                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 01-4236
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                             v.

DAVID SROMALSKI,
                                       Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
               for the Western District of Wisconsin.
        No. 00 CR 0011—Barbara B. Crabb, Chief Judge.
                       ____________
    ARGUED MAY 13, 2002—DECIDED FEBRUARY 7, 2003
                    ____________


 Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. Like a distressing num-
ber of others, David Sromalski kept images portraying
child pornography on his computer. Authorities caught on
to his activities, and in time Sromalski was prosecuted on
a two-count information charging him with possessing
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)
and seeking forfeiture of his computer and related ma-
terials, pursuant to 18 U.S.C. § 2252. Sromalski pleaded
guilty to the charges; his challenge on appeal relates solely
to the sentence he received. The presentencing report (PSR)
prepared after his plea recommended the application of
a Sentencing Guidelines cross-reference from U.S.S.G.
2                                               No. 01-4236

§ 2G2.4(c)(2) to § 2G2.2, a more severe offense category. The
district court accepted this recommendation, at least in
part because it found that Sromalski’s relevant conduct
included a separate event of receipt and possession of
child pornography that was not charged in the informa-
tion. Sromalski contends that the district court erred in
applying the cross-reference to his sentence because the
prior conduct should not have been factored into his
sentence. While the Government concedes that the move
from § 2G2.4 to § 2G2.2 was not warranted by the rele-
vant conduct, it suggests that it was otherwise appropri-
ate and urges affirmance on an alternative ground. For
the reasons stated in this opinion, we vacate the sen-
tence imposed and remand for resentencing.


                             I
  During a major bust of a large computer server in Texas,
which appears to have been dedicated to facilitating
the sharing of pornographic materials, evidence emerged
that Sromalski was one of the users of the server’s Napster-
like services. (Napster was an Internet company that
permitted users to trade files directly; it has now gone
out of business because of the copyright implications of
that practice. See A&M Records, Inc. v. Napster, Inc., 239
F.3d 1004, 1011 (9th Cir. 2001).) The Texas computer
records showed that on March 5, 1999, Sromalski trans-
mitted to other computers (uploaded) seven images of
child pornography and received from others (downloaded)
28 such images.
  Based on the information gathered in Texas, customs
agents searched Sromalski’s residence on February 2,
2000. There they found some 300 images of child pornog-
raphy on his computer. Sromalski admitted to the agents
that he had downloaded the images from various sources
on the Internet.
No. 01-4236                                              3

  Even though Sromalski could have been charged with
receipt of child pornography, which is prohibited by 18
U.S.C. § 2252A(a)(2), the information filed against him
(after an original indictment was dismissed on the Gov-
ernment’s motion) charged only a violation of 18 U.S.C.
§ 2252A(a)(5), which prohibits knowingly possessing child
pornography that has traveled through interstate com-
merce, including by computer. The information made
no reference to any trafficking activities in which Sromal-
ski may have engaged—a fact that plays a central role in
this case.
  At the plea hearing, Sromalski conceded that he was
guilty as charged with respect to the possession of the
images the agents found during their February 2, 2000,
search. He also admitted that the images had been trans-
ported in interstate commerce. He further admitted to
having “downloaded” the images. The PSR indicated
that between September 7, 1999, and January 13, 2000,
Sromalski’s computer had stored some 300 files in a
subdirectory; those images had all been obtained through
downloading. The PSR took note of the interactions be-
tween Sromalski’s computer and the Texas server that
had occurred on March 5, 1999.


                            II
  All parties agree that the 1998 Guidelines apply to
this case. Appendix A to that version provides that both
§ 2G2.2 and § 2G2.4 are appropriate guidelines to use for
violations of 18 U.S.C. § 2252A, depending on what else
can be shown. See United States v. Thompson, 281 F.3d
1088, 1097 (10th Cir. 2002). The two guidelines are none-
theless aimed at different conduct that falls within the
ambit of § 2252A. Section 2G2.2 covers “trafficking in
material involving the sexual exploitation of a minor;
receiving, transporting, shipping, or advertising material
4                                                No. 01-4236

