
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-2154                                    UNITED STATES,                                      Appellee,                                          v.                                 MICHAEL T. CHAPMAN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Peter B. Krupp, Assistant Federal Public Defender, for appellant.            ______________            Jeanne M. Kempthorne, Assistant United States Attorney, with  whom            ____________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                    July 25, 1995                                 ____________________                      STAHL, Circuit Judge.  Appellant Michael T. Chapman                      STAHL, Circuit Judge.                             _____________            pled guilty to one count of transporting child pornography in            interstate commerce  in violation  of 18 U.S.C.    2252(a)(1)            and  was  sentenced  to  thirty-three  months  incarceration.            Chapman  appeals  his  sentence,  challenging   the  district            court's  application of  a five-level  "pattern of  activity"            enhancement  under U.S.S.G.    2G2.2(b)(4).1   We  vacate the            sentence  imposed  by  the  district  court  and  remand  for            resentencing.                                          I.                                          I.                                          __                      From November  1993 until  at  least January  1994,            Chapman,  of Southbridge,  Massachusetts,  subscribed to  the            America On-Line  (AOL) computer information network.   During            that time,  Chapman communicated  via computer  and telephone            with  an AOL  subscriber in  Michigan (a  cooperating witness            referred  to  by the  government  as  "Dan") about  Chapman's            sexual interest in children.   Chapman told Dan about  having            had sexual relations with  children as young as seven  years,            and discussed with Dan  the possibility of abducting  a young            girl,  bringing her to Michigan where both men would have sex            with her, and then  killing her.  Chapman also  told Dan that            he  possessed a "snuff film" depicting the rape and murder of            a ten-year-old girl, as well as other child pornography.                                            ____________________            1.  All  references  to  the  Sentencing  Guidelines,  unless            otherwise noted, are to the 1993 Guidelines Manual.                                         -2-                                          2                      On  December  2,  1993,  Chapman   sent  Dan  three            photographs via  the computer network, each  with a different            file  designation.   Two  of the  pictures  depicted nude  or            partially nude  girls, while the third depicted  a young girl            engaged in sex with a man.  A nurse employed by  the FBI told            investigators  that in her opinion, the  girl depicted in the            third  photograph was less than  ten years old.   On December            29, 1993, Chapman told Dan that he was going to scan and send            to Dan a photograph of Chapman having anal intercourse with a            twelve-year-old  girl.   Chapman  then sent  to Dan  over the            computer network  a photograph  depicting a man2  having anal            intercourse with a young female who an FBI nurse later stated            appeared to be under eighteen years old.                      A  search of  Chapman's residence  and computer  on            February 16, 1994, pursuant to a warrant obtained by the FBI,            turned  up  no  "snuff  films," other  child  pornography  or            scanning  equipment.   Chapman  told investigators  that  his            statements   to  Dan  about  sexually  abusing  children  and            possessing  a  snuff  film  were  not true  but  were  simply            fantasy.   Investigators were  unable to verify  that Chapman            had actually engaged in the sexual acts with children that he            had described to Dan.  Chapman admitted, however, that he had            exposed  himself   to  minors  and   that  he  had   shown  a                                            ____________________            2.  The photograph showed  the man's lower torso but  not his            face.                                         -3-                                          3            pornographic film  to children, although the  record does not            make clear when these events occurred.                      On  March 22,  1994,  Chapman was  indicted in  the            Eastern District  of Michigan  on four counts,  each charging            interstate  computer  transmission  of  child  pornography in            violation  of  18 U.S.C.    2252(a)(1).    On June  17, 1994,            Chapman pleaded  guilty in  the District of  Massachusetts to            Count One of the indictment,  which involved the December  2,            1993, transmission of the photograph depicting a ten-year-old            girl in a sexually explicit act.                      Following  Chapman's  plea,   the  U.S.   Probation            Department prepared Chapman's presentence report (the "PSR").            In  addition  to the  information  set forth  above,  the PSR            stated that  Chapman told investigators that  he had obtained            about fifty pornographic  images over  the computer  network,            and  had  engaged  in  sexually  graphic correspondence  with            hundreds of  computer network subscribers  over the preceding            two months.  Chapman objected to these statements in the PSR,            maintaining that he had simply told investigators that he had            access to fifty pornographic images over the computer network            ______            and  that he  had seen  hundreds of names  listed on  AOL and            other  bulletin  boards  of  people  interested  in  sexually            graphic correspondence.  