                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 08-30180
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          3:06-cr-00018-KI
DAVID LEE OLANDER,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
                for the District of Oregon
         Garr M. King, District Judge, Presiding

                  Argued and Submitted
              May 5, 2009—Portland, Oregon

                    Filed July 15, 2009

      Before: William A. Fletcher, Carlos T. Bea and
              Sandra S. Ikuta, Circuit Judges.

          Opinion by Judge William A. Fletcher




                           8975
                  UNITED STATES v. OLANDER                8977




                         COUNSEL

Amy Baggio, FEDERAL PUBLIC DEFENDER’S OFFICE,
Portland, Oregon, for the appellant.

Greg Nylus, Michelle Holman Kerin, OFFICE OF THE
UNITED STATES ATTORNEY, Portland, Oregon, for the
appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

   David Lee Olander appeals the district court’s denial of his
motion to dismiss the charge against him for receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He
argues that the sentencing scheme in § 2252A(b) and the leg-
islative histories of the Protection of Children Against Sexual
Exploitation Act of 1977; the Child Protection Act of 1984;
the Child Protection Restoration and Penalties Enhancement
Act of 1990; and the Child Pornography Prevention Act of
1996 indicate that the crime of receiving child pornography
includes among its elements an intent to barter, trade, or gift
(hereinafter “intent to distribute”). The government did not
allege that Olander had an intent to distribute. Olander argues
that the charge against him must therefore be dismissed. We
8978               UNITED STATES v. OLANDER
hold that the crime of receiving child pornography codified at
18 U.S.C. § 2252A(a)(2)(A) does not include intent to distrib-
ute among its elements. We affirm the district court’s denial
of Olander’s motion to dismiss the charge against him.

                        I.   Background

   Olander was indicted for knowingly receiving computer
images of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(A) and (b)(1), and knowingly possessing
images of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). Olander moved to dismiss the
receiving charge, contending that “receiv[ing]” child pornog-
raphy under § 2252A(a)(2)(A) requires an intent to distribute
the pornography that has been received. The indictment did
not charge that Olander had an intent to distribute.

   The district court denied Olander’s motion. It stated that he
had made “compelling arguments” but that those arguments
were foreclosed by United States v. Mohrbacher, 182 F.3d
1041 (9th Cir. 1999), United States v. Romm, 455 F.3d 990
(9th Cir. 2006), and United States v. Kuchinski, 469 F.3d 853
(9th Cir. 2006).

   Olander then pled guilty to both charges in the indictment.
The receiving charge carried a mandatory minimum sentence
of five years. 18 U.S.C. § 2252A(b)(1). The possession charge
did not have a mandatory minimum sentence. Id.
§ 2252A(b)(2). The district court sentenced Olander to five
years in prison for each count, to be served concurrently.

   Under the terms of his plea agreement, Olander reserved
the right to appeal the district court’s denial of his motion to
dismiss the receiving charge. That appeal is now before us.

                  II.    Standard of Review

   We review de novo a district court’s decision whether to
dismiss a charge in an indictment based on its interpretation
                   UNITED STATES v. OLANDER                8979
of a federal statute. United States v. Gorman, 314 F.3d 1105,
1110 (9th Cir. 2002). “Questions of statutory interpretation
are reviewed de novo.” United States v. Youssef, 547 F.3d
1090, 1093 (9th Cir. 2008).

                       III.   Discussion

   The issue in this case is whether the crime of receiving
child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A)
includes among its elements an intent to distribute the pornog-
raphy. If receiving child pornography requires an intent to dis-
tribute, then the charge against Olander must be dismissed
because the indictment did not allege that he had such an
intent.

   A handful of Ninth Circuit opinions have addressed the
crime      of    receiving     child    pornography      under
§ 2252A(a)(2)(A). In Mohrbacher, the defendant had down-
loaded from the internet, and saved to his computer, images
of child pornography. 182 F.3d at 1044. He was convicted of
receiving child pornography in violation of § 2252A(a)(2)(A)
and of transporting child pornography in violation of
§ 2252(a)(1). Id. at 1044-46. On appeal, he conceded that
downloading amounted to receiving child pornography, but he
argued that receiving via an internet download did not amount
to transporting. Id. at 1047. We agreed, stating that a “cus-
tomer who is simply on the receiving end” of computer
images showing child pornography “is guilty of receiving or
possessing such materials under § 2252(a)(2) but not of ship-
ping or transporting them.” Id. at 1050. We also stated that an
“individual who downloads material takes possession or
accepts delivery of the visual image; he has therefore cer-
tainly received it.” Id. at 1048.

