                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-3096
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

STEPHEN WAINWRIGHT,
                                         Defendant-Appellant.
                       ____________
         Appeal from the United States District Court
            for the Western District of Wisconsin.
          No. 06 CR 0081—John C. Shabaz, Judge.
                       ____________
  ARGUED SEPTEMBER 19, 2007—DECIDED DECEMBER 4, 2007
                       ____________


 Before BAUER, MANION, and WOOD, Circuit Judges.
  MANION, Circuit Judge. Stephen Wainwright pleaded
guilty to distributing child pornography. The district
court sentenced him to 151 months of imprisonment.
Wainwright appeals, claiming that the district court
erred in applying a five-level enhancement for distribut-
ing child pornography to a minor when it calculated his
advisory guidelines range. We affirm.
2                                              No. 06-3096

                            I.
  Wainwright, a Wisconsin resident, came to the atten-
tion of law enforcement as the result of another investiga-
tion into child pornography in Florida. Joe Burton,
who had been arrested in Lake County, Florida, for the
production and distribution of child pornography, told
officers that he had received numerous images of child
pornography from an individual using the screen name
“gachknhawk.” After law enforcement officials traced that
screen name to Wainwright, they executed a search
warrant at Wainwright’s residence. Police recovered
more than 600 images containing child pornography on
Wainwright’s computer, as well as approximately
100 videos containing child pornography. Some of the
images contained sadistic or masochistic conduct such as
bondage and adult males sodomizing prepubescent
males. Law enforcement officials identified at least forty-
five separate screen names that received images of child
pornography from Wainwright’s email address between
2004 and 2005. Further investigation revealed that Wain-
wright had a conviction for sexually abusing an adoles-
cent minor in 1987, and, more recently, had admitted to
molesting a thirteen-year-old boy in 2004 and 2005.
  In April 2006, the government filed a one-count infor-
mation in the Western District of Wisconsin, charging
Wainwright with knowingly distributing a visual depic-
tion of a minor engaged in sexually explicit conduct on
May 11, 2004, in violation of 18 U.S.C. § 2252(a)(2). On
September 6, 2006, Wainwright appeared before the dis-
trict court and pleaded guilty to that charge.
  The district court then proceeded to sentence Wain-
wright. The presentence report (“PSR”) recommended a
sentencing range of 121 to 151 months. That range included
No. 06-3096                                                 3

a five-level enhancement for distribution of child pornogra-
phy to a minor. The background section of the PSR
stated that Wainwright had exchanged numerous emails
containing movies and still images of child pornography,
including exchanges with individuals who were under
eighteen or who he believed were under the age of 18.
Specifically, the PSR referenced the exchange of numerous
sexually explicit emails and a sexually explicit video
with a person using the screen name “Justified Facade -
16yo.” The PSR also stated that the written content of
many of Wainwright’s emails to those with whom he
was sharing child pornography reflected that he was
communicating with, or believed he was communicat-
ing with, individuals under the age of 18. The district
court asked Wainwright’s counsel if there were any
objections to the PSR, to which Wainwright’s attorney
replied that there were none. The court then found, among
other things, that Wainwright had distributed child
pornography to a minor and sentenced Wainwright to
151 months of imprisonment under the November 2003
guidelines manual. Wainwright appeals.


                             II.
   On appeal, Wainwright asserts that the district court
committed plain error by enhancing his offense level five
levels for distribution of child pornography to a minor. The
November 2003 sentencing guidelines provide that “[i]f
the offense involved . . . [d]istribution to a minor, increase
[the offense level] by 5 levels.” U.S.S.G. § 2G2.2(b)(2)(C)
(2003). The 2003 guidelines define “minor” as “an individ-
ual who had not attained the age of 18 years.” Id. § 2G2.2
application note 1 (2003). While admitting that he be-
lieved that he was distributing child pornography to
4                                                   No. 06-3096

minors, Wainwright argues on appeal that his offense level
could only be enhanced under § 2G2.2(b)(2)(C) if the
recipients were, in fact, under the age of eighteen. Wain-
wright claims that there was no evidence in the record
that the individuals to whom he distributed child pornog-
raphy were actually minors, as opposed to individuals
posing as minors. Wainwright further contends that the
district court appears to have relied on the first application
note1 to § 2G2.2 to expand the definition of “minors” to
individuals who were over eighteen by including those
who the defendant believed were minors. Wainwright
insists that such an interpretation violated the plain
language of both 18 U.S.C. § 2256(1), which defines minor
as “any person under the age of eighteen years,” and
U.S.S.G. § 2G2.2(b)(2)(C).
  This court has never addressed the question of whether
a § 2G2.2(b)(2)(C) enhancement is appropriate for situa-
tions where the recipient of the child pornography is over
eighteen, but believed by the defendant to be under
eighteen. Other circuits have addressed that issue in the
context of undercover police officers posing as minors.
Compare United States v. Morton, 364 F.3d 1300, 1304 (11th
Cir. 2004), vacated and remanded, 543 U.S. 1136, opinion