Chapman  also claimed in response to            the  PSR that he had never  "downloaded" the photographs sent            to Dan,  that in fact he  had never viewed them  himself, and                                         -4-                                          4            that the December 29  photograph  depicted neither him  nor a            minor.                      The  PSR  also  indicated  that  Chapman  had prior            convictions  in  Massachusetts  for  rape and  for  lewd  and            lascivious   behavior  arising  from   acts  involving  young            children.   In  addition,  in 1981,  Chapman had  admitted to            facts warranting a finding  of guilt on a charge  of indecent            exposure;  that  charge was  continued  with  supervision and            eventually dismissed.  Furthermore, the PSR stated that there            was  credible  evidence that  Chapman  had made  a  series of            obscene phone  calls in 1988 to  the twelve-year-old daughter            of one of his friends; Chapman disputed this allegation.                      At  Chapman's sentencing  hearing on  September 27,            1994,  the only legal issue in dispute was the application of            U.S.S.G.     2G2.2(b)(4),   which,  under  the  category   of            "Specific   Offense  Characteristics,"   states:     "If  the            defendant  engaged in  a  pattern of  activity involving  the            sexual  abuse  or  exploitation of  a  minor,  increase  by 5            levels."  The PSR recommended the application of the pattern-            of-activity enhancement to Chapman because he had transmitted            three sexually  explicit photographs of minors  on December 2            and a fourth  on December 29.  The district  court agreed and            applied the enhancement to Chapman, stating that it based its            decision on "[t]he entire record, the prior record, the other            conduct, the  1988 incident,  the entire  record that I  have                                         -5-                                          5            before me, with  the exception  of [the  December 29  photo],            which I accept  [defense counsel's] argument on."   The court            imposed a sentence of  thirty-three months, the minimum under            the applicable guideline range.3  This appeal followed.                                         II.                                         II.                                         ___                      Chapman  argues that  the district  court erred  in            applying   2G2.2(b)(4)  to him because the guideline does not            permit  consideration  of past  sexual abuse  or exploitation            that is unrelated to  the offense of conviction, and  because            the  transmission of  child  pornography by  computer is  not            "sexual  abuse or  exploitation"  within the  meaning of  the            guideline.   Thus,  Chapman challenges  the  district court's            interpretation  of the  meaning and  scope of  the guideline,            which we  review de novo.   United States v. Powell,  50 F.3d                             _______    _____________    ______            94, 102 (1st Cir.  1995); United States v. Thompson,  32 F.3d                                      _____________    ________            1, 4 (1st Cir. 1994).                      We first consider whether the transmission of child            pornography by computer may constitute a "pattern of activity            involving the sexual abuse or exploitation  of a minor" under                                            ____________________            3.  The district  court arrived at Chapman's  sentence in the            following  manner:   The  Base  Offense  Level for  Chapman's            offense was 15.   He  received a two-level  increase under               2G2.2(b)(1) because one of the photographs he sent involved a            prepubescent  minor,  and  a  five-level   increase  under               2G2.2(b)(4).     The  court   subtracted  three  levels   for            acceptance of responsibility pursuant to   3E1.1(b), bringing            Chapman's adjusted  offense level to 19.   Chapman's criminal            history  placed him  in  category II,  making his  applicable            guideline sentencing range thirty-three to forty-one months.                                         -6-                                          6              2G2.2(b)(4).  The  commentary to   2G2.2 explains  that the            quoted  phrase "means any combination of two or more separate            instances of the sexual abuse or the sexual exploitation of a            minor,  whether  involving the  same  or different  victims."            U.S.S.G.   2G2.2, comment. (n.4).  "Sexual abuse" and "sexual            exploitation,"  however,  are  not   defined  in  either  the            relevant   sentencing   guidelines  or   their  corresponding            statutory  provisions.   The government  does not  argue that            trafficking in child pornography, by itself, is sexual abuse;            the question for us to decide is whether it may be considered            sexual exploitation of a minor.                      The most  nearly relevant dictionary  definition of            "exploitation"  is  "an unjust  or  improper  use of  another            person for one's  own profit or advantage."   Webster's Third                                                          _______________            New  International  Dictionary (1986).    In  a broad  sense,            ______________________________            anyone  who   chooses  to  look  at   child  pornography  has            "improperly  used" the  child depicted  in the  materials and            thus  has exploited  that  child  --  a  trafficker  in  such            materials,  whether recipient or sender, all the more so.  We            do not  think that  Congress,4 or the  Sentencing Commission,                                            ____________________            4.  The  Sentencing Commission  added  subsection (b)(4)  and            application  note  4  to     2G2.2  in  1991  pursuant  to  a            congressional mandate.  