involving the sexual exploitation of a minor; possessing
material involving the sexual exploitation of a minor with
intent to traffic”; section 2G2.4, on the other hand, covers
“possession of materials depicting a minor engaged in
sexually explicit conduct.” When more than one guide-
line potentially covers an offense defined in a single stat-
ute, the district court must select the most appropriate
guideline based upon the nature of the conduct charged
in the count for which the defendant was convicted.
U.S.S.G. § 1B1.2 cmt. n.1; see also United States v. Prin-
cipe, 203 F.3d 849, 851 (5th Cir. 2000).
   Because Sromalski’s offense of conviction was 18 U.S.C.
§ 2252A(a)(5)(B)—which, as we noted earlier, deals with
possession, in contrast to § 2252A(a)(2), which explicitly
addresses “receipt” of these materials—the district court
correctly started by looking at § 2G2.4, which is entitled
“Possession of Materials Depicting a Minor Engaged in
Sexually Explicit Conduct,” and which establishes a base
offense level of 15. That section contains a cross-reference
that is at the heart of the present dispute. Section
2G2.4(c)(2) instructs that “[i]f the offense involved traf-
ficking in material involving the sexual exploitation of a
minor (including receiving, transporting, shipping, adver-
tising, or possessing material involving the sexual ex-
ploitation of a minor with intent to traffic), apply § 2G2.2.”
The latter guideline’s title makes it clear that it is directed
at trafficking offenses, such as receiving, transporting,
shipping, or advertising the prohibited materials; it pro-
vides for a base offense level of 17, reflecting the more
serious harms inflicted by child pornography traffickers.
At the government’s urging, the district court decided
to accept the recommendation in the PSR to apply this
cross-reference, and thus it sentenced Sromalski using
the stricter rules found in § 2G2.2. It did so based in part
on the evidence about Sromalski’s downloads from the
Texas server.
No. 01-4236                                                5

  Sromalski properly objected to the application of the
cross-reference. He argued first that the March 1999
conduct should not be counted as “relevant conduct” for
purposes of the application of the cross-reference. When
pressed, the government conceded that this was correct.
In light of this concession, the correctness of which we do
not address here, we are left with a simple possession
offense and no evidence of trafficking. The government
argues that it was nonetheless still proper to apply the
cross-reference of § 2G2.4(c)(2) and sentence on the basis
of § 2G2.2; Sromalski argues otherwise. We agree with
him that the interpretation of the guidelines for which
the government is arguing is too strained, and that under
the particular facts of this case as they are now pre-
sented to us, the district court should not have applied
the cross-reference.


                            III
  The decision to apply a specific guideline is reviewed
de novo, United States v. Ellison, 113 F.3d 77, 79 (7th Cir.
1997), as is a district court’s application of a cross-refer-
ence under the Sentencing Guidelines and a legal inter-
pretation of the language of the Guidelines. We defer to
the court’s findings of fact unless they are clearly errone-
ous. United States v. McGiffen, 267 F.3d 581, 586 (7th
Cir. 2001).
   Had the Government not conceded that the March 1999
conduct was out of the picture, we would have a very
different case. There is no doubt that the use of a “trading”
server like the one in Texas, coupled with actions of both
uploading and downloading files, is the kind of traf-
ficking activity to which the cross-reference found in
§ 2G2.4(c)(2) refers. Thus, had this activity been part of
Sromalski’s relevant conduct, we have no doubt that
our prior cases would have required the application of the
6                                               No. 01-4236

cross-reference. See Ellison, 113 F.3d at 81-82; United
States v. Richardson, 238 F.3d 837, 839 (7th Cir. 2001). But
the question of what conduct should be considered as
“relevant conduct” for purposes of U.S.S.G. § 1B1.3 is
normally regarded as a question of fact; we routinely re-
view these determinations under the clear error stan-
dard. See, e.g., United States v. Anderson, 259 F.3d 853, 858
(7th Cir. 2001); United States v. Ofcky, 237 F.3d 904, 907
(7th Cir. 2001); United States v. Polichemi, 201 F.3d 858,
866 (7th Cir. 2000). Like other factual issues, this one
may be subject to a stipulation by the parties, which is
what the government appears to have done here.
  As the case has finally reached us, therefore, we must
decide whether the cross-reference provision of § 2G2.4(c)
can be used if the facts show only simple possession of
child pornography on a computer. To answer this, we
must look at the language of all relevant guidelines; in
addition, we must also consider whether, even if the dis-
trict court erred in applying the cross-reference, any
such error was harmless because it was correct for some
other reason to use § 2G2.2. See Williams v. United
States, 503 U.S. 193, 203 (1992) (“[O]nce the court of
appeals has decided that the district court misapplied
the Guidelines, a remand is appropriate unless the re-
viewing court concludes, on the record as a whole, that
the error was harmless, i.e., that the error did not affect
the district court’s selection of the sentence imposed.”);
see also United States v. Benitez, 92 F.3d 528, 538 (7th
Cir. 1996) (a Guideline determination may be upheld on
appeal if the record as a whole shows that the error was
harmless).
  Both the cross-reference of § 2G2.4(c)(2) and § 2G2.2
refer to “receiving” child pornography, and so we must
decide whether all instances of “receiving” that can be
proved in a possession prosecution require the applica-
tion of the cross-reference. Logically, the images had to
No. 01-4236                                               7

