     Case: 18-20496   Document: 00515266645        Page: 1   Date Filed: 01/10/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                    No. 18-20496
                                                                         FILED
                                                                   January 10, 2020
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

JOE CEPHUS ROSS,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
      At issue are Joe Cephus Ross’ constitutional challenges to the district
court’s denying: Ross’ motion to dismiss his being charged, in count one of his
two-count indictment, with receipt of child pornography, in violation of 18
U.S.C. § 2252A(a)(2)(B) (count two charged possession of child pornography on
a separate, subsequent date, in violation of 18 U.S.C. § 2252A(a)(5)(B)); and
his similar objection to being sentenced, pursuant to Sentencing Guideline
§ 2G2.2, for receipt, as opposed to possession, of child pornography (higher base
offense level for the former). AFFIRMED.
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                                 No. 18-20496
                                       I.
      In March 2016, an undercover Homeland Security special agent
identified an internet-protocol (IP) address was sharing, via a peer-to-peer-
internet network, computer files with hash values (alphanumeric string of
characters that identifies computer file’s contents, see United States v.
Reddick, 900 F.3d 636, 637 (5th Cir. 2018), cert. denied, 139 S. Ct. 1617 (2019))
known to belong to child-pornography videos and images.                  Further
investigation revealed the IP address: was associated with the residence of
Ross and his mother; and, from February to July 2016, shared child-
pornography files with other internet users.
      That August, members of a Houston, Texas, police taskforce executed a
search warrant at the residence, seizing several computers and other devices.
A subsequent forensic examination revealed these contained more than 17,000
images and 500 videos depicting child pornography, including victims
appearing to be as young as four, as well as file-sharing programs. Ross
admitted he collected child-pornography images and videos; explained how the
file-sharing programs worked; and acknowledged he used them to distribute
child pornography.
      In a two-count indictment, Ross was charged, in count one, with receipt
of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and based on
his operating the peer-to-peer-file-sharing program between February and
July 2016; and, in count two, with possession of child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B) and pertaining to the images and videos
discovered on the devices seized during the August 2016 search. Ross moved
to dismiss the receipt count, claiming:        because there is no meaningful
distinction between a person’s receiving child pornography and possessing it,
§ 2252A was unconstitutionally vague, in violation of the Fifth Amendment’s
Due-Process Clause, in allowing arbitrary prosecutorial charging decisions.
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                                 No. 18-20496
      The motion was denied from the bench at the conclusion of an April 2018
hearing.   Although the district judge doubted the constitutionality of the
receipt statute, he reasoned the controlling law was “decidedly the contrary” to
Ross’ claim.   Later that month, Ross pleaded guilty, unconditionally and
without a plea agreement, to both charges.
      For sentencing, and incorporating the same constitutional grounds as in
his motion to dismiss, Ross objected to the presentence investigation report’s
(PSR) calculating his advisory Guidelines sentencing range pursuant to the
above-described Guideline § 2G2.2. The objection was denied.
      Regarding the PSR’s recommending an advisory Guidelines sentencing
range of 151–188 months’ imprisonment, the court varied downward, however,
sentencing Ross to, inter alia, 110 months’ imprisonment on each count,
concurrently, and deducting a further 23 months for time held in state custody.
The sentence was to run concurrently with any imposed in a pending state
criminal case charging Ross with possession of child pornography.
                                      II.
      Except for the stated constitutional challenges, Ross does not challenge
either his guilty-plea convictions or the sentence imposed, including not
claiming a double-jeopardy violation.       Ross preserved in district court his
constitutional challenges (to the child-pornography statute, 18 U.S.C. § 2252A,
and Guideline § 2G2.2); accordingly, our review is de novo. E.g., United States
v. Jones, 854 F.3d 737, 738 (5th Cir. 2017) (citation omitted) (constitutional
challenge to statute as vague); United States v. Preciado-Delacruz, 801 F.3d
508, 511 (5th Cir. 2015) (citations omitted) (constitutional challenge to
Guidelines’ application). (Ross’ unconditional guilty plea does not waive his
being able on appeal to assert these constitutional challenges. E.g., Class v.
United States, 138 S. Ct. 798, 803 (2018).)


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                                  No. 18-20496
                                       A.