See  U.S.S.G. App. C., Amendment 435;                                    ___            Treasury,    Postal    Service    and   General    Government            Appropriations Act of 1992, Pub. L.  No. 102-141,   632.  The            legislative  history  sheds little,  if  any,  light on  what            Congress  intended  the  pattern-of-activity  enhancement  to            mean.  Senators Helms and Thurmond, the amendment's sponsors,            focused on  the  need  for higher  base  offense  levels  for                                         -7-                                          7            intended  for the  word  "exploitation" in    2G2.2(b)(4)  to            carry   this  all-encompassing  meaning.     We   reach  this            conclusion based on the interaction of subsection (b)(4) with            other   guidelines  provisions,   and   on   the   Sentencing            Commission's use of "exploitation" in other contexts.                      The first clue to the meaning of the phrase "sexual            exploitation"  is provided  by  the disparate  titles of  the            guidelines punishing violations of 18 U.S.C.    2251-52.  See                                                                      ___            Berniger v.  Meadow Green-Wildcat Corp.,  945 F.2d 4,  9 (1st            ________     __________________________            Cir. 1991) (titles may aid in construing any ambiguities in a            statute).   The  title of  U.S.S.G.    2G2.1,  applicable  to            crimes related to the production of child pornography, is:                                  __________                      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            (emphasis added).  The title of   2G2.2 is:                      Trafficking  in  Material  Involving  the                                       ________________________                      Sexual    Exploitation   of    a   Minor;                      ______________________                      Receiving,  Transporting,   Shipping,  or                                            ____________________            purveyors  and possessors  of  child  pornography  (the  base            offense  levels  for  possessors  and  recipients   of  child            pornography  were, respectively, 10 and  13 at the time), and            on  the link between child pornography and sexual abuse.  See                                                                      ___            137  Cong.   Rec.  S10322-33   (daily  ed.  July   18,  1991)            (statements  of Senators  Helms and  Thurmond).   In relevant            part,  section   632  of  the  Act   ordered  the  Sentencing            Commission  to amend   2G2.2 "to provide a base offense level            of  not  less than  15  and to  provide  at least  a  5 level            increase  for offenders  who  have engaged  in  a pattern  of            activity  involving the  sexual  abuse or  exploitation of  a            minor."                                         -8-                                          8                      Advertising Material Involving the Sexual                      Exploitation   of  a   Minor;  Possessing                      Material     Involving     the     Sexual                      Exploitation  of a  Minor with  Intent to                      Traffic.            (emphasis  added).   The title of    2G2.1  clearly indicates            that the acts to which  that guideline applies are themselves                                                           ______________            sexual exploitation of a minor; the title of   2G2.2 suggests            that while  the material "involves" sexual  exploitation of a                            ________            minor, trafficking in such material does not.   If subsection            (b)(4)  of    2G2.2  were meant  to  include the  trafficking            offenses punishable  by that  very same guideline,  one would            expect that the Sentencing Commission -- either in subsection            (b)(4) itself or  in application  note 4 --  would have  used            language that  more obviously  included those offenses.   For            example, application  note 4  could have defined  "pattern of            activity"  as "any combination of two  or more acts involving            the  sexual abuse or sexual  exploitation of a  minor, or the                                                                   ______            trafficking  in, or  transportation  or receipt  of, material            _____________________________________________________________            involving such  exploitation."   Cf.  U.S.S.G.    2G2.4(b)(2)            ____________________________     ___            (increasing   offense  level   of  defendants   convicted  of            possession  of child  pornography  "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").  By limiting            "pattern of  activity" to "instances  of the sexual  abuse or            the  sexual exploitation  of a  minor," in  the context  of a                                         -9-                                          9            guideline that  by its  own terms differentiates  itself from                            _________________            another guideline  that does  explicitly apply to  the sexual                                    ____            exploitation  of   minors,  the  Sentencing   Commission  has            provided  at least  a strong  initial clue  that it  does not            understand "exploitation" to include trafficking offenses.                       The relevant  statutory provisions make  a similar            distinction.  The title of 18 U.S.C.   2251, which applies to            persons directly involved in the  production or advertisement            of  child pornography, is  "Sexual exploitation of children,"            while 18 U.S.C.   2252 is titled "Certain activities relating            to material  involving the  sexual  exploitation of  minors."            Thus,  Congress  apparently  intended to  draw  a distinction            between those directly engaged  in sexually exploiting minors            and those who were engaged  in "certain activities related to            material involving" such exploitation.                      