                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-4066


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

HARVEY L. COX,

                 Defendant – Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:11-cr-00474-DCN-1)


Argued:   December 11, 2013                 Decided:   March 5, 2014


Before WILKINSON, DIAZ, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wilkinson and Judge Thacker joined.


ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant.      Peter
Thomas   Phillips,  OFFICE   OF  THE   UNITED  STATES ATTORNEY,
Charleston, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
DIAZ, Circuit Judge:

     Harvey Cox pleaded guilty to possessing child pornography.

At sentencing, the district court determined that, as part of

the offense, Cox caused a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of that

conduct.     Based on this determination, the court enhanced Cox’s

sentence     under        applicable         provisions           of        the     Sentencing

Guidelines.         Cox     appeals,         arguing       that        the       evidence     was

insufficient to support the enhancement.                          Finding no error in

the district court’s sentencing calculations, we affirm.



                                             I.

     In     early    2011,       the     Florence       County,             South    Carolina,

Sherriff’s    Office      was    investigating         Cox    regarding             the   sexual

assault of a minor.             After authorities arranged a meeting with

him to discuss the investigation, Cox staged his own death.                                    He

created the appearance that he had died while fishing off the

South Carolina coast--prompting the Coast Guard to conduct a

search--when    in    fact      he     had    fled    to    Florida.              After     Cox’s

daughter,    A.C.,     reported        the    ruse     to    authorities,            the    U.S.

Marshals Service arrested Cox in Florida and returned him to

South Carolina.

     During    the     ensuing         investigation,        A.C.           turned    over     to

authorities    forty-six         Polaroid         photographs          of    a    naked     young

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girl, whom A.C. identified as Cox’s niece, M.G.                       A.C. informed

investigators       that   she    discovered      the     photographs         in    Cox’s

bedroom and in his truck.           On the back of each photograph was a

date, in Cox’s handwriting, ranging from June 2004 to December

2005.   A.C. informed investigators that Cox had sexually abused

her when she was between the ages of ten and thirteen.                         The end

of   this   period      coincided       with    the     earliest      dates    on       the

photographs of M.G.          According to A.C., Cox would demand that

A.C. bring M.G. with her when A.C. came to stay with him, and

would require the girls to sleep in his bed.

     Investigators         interviewed         M.G.,     who    confirmed          A.C.’s

account.         M.G.   acknowledged      that    she    was    the    girl        in   the

photographs and reported that Cox took them beginning when she

was twelve years old.        According to the PSR:

     [M.G.] stated that Cox would give them (her and
     [A.C.]) Crown Royal liquor and he would “put stuff in
     their drinks to make them feel better.” She admitted
     they had sexual intercourse, and he would masturbate
     and ejaculate on her stomach after taking the
     pictures.   Cox also gave [M.G.] money and threatened
     to “do it” to her little sister if she told anyone.

J.A. 136.    The Florence County Sheriff’s Office executed search

warrants    at    Cox’s    home   and    business,      where    they    seized         two

Polaroid    cameras,       as     well     as    bedding        observed       in       the

photographs.

     A federal grand jury indicted Cox on three counts.                        Count I

charged that Cox “knowingly and willfully caused the Coast Guard

                                          3
to attempt to save a life and property when no help was needed,”

in violation of 14 U.S.C. § 88(c).                   J.A. 17.          Count II charged

that   Cox     “knowingly      did    use,      persuade,    induce,       and   coerce        a

person under the age of eighteen . . . to engage in sexually

explicit      conduct    . . .       for   the     purpose       of    producing       visual

depictions of such conduct,” in violation of 18 U.S.C. § 2251(a)

and (b).       J.A. 18.        Finally, Count III charged that Cox “did

knowingly      possess       material      that     contained         images     of     child

pornography,” in violation of 18 U.S.C. § 2252A(a)(5)(b).                                   J.A.

18.

       While    Cox    was     detained      on    these    charges,       his    cellmate

turned over to authorities a letter Cox had given him to send to

A.C.    In the letter, Cox instructed A.C. to “listen carefully

and practice what she has to say.”                   J.A. 136.          The letter also

directed A.C. to testify at trial that she and M.G. took the

photographs themselves and that Cox knew nothing about them.                                 In

return, Cox promised to support A.C. and M.G. financially.                                  The

following      week,     Cox’s    cellmate         turned    over      another        set    of

letters      intended    for     A.C.,     in     which    Cox    stated    that       M.G.’s

uncle, “Jason,” took the photographs.                     These letters urged A.C.

and M.G. not to testify.

