     09-4093-cr
     U.S. v. Ahders


1                              AMENDED OPINION

2                     UNITED STATES COURT OF APPEALS
3                         FOR THE SECOND CIRCUIT

4                               August Term 2010

5    Argued: August 24, 2010          Decided: September 16, 2010
6                                     Amended: September 21, 2010

7                             Docket No. 09-4093-cr

8

9    UNITED STATES OF AMERICA,

10                                              Appellee,
11
12                                     v.

13   STEVEN AHDERS,

14                                              Defendant-Appellant.

15

16   Before:      KATZMANN, HALL, and CHIN, Circuit Judges.

17                Appeal from a judgment of the United States District

18   Court for the Northern District of New York (Norman A. Mordue,

19   Chief Judge) convicting defendant-appellant of producing child

20   pornography.

21                REMANDED.


22                               ALEXANDER BUNIN, Albany, N.Y., for
23                                    Defendant-Appellant.
1                                BRENDA K. SANNES, Assistant United
2                                     States Attorney (Thomas Spina, Jr.,
3                                     Assistant United States Attorney,
4                                     on the brief), for Richard S.
5                                     Hartunian, United States Attorney
6                                     for the Northern District of New
7                                     York, for Appellee.


8    PER CURIAM:

9              Defendant-appellant Steven Ahders appeals from a

10   judgment of the United States District Court for the Northern

11   District of New York convicting him, pursuant to a guilty plea,

12   of one count of producing child pornography, in violation of 18

13   U.S.C. §§ 2251(a), (e) and 2256(8), and sentencing him

14   principally to a term of imprisonment of 580 months.    We affirm

15   the conviction and remand for the district court to reconsider

16   and clarify the basis for one aspect of its sentence.

17                                 BACKGROUND

18             In 2005, while on supervised release for a prior

19   conviction for possession of child pornography, Ahders met a

20   woman through a personal ad.    They married in September 2006, and

21   the woman and her five-year-old son, EM, moved into Ahders's home

22   in Schenectady, New York.    Thereafter, Ahders began sexually

23   molesting EM and filming and photographing the abuse.    The

24   molestation continued until July 2007.

                                      - 2 -
1               Ahders was arrested in January 2008.   In addition to

2    admitting the molestation of EM, he admitted that he had

3    purchased an "Acer" laptop computer in February or March 2007,

4    and that he used the internet to download images of both boys and

5    girls under the age of 15 years.    Investigators seized, in

6    Ahders's home, an Acer laptop computer, a digital camera, and a

7    "personal digital assistant" ("PDA"), which included a storage

8    card.   The laptop and PDA contained numerous images of child

9    pornography, including images of nude girls tied and bound, some

10   approximately 11 to 12 years old, one tied to a bed and another

11   tied and blindfolded.   Two pornographic images of EM were found

12   on the storage card.

13              During the ensuing investigation, EM informed

14   investigators that Ahders sometimes tied EM's wrists to the

15   headboard of a bed or the handlebars of a bicycle and then

16   sexually abused him.    EM described how Ahders used a video camera

17   to record the abuse.    Ahders admitted to filming EM engaging in

18   sexually explicit conduct.

19              During Mother's Day weekend in 2007, Ahders sexually

20   molested two other children, BB and VB, who had joined EM at

21   Ahders's home for a sleepover.    During the sleepover, Ahders made

22   EM and BB perform sexually explicit acts on each other while he

                                      - 3 -
1    took pictures of them.   BB's sister, VB, reported that the

2    children slept together in a tent in the attic, and that Ahders

3    approached her after the boys fell asleep and took off her pants

4    and underwear even though she slapped his hands and tried to stop

5    him.   Ahders then held her legs apart and photographed her from

6    about a foot away.    VB also reported that Ahders had "a laptop"

7    with him in the attic.

8               EM told investigators that a few days after the

9    sleepover, Ahders showed him a picture of Ahders's penis in VB's

10   vagina.   VB, however, told investigators that Ahders never

11   touched her vagina.

