                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-1996

USA v. Ketcham
Precedential or Non-Precedential:

Docket 95-5002




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                              N0. 95-5002


                      UNITED STATES OF AMERICA
                                 v.
                           BASIL KETCHAM
                             Appellant


        On Appeal From the United States District Court
                For the District of New Jersey
             (D.C. Crim. Action No. 94-cr-00131-2)


                    Argued:    September 21, 1995

         BEFORE:    BECKER and STAPLETON*, Circuit Judges,
                    and LANCASTER,** District Judge

                   (Opinion Filed March 29, 1996)


                          Faith S. Hochberg
                          Kevin McNulty
                          Leslie F. Schwartz (Argued)
                          Office of the U.S. Attorney
                          970 Broad Street
                          Room 502
                          Newark, NJ 07102
                           Attorneys for Appellee

                          Elizabeth H. Smith (Argued)
                          10 Park Place, Suite 217
                          Morristown, NJ 07960
                           and
                          Rita E. Donnelly
                          18 Prospect Street
                          P.O. Box 829, Suite 5C
                          South Orange, NJ 07079
                           Attorneys for Appellant


* The Honorable William D. Hutchinson was a member of the
original panel to which this appeal was assigned. He died before
the appeal was resolved, and Judge Stapleton was designated to
serve in his place.
** Honorable Gary L. Lancaster, United States District Judge for
the Western District of Pennsylvania, sitting by designation.



                       OPINION OF THE COURT




STAPLETON, Circuit Judge:


           Basil Ketcham0 appeals his sentence.   Ketcham argues

that the district court erred when it failed to group the four

counts of his conviction pursuant to United States Sentencing

Guidelines ("U.S.S.G.") § 3D1.2.0    While we agree with the

district court that grouping is inappropriate in this case, we

conclude that the challenged sentence cannot stand because the

court's decision with respect to grouping was inconsistent with

another portion of its calculation of the appropriate guideline

range.   We will, accordingly, reverse the judgment and remand for

resentencing.0



                                I.


0
  The indictment, the presentence report, and the district
court's judgment incorrectly spell the defendant's name
"Ketchum."
0
  Because Ketcham was sentenced in December 1994, we apply the
1994 version of the Guidelines. 18 U.S.C. § 3553(a)(4); U.S.S.G.
§ 1B1.11(a).
0
  Ketcham also argues that: (1) the district court erred when it
ordered an upward adjustment in his criminal history category
from level I to level II pursuant to U.S.S.G. § 4A1.3; (2) the
district court erred when it failed to order a downward
adjustment pursuant to U.S.S.G. § 3B1.2 for minor or minimal
participation in the offenses; (3) the government breached its
plea agreement; and (4) the sentencing judge was biased. We find
these arguments to be without merit.
           Ketcham pleaded guilty to transporting child

pornography in interstate commerce in violation of 18 U.S.C.

§ 2252(a)(1) (count 3); receiving, distributing, and reproducing

child pornography that had been shipped in interstate commerce in

violation of 18 U.S.C. § 2252(a)(2) (counts 4 and 5); and

possessing child pornography that had been shipped in interstate

commerce in violation of 18 U.S.C. § 2252(a)(4)(B) (count 6).

Ketcham did not plead guilty to, and denies, any involvement with

the production of child pornography.

           The plea agreement stipulated that: (1) the applicable

guideline for counts 3, 4, and 5 is U.S.S.G. § 2G2.2;0 (2) the 2

0
    U.S.S.G. § 2G2.2 provides in full:

           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

           (a)   Base Offense Level:   15

           (b)   Specific Offense Characteristics

                 (1) If the material involved a prepubescent minor
                 or a minor under the age of twelve years, increase
                 by 2 levels.

                 (2) If the offense involved distribution, increase
                 by the number of levels from the table in §2F1.1
                 corresponding to the retail value of the material,
                 but in no event by less than 5 levels.

                 (3) If the offense involved material that portrays
                 sadistic or masochistic conduct or other
                 depictions of violence, increase by 4 levels.

