearing

arguments on this objection at sentencing, the district court applied this enhancement, as well as the

other enhancements suggested by the PSR, and calculated Keefer’s total offense level to be thirty-

seven with a criminal history category I, resulting in a Guidelines range of 210-262 months, with a

statutory minimum of five years and a maximum of twenty years for counts one and two, and a

statutory maximum of ten years for count three. The district court sentenced Keefer to 210 months

of imprisonment on the first two counts and 120 months of imprisonment on count three, to run

concurrently; the district court also imposed a lifetime term of supervised release. This appeal

followed.




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United States of America v. Allen L. Keefer

                                                 II.

       We review a defendant’s sentence for reasonableness, and we do so under “‘a deferential

abuse-of-discretion standard.’” United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). This inquiry has both a procedural and a substantive

component. Id. (citing Gall, 552 U.S. at 51). When determining the procedural reasonableness of

a defendant’s sentence, we must “ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v.

Martinez, 588 F.3d 301, 324 (6th Cir. 2009) (internal quotation marks and citation omitted). “We

review the district court’s application of the Sentencing Guidelines de novo and its findings of fact

at sentencing for clear error.” Lapsins, 570 F.3d at 772. “A [district court’s] finding is clearly

erroneous where, although there is evidence to support it, the reviewing court is left with the firm

and definite conviction that a mistake has been committed.” United States v. Webb, 616 F.3d 605,

609 (6th Cir. 2010) (internal quotation marks and citation omitted). The applicability of sentencing

enhancements under the Guidelines must be proven by a preponderance of evidence. See United

States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006). Therefore, the district court’s application of

the five-level enhancement was proper if it was supported by a preponderance of the evidence. See

United States v. Brown, 579 F.3d 672, 685 (6th Cir. 2009).

       Section 2G2.2, the Guideline regarding distribution and possession of material involving the

sexual exploitation of minors, states: “[i]f the offense involved 600 or more images, increase by 5

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No. 09-3474
United States of America v. Allen L. Keefer

levels.” U.S.S.G. § 2G2.2(b)(7)(D) (2008). Keefer argues that applying this enhancement was

improper because he only had thirty-nine images on his computer’s hard drive and had no knowledge

of the presence of the other 1,215 images found in his computer’s unallocated space.

       With regard to the application of the five-level enhancement for the images found in the

computer’s unallocated space, the PSR explained:

       According to http://www.forensics-intl.com/def8.html retrieved on March 19, 2009,
       “When files are erased or deleted in DOS or Windows operating systems, the content
       of the file is not actually erased. Until file deletion software is used, data from the
       ‘erased file’ remains behind in an area called unallocated storage space . . .
       Unallocated file space potentially contains intact files, remnants of files and
       subdirectories and temporary files which were transparently created and deleted by
       computer applications and also the operating system. Some examples are the user
       has an image file and deletes the file. The file is now part of ‘unallocated file space’
       and will remain there until it is overwritten. Another example is the user opens an
       application and a temporary file is created, which remains in unallocated file space.
       With image files, they had to have been present, either saved and then erased or
       viewed, to be present in unallocated file space.”

(PSR 21 (emphasis added).) The PSR further explained that specific offense characteristics

enhancements are determined by consideration of all relevant conduct as described under U.S.S.G.

§ 1B1.3. At the sentencing hearing, the government informed the district court that “at least seven

of the images that were found in unallocated space were the same images that [Keefer] had sent to

the agent, the detective in Florida, so clearly those images in unallocated space were images that Mr.

Keefer has possessed, distributed or at least viewed.” (Sentencing Hr’g Tr., Dist. Ct. Docket No. 19,

at 11.) After hearing both parties’ arguments on this issue, the district court concluded:

       [O]ne of the things that drove me on this one was the fact that actually some of these
       images were actually transmitted to the officer in Miami and then were later, I
       believe, when the computer was apprehended, even if that didn’t happen, I think that
       under the law, the five-level enhancement is appropriate.

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United States of America v. Allen L. Keefer

               So those objections will be overruled for the reasons set forth in the [PSR]
        and [the government’s] response and will be incorporated in my decision on the
        overruling of the objection.

(Id. at 13.)

        The enhancement here was properly applied if the offense, including all relevant conduct,

see U.S.S.G. § 1B1.3 (2008), involved 600 or more images. U.S.S.G. § 2G2.2(b)(7)(D) (2008).

A district court cannot consider conduct as “relevant conduct” in its sentencing calculation “unless

the conduct at issue amounts to an offense for which a criminal defendant could potentially be

incarcerated.” United States v. Shafer, 199 F.3d 826, 830-31 (6th Cir. 1999) (interpreting

§ 1B1.3(a)(2)). Therefore, to apply the enhancement here, the government must have shown by a

preponderance of evidence that at some point Keefer knowingly possessed or knowingly accessed

with intent to view each of the 600 or more images. See 18 U.S.C. § 2252A(a)(5)(B).

        We credit the district court’s finding that “some of the images that were found in the

unallocated space were images that had previously been sent to the detective in Florida,” (Sentencing

Hr’g Tr., Dist. Ct. Docket No. 19, at 13), because it is not clearly erroneous. See Webb, 616 F.3d

at 609. But the fact that at one point Keefer knowingly possessed seven of the 1,215 images (the

ones he sent to the detective in Florida) is not adequate to support a finding that he ever knowingly

possessed or knowingly accessed with intent to view the other 1,208 images, or even an additional

554 of them—the amount needed to apply the enhancement after subtracting the seven images sent

to the detective and the thirty-nine images found on the computer’s hard drive. The PSR’s

explanation of unallocated space merely stated that images are stored in unallocated space if they

were present on a computer at some point. Presence, however, does not inherently require knowing

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United States of America v. Allen L. Keefer

possession or access, as anyone who has received spam email or visited one website only to have

another, inadvertently accessed, website pop-up knows all too well.1 And the government has failed

to present evidence indicating anything to the contrary.       Without more, the enhancement’s

application was improper. We note, as an aside, that the “evidence” relied on by the PSR on this

highly technical and important issue was an unverified, unexplained website definition. For the

purpose of re-sentencing, it would seem advisable for the district court to require “evidence” more

reliable than such a website reference, whether such evidence come from a witness with the

appropriate expertise or some other reliable authority.

       In sum, the district court erroneously applied the enhancement and thus improperly calculated

Keefer’s Guidelines range. See Martinez, 588 F.3d at 324. Because we remand for resentencing,

we need not reach Keefer’s other arguments that his sentence was unreasonable. See United States

v. Garcia-Robles, 562 F.3d 763, 768 (6th Cir. 2009).

                                                III.

       For the reasons above, we VACATE Keefer’s sentence as procedurally unreasonable and

REMAND for resentencing.




       1
       “A ‘pop-up’ is an unsolicited advertisement that will appear in a window that ‘pops up’
unwanted in the user’s web browser.” United States v. Romm, 455 F.3d 990, 1000 n.14 (9th Cir.
2006).

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