12              On November 7, 2008, Ahders pleaded guilty to Count 1

13   of the indictment, which charged him with producing child

14   pornography involving "a male minor" -- EM.   Ahders did not plead

15   guilty to any charges involving VB or BB or the possession of the

16   child pornography found on his laptop and PDA.   Ahders and the

17   Government entered into a written plea agreement, but they did

18   not stipulate to the calculation of Ahders's sentencing range

19   under the United States Sentencing Guidelines (the "Guidelines").

20              The Probation Department prepared a presentence report

21   (the "PSR").   Although Ahders pleaded guilty only to the one

22   count involving EM, the PSR concluded that Ahders had exploited

                                     - 4 -
1    three minors (EM, VB, and BB) and, pursuant to U.S.S.G. §

2    2G2.1(d)(1), treated the exploitation of each child as a separate

3    count of conviction.       The offense level was calculated separately

4    for each victim.       For EM, a 4-level enhancement was included for

5    Ahders's possession of material that portrayed sadistic or

6    masochistic conduct -- the images of nude minor girls bound and

7    tied.       For VB, a 2-level enhancement was included for Ahders's

8    actions in removing her pants and underwear and photographing

9    her.       For BB, a 2-level enhancement was included for Ahders's

10   actions in directing EM and BB to engage in sexually explicit

11   conduct while he took pictures and sexually abused BB.

12                  The three calculations were grouped pursuant to

13   U.S.S.G. § 3D1.4.       In the end, Ahders's offense level totaled

14   44,1 which was then reduced to the highest offense level found in


            1
               This was based on an offense level of 44 for the
     offense against EM and 40 for the offenses against BB and VB.
     The score of 44 included the 4-level enhancement for the sadistic
     images of the girls. Without this enhancement, the score would
     have been 40 and the grouping analysis would have been as
     follows: the highest offense level for any unit would have been
     40, the combined adjusted offense level would have been 43
     (instead of 47), and the total offense level would have been 40
     (instead of 43). See U.S.S.G. § 3D1.4. An offense level of 40,
     with Ahders's Criminal History Category of III, would have
     yielded a Guideline range of 360 months to life. If the conduct
     against BB and VB were not included, the total offense level
     would have been reduced to 41 with the 4-level enhancement and to
     37 without it.

                                        - 5 -
1    the Guidelines Sentencing Table: 43.       The Guidelines "range" for

2    an offense level of 43 is life imprisonment.      Because the

3    statutory maximum term of imprisonment for producing child

4    pornography is fifty years, Ahders's Guidelines range was reduced

5    from life imprisonment to fifty years (600 months).      18 U.S.C. §

6    2251(a), (e); U.S.S.G. § 5G1.1(c)(1).

7              The district court adopted the facts and the Guidelines

8    calculation in the PSR, and sentenced Ahders to the statutory

9    maximum term of incarceration, fifty years, minus twenty months

10   as credit for the time Ahders served in New York State custody

11   between his arrest and federal sentencing.

12             This appeal followed.

13                                 DISCUSSION

14   A.   Applicable Law

15             In general, we review sentences using a "deferential

16   abuse-of-discretion standard."     See United States v. Cavera, 550

17   F.3d 180, 189 (2d Cir. 2008) (en banc).      This standard applies

18   "both to 'the sentence itself' and to 'the procedures employed in

19   arriving at the sentence.'"    United States v. Verkhoglyad, 516

20   F.3d 122, 127 (2d Cir. 2008) (quoting United States v. Fernandez,

21   443 F.3d 19, 26 (2d Cir. 2006)).    We review the district court's

22   conclusions as to interpretations of the Guidelines de novo,

                                      - 6 -
1    United States v. Awan, 607 F.3d 306, 312 (2d Cir. 2010), and

2    findings of fact for clear error, United States v. Salim, 549

3    F.3d 67, 72 (2d Cir. 2008).

4              When reviewing a sentence, we "must first ensure that

5    the district court committed no significant procedural error,

6    such as failing to calculate (or improperly calculating) the

7    Guidelines range, . . . or failing to adequately explain the

8    chosen sentence."   Gall v. United States, 552 U.S. 38, 51 (2007).

