                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 16-4073
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                                   JOSE GONZALEZ,
                                                Appellant
                                      __________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-14-cr-00448-001)
                       District Judge: Honorable John R. Padova

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 12, 2017

          BEFORE: CHAGARES, JORDAN, and NYGAARD, Circuit Judges

                                  (Filed: May 24, 2018)
                                       __________

                                        OPINION *
                                       __________

NYGAARD, Circuit Judge.

       Appellant Jose Gonzalez pleaded guilty to possessing and manufacturing child

pornography. The District Court sentenced him to 420-months’ imprisonment, a



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
sentencing that falls within the applicable guidelines range. He now appeals, arguing that

the District Court erred by failing to group his two manufacturing counts. We will

affirm.

                                               I.

          This appeal involves issues which relate solely to Gonzalez’ sentence, so we will

provide just a cursory outline of the background facts. Gonzalez was arrested after

discussing with undercover police officers on the internet sexual acts he undertook with a

child in his care. After executing a search warrant and seizing his cell phone and other

electronic devices 1, Gonzalez confessed to the sexual abuse and to photographing this

molestation. He also confessed to distributing these photographs over the internet.

          His pre-sentence report divided Gonzalez’ manufacturing crimes into two separate

groups: Group I for the first photograph Gonzalez manufactured of the child; and Group

II for the photograph he manufactured of the actual sexual abuse. 2 The base offense level

for Group I was pegged at 32. Pursuant to USSG § 2G2.1(b)(1)(A), an additional four

levels were added because the victim was two years old at the time of the offense. The


1
 A forensic examination of Gonzalez’ electronic devices revealed more than 19,000
images of child pornography, which Gonzalez traded over the internet; photographs
Gonzalez took of the child while he sexually abused her, naked photographs of Gonzalez
himself, and thousands of email messages to others in which Gonzalez detailed his
interest in sexually abusing the child in his care.
2
 Section 3D1.2 of the Sentencing Guidelines provides, in pertinent part, that:
All counts involving substantially the same harm shall be grouped together into a single
Group. Counts involve substantially the same harm within the meaning of this rule ... (d)
[w]hen the offense level is determined largely on the basis of the total amount of harm or
loss, ... or if the offense behavior is ongoing or continuous in nature and the offense
guideline is written to cover such behavior. U.S.S.G. § 3D1.2(d).
                                               2
base offense level was further augmented by two more levels because the offense

involved the committing of a sexual act; by two more levels because the offense involved

distribution, and by two levels because the victim was under Gonzalez’ care and

supervision. These increases resulted in a final base offense level of 42. The offenses in

Group II, which involved photographs of Gonzalez sexually abusing the child, received

the same base offense level—42.

       At sentencing, Gonzalez objected to the way the PSR grouped his crimes but the

District Court denied his objection. The Court then determined that Gonzalez’ offense

level was a 42 and that his advisory guidelines range was 360-months to life

imprisonment. After considering mitigation witnesses, and denying Gonzalez’ request

for a variance, the District Court sentenced him to 420-months’ imprisonment, which was

within the guidelines rage. Gonzalez timely appealed his sentence. On appeal, Gonzalez

argues that the District Court erred by treating his two manufacturing counts as two

distinct groups of conduct, instead of grouping them pursuant to U.S.S.G. § 3D1.2.

                                             II.

                                             A.

       Gonzalez and the Government disagree as to the applicable appellate standard of

review. We recently explained that ““we review the District Court's interpretation of the

Sentencing Guidelines de novo,” its “findings of fact for clear error [,]” and its

“application of the Guidelines to facts for abuse of discretion.” United States v. Metro,

882 F.3d 431, 437 (3d Cir. 2018) (quoting United States v. Kluger, 722 F.3d 549, 555 (3d

Cir. 2013) (citations omitted)). The federal sentencing guidelines are to be understood

                                              3
according to their “plain and unambiguous language[.]” Kluger, 722 F.3d at 556 (quoting

United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993)). We also treat commentary that

interprets or explains a specific guideline to be “authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,

that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).

       However, this appeal presents a somewhat more nuanced issue. Here, Gonzalez

argues that the District Court erred by not determining that his manufacturing of child

pornography offenses were part of a common scheme or plan that should have been

grouped together under U.S.S.G. § 3D1.2. Because such a determination is essentially

factual, we review only for clear error. United States v. Griswold, 57 F.3d 291 (3d Cir.

1995) (citations omitted). And, when reviewing the appropriateness of a grouping, we

afford substantial deference to a district court. Id. Applying this highly deferential

standard, we are satisfied that the District Court did not clearly err by refusing to group

Gonzalez’ offenses for sentencing purposes.

                                              B.

       Gonzalez argues that the District Court mistakenly separated his two

manufacturing offenses because his crimes involved the same victim and are connected

by a common objective. He points to U.S.S.G. § 3D1.2(b) which states that counts which

involve the “same victim and two or more acts or transactions connected by a common

scheme or plan” are to be grouped together.

       An application note for U.S.S.G. § 3D1.2 further explains that offenses should be

grouped together for sentencing when they are “part of a single course of conduct with a

                                               4
single criminal objective and represent essentially one composite harm to the same

victim.” U.S.S.G. § 3D1.2, comment., n. 4. The note goes on to provide a specific

example: “two counts of mail fraud and one count of wire fraud, each in furtherance of a

single fraudulent scheme . . . even if the mailings and telephone call occurred on different

days” should be grouped. Id. Of particular importance to this appeal, the application

note additionally instructs that “two counts of rape for raping the same person on

different days . . . are not to be grouped together.” Id. (emphasis in original). See also

Griswold, 57 F.3d at 296 (“The Sentencing Commission, in its wisdom, saw fit to decide

that multiple counts of rape . . . not be grouped together when dealing with the same

victim.”).

       Here, the District Court correctly concluded that Gonzalez’ offenses constitute two

separate instances of producing child pornography. The first offense involved a

pornographic photograph of the young child. The second offense was a pornographic

image involving the child as she was sleeping in the same bed as Gonzalez which he

manufactured while he was communicating with the undercover detective. The

production of each image subjected the child to explicit sexual assault, causing her to

suffer separate and distinct harms. See, e.g., United States v. Wise, 447 F.3d 440, 446

(5th Cir. 2006). Indeed, as one court has explained, “two episodes of sexual misconduct

that society has legitimately criminalized occurring with the same person on different

days are not ‘substantially the same harm’ for purposes of section 3D1.2.” United States

v. Vasquez, 389 F.3d 65, 77 (2d Cir. 2004).



                                              5
       We reject Gonzalez’ argument that his offenses were connected to a common

criminal purpose: the sharing or trading of images of child pornography with other

troubled individuals. The record reveals that Gonzalez had a large collection of child

pornography, and he was sharing and trading these images on the internet since 2013.

This was about a year before he manufactured pornographic images of the child in his

care. We see a discernible difference between the sharing or trading of images

previously manufactured images of child pornography and Gonzalez’ manufacturing

images of the child. We agree with the Government that there is no commonality

between the receipt, possession, and distribution of images of child pornography and the

sexual exploitation of the child a year later.

       The District Court committed no error, much less a clear one, by refusing to group

these two offenses. We will affirm Gonzalez’ sentence.




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