                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 13 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-6235
                                                    (D.C. No. CR-96-129-L)
    JAMES S. ANDERSON,                                    (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      James A. Anderson was convicted of conspiring to receive and distribute

child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); transporting

child pornography in interstate commerce via delivery service in violation of

§ 2252(a)(1); and electronically transporting child pornography in interstate

commerce in violation of § 2252(a)(1). The district court sentenced him to

104 months and to a three-year term of supervised release on each count, to be

served concurrently. The district court also ordered him to pay $60,000 in

restitution to an exploited child’s family and imposed $300.00 in special

assessments. Mr. Anderson appeals from that part of his sentence that was

enhanced based on relevant conduct of one of his co-conspirators. We affirm.


                                          I.

      The facts are undisputed. Mr. Anderson was a member of a nationwide

group called the Orchid Club, the purpose of which was to exchange new and rare

child pornography, including private pictures produced by group members with

access to children. Mr. Anderson participated in an online chat room discussion

in February 1996 when Ronald Riva, one of the members, announced that Ashley,

his daughter’s ten-year-old friend, was spending the night at his house. He stated

that she had volunteered to participate in a sexual video but that he did not have a

camera at that time. Before he left the chat room, Mr. Anderson stated, “I didn’t

want to miss Ashley.” R. Vol. 6, at 611 (quoting Ex. 59 at 8). In March 1996,

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Mr. Anderson was again online when Mr. Riva stated that Ashley would again be

spending the night and that he was excited about it. On April 2, 1996, Riva

sexually molested Ashley, recording it by video live and on-line for club

members’ benefit. While Mr. Anderson was not on-line the night the video was

created and transmitted, he later received still pictures of Ashley’s molestation

that he stored on a private drive with the files labeled “Ash 1” through “Ash 9.”

Id. at 621.

       After conviction, the United States proposed calculating Mr. Anderson’s

base offense level using USSG § 2G2.1 because Mr. Anderson’s offense of

conviction involved causing a minor to engage in sexually explicit conduct for the

purpose of producing a visual depiction of that conduct. Even though

Mr. Anderson had not himself physically engaged in the child’s sexual

exploitation, under the Guidelines he could be held accountable for Mr. Riva’s

conduct if it was a “reasonably foreseeable act . . . of [another] in furtherance of

the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). The district

court agreed, noting that it could consider “any explicit agreement or implicit

agreement fairly inferred from the conduct of the defendant and others.”

R. Vol. 1, Doc. 168 at 8 (quoting § 1B1.3(a) cmt.2).

       The court noted that the government had proved that: “[Mr. Anderson] had

notice of [the molestation] prior to its occurrence” and that he “received a still


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picture [of the child] after the incident.”    Id. at 9. The court further cited the trial

exhibits and testimony presented at the sentencing hearing that specifically

demonstrated Mr. Anderson’s knowledge of Mr. Riva’s intended conduct and the

purpose of the Orchid Club. The court stated,

       Based on the government’s proffer of evidence at the sentencing
       hearing and the exhibits that were admitted, the court finds that use
       of the cross-reference [to U.S.S. G. § 1B1.3(a)] is warranted. The
       conduct of defendant’s co-conspirators was reasonably foreseeable
       given the purpose of the Orchid Club and the on-line conversations
       that occurred regarding this conduct.  See Government’s Exhibit 59
       at 7-8; Government’s Exhibit 60 at 171-72, 176. Furthermore, given
       the purpose of the Orchid Club, such conduct was also in furtherance
       of the jointly undertaken activity.

Id.

                                              II.

       On appeal, Mr. Anderson raises a single legal issue: whether the

above-described statements of the district court constitute sufficient factual

findings to support its conclusion that Riva’s conduct was foreseeable to

Mr. Anderson. Mr. Anderson asserts that the court’s statements were only legal

conclusions and that “[t]here were no factual findings . . . of what conduct the

defendant engaged in to make the acts of the Orchid Club foreseeable to him.”

Appellant’s Br. at 5.

       We review questions of law regarding the application of the sentencing

guidelines de novo.     United States v. Tagore , 158 F.3d 1124, 1127 (10th Cir.


                                              -4-
1998). When basing an offense level upon the conduct of co-conspirators,

“[p]roper attribution at sentencing requires the district court to analyze, and make

‘particularized findings’ about, the scope of the specific agreement the individual

defendant joined in relation to the conspiracy as a whole.”      United States v.

Melton , 131 F.3d 1400, 1404 (10th Cir. 1997) (citing      United States v. Thomas ,

114 F.3d 228, 324 (D.C. Cir. 1997)). “[E]ven a ‘brief’ finding can be sufficient

if, when viewed in context, it is more than simply a generalized or conclusory

finding that [the defendant] was involved in the conspiracy.”      Thomas , 114 F.3d

at 255 (quotation omitted) (alteration in original)     (disagreed with on other

grounds in United States v. Delatorre     , 157 F.3d 1205 (10th Cir. 1998)).

       We read the court’s statement that it “[b]ased” its legal conclusions on the

government’s proffered evidence as indicative that the court adopted the

government’s position and found that (1) Mr. Anderson “had notice of [Rivas’

intent to molest and exploit Ashely] prior to its occurrence” and (2) he had

“received a still picture of [Ashley] after the incident.” R. Vol. 1, Doc. 168 at 9.

Reading these findings in context with the court’s reference to specific exhibits

and testimony establishing Mr. Anderson’s individual knowledge and conduct

regarding Ashley’s molestation and exploitation, we hold that the district court

made sufficiently particularized findings to support its conclusion.




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     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED .



                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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