9    We must then conduct a substantive review by evaluating "the

10   length of the sentence imposed in light of the factors enumerated

11   under 18 U.S.C. § 3553(a)."     United States v. Villafuerte, 502

12   F.3d 204, 206 (2d Cir. 2007).

13             A district court must begin the sentencing process by

14   calculating the advisory Guidelines range before proceeding to an

15   independent, individualized consideration of the sentence to

16   impose.   Gall, 552 U.S. at 49-50; Cavera, 550 F.3d at 189.     A

17   district court must make "specific factual findings," by a

18   preponderance of the evidence, to support any sentencing

19   enhancement under the Guidelines.       See United States v. Espinoza,

20   514 F.3d 209, 212 (2d Cir. 2008) (quoting United States v.

21   Molina, 356 F.3d 269, 275 (2d Cir. 2004)); United States v.

22   Salazar, 489 F.3d 555, 558 (2d Cir. 2007).      A district court need

                                     - 7 -
1    not specifically recite all the facts relevant to its Guidelines

2    calculation; rather, it is sufficient for the district court to

3    adopt the findings in the presentence report -- if those findings

4    are adequate to support the sentence imposed.    See, e.g., United

5    States v. Carter, 489 F.3d 528, 540 (2d Cir. 2007) (holding that

6    "the District Court's reliance on the inadequate findings of the

7    PSR, without more, constituted plain error"); United States v.

8    Eyman, 313 F.3d 741, 745 (2d Cir. 2002).    The district court is

9    required to rule on controverted matters that will affect

10   sentencing, Fed. R. Crim. P. 32(i)(3), but it may do so by

11   adopting the recommendations of the presentence report.     United

12   States v. Prince, 110 F.3d 921, 924 (2d Cir. 1997).

13   B.   Application

14             On appeal, Ahders does not challenge the substantive

15   reasonableness of his sentence, but argues that the district

16   court committed procedural error by improperly calculating the

17   advisory Guidelines range.   He argues principally that the

18   district court erred in two respects:    by including Ahders's

19   production of sexually explicit images of BB and VB and by adding

20   a 4-level enhancement for Ahders's possession of sadistic or

21   masochistic child pornography.



                                      - 8 -
1         a.     The Inclusion of BB and VB

2                Ahders contends that the conduct with respect to BB and

3    VB should not have been grouped and combined with the offense of

4    conviction.    Ahders notes that Count 1 of the indictment charged

5    the production of pornography with respect to only one "male

6    minor."   We reject the argument.

7                First, it is not dispositive that Count 1 did not cite

8    the acts against BB and VB.    Section 2G2.1(d)(1) provides:

 9               If the offense involved the exploitation of
10               more than one minor, Chapter Three, Part D
11               (Multiple Counts) shall be applied as if the
12               exploitation of each minor had been contained
13               in a separate count of conviction.

14   U.S.S.G. § 2G2.1(d)(1).    As the commentary explains, "if the

15   relevant conduct of an offense of [producing child pornography]

16   includes more than one minor being exploited, whether

17   specifically cited in the count of conviction or not, each such

18   minor shall be treated as if contained in a separate conviction."

19   U.S.S.G. § 2G2.1(d)(1), cmt. n.5 (emphasis added).    Hence, the

20   conduct involving BB and VB may be included if it was "relevant

21   conduct."




                                     - 9 -
1                Second, the exploitation of BB and VB was relevant

2    conduct.    "Relevant conduct" includes:

3                all acts and omissions committed . . . by the
4                defendant . . . that occurred during the
5                commission of the offense of conviction, in
6                preparation for that offense, or in the
7                course of attempting to avoid detection or
8                responsibility for that offense.