get into Sromalski’s computer somehow. Either he re-
ceived them from someone else, or he produced them. Both
of those methods are covered by guidelines other than
§ 2G2.4: as we just noted, “receiving” is mentioned in
§ 2G2.2, and producing pornography is covered by § 2G2.1.
Different statutes cover possession, production, and traf-
ficking, and we think it important to adopt an interpreta-
tion of the Guidelines that relates them to the charged
offenses and the graduated harms Congress was identify-
ing. See United States v. Grosenheider, 200 F.3d 321, 332-33
(5th Cir. 2000) (“It is clear that Congress established a
series of distinctly separate offenses respecting child
pornography, with higher sentences for offenses involv-
ing conduct more likely to be, or more directly, harmful
to minors than the mere possession offense.”).
  In this case, to the extent that Sromalski “received” the
images found in his computer (as opposed to, say, produced
them, which would have involved a different statutory
section), he could have been charged under 18 U.S.C.
§ 2252A(a)(2), and he then could not have complained
about the use of § 2G2.2 for sentencing purposes. This
court pointed out in Ellison that it was important to
follow “the specific and unequivocal indication” of the Sen-
tencing Commission that § 2G2.2 must be applied for all
offenses other than simple possession. 113 F.3d at 80.
United States v. Wind, 128 F.3d 1276 (8th Cir. 1997), held
on the other hand that § 2G2.4 was the correct starting
point where the actual plea was for simple possession,
despite evidence that the defendant had in fact sent child
pornography to undercover agents. Id. at 1277; see also
United States v. Paul, 274 F.3d 155, 161 (5th Cir. 2001)
(§ 2G2.2 is not the correct guideline to apply to a convic-
tion for possession of child pornography). As Sromalski
was charged only with possession, we must at least start
with § 2G2.4.
8                                                No. 01-4236

  Once the correct starting guideline has been identified,
the only way to move to a different section is through the
application of a cross-reference. See United States v.
Rogers, 270 F.3d 1076, 1083 (7th Cir. 2001). Cross-refer-
ences appear throughout the Guidelines. They need not be,
and often are not, linguistic mirror images of the cross-
referenced guideline. They are just a device to handle
potentially overlapping statutes and sentencing provi-
sions—a device that is triggered when the policies of a
second guideline more closely match the conduct that is
being punished. The question is thus whether the cross-
reference of § 2G2.4 comes into play when the government
shows receipt, which would be enough for § 2252A(a)(2)
and U.S.S.G. § 2G2.2, or if the language in § 2G2.4(c)(2)
calling for the cross-reference only when there is an “of-
fense involv[ing] trafficking . . . (including receiving . . .
with intent to traffic)” requires more.
  We cannot accept the notion that “receipt with intent
to traffic” is an exact synonym for “receipt.” The Sentenc-
ing Commission would not have added the extra phrase
about trafficking if it was nothing but excess verbiage;
it must have been intended to serve some substantive
purpose. That purpose, it seems to us, is to limit the gov-
ernment’s ability to have sentencing proceed under
§ 2G2.2, in cases where the charge is brought only under
§ 2252A(a)(5) (simple possession). Unless the more strin-
gent requirements of the cross-reference provision are
met, the government must prove the receipt offense be-
yond a reasonable doubt before it can use the receipt
guideline.
  This does not place an impossible burden on prosecutors.
The Eleventh Circuit has recently ruled that evidence
of receiving and sending pornographic images is sufficient
to qualify as “trafficking” for purposes of the cross refer-
ence. See United States v. Bender, 290 F.3d 1279, 1285
(11th Cir. 2002), which echoes United States v. Johnson,
No. 01-4236                                               9