  In Romm, a search of the defendant’s computer revealed
about forty images of child pornography that he had viewed
online, enlarged on his screen, and then deleted. 455 F.3d at
993-96. Romm was convicted of receiving child pornography
8980              UNITED STATES v. OLANDER
in violation of § 2252A(a)(2) and possessing child pornogra-
phy in violation of § 2252A(a)(5)(B). Id. at 993. On appeal,
he argued that there was insufficient evidence that his “view-
ing” of the images amounted to receiving or possessing. Id. at
997-98. We stated that “a person can receive and possess
child pornography without downloading it, if he or she seeks
it out and exercises dominion and control over it.” Id. at 998.
We reasoned that “[s]ince Romm knowingly possessed the
files in the internet cache, it follows that he also knowingly
received them.” Id. at 1001 (citing § 2252A(a)(2)). We
referred to Mohrbacher, stating that in that case “we held that
downloading child pornography constitutes both the act of
possession and receipt.” Id. at 1002 (citing Mohrbacher, 182
F.3d at 1048). We upheld Romm’s conviction. Id.

   In Kuchinski, the FBI recovered over 15,000 images of
child pornography from the defendant’s computer. 469 F.3d
at 856. Kuchinski was charged with receiving child pornogra-
phy in violation of § 2252A(a)(2), and with possessing child
pornography in violation of § 2252A(a)(5)(B). Id. He pled
guilty to the possession charge and, following a bench trial,
was found guilty on the receiving charge. Id. at 856-57. On
appeal, he argued that the prosecution for receiving child por-
nography subjected him to double jeopardy because possess-
ing child pornography is a lesser included offense of
receiving. Id. at 859. The court noted that the argument had
“plausibility” and cited Mohrbacher fo0r the proposition that
“receiving materials is taking possession of them.” Id. at 859
& n.7. However, we did not decide that question. See id. at
859-60.

   The question we avoided in Kuchinski arose again in
United States v. Davenport, 519 F.3d 940 (9th Cir. 2008). The
defendant had been caught with images and videos of child
pornography on his computer. Id. at 942. He pled guilty to
receiving child pornography in violation of § 2252A(a)(2) and
to possessing child pornography in violation of
§ 2252A(a)(5)(B). Id. On appeal, he argued that he could not
                  UNITED STATES v. OLANDER                8981
be convicted of both crimes because possession is a lesser
included offense of receipt. Id. at 943. We agreed. Id. at 947.
We stated that “nowhere in its congressional findings does
Congress explicitly frame receipt and possession as two dis-
tinct harms,” and that a “plausible interpretation of Con-
gress’s findings is that the harms Congress identified emanate
from the general existence of child pornography, and relate
simultaneously to both receipt and possession of those illicit
materials.” Id. at 946.

   Olander argues that in none of these opinions did we hold
that the crime of receiving child pornography is complete
upon receipt of the pornography with no showing that the
recipient intended to distribute it. To the extent that these
opinions spoke to the issue, they did so only in dicta.
Olander’s argument has some plausibility. The precise issue
in Mohrbacher was “whether downloading” child pornogra-
phy “constitutes shipping or transporting within the meaning
of the terms used in 18 U.S.C. § 2252A(a)(1).” 182 F.3d at
1047. The defendant conceded that he was guilty of receiving
child pornography under § 2252A(a)(2)(A), and we did not
analyze that crime’s elements. See generally id. Likewise, the
question in Romm was whether sufficient evidence supported
the defendant’s conviction for receiving child pornography
under § 2252A(a)(2)(A). 455 F.3d at 997-98. Again, we did
not explicitly examine that crime’s elements. See id. at 997-
98, 1001-02. In Kuchinski, we referred to Mohrbacher only in
an unnecessary footnote. 469 F.3d at 859 n.7. Likewise, any
statement in Davenport was not essential to our holding. See
Davenport, 519 F.3d 946.

   Assuming arguendo that these cases do not control our
decision in the case before us, we analyze § 2252A(a)(2)(A)
afresh. “The starting point for our interpretation of a statute
is always its language.” Tahara v. Matson Terminals, Inc.,
511 F.3d 950, 953 (9th Cir. 2007) (internal citations omitted).
We must consider “the language itself, the specific context in
which that language is used, and the broader context of the
8982              UNITED STATES v. OLANDER
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997). “If necessary to discern Congress’s intent, we
may read statutory terms in light of the purpose of the stat-
ute.” Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1060 (9th Cir. 2003) (en banc). “We will resort to legis-
lative history, even where the plain language is unambiguous,
‘where the legislative history clearly indicates that Congress
meant something other than what it said.’ ” Carson Harbor
Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001)
(quoting Perlman v. Catapult Entm’t, Inc., 165 F.3d 747, 753
(9th Cir. 1999).

