
USCA1 Opinion

	




        July 22, 1992            ____________________        July 22, 1992            ____________________        No. 92-1152        No. 92-1152                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                                  BRIAN K. SCHULTZ,                                  BRIAN K. SCHULTZ,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                          FOR THE DISTRICT OF NEW HAMPSHIRE                          [Hon. Nicholas Tsoucalas,* Judge]                          [Hon. Nicholas Tsoucalas,* Judge]                                                     _____                                 ____________________                                 ____________________                                        Before                                        Before                               Torruella, Selya and Cyr,                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   Circuit Judges.                                   ______________                                 ____________________                                 ____________________            Warren C. Nighswander and Sulloway, Hollis  & Soden, on brief  for            Warren C. Nighswander and Sulloway, Hollis  & Soden, on brief  for            _____________________     _________________________        appellant.        appellant.            Jeffrey  R. Howard,  United States  Attorney, and Peter  E. Papps,            Jeffrey  R. Howard,  United States  Attorney, and Peter  E. Papps,            __________________                                _______________        First Assistant United States Attorney, on brief for appellee.        First Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                                 ____________________                                 ____________________        *Of the  United  States  Court  of  International  Trade,  sitting  by        *Of the  United  States  Court  of  International  Trade,  sitting  by        designation.        designation.            CYR, Circuit  Judge.  Appellant Brian  Schultz pled  guilty to one            CYR, Circuit  Judge.                 ______________        count of  distributing child pornography, see  18 U.S.C.   2252(a)(2),                                                  ___        and  one count  of conspiring  to (1)  transport child  pornography in        interstate commerce (18  U.S.C.   2252(a)(1)),  (2) transport  obscene        matter in interstate  commerce (18  U.S.C.   1465), (3)  use a  common        carrier to  transport obscene  matter (18  U.S.C.   1462(a)), and  (4)        receive  and possess obscene matter  while engaged in  the business of        transferring obscene  matter (18 U.S.C.   1466(a)), in violation of 18        U.S.C.    371.   Schultz  challenges  the  offense level  enhancements        imposed  on account of his involvement with obscene material depicting        adult  sadomasochism,  see   U.S.S.G.    2G2.2(b)(3),   and  for   his                               ___        aggravating  role in the conspiracy  offense, see id.    3B1.1(c).  We                                                      ___ ___        affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________            Following an investigation  which began in November 1990,  Schultz        and two coconspirators were charged with various violations of federal        law relating  to the  possession, transportation, and  distribution of        child pornography and of obscene matter depicting adult sadomasochism.        Count I  charged that Schultz conspired to sell (and sold) a videotape        entitled "CESC," depicting adult sadomasochism and violence.  Count IX        charged  Schultz  with  the  substantive  offense  of  distributing  a        videotape  entitled "JUDO,"  portraying  a child  engaged in  sexually                                          2        explicit conduct involving neither violence nor sadomasochism.*                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________            The parties agree  that the district court properly "grouped"  the        conspiracy  and substantive  counts  under U.S.S.G.    3D1.2(b).   