       Cox subsequently pleaded guilty to Counts I and III of the

indictment pursuant to a plea agreement.                     Prior to sentencing, a

probation      officer       prepared      the     PSR.      In       calculating       Cox’s

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Guidelines        sentencing      range,    the     probation         officer     applied

U.S.S.G. § 2G2.2, the section of the Sentencing Guidelines that

pertains to offenses that involve the possession of material

depicting the sexual exploitation of a minor.                            Section 2G2.2

includes a        cross-reference,        § 2G2.2(c)(1),        which    is     triggered

“[i]f the offense involved causing . . . a minor to engage in

sexually explicit conduct for the purpose of producing a visual

depiction of such conduct.”                 In applicable cases, the cross-

reference instructs the court to apply § 2G2.1--which ordinarily

pertains     to     offenses      involving       the   production        of     sexually

explicit material--if application of that section would result

in a higher adjusted offense level than would § 2G2.2.                           Finding

these conditions satisfied, the probation officer applied the

cross-reference.

     Application          of    § 2G2.1    resulted     in     an    adjusted     offense

level of 40 for Count III, a thirteen level increase over what

would have resulted from applying § 2G2.2.                           Based in part on

this computation, the probation officer calculated Cox’s overall

offense    level     as    41,   which,    coupled      with    a    criminal     history

category of III, yielded an advisory Guidelines range of 360

months’ to life imprisonment.

     Cox    objected       to    the   application      of     the    cross-reference,

contending that there was insufficient evidence to support a

finding that he acted “for the purpose of producing a visual

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depiction”   of    sexually     explicit      conduct.      J.A.    128.          The

district court overruled Cox’s objection.                  It found that the

photographs themselves and the information in the PSR confirmed

that Cox had the requisite purpose.               The district court thus

applied the cross-reference, but recalculated Cox’s Guidelines

range based on other, unrelated objections Cox had raised.                    This

calculation produced a range of 262 to 327 months’ imprisonment,

capped at 300 months by an applicable statutory maximum.                          The

court sentenced Cox to concurrent prison terms of 60 months on

Count I and 240 months on Count III.



                                        II.

                                        A.

     On appeal, Cox challenges the procedural reasonableness of

his sentence.      Specifically, he argues that the district court

miscalculated      his     advisory     Guidelines    range    by     improperly

applying the U.S.S.G. § 2G2.2(c)(1) cross-reference.

     We   review     the     reasonableness      of   a    sentence       under     a

deferential abuse-of-discretion standard, “first ensur[ing] that

the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the

Guidelines   range.”        Gall   v.   United   States,    552    U.S.    38,     51

(2007).   In assessing the district court’s calculation of the

Guidelines range, we review its legal conclusions de novo and

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its factual findings for clear error.                    United States v. Medina-

Campo, 714 F.3d 232, 234 (4th Cir.), cert. denied, 134 S. Ct.

280 (2013).      “Clear error occurs when . . . the reviewing court

on   the   entire      evidence    is    left   with        the     definite    and   firm

conviction that a mistake has been committed.”                        United States v.

Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation

marks omitted).          “Sentencing judges may find facts relevant to

determining      a     Guidelines       range   by      a    preponderance       of    the

evidence . . . .”         United States v. Benkahla, 530 F.3d 300, 312

(4th Cir. 2008).          “[T]he traditional rules of evidence are not

applicable to sentencing proceedings,” and the “court may give

weight     to    any     relevant       information         before      it,     including

uncorroborated         hearsay,     provided     that         the     information       has

sufficient      indicia    of     reliability      to       support    its     accuracy.”

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010).

                                           B.

      Cox pleaded guilty to violating 18 U.S.C. § 2252A(a)(5)(b),

an offense governed by § 2G2.2 of the Sentencing Guidelines.                             As

previously      noted,    § 2G2.2       includes     a      cross-reference,          which

provides as follows:

      If   the   offense  involved   causing,  transporting,
      permitting, or offering or seeking by notice or
      advertisement, a minor to engage in sexually explicit
      conduct for the purpose of producing a visual
      depiction of such conduct[,] . . . apply § 2G2.1 . . .
      if the resulting offense level is greater than that
      determined [under § 2G2.2].

                                           7
U.S.S.G. § 2G2.2(c)(1) (emphasis added).

       Cox    contends      that    there    was    “no   evidence       presented”     to

support a finding that he acted for the purpose of producing a

visual depiction of sexually explicit conduct.                       Appellant’s Br.

at 6.        He argues that the district court instead based its

application of the cross-reference solely on the “existence of

photographs,” which he believes is impermissible.                           Id. at 8.

Although Cox does not dispute that he caused M.G. to engage in

sexually explicit conduct, or that he photographed that conduct,

he     contends      that     production     of    the    photographs       was   not    a

“central component of the sexual encounters.”                     Id. at 9.

                                             1.