1
  The first application note to § 2G2.2 defines “[d]istribution to
a minor” as “the knowing distribution to an individual who is
a minor at the time of the offense, knowing or believing the
individual is a minor at the time.” Id. Wainwright claims that
language expands the definition to mean that § 2G2.2(b)(2)(C)
requires only a belief that the recipient of the pornography is
a minor, even if the recipient is not a minor. We need not
reach that issue here because the district court found that
Wainwright distributed child pornography to a minor.
No. 06-3096                                                  5

reinstated by 144 Fed. Appx. 804 (11th Cir.), and cert. denied,
546 U.S. 1053 (2005) (holding that an undercover law
enforcement officer qualified as a “minor” under U.S.S.G.
§ 2G2.2(b)(4) based on the interchangeable use of “minor”
and “victim” in the commentary to that guideline, as
well as the definition of “victim” in the commentary),
with United States v. Stephens, 462 F.3d 1169, 1172 (9th Cir.
2006) (holding that an enhancement for distribution of
child pornography to a minor was improper because the
pornographic materials at issue were transmitted to an
undercover law enforcement officer who was not a
minor). The guidelines have since been amended to
redefine “minor” as including, in addition to an individ-
ual under the age of eighteen, “an individual, whether
fictitious or not, who a law enforcement officer repre-
sented to a participant (i) had not attained the age of
18 years, and (ii) could be provided for the purposes of
engaging in sexually explicit conduct; or . . . an undercover
law enforcement officer who represented to a participant
that the officer had not attained the age of 18 years.”
U.S.S.G., App. C, amend. 664 (Supp. 2004). These cases
and the 2004 amendment involve undercover law en-
forcement officers, however, and not the situation of other
adults posing as minors. Nonetheless, we need not
decide whether the definition of “minor” contained in
the application note to § 2G2.2 is broad enough to include
non-law-enforcement adults posing as “minors,” be-
cause in this case the district court made a finding of fact
at sentencing that a five-level enhancement under
§ 2G2.2(b)(2)(C) was appropriate because Wainwright
“distributed child pornography to a minor.”
  Wainwright challenges that factual finding on appeal.
Because he failed to object to the § 2G2.2(b)(2)(C) enhance-
6                                                 No. 06-3096

ment at sentencing, however, we review for plain error.
United States v. Grigg, 442 F.3d 560, 563 (7th Cir. 2006). Plain
error review requires us to determine whether: (1) error
occurred; (2) the error was plain; and (3) the error affected
the defendant’s substantial rights. United States v. Simpson,
479 F.3d 492, 496 (7th Cir. 2007). If these criteria are met,
we may reverse, in an exercise of discretion, if we de-
termine that the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Luepke, 495 F.3d 443, 448 (7th Cir. 2007).
  In this case, the sentencing judge had before him the PSR
that stated that the written content of many of Wain-
wright’s emails indicated that he was communicating
with, or believed he was communicating with, individ-
uals under the age of eighteen with whom he was shar-
ing child pornography. Wainwright focuses on the “or,”
noting that the PSR’s use of the disjunctive means that the
individuals may not have been under the age of 18. How-
ever, the PSR also included the screen names of some of
the individuals to whom Wainwright transmitted infor-
mation, including “Justified Facade - 16yo.” The district
court could have interpreted that name as descriptive of
the actual age of one of Wainwright’s email correspon-
dents.
  Wainwright argues that the district court could not
have relied on the screen name “Justified Facade - 16yo” to
apply the § 2G2.2(b)(2)(C) enhancement because people
often lie about their age on the internet. Wainwright did
not present that argument to the district court. Had he
presented such an argument, he would have given the
government an opportunity to further support its posi-
tion that the recipients included individuals under
eighteen years of age. For instance, at oral argument
No. 06-3096                                                7

the government represented that the text of the chat
messages between Wainwright and those to whom he
sent child pornography, as well as web-camera images of
the chat participants, demonstrated that the recipients
of Wainwright’s pornographic images were below the
age of eighteen. Although that evidence is not currently
in the record, it could have been had Wainwright brought
this issue to the attention of the district court. Because
Wainwright did not, our review is limited to plain error.
Given this limited review, we cannot say that the district
court committed plain error by relying on a screen name
as evidence that at least one of the recipients was, in fact,
under eighteen.
  Moreover, even if we were to conclude that the dis-
trict court committed plain error in enhancing Wain-
wright’s sentence under § 2G2.2(b)(2)(C), the error did not
substantially prejudice Wainwright—nor did it seriously
affect the fairness, integrity, or public reputation of judi-
cial proceedings—since he would have qualified for a five-
level enhancement under § 2G2.2(b)(2)(B) to the 2003
guidelines, an enhancement he did not previously receive.
Section 2G2.2(b)(2)(B) provides a five-level enhancement
for “[d]istribution for the receipt, or expectation of re-
ceipt, of a thing of value, but not for pecuniary gain.”
U.S.S.G. § 2G2.2(b)(2)(B) (2003). Wainwright did not
dispute that he exchanged emails with movies and still
images containing child pornography. Sending images of
child pornography in order to obtain more images of child
pornography justifies a § 2G2.2(b)(2)(B) enhancement. See
United States v. Griffith, 344 F.3d 714, 720 (7th Cir. 2003).
Accordingly, even if Wainwright’s offense level was
improperly enhanced under § 2G2.2(b)(2)(C), he would
still be subject upon resentencing to a five-level enhance-
8                                               No. 06-3096

ment for distribution in exchange for a thing of value
under § 2G2.2(b)(2)(B). See United States v. Thomas, 453 F.3d
838, 847 (7th Cir. 2006) (finding no plain error where
defendant would be in no better situation on remand).


                            III.
  The district court did not commit plain error by rely-
ing on the PSR to enhance Wainwright’s base offense
level five levels for distribution of child pornography to a
minor. Moreover, any error that occurred neither sub-
stantially prejudiced Wainwright nor seriously affected
the fairness, integrity, or public reputation of the judicial
proceedings because Wainwright would have qualified
for a different five-level enhancement for distributing
child pornography in exchange for a thing of value.
We AFFIRM.

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—12-4-07