      Regarding the challenged statute, it is a federal crime to “knowingly
receive[ ] or distribute[ ]” material containing child pornography. 18 U.S.C.
§ 2252A(a)(2)(B). This offense carries, as relevant in this instance, a term of
imprisonment between five and 20 years. Id. § 2252A(b)(1). It is also a federal
crime to “knowingly possess[ ]” child pornography. Id. § 2252A(a)(5)(B). This
offense carries, by contrast and as relevant in this instance, a maximum
sentence of ten years. Id. § 2252A(b)(2). (Possession carries stiffer sentences
in certain circumstances, see id., but these were not charged in this instance.)
      Ross does not contend § 2252A fails to provide fair notice of the proscribed
conduct. He instead claims § 2252A is unconstitutionally vague, in violation of
the Fifth Amendment’s Due-Process Clause, because: possession and receipt
of child pornography are logically inseparable; both § 2252A’s legislative
history and Sentencing Commission materials recognize their inseparability;
prosecutors may arbitrarily decide to charge defendants, for indistinguishable
conduct, under the more-severely-punished receipt offense instead of the less-
severely-punished possession offense; and such prosecutorial control over the
ultimate sentence violates the separation of powers. Each claim fails.
      “The prohibition of vagueness in criminal statutes . . . is an essential of
[Fifth Amendment] due process . . .”. Sessions v. Dimaya, 138 S. Ct. 1204, 1212
(2018) (internal quotation marks and citation omitted). Along that line, the
vagueness doctrine requires statutes “define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
prohibited [—as noted, Ross does not challenge the statute in this regard—]
and in a manner that does not encourage arbitrary and discriminatory
enforcement”.    Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations
omitted). “[T]he doctrine focuses both on actual notice to citizens and arbitrary
enforcement”; its “more important aspect . . . is not actual notice”, however, but
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                                 No. 18-20496
“the requirement that a legislature establish minimal guidelines to govern law
enforcement”. Id. at 357–58 (internal quotation marks and citation omitted).
It “guards against arbitrary or discriminatory law enforcement by insisting
that a statute provide standards to govern the actions of police officers,
prosecutors, juries, and judges”. Dimaya, 138 S. Ct. at 1212 (citing Kolender,
461 U.S. at 357–58). And, it applies “not only to statutes defining elements of
crimes, but also to statutes fixing sentences”. Johnson v. United States, 135 S.
Ct. 2551, 2557 (2015) (citation omitted). (Ross’ asserted separation-of-powers
violation is not separate from his vagueness challenge because the vagueness
doctrine “is a corollary of the separation of powers—requiring that Congress,
rather than the executive or judicial branch, define what conduct is
sanctionable and what is not”. Dimaya, 138 S. Ct. at 1212 (citation omitted).)
       Ross’ claim that possession and receipt are logically inseparable
conduct, and that, as a result, § 2252A’s criminalizing both invites
unconstitutionally arbitrary enforcement, is incorrect. As the other circuits to
consider the issue have concluded, the offenses are different in at least one
regard: “a person who produces child pornography has not received it”. United
States v. Dunning, 857 F.3d 342, 349 (6th Cir. 2017); accord United States v.
Burrows, 905 F.3d 1061, 1065 (7th Cir. 2018).
      Conviction of receipt, moreover, requires proof of an element—defendant
knowingly received child pornography—that conviction of possession does not.
See 18 U.S.C. § 2252A(a). This distinction reveals another way in which the
offenses differ. As Ross conceded at oral argument in our court: a person could
receive computer files without contemporaneously knowing they contained
child pornography; and, if that person subsequently discovered they contained
such material, he would knowingly possess child pornography, without having
knowingly received it. (In the light of these distinctions, to the extent Ross
contends § 2252A violates the Fifth Amendment’s Due-Process Clause because
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                                  No. 18-20496
of a claimed lack of a rational basis for its distinguishing between possession
and receipt offenses, that contention also fails. See United States v. Olander,
572 F.3d 764, 769–70 (9th Cir. 2009) (discussing how Congress could have decided
to proscribe and punish receipt separately from possession in order “to deter those
who receive child pornography from others and who thereby create demand and
drive the market for child pornography”).)