                 (4) If the defendant engaged in a pattern of
                 activity involving the sexual abuse or
                 exploitation of a minor, increase by 5 levels.
level enhancement in U.S.S.G. § 2G2.2(b)(1) is appropriate; (3)

Ketcham engaged "in a pattern of activity involving the sexual

exploitation of minors for purposes of the 5 level enhancement in

U.S.S.G. § 2G2.2(b)(4);" (4) the applicable guideline for count 6

is U.S.S.G. § 2G2.4;0 (5) the 2 level enhancements in U.S.S.G.



           (c)   Cross Reference

                 (1) If the offense involved causing, transporting,
                 permitting, or offering or seeking by notice or
                 advertisement, a minor to engage in sexually
                 explicit conduct for the purpose of producing a
                 visual depiction of such conduct, apply §2G2.1
                 (Sexually Exploiting a Minor by Production of
                 Sexually Explicit Visual or Printed Material;
                 Custodian Permitting Minor to Engage in Sexually
                 Explicit Conduct; Advertisement for Minors to
                 Engage in Production) if the resulting offense
                 level is greater than that determined above.
0
    U.S.S.G. § 2G2.4 provides in its entirety:

           Possession of Materials Depicting a Minor Engaged in
           Sexually Explicit Conduct

           (a)   Base Offense Level:   13

           (b)   Specific Offense Characteristics

                 (1) If the material involved a prepubescent minor
                 or a minor under the age of twelve years, increase
                 by 2 levels.

                 (2) If the offense involved possessing ten or
                 more books, magazines, periodicals, films, video
                 tapes, or other items, containing a visual
                 depiction involving the sexual exploitation of a
                 minor, increase by 2 levels.

           (c)   Cross References

                 (1) If the offense involved causing,
                 transporting, permitting, or offering or seeking
                 by notice or advertisement, a minor to engage in
                 sexually explicit conduct for the purpose of
                 producing a visual depiction of such conduct,
§ 2G2.4(b)(1) & 2G2.4(b)(2) are appropriate; and (6) the cross

reference in U.S.S.G. § 2G2.2(c)(1), relating to offenses

involving the production of child pornography, is not applicable.

          First, the district court accepted the stipulations

that the appropriate guideline for counts 3, 4, and 5 is U.S.S.G.

§ 2G2.2 and that there should be a 2 level increase under

U.S.S.G. § 2G2.2(b)(1) because of the age of the children

depicted in the pornographic materials.   Second, the district

court accepted the agreement of the parties that Ketcham's

offense did not involve the production of child pornography.

Third, contrary to the plea agreement, the district court

concluded that U.S.S.G. § 2G2.2 is the appropriate guideline for

count 6 via the cross reference in U.S.S.G. § 2G2.4(c)(2).

Finally, the district court did not rely upon the stipulation to

the 5 level increase under U.S.S.G. § 2G2.2(b)(4).   Rather, it

conducted an independent analysis and independently concluded

that the enhancement was appropriate because the possession,

               apply §2G2.1 (Sexually Exploiting a Minor by
               Production of Sexually Explicit Visual or Printed
               Material; Custodian Permitting Minor to Engage in
               Sexually Explicit Conduct; Advertisement for
               Minors to Engage in Production).

               (2) If 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), apply §2G2.2 (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).
transportation, reproduction, and distribution alleged in counts

3, 4, 5, and 6 constituted "a pattern of activity involving the

sexual abuse or exploitation of a minor" within the meaning of

U.S.S.G. § 2G2.2(b)(4).0

          The district court calculated the total offense level

in the following manner.     Each count had a base offense level of

15 under U.S.S.G. § 2G2.2.    The increases provided for in

U.S.S.G. § 2G2.2(b)(1) & (b)(4) raised the offense level of each

count to 22.   Since the court deemed grouping under U.S.S.G.

§ 3D1.2 inappropriate,0 each count generated 1 unit under

U.S.S.G. § 3D1.4.0   Four units resulted in a 4 level increase.