       In addressing Cox’s argument, we begin by analyzing the

meaning      of    the   cross-reference’s         “purpose”      requirement.          The

application note accompanying § 2G2.2 emphasizes that the cross-

reference “is to be construed broadly.”                     U.S.S.G. § 2G2.2 cmt.

n.5.      Consistent        with   this     guidance,     two    circuits    that   have

considered the meaning of virtually identical cross-references

in other sections of the Sentencing Guidelines have held that

“purpose” does not mean “primary purpose.”                       In United States v.

Hughes, the Ninth Circuit explained that, “[i]n ordinary usage,

doing X ‘for the purpose of’ Y does not imply that Y is the

exclusive         purpose.”        282   F.3d     1228,   1231    (9th    Cir.    2002).


                                             8
Partly for this reason, the court held that a defendant “cannot

immunize       himself    from    the   operation       of       [the    cross-reference]

merely by demonstrating that he had an additional reason other

than the creation of . . . photographs for causing [the victim]

to    engage    in     sexually    explicit       conduct.”             Id.         Relying     on

Hughes, the Seventh Circuit similarly concluded in United States

v.    Veazey    that     “the    cross-reference        applies         when        one   of   the

defendant’s       purposes        was   to       create      a     visual           depiction,”

regardless of “whether that purpose was the primary motivation

for    the   defendant’s        conduct.”         491   F.3d      700,        707    (7th      Cir.

2007).

       We    agree       with    our    sister      circuits        that            the   cross-

reference’s purpose requirement is satisfied anytime one of the

defendant’s purposes was to produce a visual depiction of the

sexually       explicit     conduct.         In    other       words,         producing        the

depiction need not be the defendant’s sole, or primary, purpose.

This construction is fully consistent with the cross-reference’s

text, and any other reading would violate the application note’s

instruction       that    the     cross-reference         be     “construed           broadly.”

Accordingly, we reject Cox’s contention that the cross-reference

applies only when creation of a visual depiction is the “central

component of the sexual encounter[].”                   See Appellant’s Br. at 9.




                                             9
                                      2.

      On these facts, we have little trouble concluding that the

district court’s application of the cross-reference was proper.

Contrary to Cox’s assertions, the district court did not base

its application of the cross-reference solely on the existence

of the photographs.        Rather, to support its finding that the

cross-reference’s       purpose     requirement       was   satisfied,     the

district court specifically referred to paragraphs 11, 12, and

13 of the PSR.        Those paragraphs recounted evidence that Cox

took the photographs of M.G. after having sex with her; provided

her with alcohol and money and threatened to abuse her younger

sister; and both dated the photographs and retained them for as

many as seven years.         Additionally, the district court noted

Cox’s attempts to convince A.C. to lie about the photographs’

origins.

      We   agree    with   the     district   court     that     the   evidence

presented in the PSR “corroborate[s]” that Cox’s purpose was to

produce a visual depiction of the sexually explicit conduct.

See J.A. 101.       The production of the photographs--all of which

are   sexually     explicit--was    part   and   parcel     of   Cox’s   sexual

exploitation of M.G., lending strong support to the conclusion

that producing the images was at least one of his purposes in

abusing her.       Given that Cox also took the photographs over a

series of encounters, dated them, and retained them after the

                                      10
encounters,            the    evidence       was     plainly      sufficient          to     support

application of the cross-reference.

       The       cases       Cox    cites   do     not    help    him.          Cox   principally

relies on         the     Third       Circuit’s      decision        in   Crandon      v.     United

States, 173 F.3d 122 (3d Cir. 1999).                           In Crandon, however, the

court held only that a district court must make “some inquiry”

into       the     defendant’s            purpose        before      applying         the     cross-

reference.             Id. at 130 (emphasis added).                       Here, the district

court expressly found that Cox’s purpose was to produce a visual

depiction         of     sexually         explicit       conduct,     and       it    based       that

conclusion on a number of facts reported in the PSR.                                        See J.A.

102 (“I think the evidence shows he persuaded, he enticed, he

induced,         perhaps       coerced,      if    you     believe        the    threats.          And

permitted [M.G. to engage in sexually explicit conduct]. . . .

for    the       purpose       of    producing       a    visual      depiction        of     th[at]

conduct . . . .”).                    While some of the other cases Cox cites

arguably         involved          more   evidence       of   such    a    purpose         than    was

present here, none purport to establish a minimum evidentiary

threshold. *




       *
       Nor do we do so here. Specifically, we need not determine
whether the mere fact that a defendant produced sexually
explicit photographs of a minor, without more, may support
application of the cross-reference.



                                                   11
     In   sum,     we     discern   no    error   in    the   district   court’s

application      of     the   cross-reference     and    conclude   that   Cox’s

sentence is procedurally reasonable.



                                         III.

     For these reasons, we affirm the judgment of the district

court.

                                                                         AFFIRMED




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