The government argues  that if we are going to look            to titles in interpreting the guideline, then  we should look            to the title of Chapter 110 of Title 18 of the  U.S. Code, in            which  all of  the  relevant child  pornography statutes  are            grouped -- "Sexual Exploitation  and Other Abuse of Children"            -- or  to the heading  of Part 2G2  of the Guidelines,  under            which  both     2G2.1 and     2G2.2  are  grouped --  "Sexual            Exploitation  of  a  Minor."     These  broad  headings,  the            government   argues,   suggest    that   the   term   "sexual            exploitation"   has  a  broader  meaning  than  simply  those                                         -10-                                          10            activities described in 18 U.S.C.   2251 or U.S.S.G.   2G2.1.            We  agree that  there are  some  activities not  described in            those provisions  that may be  considered sexual exploitation            for purposes of   2G2.2(b)(4); we do not agree, however, that                                                 ___            any  activity   subsumed   within  Chapter   110,   including            ___            trafficking, necessarily constitutes sexual exploitation of a            minor.   For example, the statute  prescribing record-keeping            requirements for the producers of sexually explicit material,            18 U.S.C.   2257, is intended to protect  minors but does not                                             _______            require any involvement with  minors for its violation.   Yet            it  is placed  within  Chapter  110  of  Title  18,  and  its            corresponding guideline,   2G2.5, is placed under the broader            heading  of  "Sexual  Exploitation  of  a  Minor."    By  the            government's reasoning, violations of   2257 would constitute            "sexual  exploitation   of  a   minor"  for  purposes   of               2G2.2(b)(4) even  though the  violator of that  statute might            never  have had  any involvement  with children,  directly or            indirectly.                      To be sure,  the use  of titles has  its limits  in            statutory interpretation,5 and we  do not rely exclusively on                                            ____________________            5.  We recognize, for instance, that  neither the title of 18            U.S.C.    12251A ("Selling  or buying  of children")  nor the            title of  Guidelines   2G2.3 ("Selling or  Buying of Children            for Use  in the Production of  Pornography") expressly states            that the  acts addressed  by those provisions  constitute the            sexual  exploitation of a  minor.  We would  be loath to say,            however, that  the buying or  selling of children  for sexual            purposes -- whether or not for use in the production of child            pornography --   could not be considered part of a pattern of                                         -11-                                          11            titles to interpret  the provision  at issue  here.   Indeed,            were there no other indicators of the Commission's intent, we            might  be inclined to agree  with the government.   But there            are other indicators, and we find them to be dispositive.                      Direct  evidence  that  the  Sentencing  Commission            differentiates  between sexual  exploitation of  a minor  and            trafficking  in  materials  depicting  such  exploitation  is            provided by Amendment 372 to the Guidelines.   That amendment            inserted  a  new  guideline,    2G2.4,  to  address  offenses            involving the receipt or  possession of child pornography, as            distinguished  from  the trafficking  offenses  covered by               2G2.2.6   The  new guideline  contained, and  still contains,            cross references to both   2G2.1 and   2G2.2.  See U.S.S.G.                                                             ___            2G2.4(c)(1)-(2).  The Commission explained:                      Offenses     involving     receipt     or                      transportation of [child pornography] 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).   "That            guideline" referred to in  the quoted passage's last sentence            is    2G2.1;  the Commission  could not  have been  much more                                            ____________________            activity of sexual exploitation.            6.  Receipt  offenses are now covered by   2G2.2, and   2G2.4            applies only to possession offenses.                                         -12-                                          12            clear  in  distinguishing "trafficking"  offenses  from those            "more appropriately  addressed  as sexual  exploitation of  a            minor."    Yet, the  government  argues  that we  should  now            ascribe to the Commission an intention to include trafficking                                                      _______            offenses  within  the  meaning  of  sexual  exploitation  for            purposes  of    2G2.2(b)(4), even  though the  Commission has            clearly differentiated the  two on a  previous occasion.   We                    ______________            are  unable to find any clear evidence that the Commission in            drafting subsection  (b)(4)  intended to  abandon  its  prior            differentiation, and we therefore will not  ascribe to it any            such motive.                      Application note 5 to   2G2.2 delivers the defining            answer to the government's argument.  It states:                      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.            