                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0251p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 04-6191
         v.
                                                    ,
                                                     >
 DONALD RAY WILLIAMS,                               -
                           Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                  for the Western District of Tennessee at Memphis.
                  No. 04-20074—Bernice B. Donald, District Judge.
                                            Argued: May 17, 2005
                                     Decided and Filed: June 9, 2005
            Before: KENNEDY and COOK, Circuit Judges; VARLAN, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Doris A. Randle-Holt, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Dan L. Newsom,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF:
Doris A. Randle-Holt, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Dan L. Newsom, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
       KENNEDY, Circuit Judge. Defendant Donald Ray Williams appeals from the sentence he
received upon his guilty plea to violations of Title 18 U.S.C. § 2252 (specifically § 2252(a)(2) and
§ 2252(a)(4)(B), which outlaw the knowing receipt or distribution of child pornography and the
knowing possession of child pornography, respectively). Because the district court used the
incorrect Sentencing Guideline, we remand this case to the district court for resentencing.




        *
         The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                         1
No. 04-6191               United States v. Williams                                                           Page 2


                                                BACKGROUND
        Defendant plead guilty to two violations of Title 18 U.S.C. § 2252 pursuant to a valid plea
agreement. Defendant’s presentence report indicated that some of the images found in his
possession were images of prepubescent children. Additionally, some of the images depicted scenes
of rape and/or incest. Defendant’s only requested modification to his presentence report was that
the court add an affidavit by Defendant indicating his acceptance of responsibility for his crimes.
After making Defendant’s requested modification, the district court adopted the findings of the
presentence report.
        At Defendant’s sentencing, the district court used U.S. SENTENCING GUIDELINES MANUAL
(U.S.S.G.) § 2G2.2, (2001) (amended Nov. 2004) which addresses the transmission of child
pornography, rather than U.S.S.G. § 2G2.4 (2001) (amended Nov. 2004), which addresses the
possession of child pornography, in determining the appropriate Guideline range based on its
reading of Sixth Circuit precedent. The district court applied a two level enhancement because some
of the images portrayed prepubescent minors pursuant to U.S.S.G. § 2G2.2(b)(1) (2001) (amended
Nov. 2004), and a four level enhancement because some of the images portrayed “sadistic or
masochistic conduct,” pursuant to U.S.S.G. § 2G2.2(b)(3) (2001) (amended Nov. 2004), without
objection by Defendant. The district court also enhanced Defendant’s sentence by two levels, over
Defendant’s objection, under U.S.S.G. § 2G2.2(b)(5) (2001) (amended Nov. 2004), for the use of
a computer in his offense. Id. at 30-32 The district court gave Defendant a three level reduction for
acceptance of responsibility.
        On appeal, Defendant first objects to the district court’s use of the then mandatory
Guidelines in sentencing him, citing Blakely v. Washington, 124 S.Ct. 2531 (2004) (at the time of
his appeal, the Supreme Court had not yet decided United States v. Booker, 543 U.S. ___, 125 S.Ct.
738 (2005). Second, Defendant objects to the district court’s use of U.S.S.G. § 2G2.2 (2001)
(amended Nov. 2004), rather than U.S.S.G. § 2G2.4 (2001) (amended Nov. 2004), because he
believes that U.S.S.G. § 2G2.4 is the more appropriate Guideline for his conviction. Finally,
Defendant challenges the district court’s two level enhancement under U.S.S.G. § 2G2.2(b)(5)
(2001) (amended Nov. 2004).
                                                   ANALYSIS
        A district court’s interpretation of the Sentencing Guidelines is subject to de novo review.
United States v. Campbell, 317 F.3d 597, 604 (6th Cir. 2003). In U.S. v. Farrelley, 389 F.3d 649,
657-61 (6th Cir. 2004), this court determined that in cases where a defendant only possesses child
pornography, but does not transmit it, district courts must use U.S.S.G. § 2G2.4, rather than U.S.S.G.
§ 2G2.2. In this case, Defendant possessed rather than transmitted child pornography. Thus, under
our ruling in Farrelley, the district court applied the wrong Guideline when it sentenced Defendant.
        Because Defendant was sentenced under an earlier version of the Guidelines, and because
the Guidelines relevant to Defendant’s sentence have changed,1 we must determine which version
of the Guidelines the district court should use on remand. The Supreme Court’s decision in Booker
somewhat complicates our inquiry. Although Booker excised 18 U.S.C. § 3742(e) in its remedy
opinion, it left 18 U.S.C. § 3742(f) and (g) intact. Title 18 U.S.C. § 3742(f) indicates that “[i]f the
court of appeals determines that . . . the sentence was imposed in violation of law or imposed as a