      Along those lines, it goes without saying that prosecutors routinely
decide to charge defendants with certain offenses, instead of others, based on
the evidence available to meet the requisite elements. This is particularly
relevant for receipt of child pornography. It can be difficult to prove the
requisite knowing-receipt because this requires intricate—and sometimes
impossible—tracing and analysis of computer files unless, as in this instance,
the Government happened to be operating undercover on the same peer-to-
peer, internet-file-sharing network as defendant. Such decisions, flowing from
the available evidence, are anything but arbitrary.
      Ross contends this is not the factual scenario in this instance because his
conduct underlying the receipt count constituted both receipt and possession.
“[B]ut [such overlap] is unremarkable and has no bearing on whether the
statute is unconstitutionally vague”. United States v. Watzman, 486 F.3d 1004,
1010 (7th Cir. 2007) (citation omitted). “[W]hen an act violates more than one
criminal statute, the Government may prosecute under either so long as it does
not discriminate against any class of defendants”. United States v. Batchelder,
442 U.S. 114, 123–24 & 125 n.9 (1979) (citations omitted) (noting prosecutor’s
decision to charge more serious offense violates equal protection if motivated by,
e.g., racial discrimination).
      Ross attempts to distinguish Batchelder, but its reasoning further
demonstrates why the receipt statute is not unconstitutionally vague.
Batchelder concerned two statutes, 18 U.S.C. §§ 922(h) and 1202(a), both

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                                  No. 18-20496
criminalizing convicted felons’ receiving firearms; and the statutes’ “substantive
elements” were “identical” as applied to defendant. Id. at 116–17. A conviction
under § 922(h) was punished according to § 924(a), providing a maximum $5,000
fine and/or a maximum five years’ imprisonment. Id. at 116 nn.2–3. Section
1202(a), by contrast, provided a maximum $10,000 fine and/or a maximum two
years’ imprisonment. Id. at 117 n.4. Conviction and sentencing under § 922(h),
providing the longer term of imprisonment, was challenged as unconstitutionally
vague. See id. at 122–23.
      The Supreme Court held conviction and sentencing under § 922(h)
constitutional. Id. at 123. “[T]here is no appreciable difference between the
discretion a prosecutor exercises when deciding whether to charge under one of
two statutes with different elements and the discretion he exercises when
choosing one of two statutes with identical elements”. Id. at 125. “[O]nce [the
prosecutor] determines that the proof will support conviction under either
statute”, prosecutorial discretion permits his choosing either. See id.
      Batchelder did not rest, as Ross claims, on the statutes’ somehow expanding
judicial-sentencing discretion. Nor, as he also contends, did it concern only the
vagueness doctrine’s fair-notice component. Compare id. at 124–25 (dismissing
claim statutes allowed “unfettered” discretion), with Johnson, 135 S. Ct. at 2556
(recognizing as unconstitutionally vague statute “so standardless that it invites
arbitrary enforcement”).
      Batchelder also rejected the claim “the statutes might impermissibly
delegate to the Executive Branch the Legislature’s responsibility to fix criminal
penalties”. Batchelder, 442 U.S. at 125–26 (citations omitted). The statutes
“plainly demarcate[d] the range of penalties that prosecutors and judges m[ight]
seek and impose”, id. at 126, as does § 2252A. Batchelder further rejected a prior
dissenting opinion Ross cites approvingly in describing his vagueness claim. See
id. at 124 (citing Berra v. United States, 351 U.S. 131, 139–40 (1956) (Black, J.,
dissenting)).
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                                    No. 18-20496
      As stated, and unlike the statutes at issue in Batchelder, the receipt and
possession offenses in § 2252A have different elements. There is no “appreciable
difference between the discretion a prosecutor exercises” in choosing whether to
charge defendant with receipt, possession, or both, and the decision to charge
defendant with, e.g., one of many possible homicide offenses. See id. at 125. Once
a prosecutor determines the evidence supports both offenses’ elements, he has
discretion to charge defendant with either (or both), subject to the constraint that
his choice not be the product of discriminatory animus. Id. at 125 n.9. (Other
circuits have held convictions for both based on the same underlying conduct
violates the Fifth Amendment’s Double-Jeopardy Clause. See, e.g., United States
v. Ehle, 640 F.3d 689, 698 (6th Cir. 2011); United States v. Miller, 527 F.3d 54, 72
(3d Cir. 2008); United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008). As
stated, this issue is not raised in this appeal.)