  Section 2252A provides in pertinent part:

    (a) Any person who—

         (1) knowingly mails, or transports or ships
         . . . including by computer, any child por-
         nography;

         (2) knowingly receives or distributes—

           (A) any child pornography that has been
           mailed, or using any means or facility of
           interstate or foreign commerce shipped
           or transported in or affecting interstate or
           foreign commerce by any means, includ-
           ing by computer; or

           B) any material that contains child por-
           nography that has been . . . transported
           . . . by any means, including by com-
           puter;

         (3) knowingly—

           (A) reproduces any child pornography
           for distribution . . . ; or
                   UNITED STATES v. OLANDER                 8983
           (B) advertises, promotes, presents, dis-
           tributes, or solicits . . . any [child pornog-
           raphy];

         (4) either—

           (A) [omitted]

           B) knowingly sells or possesses with the
           intent to sell any child pornography
           ...;

         (5) either—

           (A) [omitted]

           (B) knowingly possesses [child pornog-
           raphy];

         (6) knowingly distributes . . . to a minor
         [child pornography] . . . . or;

         (7) knowingly produces with intent to dis-
         tribute, or distributes . . . child pornography
         that is an adapted or modified depiction of
         an identifiable minor.

    shall be punished as provided in subsection (b).

   [1] The plain language of § 2252A(a)(2)(A) is inconsistent
with Olander’s argument. The text simply provides that
“knowingly receiv[ing] . . . any child pornography” is prohib-
ited. There is no indication from this text, considered alone,
that the crime of receiving child pornography includes among
its elements an intent to distribute the pornography.

   [2] Congress first made receiving child pornography a fed-
eral crime when it passed the Protection of Children Against
8984               UNITED STATES v. OLANDER
Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat.
7. Congress most recently addressed the receipt of child por-
nography when it passed the Child Pornography Prevention
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996). The
directly relevant language of the 1996 Act is codified at
§ 2252A(a)(2)(A). The first definition of “receive” in the edi-
tion of Webster’s New International Dictionary current in
1996 is “to take possession or delivery of.” Webster’s New
Int’l Dictionary 1894 (3d ed. 1976). The edition of Black’s
Law Dictionary current in 1996 defined “receive” as “take
into possession and control; accept custody of; collect.”
Black’s Law Dictionary 1268 (6th ed. 1990). In Mohrbacher,
the court looked to the then- and still-current edition of the
Oxford English Dictionary, which defined “receiving” as
“tak[ing] into one’s hand, or into one’s possession (something
held out or offered by another); to take delivery of (a thing)
from another, either for oneself or for a third party.” 182 F.3d
at 1048 (citing Oxford English Dictionary 314 (2d ed. 1989)).
None of these definitions, or any others in these dictionaries,
suggests that “receive” incorporates an intent to distribute.

   [3] The broader textual context in which § 2252A(a)(2)(A)
appears does nothing to support Olander’s argument.
Throughout § 2252A(a), Congress has explicitly indicated
when it wants to include intent to distribute as an element of
the crime. For example, § 2252A(a)(3) punishes reproducing
child pornography “for distribution.” Section 2252A(a)(4)
punishes possessing child pornography “with the intent to
sell.” Section 2252A(a)(6) prohibits “knowingly distribut[-
ing]” child pornography to a minor. Section 2252A(a)(2)(A),
the provision under which Olander was charged, contains no
such language. “[W]here Congress includes particular lan-
guage in one section of a statute but omits it in another . . . ,
it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello v.
United States, 464 U.S. 16, 23 (1983) (internal quotation
marks omitted).
                   UNITED STATES v. OLANDER                 8985
   [4] However, Olander does make a plausible contextual
argument based on the sentencing scheme for violations of
§ 2252A(a). Violations of § 2252A(a)(1), (2), (3), (4), and (6)
carry a mandatory minimum sentence of 5 years and a maxi-
mum sentence of 20 years. 18 U.S.C. § 2252A(b)(1). Viola-
tions of § 2252A(a)(5) do not carry a mandatory minimum
sentence and have a maximum sentence of 10 years. Id.
§ 2252A(b)(2). Olander contends that subsections (1), (2), (3),
(4), and (6) carry more severe sentences because they involve
distribution of child pornography, whereas subsection (5)
involves only possession. Distribution is a more serious
offense than possession, and subsections (1), (2), (3), (4), and
(6) reflect this by punishing distribution more severely.
Olander argues that he could not have been convicted and
punished under subsection (2) without an intent to distribute.