         1
          In the November 2004 version of the Guidelines, the Sentencing Commission deleted U.S.S.G. § 2G2.4 and
determined that all people who are convicted of either possessing or transmitting child pornography should be sentenced
under U.S.S.G. § 2G2.2. This change makes the portion of Farrelley that deals with U.S.S.G. § 2G2.4 moot for future
child pornography sentences.
No. 04-6191              United States v. Williams                                                          Page 3


result of an incorrect application of the sentencing guidelines, the court shall remand the case for
further sentencing proceedings . . . ” and 18 U.S.C. § 3742(g) indicates that:
        [a] district court to which a case is remanded [pursuant to § 3742(f)] shall resentence
        a defendant in accordance with section 3553 . . . except that . . . [i]n determining the
        range referred to in subsection 3553(a)(4), the court shall apply the guidelines issued
        by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United
        States Code, and that were in effect on the date of the previous sentencing of the
        defendant prior to the appeal . . . .
        Although Congress plainly wrote this statute under the belief that the Guidelines were
mandatory, see Booker, 125 S.Ct. at 791, n.6 (2005) (Scalia, J., dissenting), the remedial majority
did not excise 18 U.S.C. § 3742(f) or (g), and both remain valid law. We must, therefore, endeavor
to apply those sections while taking Booker into account. We believe that the most appropriate post-
Booker understanding of these sections is to require the district court, upon remand, to consult the
2001 version of the Guidelines, the same Guidelines under which the district court originally
sentenced Defendant, in calculating Defendant’s Guideline range.
       Of course, Booker, 125 S. Ct. at 764, made the Guidelines advisory. Therefore, the
Guideline range that results from the use of U.S.S.G. § 2G2.4 (2001) (amended Nov. 2004) on
resentencing is an advisory range. We make no finding at this time as to the reasonableness of a
sentence outside (either above or below) the range suggested by the 2001 version of the Guidelines.
        Booker did not eliminate judicial fact-finding in sentencing in cases where a defendant plead
guilty. Instead, it merely gave district courts the option to sentence a defendant differently than the
Guidelines would require after calculating the Guideline range. Id. at 764, 769. District courts still
must consult the Guidelines in determining an appropriate sentence. Id. Both U.S.S.G. §§ 2G2.2
(2001) (amended Nov. 2004) and 2G2.4 (2001) (amended Nov. 2004) contain a two level
enhancement for images portraying prepubescent children. Defendant’s guilty plea and his
acceptance of the findings of the presentence report eliminate any concerns over judicial fact-finding
with respect to this enhancement. See United States v. Stafford, 258 F.3d 465, 475-76 (6th Cir.
2001); U.S. v. Harris, No. 04-1589, 2005 WL 894581at *2 (6th Cir. April 19, 2005) (unpublished).
        Both Guidelines also include a two level enhancement if a computer is used in the offense.
Compare U.S.S.G. § 2G2.2(b)(5) and U.S.S.G. § 2G2.4(b)(3). We, therefore, reject Defendant’s
argument that the district court improperly enhanced his sentence by two levels for the use of a
computer, because although the district court should have applied the enhancement pursuant to
U.S.S.G. § 2G2.4 (2001) (amended Nov. 2004), this error was harmless. As the indictment and the
presentence report make clear, Defendant indisputably used a computer in the commission of his
offenses. The only way that he could view the material was through the use of a computer. Thus,
the district court, in calculating the appropriate Guideline range, may still apply these2enhancements
pursuant to the appropriate Guideline in calculating Defendant’s Guideline range. It must then
sentence Defendant consistent with the Supreme Court’s decision in Booker and with this court’s
precedent interpreting Booker.



        2
            U.S.S.G. § 2G2.2 (2001) (amended Nov. 2004) contains a four level enhancement for images portraying
sadistic or masochistic conduct, while U.S.S.G. § 2G2.4 (2001) (amended Nov. 2004) does not include this enhancement.
The district court, then, should not apply this enhancement when it calculates Defendant’s Guideline range. We note,
however, that in 2003, the Sentencing Commission added a four level enhancement for child pornography depicting
sadistic or masochistic conduct to U.S.S.G. § 2G2.4. We make no finding as to whether an upward departure from the
Guideline range would be permissible or reasonable based on the images possessed by Defendant, given that some of
those images depicted scenes of rape and incest as described by the presentence report.
No. 04-6191       United States v. Williams                              Page 4


                                    CONCLUSION
      For the foregoing reasons, we REMAND this case for resentencing.