9    U.S.S.G. § 1B1.3(a)(1)(A).    This includes "both charged and non-

10   charged conduct."    United States v. Bove, 155 F.3d 44, 47-48 (2d

11   Cir. 1998).

12               The conduct involving BB and VB occurred "during the

13   commission of the offense of conviction," as it occurred during

14   the period that Ahders was producing pornographic images and film

15   of EM.   Ahders exploited and abused all three children, including

16   abusing EM and BB together, during Mother's Day weekend in 2007

17   when VB and BB were staying with EM for a sleepover.    During this

18   weekend, Ahders produced pornographic images of all three

19   children.    Clearly, then, the abuse of VB and BB was "relevant

20   conduct," and it was properly considered by the district court.

21               Ahders argues that he was not given adequate notice

22   that he would be held accountable in this case for his actions

23   against VB and BB.    He is incorrect.   At his plea allocution, the

24   Government put Ahders on notice that it would be seeking a


                                    - 10 -
1    "multiple count analysis" because "two other minors" had been

2    sexually abused and photographed by Ahders, which would result in

3    3 levels being added to the total offense level.    Ahders elected

4    to plead guilty anyway.

5                Ahders also argues that the district court relied on

6    insufficient evidence of the exploitation of BB and VB, noting

7    the unreliable nature of the statements of the three young

8    children.    He also contends that the district court failed to

9    make sufficient factual findings and credibility determinations.

10   We disagree.

11               As paragraphs 30-31 of the PSR relate, BB stated that

12   Ahders told him and EM to touch each other's penises and then

13   took photographs of them doing so, and VB stated that Ahders took

14   off her pants, held her legs apart, and took photographs.    The

15   district court expressly overruled Ahders's objections to

16   paragraphs 29 through 32 of the PSR, found that the described

17   conduct was "relevant conduct," and concluded that the findings

18   were "supported by a preponderance of the evidence."    Ahders

19   raises no colorable challenge to this evidence, and it is clearly

20   sufficient to establish that Ahders exploited VB and BB within

21   the meaning of 18 U.S.C. § 2251.



                                    - 11 -
1         b.    The Enhancement for Possession of
2               Sadomasochistic Images

3               Ahders argues that the district court erred when it

4    applied a 4-level enhancement pursuant to U.S.S.G. § 2G2.1(b)(4)

5    for possession of material portraying sadistic or masochistic

6    conduct.   In the circumstances here, the district court could

7    properly apply the enhancement only if (1) the child pornography

8    Ahders was convicted of producing involved the portrayal of

9    sadomasochistic conduct or (2) Ahders engaged in conduct that was

10   "relevant" to his production of child pornography involving EM

11   and that "relevant conduct" involved sadomasochistic material.

12   See U.S.S.G. §§ 1B1.3(a)(1), 2G2.1(b)(4).   Unfortunately, the

13   record lacks clarity as to the basis for the district court's

14   imposition of this enhancement.

15              The colloquy at sentencing suggests that the district

16   court considered three possible bases for imposing the

17   enhancement:   (1) Ahders's conduct in filming his sexual abuse of

18   EM tied to a bed and bicycle; (2) Ahders's producing an image of

19   him sexually penetrating VB; and (3) Ahders's possession on his

20   laptop and PDA of images of young girls tied and bound.   If

21   proven, all of this alleged conduct would have involved material

22   that portrayed sadistic or masochistic conduct or other


                                   - 12 -
1    depictions of violence involving minors.   United States v.

2    Gilmore, 599 F.3d 160, 168 n.6 (2d Cir. 2010) (images depicting

3    sexual penetration of eight-year old girl by adult male are

4    sadistic because they depict sexual act that would cause pain to

5    minor); United States v. Freeman, 578 F.3d 142, 147-48 (2d Cir.

6    2009) (sadism enhancement applies when "the district court makes

7    an objective determination that (1) an image depicts sexual

8    activity involving a minor and (2) the depicted activity would

9    have caused pain to the minor"); United States v. Hoey, 508 F.3d

10   687, 691-92 (1st Cir. 2007) (photographs depicting sexual

11   penetration of young victims by adult males represent "sadistic"

12   and "violent" materials).   The issue then would be whether the

13   proven conduct was either part of the offense of conviction or

14   relevant conduct to the offense of conviction.