   There is little to distinguish possession from receipt. If one
receives child pornography, one necessarily possesses it, at
least for a short time. Consequently, it is hard to see why a
defendant deserves greater punishment for having received
pornography than for possessing it. Indeed, in many cases, the
relative culpability may be higher for possession, given that
a defendant can destroy or discard the pornography, thereby
ceasing to possess it, while no action can erase the fact of the
receipt that led to the possession. This makes possession will-
ful in a way that receipt may not always be.

   However, Congress could have concluded that knowing
receipt of child pornography should be punished more
severely than mere possession because not all cases of posses-
sion require receipt. For example, the creator of child pornog-
raphy will not have received it. See United States v.
Davenport, 519 F.3d 940, 944 (9th Cir. 2008). Congress could
have decided to punish mere receipt (with or without intent to
distribute) more severely than possession in order to deter
those who receive child pornography from others and who
thereby create demand and drive the market for child pornog-
raphy.
8986               UNITED STATES v. OLANDER
   Olander contends that the more severe punishment for
receipt under § 2252A(a)(2)(A) than for possession under
§ 2252A(a)(5) is due to a mistake in drafting. Congress first
made receiving child pornography a federal crime when it
passed the Protection of Children Against Sexual Exploitation
Act of 1977. That act criminalized “receiv[ing child pornogra-
phy] for the purpose of sale or distribution for sale.” 92 Stat.
8 (emphasis added). Congress subsequently passed the Child
Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204,
which removed the italicized language. 98 Stat. 204-05. This
was done in part because “ ‘[e]xperience revealed that much
if not most child pornography material is distributed through
an underground network of pedophiles who exchange the
material on a non-commercial basis, and thus no sale is
involved.’ ” United States v. Adams, 343 F.3d 1024, 1031 n.6
(9th Cir. 2003) (quoting H.R. Rep. 99-910 at 4 (1986),
reprinted in 1986 U.S.C.C.A.N. 59).

   Olander argues that Congress in 1984 did not intend to
eliminate the intent-to-distribute requirement previously asso-
ciated with the crime of receiving child pornography. Rather,
Congress intended merely to remove the requirement that the
distribution be for commercial purposes. That is, Congress
intended to amend the statute to provide for a severe punish-
ment for distribution and receipt with intent to distribute,
whether or not the distribution or intended distribution was
for commercial purposes.

   Olander also points to the legislative history of the Child
Protection Restoration and Penalties Enhancement Act of
1990, Pub. L. No. 101-647, 104 Stat. 4789. This Act was
passed after the 1984 Act that adopted the current text of
§ 2252A(a)(2)(A), whose meaning we are trying to discern.
The 1990 Act for the first time made mere possession of child
pornography a crime. See Adams, 343 F.3d at 1031. Senator
Strom Thurmond introduced the legislation, stating, “those
who simply possess or view” child pornography “are not cov-
ered by current law,” which addresses only transporting, dis-
                   UNITED STATES v. OLANDER                  8987
tributing, receiving, or reproducing child pornography. 136
Cong. Rec. S7701, S7783 (Apr. 20, 1990). Olander relies on
Senator Thurmond’s statement to argue that possession with-
out intent to distribute was not a crime prior to 1990, and that
the 1984 Act, which made receipt a crime, could have presup-
posed that the receipt included an intent to distribute.

   [5] It is possible that the text of § 2252A(a)(2)(A), which
penalizes mere receipt of child pornography as severely as
distribution and attempted distribution, is the result of a draft-
ing mistake. But as written, the text of § 2252A(a)(2)(A) is
clear: receipt of child pornography, with or without an intent
to distribute, is a crime. We are not in a position to rewrite
§ 2252A(a)(2)(A) so that it accords with what Congress might
have intended.

                          Conclusion

   [6] For the foregoing reasons, we hold that the crime of
receiving child pornography codified at 18 U.S.C.
§ 2252A(a)(2)(A) does not include intent to distribute among
its elements. We affirm the district court’s denial of Olander’s
motion to dismiss the charge against him.

  AFFIRMED.