The        "common scheme or plan" that  warranted the grouping of all counts  of        conviction,  see  id.,  included  conduct  involving  not  only  child                     ___  ___        pornography (counts I and  IX), see id.   2G2.2,** but  obscene matter                                        ___ ___                                    ____________________        *The  district  court  determined  Schultz's  guideline   sentence  as        *The  district  court  determined  Schultz's  guideline   sentence  as        follows:  (1) base offense level 13, see U.S.S.G.   2G2.2(a); (2) two-        follows:  (1) base offense level 13, see U.S.S.G.   2G2.2(a); (2) two-                                             ___        level enhancement because pornographic materials involved minors under        level enhancement because pornographic materials involved minors under        age  12, see  id.    2G2.2(b)(1); (3)  five-level enhancement  because        age  12, see  id.    2G2.2(b)(1); (3)  five-level enhancement  because                 ___  ___        materials were distributed for  pecuniary gain, see id.   2G2.2(b)(2);        materials were distributed for  pecuniary gain, see id.   2G2.2(b)(2);                                                        ___ ___        (4) four-level enhancement  because materials contained depictions  of        (4) four-level enhancement  because materials contained depictions  of        sadomasochistic conduct or other  violence, see id.   2G2.2(b)(3); (5)        sadomasochistic conduct or other  violence, see id.   2G2.2(b)(3); (5)                                                    ___ ___        two-level enhancement  for Schultz's  aggravated role in  the offense,        two-level enhancement  for Schultz's  aggravated role in  the offense,        see  id.   3B1.1(c); and (6)  a two-level reduction  for acceptance of        see  id.   3B1.1(c); and (6)  a two-level reduction  for acceptance of        ___  ___        responsibility.   The  resultant total  offense level  was 24  and the        responsibility.   The  resultant total  offense level  was 24  and the        guideline sentencing  range 51-63 months.  The court sentenced Schultz        guideline sentencing  range 51-63 months.  The court sentenced Schultz        to a 60-month prison term.        to a 60-month prison term.        **Section 2G2.2 (Transporting, Receiving,  or Trafficking in  Material        **Section 2G2.2 (Transporting, Receiving,  or Trafficking in  Material        Involving the Sexual Exploitation of a Minor) reads, in relevant part:        Involving the Sexual Exploitation of a Minor) reads, in relevant part:            (a)Base Offense Level:  13            (a)Base Offense Level:  13            (b)Specific Offense Characteristics            (b)Specific Offense Characteristics            . . .            . . .            (3)  If the offense involved material that  portrays sadistic            (3)  If the offense involved material that  portrays sadistic                        _______            or  masochistic  conduct  or  other  depictions  of violence,            or  masochistic  conduct  or  other  depictions  of violence,                                      __  _____  __________  __ ________            increase by 4 levels.            increase by 4 levels.                                          3        portraying  sadomasochism (count  I),  see id.    2G3.1.***   Although                                               ___ ___        the precise manner in which the district court grouped the offenses is        not  entirely clear,  the particulars  are unimportant  to the  issues        raised on appeal, as Schultz remains "otherwise accountable," see  id.                                                                      ___  ___          1B1.3(a)(1), for all "relevant conduct" in furtherance of the common        scheme.  Id.                 ___            The  cross  reference   in  U.S.S.G.    2G3.1(c)(1)   directs  the        application  of U.S.S.G.    2G2.2 where  "the offense  involved .  . .                                                      _______  ________        material  [depicting]  the  sexual   exploitation  of  a  minor,"  id.                                                                           ___          2G3.1(c)(1) (emphasis added).   Accordingly, U.S.S.G.   2G2.2    the        child  pornography guideline     controlled  the sentencing  guideline        determination  as to  the "acts  . .  . for  which [Schultz]  would be        otherwise    accountable"   as   provided   in   U.S.S.G.     1B1.3(a)                                    ____________________        ***Section  2G3.1 (Importing, Mailing, or Transporting Obscene Matter)        ***Section  2G3.1 (Importing, Mailing, or Transporting Obscene Matter)        reads, in relevant part:        reads, in relevant part:            (a)Base Offense Level:  6            (a)Base Offense Level:  6            (b)Specific Offense Characteristics            (b)Specific Offense Characteristics            . . .            . . .            (2) If  the offense involved material  that portrays sadistic            (2) If  the offense involved material  that portrays sadistic                        _______            or  masochistic  conduct  or  other  depictions of  violence,            or  masochistic  conduct  or  other  depictions of  violence,            increase by 4 levels.            increase by 4 levels.            (c)Cross Reference            (c)Cross Reference            (1)  If  the  offense  involved  transporting,  distributing,            (1)  If  the  offense  involved  transporting,  distributing,                          _______            receiving, possessing,  or  advertising to  receive  material            receiving, possessing,  or  advertising to  receive  material            involving the sexual exploitation of a minor, apply   2G2.2            involving the sexual exploitation of a minor, apply   2G2.2                                                          _____ _ _____            . . . .            . . . .        (Emphasis added).        (Emphasis added).                                          4        (ii),(iii),(1).****            The dispute relates to the  proper application of  the enhancement        authorized  under U.S.S.G.    2G2.2(b)(3):   "If the  offense involved        material  that  portrays  sadistic  or masochistic  conduct  or  other        depictions  of violence, increase by four levels."  The district court        imposed the four-level  enhancement on  the theory that  three of  the        objectives  of the  criminal conspiracy  charged in  count  I involved        "obscene   matter"  depicting  adult   sadomasochism  and  constituted        "relevant  conduct" for  which  Schultz  was  "otherwise  accountable"        within  the  meaning of  U.S.S.G.    1B1.3, comment.  (n.1).   Schultz        contends that the word "offense" in U.S.S.G.   2G2.2(b)(3) encompasses        only the child pornography  offense and that the district  court erred        in considering adult obscene  matter depicting sadomasochism.  Schultz        cites  to no authority, but  urges that the  Commission's placement of                                    ____________________        ****Relevant Conduct (Factors that Determine the Guideline Range)        ****Relevant Conduct (Factors that Determine the Guideline Range)            _____________________________________________________________            (                             a                             )            (                             a                             )            Chapters  Two  (Offense  Conduct)  and  Three  (Adjustments).            Chapters  Two  (Offense  Conduct)  and  Three  (Adjustments).            ____________________________________________________________            Unless otherwise specified, (i)  the base offense level where            Unless otherwise specified, (i)  the base offense level where            the  guideline specifies  more than  one base  offense level,            the  guideline specifies  more than  one base  offense level,            (ii)   specific  offense  characteristics   and  (iii)  cross            (ii)   specific  offense  characteristics   and  (iii)  cross                   ________  _______  _______________               _____            references in  Chapter Two,  and (iv) adjustments  in Chapter            references in  Chapter Two,  and (iv) adjustments  in Chapter            __________ __  _______ ___            Three, shall be determined on the basis of the following:            Three, shall be determined on the basis of the following:            (                             1                             )            (                             1                             )            all  acts and omissions committed or aided and abetted by the            all  acts and omissions committed or aided and abetted by the            ___  ____ ___ _________            defendants,  or for  which the  defendant would  be otherwise            defendants,  or for  which the  defendant would  be otherwise                            ___  _____ ___  _________ _____  __ _________            accountable, that  occurred  during  the  commission  of  the            accountable, that  occurred  during  the  commission  of  the            ___________            offense of conviction, in preparation for that offense, or in            offense of conviction, in preparation for that offense, or in            the course of attempting to avoid detection or responsibility            the course of attempting to avoid detection or responsibility            for that offense,  or that otherwise  were in furtherance  of            for that offense,  or that otherwise  were in furtherance  of            that offense . . . .            that offense . . . .        U.S.S.G.   1B1.3(a)(1) (emphasis added).        U.S.S.G.   1B1.3(a)(1) (emphasis added).                                          5        the   sadomasochism   "specific    offense   characteristic"    within          2G2.2(b)(3) (child  pornography  guideline) indicates  that  obscene        matter  involving   adult  sadomasochism  only  was   not  within  the        contemplation of the Commission.*****            The legal determination  as to the proper interplay among  related        guidelines is subject to  plenary review.  