221 F.3d 83, 98 (2d Cir. 2000) (admission of “sending and
receiving” sufficient). This seems quite reasonable to us.
Intent to traffic has also been found on the part of some-
one convicted under § 2252A(a)(5) for “simple possession”
where the defendant sent several e-mails to acquaintances
offering to send child pornography in exchange for the cost
of postage. See Paul, 274 F.3d at 163; see also United
States v. Horn, 187 F.3d 781, 791 (8th Cir. 1999) (posses-
sion plus bartering warranted cross-reference). We also
have no quarrel with those holdings. Sromalski, however,
has not conceded that he sent any images during the
relevant time frame. His admissions support a finding that
he received the images (as opposed to producing them).
Nonetheless, unless we were to equate “receiving” with
“receiving with intent to traffic”—and we have said that
we are not prepared to take this step—his admission of
receipt is not enough to trigger the cross-reference.
  The Government claims, however, that the result we
propose to reach would be inconsistent with our earlier
decision in United States v. Ellison. We disagree. The
important point to bear in mind about Ellison is that
the defendant there was convicted for the offense of re-
ceiving child pornography, not for the possession offense,
and thus the guideline he started with was § 2G2.2. Ellison,
113 F.3d at 78. Under those circumstances, Ellison merely
held that the Commission might rationally have thought
that receiving these materials was worse than simply
possessing them. It had nothing to say about the cross-
reference with which we are concerned here.
   The question, though, arises whether, if receiving is
enough to constitute a form of trafficking under Ellison
(if we give any weight to the title of § 2G2.2, which argu-
ably we should not), why then is it not enough to re-
quire use of the cross-reference section in § 2G2.4,
which speaks of receiving with intent to traffic? The
Government argues that receipt inherently involves
10                                               No. 01-4236

trafficking, and it supports its position with a grammatical
exegesis of 2G2.4(c)(2): it suggests that the word “receiving”
is not modified by the final phrase “with intent to traffic,”
and that this phrase applies only to “possessing.” The worst
problem with this reading is that it effectively reads
§ 2G2.4 out of the Guidelines. Virtually everything § 2G2.4
covers would be covered by something else—usually
§ 2G2.2, but sometimes § 2G2.1 (production). A look at
the history of § 2G2.4 also undermines the Government’s
position. Section 2G2.4 was added after § 2G2.2 by way
of an amendment in which the Sentencing Commission
stated:
     This amendment inserts an additional guideline at
     § 2G2.4 to address offenses involving receipt or posses-
     sion of materials depicting a minor engaged in sexually
     explicit conduct, as distinguished from offenses involv-
     ing 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)).
U.S.S.G. app. c amend. 372 (2001) (emphasis added).
  Thus, before the cross-reference can be used in cases
for which § 2G2.4 is the proper starting point, we con-
clude that something more than simple receipt must be
shown: the government must show receipt, or one of the
other described actions, with intent to traffic. Our conclu-
sion applies only to cases in which the charges are limited
to simple possession under § 2252A(a)(5), like Sromalski’s.
Where the government has charged and proven receipt
as described in § 2252A(a)(2), the Guidelines themselves
dictate that the cross-reference to § 2G2.2 is appropriate.
  United States v. Amirault, 173 F.3d 28 (1st Cir. 1999), is
not to the contrary. There the court held that receipt
of pornography was sufficient to trigger the cross-refer-
No. 01-4236                                               11

ence, but it did not consider the issue of intent to traffic
one way or the other. Id. at 30. Indeed, it had no occasion
to do so, because the defendant in Amirault did not raise
the argument that he lacked the intent to traffic. In any
event, our decision is consistent with the rulings of the
Eighth and Eleventh Circuits, discussed above. If the
Sentencing Commission wishes to clarify the interaction
of these two sections for the future, it is of course free to
do so. For now, however, we believe they are best recon-
ciled as we have described here.
  Because we have concluded that the cross-reference
from § 2G2.4 to § 2G2.2 should not have been made in
Sromalski’s case, he is entitled to re-sentencing based
solely on § 2G2.4. This is a significant matter for him: as
noted above § 2G2.4 has a base offense level of 15, not 17,
and it does not contain a provision permitting a four-
level enhancement for sadistic portraits like the one
found in § 2G2.2(b)(3). This decision will also affect his
adjustment for acceptance of responsibility from three
to two levels, because the base offense level is now
lower than 17. See U.S.S.G. § 3E1.1(b).
  For these reasons, we VACATE and REMAND the case
to the district court for resentencing in accordance with
this opinion.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—2-7-03