      Regarding Ross’ claim that any distinction between receipt and possession
is theoretical and does not empirically demonstrate that production of child
pornography plays any role in the application of § 2252A(a)(2) and (a)(5), such an
analysis implicates whether a provision is narrowly tailored, not whether it is
unconstitutionally vague. See, e.g., Fisher v. Univ. of Tex. at Austin, 758 F.3d 633,
643–44 (5th Cir. 2014) (citation omitted) (requiring governmental entity to prove
program narrowly tailored to goal).       Nor has Ross asserted the Government
unconstitutionally discriminated against him, see Batchelder, 442 U.S. at 125 n.9,
which statistical analyses of charging decisions could demonstrate. And, needless
to say, to the extent Ross submits it would be better policy to equalize punishment
between receipt and possession of child pornography, the Constitution entrusts
that determination to Congress, not the courts.
                                          B.
      In the alternative, Ross challenges as unconstitutional Guideline § 2G2.2’s
providing different base offense levels for receipt and possession, contending the
Guideline:   violates the separation-of-powers doctrine; and invites arbitrary
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                                   No. 18-20496
enforcement and application, in violation of the Fifth Amendment’s Due-Process
Clause. As discussed supra, this preserved challenge to the Guideline is reviewed
de novo.
      Pursuant to Guideline § 2G2.2, conviction of possession corresponds to a
base offense level of 18, while conviction of receipt carries a level of 22. See
U.S.S.G. § 2G2.2(a). As do the parties, we recognize that, because Ross’ challenge
to the Guideline relies on the claimed lack of rational difference between the
receipt and possession offenses, it substantially overlaps with his challenge to
§ 2252A. To the extent it is a separate claim, it also is unavailing.
      Moreover, as Ross concedes, the advisory Guidelines are not amenable to a
vagueness challenge. Beckles v. United States, 137 S. Ct. 886, 894 (2017). And,
as discussed supra, because the vagueness doctrine is a “corollary of the
separation of powers”, Dimaya, 138 S. Ct. at 1212, Ross’ claim Guideline § 2G2.2
violates the separation of powers is similarly foreclosed.
      Concerning Ross’ Fifth Amendment due-process challenge on grounds other
than his foreclosed vagueness claim, “[a] guideline violates due process only if it
has no rational basis or is subject to arbitrary application”. United States v.
Bacon, 646 F.3d 218, 221–22 (5th Cir. 2011) (citations omitted). Such rational-
basis review is satisfied where the challenged Guideline is rationally related to a
conceivable, legitimate objective. See United States v. Galloway, 951 F.2d 64, 65–
66 (5th Cir. 1992) (citations omitted) (applying rational-basis review to due-
process and equal-protection challenges to Guidelines). As stated, a rational basis
for Congress’ deciding to punish receipt more severely than possession could have
been to deter demand for child pornography. See Olander, 572 F.3d at 769–70.
      That a prosecutor may choose to charge a defendant with receipt instead of
possession may be unpredictable, as Ross contends; this, however, is a necessary
consequence of prosecutorial discretion. Such decisions affect the base offense
level assessed defendants, of course; but, this alone does not cause a constitutional
violation. See Batchelder, 442 U.S. at 125 (citations omitted) (“The prosecutor
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                                   No. 18-20496
may be influenced [in his charging decision] by the penalties available upon
conviction, but this fact, standing alone, does not give rise to a violation of
the . . . Due Process Clause.”).
      Nor do the differing base offense levels allow, as Ross claims, prosecutorial
selection of the ultimate sentence. Pursuant to United States v. Booker, 543 U.S.
220, 245 (2005), which rendered the Guidelines advisory, the district court
determines that sentence. E.g., Beckles, 137 S. Ct. at 894. “The court relie[s] on
the [Guidelines] merely for advice in exercising its discretion to choose a sentence
within [the] statutory limits.” Id. at 895.
      The court’s downward variance in this instance demonstrates the
distinction between the advisory Guidelines sentencing range and the sentence
imposed.    The Guidelines sentencing range Ross complains was arbitrarily
assigned him (because he was charged with receipt in count one) did not bind the
court, which exercised its discretion to vary from the Guidelines and impose a
significantly lower sentence.      This advisory character is precisely why the
Guidelines “are not amenable to a vagueness challenge”. See id. at 894.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.




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