Adding 4 to the highest adjusted offense level of 22 resulted in

0
  A sentencing court is not bound by factual stipulations in a
plea agreement and has discretion to make factual findings based
on other relevant information. U.S.S.G. § 6B1.4(d). Moreover,
the plea agreement in this case provided that it did "not bind
the sentencing court, which may make independent factual findings
and may reject any or all of the stipulations entered into by the
parties."
0
  The relevant portion of U.S.S.G. § 3D1.2 is quoted in the text
infra at page 7.
0
  U.S.S.G. § 3D1.4 provides in relevant part:

          Determining the Combined Offense Level

          The combined offense level is determined by
          taking the offense level applicable to the
          Group with the highest offense level and
          increasing that offense level by the amount
          indicated in the following table:

          Number of Units         Increase in Offense Level

               1                       none
               1-1/2                   add 1   level
               2                       add 2   levels
               2-1/2 - 3               add 3   levels
               3-1/2 - 5               add 4   levels
               More than 5             add 5   levels
a combined adjusted offense level of 26.   Finally, pursuant to

U.S.S.G. § 3E1.1, Ketcham was entitled to a 3 level decrease for

acceptance of responsibility, producing a total offense level of

23.



                               II.

           Section 3D1.2 of the Guidelines provides in relevant

part:
           All counts involving substantially the same
           harm shall be grouped together into a single
           Group. Counts involve substantially the same
           harm within the meaning of this rule:
           . . .
           (b) When counts involve the same victim and
           two or more acts or transactions connected by
           a common criminal objective or constituting
           part of a common scheme or plan.
           (c) 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.
           (d) . . . [I]f the offense behavior is
           ongoing or continuous in nature and the
           offense guideline is written to cover such
           behavior.

We review de novo the district court's interpretation of U.S.S.G.
§ 3D1.2.   United States v. Bush, 56 F.3d 536, 537-38 (3d Cir.

1995).



                                A.

           Section 3D1.2(b) of the Guidelines requires the

grouping of counts that involve the same victim.   The district

court concluded that grouping Ketcham's offenses pursuant to
U.S.S.G. § 3D1.2(b) is inappropriate because each count involved

different victims.    We agree.

            The four counts of conviction resulted from Ketcham's

possession, receipt, transportation, distribution, and

reproduction of photographs and films pornographically depicting

children.    The pictures and films in each count depicted

different children.    Accordingly, Ketcham concedes that if the

children depicted are the victims of his offenses, then grouping

pursuant to U.S.S.G. § 3D1.2(b) is inappropriate.
          Application Note 2 to U.S.S.G. § 3D1.2 explains that:

            [t]he term "victim" is not intended to
            include indirect or secondary victims.
            Generally, there will be one person who is
            directly and most seriously affected by the
            offense and is therefore identifiable as the
            victim. For offenses in which there are no
            identifiable victims (e.g., drug or
            immigration offenses, where society at large
            is the victim), the "victim" for purposes of
            subsection[] (b) is the societal interest
            that is harmed. . . . Ambiguities should be
            resolved in accordance with the purpose of
            this section as stated in the lead paragraph,
            i.e., to identify and group "counts involving
            substantially the same harm."

Thus our task is to determine the primary victim that Congress

had in mind when it enacted 18 U.S.C. §§ 2252(a)(1), (a)(2), and

(a)(4)(B).    Only if we can find no identifiable victim will we

deem the primary victim to be society.

            Our review of the legislative history leads us to

conclude that the primary victims that Congress had in mind when

it enacted 18 U.S.C. § 2252(a) were the children depicted in
pornographic materials.0    The bill grew out of "a deep and

abiding concern for the health and welfare of the children and

youth of the United States."     S. Rep. No. 438, 95th Cong.,

2d Sess. 3, reprinted in 1978 U.S.C.C.A.N. 40, 41.     The Act

itself was called the Protection of Children Against Sexual

Exploitation Act of 1977 ("the Act").