United States  v. Phillips,                                                   _____________     ________        952  F.2d 591, 594  (1st Cir.),  petition for  cert. filed,  U.S. App.                                         ________ ___  ____  _____        LEXIS 30, 120 (May 12, 1992); United States v. Veilleux, 949 F.2d 522,                                      _____________    ________        528 (1st  Cir. 1991).  We  start with U.S.S.G.   2G3.1  (adult obscene        matter), which expressly requires reference to U.S.S.G.   2G2.2 (child        pornography).  Thus, materials which contain both adult obscene matter        and child  pornography are  controlled by  U.S.S.G.   2G2.2.   Section        2G2.2  neither  states nor  intimates  that sentencing  courts  are to        exclude  from  consideration  the  specific   offense  characteristics        relating to adult obscene matter made subject to   2G2.2(b)(3) through        the cross  reference in    2G3.1.  Moreover,    2G3.1(b)(2) authorizes        the  identical  four-level  enhancement set  forth  in    2G2.2(b)(3),        suggesting  that the  Commission  intended that  the specific  offense        characteristics  of  sadomasochism  and  violence  be  dealt  with  in        identical  fashion whether depicted  in adult obscene  matter or child        pornography.  Under the  interpretation urged by Schultz, each  time a                                    ____________________        *****Schultz concedes  that he would have been held responsible, under        *****Schultz concedes  that he would have been held responsible, under          2G3.1 (adult obscene  matter), for the criminal  conduct relating to          2G3.1 (adult obscene  matter), for the criminal  conduct relating to        obscene matter depicting adult sadomasochism, but insists that this is        obscene matter depicting adult sadomasochism, but insists that this is        not relevant  conduct under    2G2.2  as it  "has no  relation to  the        not relevant  conduct under    2G2.2  as it  "has no  relation to  the        offense  of  child pornography  and provides  no  basis for  an upward        offense  of  child pornography  and provides  no  basis for  an upward        adjustment pursuant to   2G2.2(b)(3)."        adjustment pursuant to   2G2.2(b)(3)."                                          6        criminal offense involves adult obscene matter depicting sadomasochism        or  other  violence, as  well  as  nonviolent  child pornography,  the        violence in the adult materials would be ignored as a specific offense        characteristic  under     2G2.2.     We  believe  the   more  sensible        interpretation requires  the court  to consider violence  or sadomaso-        chism  as a  specific offense  characteristic warranting  a four-level        enhancement under either U.S.S.G.   2G2.2 or U.S.S.G.   2G3.1.            The Sentencing  Guidelines expressly prescribe  the factors to  be        utilized in  determining specific  offense characteristics.   U.S.S.G.          1B1.3,  entitled  "Relevant  Conduct  (Factors  that  Determine  the        Guideline Range)," provides in relevant part:            (a)  Chapter[] Two (Offense Conduct) . . . . Unless otherwise                 _______________________________            specified, . . . specific offense characteristics . . . shall            be determined on the basis of the following:            (1)  all acts and omissions committed or aided and abetted by            the defendant, or for which the  defendant would be otherwise                           __ ___ _____ ___  _________ _____ __ _________            accountable, that  occurred  during  the  commission  of  the            ___________            offense  of  conviction  . .  .  or  that  otherwise were  in            furtherance of that offense . . . .        U.S.S.G.   1B1.3(a)(1)  (emphasis in subsection (1)  added).  Applica-        tion note  1  to    1B1.3(a)(1)  states:   "In  the case  of  criminal        activity  undertaken in concert with others, whether or not charged as        a  conspiracy, the conduct for which the defendant 'would be otherwise        accountable' . . .  includes conduct of  others in furtherance of  the        execution  of  the  jointly-undertaken  criminal   activity  that  was        reasonably foreseeable  by  the defendant."   U.S.S.G.    1B1.3(a)(1),        comment.  (n.1).     The  application  note  thus  counsels   a  broad                                          7        interpretation  of the  term  "offense" in  applying specific  offense        characteristics under Chapter  2 of the  Guidelines.  The sale  of the        "CESC" videotape depicting adult sadomasochism was properly considered        "relevant  conduct"   for  which   Schultz  was   "otherwise  account-        able."