                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-2643
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                  JOHN L. HAMMOND,
                                          Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 2-17-cr-0354)
                        District Judge: Hon. C. Darnell Jones, II
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 10, 2019

              Before: JORDAN, BIBAS, and NYGAARD, Circuit Judges.

                                   (Filed: June 14, 2019)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       John Hammond appeals his sentence for receipt and possession of child

pornography. For the reasons that follow, we will affirm.

I.     BACKGROUND

       On a tip that Hammond possessed child pornography, police officers obtained a

warrant to search his home. The search revealed “a computer, external flash drives, and

other devices” with “thousands of images and video files containing child pornography.”

(App. at 30.) Included were “[s]everal … images and videos [that] depict[ed] graphic

scenes of sadistic bondage and sexual assault perpetrated against children[,]” including

prepubescent children. (App. at 30.) There was also an email exchange that became an

issue at sentencing. On December 25, 2015, Hammond and a man that he met on

Craigslist discussed in explicit detail their shared sexual interest and having sex with

children. (App. at 98.) During that email exchange, Hammond bragged about luring a

neighbor boy into performing sexual acts, and he sent seven pornographic photographs of

individuals suspected to be child pornography.

       A grand jury charged Hammond with one count of receipt of child pornography, in

violation of 18 U.S.C. § 2252(a)(2), and one count of possessing child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B). He pled guilty.

       The Pre-Sentence Investigation Report (“PSR”) revealed that Hammond had a

history of sexually harassing and abusing adult women. Specifically, three of

Hammond’s former employees had reported that they were sexually abused, assaulted, or

otherwise the subject of sexual misconduct by Hammond. Hammond objected to that

                                              2
part of the PSR, arguing that it was unfounded and should be removed in its entirety. The

District Court overruled that objection, but explained that:

       The concern that the Court has is that one -- on the one hand it has nothing
       to do with the charges at hand with this Defendant, yet relevant information
       in terms of the person is always admissible [and] something that can be
       considered by the sentencing Court. In that regard, therefore, the Court
       won’t strike it. And the weight will be given to it whatever the Bureau [of
       Prisons] deems necessary and appropriate. But to the extent that the Court
       will impose conditions on the Defendant’s sentence regarding the use of
       child pornography, computers, and therapy in that regard, nothing in that is
       going to go toward an adult relationship. It’s all going to be because of the
       juvenile charges here to which the Defendant pled guilty. So, the objection
       is overruled but noted.

(App. at 86.)

       Ultimately, the Court sentenced Hammond to 121 months’ imprisonment, to be

followed by 20 years of supervised release. That sentence was at the bottom of

Hammond’s Sentencing Guidelines range, 121-151 months’ imprisonment.

       Hammond timely appealed.

II.    DISCUSSION1

       Hammond argues that the two-level reduction pursuant to United States

Sentencing Guidelines § 2G2.2(b)(1) should have been applied to his guidelines range

calculation because his conduct was limited to mere receipt of child pornography. He

also argues that the District Court erred in considering the PSR’s allegations that he

engaged in sexual abuse of adults. Neither argument is persuasive.




       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                             3
       A.      The District Court Did Not Plainly Err by Declining to Apply a Two-
               Level Sentencing Reduction Pursuant to Guidelines § 2G2.2(b)(1).

       Under guidelines § 2G2.2(b)(1), a defendant’s offense level is reduced by two if

the defendant has a base offense level of 22 and “the defendant’s conduct was limited to

the receipt or solicitation of material involving the sexual exploitation of a minor[] and …

the defendant did not intend to traffic in, or distribute, such material[.]” U.S.S.G.

§ 2G2.2(b)(1). To determine whether a defendant’s conduct was limited to receipt, the

sentencing court is required to consider all “relevant conduct” as defined by guidelines

§ 1B1.3, including “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant[.]” U.S.S.G.

§ 1B1.3(a)(1)(A). And “[t]he relevant criminal conduct need not be conduct with which

the defendant was charged” or “over which the federal court has jurisdiction[.]” United

States v. Dickler, 64 F.3d 818, 831 (3d Cir. 1995) (citations omitted). But to be “relevant

conduct” under § 1B1.3, the act “must be criminal conduct.” Id. at 830-31.

       Hammond argues that the District Court should have applied that reduction

“because the relevant conduct was limited to receipt and Mr. Hammond did not intend to

distribute or traffic in images.” (Opening Br. at 22.) Because that argument was not

preserved, a point Hammond concedes, we review for plain error. “To prevail … [he]

must show that there is (1) an error; (2) that is plain; (3) that affects substantial rights;

and (4) which seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Poulson, 871 F.3d 261, 270 (3d Cir. 2017) (citation and

quotation marks omitted).