             The Senate Report focuses on preventing the harms

suffered by children depicted in pornographic films and pictures.

See S. Rep. No. 438, 95th Cong., 2d Sess. 7-11, reprinted in 1978

U.S.C.C.A.N. 40, 45-48 (referring to "exploited children," "child

victims," and "boy victims").     The report concluded that "the use

of children as . . . the subjects of pornographic materials is

very harmful to both the children and the society as a whole."

Id. at 43.    While this conclusion refers to the harm to society

in addition to the harm to the children depicted, it is clear

from the report as a whole that the primary concern of Congress

was protecting children from pornography.     This is not a statute

where there is no identifiable victim.     The fact that a criminal

statute in a general sense protects society as a whole cannot

suffice to make society the primary victim.    Were this the case,

society would be the primary victim of nearly every criminal

statute.

             Ketcham acknowledges that the victims of § 2251, which

makes it a crime to produce pornographic material featuring

0
  The Eighth Circuit reached the same conclusion in United
States v. Rugh, 968 F.2d 750, 755-56 (8th Cir. 1992). We are not
persuaded by the Fourth Circuit's contrary conclusion in United
States v. Toler, 901 F.2d 399, 403 (4th Cir. 1990).
children, are the children depicted.   According to Ketcham,

however, the same cannot be said for § 2252 which makes it

illegal to transport, distribute or possess such materials.    We

disagree.   The victims Congress was seeking to protect with all

of the criminal offenses found in the Act are the same.   Section

2252, by proscribing the subsequent transportation, distribution,

and possession of child pornography discourages its production by

depriving would-be producers of a market.   The primary objective

of both § 2251 and § 2252 is thus the same -- to protect children

from exploitation by producers of child pornography -- and the

victims of both sections are, accordingly, the same.

            Since the primary victims of offenses under 18 U.S.C.

§§ 2252(a)(1), (a)(2), & (a)(4)(B) are the children depicted in

the pornographic materials and because Ketcham's four counts of

conviction involved materials depicting different children, the

district court correctly concluded that grouping Ketcham's

offenses pursuant to U.S.S.G. § 3D1.2(b) is inappropriate.



                                 B.

            Section 3D1.2(c) of the Guidelines requires grouping

where "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."     The district

court concluded that grouping Ketcham's offenses under U.S.S.G.

§ 3D1.2(c) is inappropriate.    We find this conclusion

inconsistent with the district court's interpretation and

application of U.S.S.G. § 2G2.2(b)(4).
            Section 2G2.2(b)(4) of the Guidelines provides that

"[i]f the defendant engaged in a pattern of activity involving

the sexual abuse or exploitation of a minor, increase by 5

levels."   The district court determined that the possession,

transportation, reproduction, and distribution alleged in counts

3, 4, 5, and 6 constituted "a pattern of activity involving the

sexual abuse or exploitation of a minor" within the meaning of

U.S.S.G. § 2G2.2(b)(4).   Were this true, each count would embody

conduct that is treated as a specific offense characteristic in

the guideline applicable to each of the other counts.    This would

require grouping under U.S.S.G. § 3D1.2(c).

           However, the district court incorrectly interpreted

U.S.S.G. § 2G2.2(b)(4).   The terms "sexual abuse" and

"exploitation" as those terms are used in U.S.S.G. § 2G2.2(b)(4)

are terms of art.   "Sexual abuse" refers to the conduct covered

by U.S.S.G. §§ 2A3.1, 2A3.2, 2A3.3, and 2A.3.4.   "Sexual

exploitation of a minor" refers to conduct covered by U.S.S.G.

§ 2G2.1.