15              As to the first possible basis, the district court

16   merely inquired about "the handcuffing and the being tied up" of

17   EM.   The district court made no findings in this respect.

18   Moreover, although the district court adopted the findings of the

19   PSR, the PSR did not rely on any images that Ahders produced for

20   imposing the 4-level enhancement.   Hence, it appears that the

21   district court did not rely on the images that Ahders made of EM



                                   - 13 -
1    in bondage, images that surely are sadomasochistic in nature.    On

2    remand, the district court may want to undertake an analysis of

3    the enhancement under § 2G2.1(b)(4) with respect to the images

4    Ahders produced of EM and consider whether the production of

5    these images was part of the offense of conviction or,

6    alternatively, whether it was relevant conduct.

7               As to the second possible basis, the district court did

8    not resolve the conflict between EM's assertion that he saw a

9    photograph of Ahders penetrating VB and VB's assertion that

10   Ahders never touched her vagina.   Fed. R. Crim. P. 32(i)(3)

11   (district court must resolve controverted matters that affect

12   sentencing).   Moreover, it is not apparent from the colloquy at

13   the sentencing that the district court relied on this second

14   basis to impose the enhancement under § 2G2.1(b)(4), and the PSR

15   did not.   On remand, if the district court elects to consider

16   this second basis for imposing the enhancement, it must first

17   resolve the conflict between EM's statement and VB's statement

18   and decide whether such an image was produced, and, if so, then

19   determine whether Ahders's production of the image is relevant

20   conduct to the offense of conviction -- his production of child

21   pornography involving EM.




                                   - 14 -
1              As to the third possible basis, it does appear that the

2    images of the girls tied and bound found on the laptop and PDA

3    were the basis for the district court's imposition of the 4-level

4    enhancement.   The colloquy at sentencing and the PSR so suggest.

5    Ahders does not dispute that these were sadistic images of child

6    pornography or that he possessed them, but he argues that they

7    are not relevant because "[t]here is no act or omission by [him]

8    that associates those images with his conviction for production

9    of child pornography."   In essence, he argues that his possession

10   of the sadomasochistic images of the girls -- which he did not

11   produce -- was not "relevant conduct" to his production of child

12   pornography involving EM.   The PSR and district court concluded

13   that Ahders's possession of the images of the girls was relevant

14   conduct, but they did so in wholly conclusory fashion, without

15   any analysis and without explaining the link between his

16   possession of the images of the girls and his production of

17   pornographic materials involving EM.   Hence, we are unable to

18   engage in meaningful appellate review.

19             This Circuit has not previously addressed the question

20   under what circumstances the possession of sadomasochistic images

21   is "relevant conduct" to the production of child pornography.

22   Indeed, it appears that the issue has not been specifically

                                   - 15 -
1    addressed by any Circuit.   See, e.g., United States v. Shuler,

2    598 F.3d 444, 446 (8th Cir. 2010) (declining to decide issue, and

3    noting "this appears to be an issue of first impression, raising

4    difficult questions of whether sadistic or masochistic materials

5    that [the defendant] did not produce are nonetheless relevant

6    conduct to his production offense . . . under U.S.S.G.

7    1B1.3(a)(1), because they are 'acts . . . that occurred during

8    the commission of the offense of conviction'").

9              The phrase "occurred during the commission of the

10   offense of conviction" is not defined in the Guidelines, nor does

11   the commentary provide any guidance.   The words "relevant

12   conduct" suggest more is required than mere temporal proximity,

13   as the other conduct must be "relevant" and it must occur "during

14   the commission of the offense of conviction, in preparation for

15   that offense, or in the course of attempting to avoid detection

16   or responsibility for that offense."

17             On remand, if the district court chooses to rely on the

18   sadomasochistic images of the girls as relevant conduct, it must

19   provide at least some analysis of the relatedness, if any,

20   between Ahders's possession of the images and his production of

21   child pornography involving EM.   If the district court finds that

22   Ahders's possession of the images of the girls "occurred during

                                   - 16 -
1    the commission of" his production of pornographic materials

2    involving EM, or "in preparation for that offense," it must point

3    to facts in the record to support its conclusion.