                                                4
       The inquiry here is whether Hammond’s conduct amounted to relevant, criminal

conduct beyond simply receiving child pornography. Hammond’s argument places great

weight on our non-precedential opinion in United States v. Dura, 701 F. App’x 125 (3d

Cir. 2017), to support his position that his email exchange with the man on Craigslist

“while … distressing … [is] not ‘relevant conduct’ for purposes of calculating the

Guidelines range.” (Reply Br. at 8 (citing Dura, 701 F. App’x at 128).) There, we

decided that the defendant’s publication of “images that depicted partially clothed

children” was not relevant conduct because those images “undisputed[ly] … did not

involve actual child pornography[.]” Dura, 701 F. App’x at 128. Thus, it could not

“serve as the basis to deny … a reduction under § 2G2.2(b)(1).” Id.

       We do not cite to or rely upon non-precedential opinions. See Third Circuit

Internal Operating Procedure 5.7 (indicating that non-precedential “opinions are not

regarded as precedents that bind the court because they do not circulate to the full court

before filing”). Looking at the facts here, Hammond bragged, in repulsive detail, about a

criminal sexual encounter with “a neighbor boy.” (App. at 75.) Attached to that email

were “seven images that are suspected of depicting child pornography.” (App. at 37.)

“No faces can be seen in the images … and the government has been unable to

conclusively identify or determine the ages of the individuals depicted.” (App. at 37.)

But, the pictures appear to be of children, and that conclusion is sound, given the topic

and text of Hammond’s email exchange. The fact that there is some ambiguity is not

determinative, as the standard of proof at sentencing is only a preponderance of the

evidence, further qualified here by plain error deference. United States v. Grier, 475 F.3d

                                             5
556, 568 (3d Cir. 2007). And because Hammond sent those images to a third party, his

conduct could be seen as distribution of child pornography. United States v. Husmann,

765 F.3d 169, 176 (3d Cir. 2014) (requiring a download by, or a transfer to, another

person of “a defendant’s child pornography materials” to show distribution of child

pornography under § 2252(a)(2)). Distribution of child pornography is relevant conduct

that obviously goes beyond mere receipt of child pornography.

       Accordingly, the Craigslist emails support a finding that Hammond’s relevant

conduct went “beyond the viewing of child pornography[.]” (App. at 104.) The District

Court, therefore, did not plainly err by not applying the reduction under § 2G2.2(b)(1).

       B.     The District Court Did Not Rely on Hammond’s Adult Sexual History.

       Second, Hammond argues that the PSR’s recounting of his “history of ‘sexual

harassment and sexual abuse’ of former employees … lacked sufficient indicia of

reliability” and “[t]he district court accordingly erred in considering the allegations over

defense objection[,]” thus violating his due process rights. (Opening Br. at 32.) That

argument too lacks merit.

       “[W]e have explained that information relied upon at sentencing must have

sufficient indicia of reliability to support its probable accuracy.” United States v. Berry,

553 F.3d 273, 280 (3d Cir. 2009) (citations and quotation marks omitted). But here, the

District Court made clear that it was not relying on Hammond’s adult relationships to

determine his sentence. It stated that the adult relationships, while relevant only in the

most general sense, had “nothing to do with the charges at hand with this Defendant”

(App. at 86), and that “nothing in [the Defendant’s sentence and the conditions imposed]

                                              6
is going to go toward an adult relationship. It’s all going to be because of the juvenile

charges here to which the Defendant pled guilty.” 2 (App. at 86.)

       In short, the Court fashioned Hammond’s sentence based on permissible factors

and without reference to the adult relationships.3 And, in determining whether

Hammond’s conduct went “beyond the viewing of child pornography,” it explicitly relied

on Hammond’s behavior “including uploading materials, speaking of his involvement

with others, who were minors, in deplorable situations.” (App. at 104 (emphasis added).)

       Thus, while the District Court did not strike the adult relationships from the PSR,

the Court did not fashion Hammond’s sentence in reliance upon it, in part or otherwise,

and there was no violation of Hammond’s due process rights.

III.   CONCLUSION

       For the foregoing reasons, we affirm.




       Additionally, the government did not argue “that the Defendant should receive
       2

enhance[d] punishment because of th[o]se allegations.” (App. at 85.)
       3
         We note a factual inaccuracy at sentencing. The District Court believed that the
probation officer who authored the PSR had interviewed Hammond’s former employees
about their relationship with Hammond, but that was not so. Nonetheless, because the
District Court did not rely on history of adult relationships that factual inaccuracy is of no
consequence.
                                               7