           Sections 2A3.1, 2A3.2, 2A3.3, and 2A.3.4 of the

Guidelines set out the offense levels for the various forms of

"sexual abuse" proscribed in §§ 2241 ("Aggravated sexual abuse"),

2242 ("Sexual abuse"), 2243 ("Sexual abuse of a minor or ward")

and 2244 ("Abusive sexual contact") of Title 18 of the United

States Code.   These offenses make it criminal for anyone to

engage in sexual activity with another under stipulated

circumstances or to cause or permit another to engage in sexual

activity under stipulated circumstances.
          Section 2G2.1 of the Guidelines sets out the offense

level for the various forms of "Sexually Exploiting a Minor"

proscribed in subsections 2251(a) (employing, inducing, coercing

or transporting, etc., a minor "with the intent that such minor

engage in any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct"), § 2251(b) (as a

parent, guardian or person having custody of a minor, permitting

the minor to engage in sexually explicit conduct for the purpose

of producing a visual depiction), and § 2251(c)(1)(B) (seeking or

offering by advertisement participation in any act of sexually

explicit conduct with a minor for the purpose of producing a

visual depiction) of Title 18 of the United States Code.   These

offenses make it criminal to engage in stipulated activities in

connection with the production of materials containing visual

depictions of sexually explicit conduct involving a minor.

          Sections 2G2.2 and 2G2.4 of the Guidelines set forth

the offense level for the various activities with such materials

after they are produced that are proscribed by subsections

2251(c)(1)(A) (seeking or offering by advertisement materials for

sale or exchange that contain visual depictions of sexually

explicit conduct involving a minor), § 2252(a)(1-3) (transporting

such depictions in interstate commerce or distributing,

reproducing, selling or possessing with intent to sell such

depictions that have been so transported); and § 2252(a)(4)

(possessing materials containing visual depictions of explicit

sexual conduct involving a minor) of Title 18 of the United

States Code.
           None of these Guidelines refer to the possession,

transportation, trafficking, receipt, reproduction, or

distribution of child pornography as "sexual abuse" or

"exploitation of a minor."   Rather, the Guidelines refer to these

activities as possessing, transporting, trafficking, receiving,

or distributing "material involving the sexual exploitation of a

minor."   U.S.S.G. § 2G2.2 (emphasis added).   Thus, a defendant

who possesses, transports, reproduces, or distributes child

pornography does not sexually exploit a minor even though the

materials possessed, transported, reproduced, or distributed

"involve" such sexual exploitation by the producer.      This

distinction is important because a defendant who does nothing

more than deal with child pornography after its production is

penalized much less severely under the Guidelines than a

defendant who engages in sexual abuse or exploits minors by

directly taking part in the production of child pornography.

           We find support for this distinction in the

Commission's use of the word "defendant" in U.S.S.G. § 2G2.2.

Subsections 2G2.2(b)(1)-(3) of the Guidelines refer to acts

concerning material involving the sexual exploitation of minors.

In contrast, U.S.S.G. § 2G2.2(b)(4) refers to the defendant's

involvement in the sexual exploitation of a minor.0   In other

words, U.S.S.G. § 2G2.2 as a whole is concerned with acts

involving sexually exploitive material.   Section 2G2.2(b)(4) of

the Guidelines singles out for more severe punishment those

0
  U.S.S.G. §§ 2G2.2(b)(1)-(3) and (4) are quoted in footnote 4,
supra.
defendants who are more dangerous because they have been involved

first hand in the exploitation of children.0

          We also find support for this view in Comment 5 to

U.S.S.G. § 2G2.2. Comment 5 explains:
          If the defendant sexually exploited or abused
          a minor at any time, whether or not such
          sexual abuse occurred during the course of
          the offense, an upward departure may be
          warranted. In determining the extent of such
          a departure, the court should take into
          consideration the offense levels provided in
          §§ 2A3.1, 2A3.2, and 2A3.4 most commensurate
          with the defendant's conduct, as well as
          whether the defendant has received an
          enhancement under subsection (b)(4) on
          account of such conduct.