If  we  were  to  adopt the  government's  argument  that the            computer   transmission  of   child  pornography   is  sexual            exploitation, then the first sentence of this note would mean            that  a court may depart upward from the guideline sentencing            range  for the very same  act of "exploitation"  -- i.e., the                       ___________________________________                                         -13-                                          13            transmission of a photograph -- that  led to the conviction.7            The  Commission might  as well  draft a  sentencing guideline            applicable  to   bank  robberies,   and  then  state   in  an            application  note that "if the defendant robbed a bank at any            time, an upward departure may be warranted."  This is not how            the guidelines are meant to operate; departures are permitted            only  if "an  aggravating or  mitigating circumstance  exists            that  was  not adequately  taken  into  consideration by  the            Sentencing Commission in formulating the guidelines  and that            should result  in a sentence different  from that described."            18 U.S.C.   3553(b).   Yet the application note  says nothing            about an aggravating circumstance;  if trafficking is  sexual            exploitation, then trafficking alone, without any aggravating                                                  _______            circumstances, permits a judge to  depart upward.  This makes            no  sense:   An  offense  specifically  punishable under  the            guideline cannot at  the same time be  "an aggravating .  . .                                            ____________________            7.  The Commission  inserted the words "exploited  or" in the            first sentence of  application note  5 in 1991,  at the  same            time  it  added  subsection (b)(4)  to  the  guideline.   See                                                                      ___            U.S.S.G. App.  C., Amendment  435 (effective Nov.  27, 1991).            It did not amend the second clause of that sentence ("whether                   ___            or not  such sexual abuse . . . "),  nor did it insert in the                    _________________            following sentence a reference to the guideline applicable to            sexual  exploitation.   One might  argue that  the Commission            omitted  any  such  reference  intentionally,  intending  for            sexual exploitation to include  more crimes than those listed                                            ____            in    2G2.1.  We do not believe, however, that the Commission            intended  to open  the  door  for  departures  based  on  any                                                                      ___            activity   that   might   conceivably   be   labeled   sexual            exploitation; it had  something more specific  in mind.   Our            best estimate  of what "something more  specific" encompasses            is guided by the Commission's past usage of the term.                                         -14-                                          14            circumstance .  . . not adequately  taken into consideration"            by  the  Commission; indeed,  if  the  offense  may also,  by            itself,  warrant  an  upward  departure,  then  the guideline            serves  no useful  purpose.    Thus,  we must  conclude  that            "sexually  exploited," as  used in  application note  5 of               2G2.2  to warrant  an upward  departure, must  mean something                                                     ____            different than the substantive offenses punishable under that            guideline.                      The  government argues  that the  interpretation of            subsection (b)(4)  that we adopt will  render the pattern-of-            activity enhancement virtually useless, and that therefore we            should  breathe  life into  it  by  assigning it  some  other            meaning.  For example, a defendant convicted of a trafficking            offense, but whose offense  involved a pattern of production-            related  activity  sufficient  under  our  interpretation  to            warrant  the enhancement under  subsection (b)(4),  would, in            accordance  with the  cross  reference of    2G2.2(c)(1),  be            sentenced  under  the   guideline  applicable  to  production            offenses,     2G2.1,  if  his resulting  offense  level  were            greater than that  under    2G2.2.  Section  2G2.1 carries  a            base offense level of 25, compared to a base offense level of            just 15 under    2G2.2; the only way a  trafficker could ever            receive a higher  offense level  under   2G2.2  than under               2G2.1 would  be if  his offense involved  distribution (five-            level  increase;    2G2.2(b)(2))  and  the material  involved                                              ___                                         -15-                                          15            portrayed   sadistic   or  masochistic   conduct  (four-level            increase;    2G2.2(b)(3)),  and he  received  the  five-level            pattern-of-activity enhancement (bringing  his total  offense            level  to 29).  It  is unlikely, the  government argues, that            Congress intended the pattern-of-activity enhancement to have            such limited  applicability, and therefore we  should broaden            its  applicability by  construing  "sexual  exploitation"  to            include trafficking in child pornography.                      But  there may well  be activities  that constitute            sexual  exploitation,  as  used  in  subsection  (b)(4), that            neither  implicate the cross reference to   2G2.1 nor clearly            rise  to the  level  of sexual  abuse.8   And, in  any event,            while the  limited applicability of subsection  (b)(4) may be            troubling, it would be more troubling to interpret the phrase                                            ____________________            8.  