4              If the district court elects to proceed on this basis,

5    it may want to consider the following factors:

 6             !    The temporal proximity between the possession of
 7                  the images of the girls and the offense of
 8                  conviction, i.e., when Ahders obtained the images
 9                  and whether Ahders possessed them during his abuse
10                  of EM;

11             !    The similarity between the images on the laptop
12                  and PDA and the images made of EM;

13             !    Whether Ahders used the same laptop and PDA with
14                  EM as he used to download the images of the girls;

15             !    Whether Ahders showed the images to EM and, if so,
16                  for what purpose, i.e., whether Ahders was using
17                  the images to arouse EM or to "teach" him what to
18                  do, see U.S.S.G. § 1B1.3(a)(1)(A) (relevant
19                  conduct includes conduct "in preparation for"
20                  offense of conviction);

21             !    Whether Ahders viewed the images to assist him in
22                  his production of child pornography, i.e., whether
23                  he used the images as samples, models, or
24                  precedents; and

25             !    As Ahders admitted that he liked looking at child
26                  pornography (which he did on his laptop and PDA),
27                  whether his viewing the images aroused him and was
28                  a factor in his abusing EM, see United States v.
29                  Brand, 467 F.3d 179, 197 (2d Cir. 2006) ("a direct
30                  connection exists between child pornography and
31                  pedophilia"); see also Fed. R. Evid. 414 (allowing
32                  propensity evidence in "child molestation" cases);
33                  18 U.S.C. § 2252A ("child pornography" cases

                                  - 17 -
1                   include both production of child pornography and
2                   possession of child pornography).

3    None of these factors is dispositive, nor are any required; we

4    list them merely as factors that the district court may want to

5    take into account should it elect to consider imposing the 4-

6    level enhancement based on Ahders's possession of the bondage

7    images of the girls.   See, e.g., United States v. Nance, 611 F.3d

8    409, 410-11, 416 (7th Cir. 2010) (where defendant was convicted

9    of receipt of child pornography involving 12-year old girl he had

10   sexually molested, holding his possession of pornographic

11   materials involving other children was relevant conduct that

12   could be used to enhance sentence); United States v. Stulock, 308

13   F.3d 922, 924-26 (8th Cir. 2002) (where defendant was convicted

14   of receiving video of child pornography, affirming district

15   court's holding that his possession of pornographic bondage

16   images of children on his computer was relevant conduct that

17   could be used to enhance his sentence); United States v. Ellison,

18   113 F.3d 77, 82-83 (7th Cir. 1997), cert. denied, 522 U.S. 893

19   (1997) (where defendant was convicted of receipt of video of

20   child pornography, holding, with little discussion, that district

21   court's inclusion of defendant's possession of magazines




                                   - 18 -
1    containing sadomasochistic images of boys as "relevant conduct"

2    was "far from clear error").

3                Accordingly, we remand this case to the district court

4    so that it can reconsider and clarify its basis for imposing the

5    4-level enhancement for possession of sadomasochistic materials,

6    state the factual bases for doing so, and articulate its

7    analysis.    If it deems it necessary, the district court may

8    resentence the defendant and in so doing may hold an evidentiary

9    hearing.    By identifying the three possible bases for the

10   enhancement discussed above, we do not intend to limit the

11   district court's consideration to only those three bases.     Nor do

12   we intend to suggest that on remand the district court is bound

13   in any way to determine the facts consistently with the way we

14   have discussed them based on the present record.

15                                CONCLUSION

16               For the foregoing reasons, the conviction is AFFIRMED,

17   and the case is REMANDED to the district court for further

18   consideration and explanation of the sentence in conformance with

19   this opinion and for resentencing if the district court

20   determines that to be necessary.    This panel will retain

21   jurisdiction over any subsequent appeal; either party may notify

22   the Clerk of a renewed appeal within fourteen days of the


                                    - 19 -
1   district court's decision.    See United States v. Jacobson, 15

2   F.3d 19, 22 (2d Cir. 1994).




                                   - 20 -