U.S.S.G. § 2G2.2.   This comment assumes that "the offense"

covered by U.S.S.G. § 2G2.2 can occur without the defendant

having sexually abused or exploited a minor.   Accordingly, cases

covered by U.S.S.G. § 2G2.2 in which the defendant has sexually

abused or exploited a minor may warrant an upward departure.   It

necessarily follows that the conduct covered by § 2G2.2 does not

itself constitute sexual abuse or exploitation of a minor.0

          Similarly, the Commission distinguished between
trafficking offenses and sexual exploitation when it added

0
  The "Cross Reference" in § 2G2.2(c) performs a similar
function.
0
  We are cognizant of the fact that the title of the subpart of
the Guidelines in which both §§ 2G2.1 and 2G2.2 are found is
"Sexual Exploitation of a Minor." In this context, we believe
the phrase "sexual exploitation" is used as a shorthand to refer
to the Guidelines sections concerning the actual sexual
exploitation of minors as well as Guidelines sections concerning
material that involves the sexual exploitation of minors. As we
have explained, the statutes and the text of the Guidelines can
only be read to distinguish between sexual abuse of children and
sexual exploitation from activities with "materials involving"
such abuse or exploitation.
U.S.S.G. § 2G2.4 to the Guidelines in Amendment 372.     The

Commission explained:
               This amendment inserts an additional
          guideline at § 2G2.4 to address offenses
          involving receipt or possession of materials
          depicting a minor engaged in sexually
          explicit conduct, as distinguished from
          offenses involving trafficking in such
          material, which continue to be covered under
          § 2G2.2. Offenses involving receipt or
          transportation of such material for the
          purpose of trafficking are referenced to
          § 2G2.2 on the basis of the underlying
          conduct (subsection (c)(2)). Similarly,
          offenses in which the underlying conduct is
          more appropriately addressed as sexual
          exploitation of a minor are referenced to
          that guideline (subsection (c)(1)).

U.S.S.G. App. C., Amendment 372 (emphasis added).

          Lastly, we note that our interpretation of U.S.S.G.

§ 2G2.2(b)(4) is fully consistent with the reading of that

guideline by the Court of Appeals for the First Circuit in United

States v. Chapman, 60 F.3d 894, 896-900 (1st Cir. 1995).

Given our interpretation of U.S.S.G. § 2G2.2(b)(4) and the

government's stipulation that the Ketcham's offense conduct did

not involve the production of child pornography so as to render

applicable the cross reference in U.S.S.G. § 2G2.2(c), there

appears to be no basis for a U.S.S.G. § 2G2.2(b)(4) enhancement.

Accordingly, on remand the district court should resentence

Ketcham without the five level U.S.S.G. § 2G2.2(b)(4) increase.

Since there will no longer be a U.S.S.G. § 2G2.2(b)(4)

enhancement based on the conduct embodied in other counts,

grouping pursuant to U.S.S.G. § 3D1.2(c) will be inappropriate.
                                C.

          We turn finally to the third conclusion reached by the

district court with respect to grouping under U.S.S.G. § 3D1.2.

The district court concluded that grouping Ketcham's offenses is

inappropriate under U.S.S.G. § 3D1.2(d).   We agree, though for a

somewhat different reason than the one advanced by the district

court.

          In order for grouping to be appropriate under the

"ongoing or continuous" clause of U.S.S.G. § 3D1.2(d), the

offense behavior must be ongoing or continuous and the offense

guideline must be "written to cover" the ongoing or continuous

offense behavior.   It is intended to require grouping where the

offense conduct is ongoing or continuous and the offense level

provided by the applicable offense guideline already takes into

account the fact that there has been a course of harmful conduct.

See, e.g., U.S.S.G. § 2Q1.2(b)(1)(A); U.S.S.G. § 2Q1.3(b)(1)(A).

          Even assuming arguendo that Ketcham's conduct was

ongoing or continuous, U.S.S.G. § 2G2.2 would not take into

account the ongoing nature of Ketcham's conduct.   Subsection

(b)(4) of § 2G2.2, the only portion of that guideline arguably

directed to ongoing or continuous conduct, as we have seen, is

not written to cover Ketcham's conduct, ongoing or otherwise.



                               III.

          We will reverse the judgment of the district court and

remand for resentencing consistent with this opinion.