To offer  but a single  example, imagine  a recipient  or            sender of  child  pornography  who,  in  the  course  of  his            activities, associates with teenagers who engage in "sexually            explicit  conduct"  as  defined  at 18  U.S.C.     2256(2)(E)            ("lascivious exhibition of the genitals or pubic  area of any            person"), but who neither has physical contact with them  nor            photographs  them.   This  offender should  not be  sentenced            under    2G2.1; nevertheless,  he has clearly  made "improper            use"  of the minors for his own sexual gratification:  he has            exploited them.                      The  enhancement also has  obvious applicability in            cases  involving sexual  abuse.   Section  2G2.2 contains  no            cross-reference  for a  defendant  whose trafficking  offense            also involved sexual abuse.  While application note 5 permits            a sentencing  judge to  depart upward in  such circumstances,            and directs his or her attention to the guidelines applicable            to sexual abuse in determining  the appropriate extent of any            departure,  subsection  (b)(4)  substantially  increases  the            sentence of a defendant  who has engaged in two  instances of            sexual abuse  without requiring an exercise  of discretion on                          _______            the part of the judge.                                         -16-                                          16            "sexual exploitation" in  a novel  manner solely  to give  it            wider applicability.    Moreover, the  government's  solution            would  result in  a subsection  that, on  its face,  enhances            punishment for  a  pattern-of-activity  of  sexual  abuse  or            exploitation,   but  that  in   practice  primarily  enhances            punishment  for  traffickers.     This  can  hardly  be  what            Congress, or the Commission,  intended when they included the            phrase  "sexual abuse  or exploitation."   Had  they intended            such a  result, they  would have listed  the trafficking-type            offenses.  Both Congress and the Commission had opportunities            to make clear  that they intended trafficking offenses  to be            included in "sexual  exploitation."  Neither chose  to do so.            Since  both Congress  and the  Commission have  distinguished            trafficking  from "sexual  exploitation" previously,  we will            not  now  construe  that  phrase  otherwise  merely  to  give            subsection (b)(4) wider applicability.                      Our  interpretation  of  subsection  (b)(4)  is  at            variance   with   the   only   previous   reported   decision            interpreting the provision.   In United States v.  Surratt, a                                             _____________     _______            district  court  suggested  in  dictum that  the  pattern  of            activity enhancement  might apply  to "a pattern  of ordering            child pornography through the mail."  867 F. Supp. 1317, 1320            (N.D. Ohio 1994).  We think this dictum is  simply wrong, for            all the reasons discussed above.                                         -17-                                          17                      Having decided that sexual exploitation, as used in            subsection (b)(4), does not include the computer transmission            of child pornography, we pause to consider whether the record            would allow us  to conclude that  the district court  applied            the  pattern-of-activity enhancement  based on  at  least two            instances of offense-related activity  other than the receipt                                                   _____            or  transmission of child pornography.  Were we able to reach            this  conclusion,  it  would  not be  necessary  to  consider            whether  the activity contemplated  by subsection (b)(4) must            in  fact   be  offense-related,  for   the  district  court's            consideration of other sexual  abuse or exploitation would be            harmless.  A careful review  of the record, however, provides            no basis for such a conclusion.  While Chapman, in the course            of  transmitting  photographs  to Dan,  boasted  of  sexually            abusing children  and discussed how  he and Dan  could commit            unspeakable  atrocities against a  young girl, the government            found no evidence that  Chapman actually committed or planned            to  commit such  acts.   Similarly, although  Chapman boasted            that the December 29 photograph depicted him engaging in anal            intercourse  with a young girl, the district court found that            that  photograph  did  not  even  depict  a  minor,  and  the            government  offered  no  other  evidence   that  Chapman  had            produced  any  child  pornography.   Thus,  while  there  was            considerable  evidence  that  Chapman had  transmitted  child            pornography   on  numerous  occasions,  and  had  engaged  in                                         -18-                                          18            detailed conversations about sexually abusing, and murdering,            young children, the record contains insufficient  evidence to            conclude,  even on  a  preponderance standard,  that  Chapman            actually sexually abused  or exploited minors  in conjunction            with  his trafficking offense (or even during the time he was            an AOL subscriber).   Consequently, we have no choice  but to            consider   whether  the   district  court   was  correct   in            considering  Chapman's past  activity in  applying subsection            (b)(4).9       While  we disagree  with  the Surratt  court's                                                         _______            dictum, we  fully endorse its holding  that subsection (b)(4)            is  inapplicable  to   past  sexual  abuse   or  exploitation            unrelated  to the offense of conviction.  See Surratt, 867 F.                                                      ___ _______            Supp.  at 1320.  In  Surratt, the defendant  was convicted on                                 _______            one count of  receiving child pornography in  violation of 18            U.S.C.   2252(a)(2); during a search of the defendant's home,            the  government discovered  other  videotapes  depicting  the            defendant sexually abusing his  own daughter.  Id.   Based on                                                           ___            this past  sexual abuse, the  government sought a  pattern of                                            ____________________            9.  The government does not strongly argue that past activity            should  be considered under  subsection (b)(4);  it maintains            instead that the district  court's consideration of Chapman's            previous activity  was "harmless error  if error at  all," in            light of  Chapman's multiple computer transmissions  of child            pornography.    However,  because  we  have  ruled  that  the            transmissions  themselves  do  not  constitute  instances  of            sexual  exploitation and  that the  record provides  no other            basis  on  which the  district court  could have  applied the            pattern-of-activity enhancement  for offense-related conduct,            we must consider whether  it was proper to look  to previous,            non-offense-related conduct.                                         -19-                                          19            activity enhancement under  subsection (b)(4).   The  Surratt                                                                  _______            court declined to apply the enhancement, stating:                      The   heading   of   subsection  (b)   is                      "Specific  Offense Characteristics."   In                      other  words,  enhancements  included  in                      subsection  (b)  are  available when,  as                                                             __                      part  of the  offense of  conviction, the                      ____________________________________                      defendant  undertakes the  actions listed                      therein.                           The    government     argues    that                      subsection   (b)(4)  is   different  from                      subsections  (b)(1),   (b)(2)  or  (b)(3)                      because  it  does  not  begin   with  the                      language "If the offense  involved . .  .                      ."   This  argument is  unavailing.   The                      government appears to be  suggesting that                      if the  defendant ever engaged  in such a                                        ____                      pattern of  behavior, whether as  part of                      the  charged offense  or at  a completely                      different   time  or   place,  subsection                      (b)(4) should  apply.  This  Court cannot                      agree.  If the Sentencing  Commission had                      not   intended   for   the  language   of                      subsection (b)(4)  to be applied  only to                      the specific offense of  conviction, that                      language   would   not  be   included  in                      subsection   (b),    entitled   "Specific                      Offense Characteristics."  The government                      has pointed to no persuasive authority to                      convince the Court that "specific offense                      characteristic" means anything other than                      characteristics  specific to  the offense                      of conviction.            Id. (emphasis added).            ___                      We agree  with this  reasoning.  If  the Commission            intended  for  subsection (b)(4)  to  apply  to any  previous                                                            ___            sexual abuse or exploitation, while at the same time  placing            the  provision under  "Specific Offense  Characteristics," we            would expect that it would have taken efforts to resolve this            glaring  contradiction.   It  clearly  knew  how  to  do  so:                                         -20-                                          20            Application  Note  5 states  in  no uncertain  terms  that an            upward  departure is  warranted  for any  instance of  sexual            exploitation  or  abuse "whether  or  not  such sexual  abuse            occurred during  the course of the offense."10   Cf. U.S.S.G.                                                             ___              2L1.2(1)-(2) (stating clearly that defendant's base offense            level  must  be  increased   if  defendant  "previously"  was            deported after  conviction for felony or  aggravated felony).            The  absence  of  similar  language   in  subsection  (b)(4),            combined  with the  fact  that the  subsection is  classified            under  the  rubric  of  "Specific  Offense  Characteristics,"            compels the conclusion that the application of the subsection            does  require that  the  pattern of  activity  relate to  the            ____            offense of conviction.                                         III.                                         III.                                         ____                      For  all  the  foregoing  reasons,  we  vacate  the                                                              vacate  the                                                              ___________            sentence and remand for resentencing.            sentence and remand for resentencing.            _____________________________________                                            ____________________            10.  The district  court could have invoked  this application            note and  departed upward based on  Chapman's previous sexual            abuse of minors.                                         -21-                                          21