******        "Role in the Offense" Enhancement        "Role in the Offense" Enhancement         ________________________________            Schultz  contends that  the district  court improperly  imposed  a        two-level enhancement  for his  leadership role  in  the offense,  see                                                                           ___        U.S.S.G.    3B1.1(c),  and  failed  to  make  the  requisite  findings        contemplated   by  18  U.S.C.    3553(c).*******    As  "role  in  the                                    ____________________        ******The  interpretation urged by  Schultz is  further undercut  by a        ******The  interpretation urged by  Schultz is  further undercut  by a        recent   clarifying  amendment   to  U.S.S.G.     1B1.1  ("Application        recent   clarifying  amendment   to  U.S.S.G.     1B1.1  ("Application        Instructions"), which states as follows:  "'Offense' means the offense        Instructions"), which states as follows:  "'Offense' means the offense                                                                       _______        of  conviction  and  all  relevant  conduct  under    1B1.3  (Relevant        of  conviction  and  all  relevant  conduct  under    1B1.3  (Relevant        __  __________       ___  ________  _______        Conduct) unless a different meaning is specified or is otherwise clear        Conduct) unless a different meaning is specified or is otherwise clear        from  the  context."   U.S.S.G.    1B1.3,  comment. (n.1(l))  (Nov. 1,        from  the  context."   U.S.S.G.    1B1.3,  comment. (n.1(l))  (Nov. 1,        1991).   As the Sentencing Commission explained, its recent definition        1991).   As the Sentencing Commission explained, its recent definition        did not  alter preexisting  practice under the  Sentencing Guidelines,        did not  alter preexisting  practice under the  Sentencing Guidelines,        but merely "describe[d] how the  term 'offense' is used in  the guide-        but merely "describe[d] how the  term 'offense' is used in  the guide-        lines."  U.S.S.G. App. C, amendment 388 (Nov. 1991).        lines."  U.S.S.G. App. C, amendment 388 (Nov. 1991).        *******Section 3553(c) requires the sentencing judge to "state in open        *******Section 3553(c) requires the sentencing judge to "state in open        court the  reasons for [the]  imposition of the  particular sentence."        court the  reasons for [the]  imposition of the  particular sentence."        See  also United  States v.  McDowell, 918 F.2d  1004, 1012  (1st Cir.        See  also United  States v.  McDowell, 918 F.2d  1004, 1012  (1st Cir.        ___  ____ ______________     ________        1990) (requiring "reasonably specific  findings").  The district court        1990) (requiring "reasonably specific  findings").  The district court        managed  minimal compliance with 18 U.S.C.   3553(c).  The court heard        managed  minimal compliance with 18 U.S.C.   3553(c).  The court heard        counsel on Schultz's leadership  role in the conspiracy.   In imposing        counsel on Schultz's leadership  role in the conspiracy.   In imposing        sentence, the court denoted  each element in its determination  of the        sentence, the court denoted  each element in its determination  of the        guideline sentencing range, including the two-level enhancement of the        guideline sentencing range, including the two-level enhancement of the        base offense level for Schultz's role in the offense:  "The . . . two-        base offense level for Schultz's role in the offense:  "The . . . two-        level  adjustment for being the leader, or  prime mover in this matter        level  adjustment for being the leader, or  prime mover in this matter        is also agreed upon by this court." (emphasis added).  Thus, the court        is also agreed upon by this court." (emphasis added).  Thus, the court                ______ ____ __ ____ _____        not only determined that  Schultz was a leader but  impliedly adverted        not only determined that  Schultz was a leader but  impliedly adverted        to  the  presentence  report   ("PSR")  and  its  characterization  of        to  the  presentence  report   ("PSR")  and  its  characterization  of        Schultz's role in the  offense.  The PSR was the  central focus of the        Schultz's role in the  offense.  The PSR was the  central focus of the        issues  presented  at  sentencing.    Moreover,  the  PSR  provides  a        issues  presented  at  sentencing.    Moreover,  the  PSR  provides  a                                          8        offense" determinations are fact  intensive, United States v. Akitoye,                                                     _____________    _______        923 F.2d 221, 227 (1st Cir. 1991); United States v. McDowell, 918 F.2d                                           _____________    ________        1004,  1011 (1st  Cir.  1990), we  normally  review for  clear  error.        United States v. Dietz, 950 F.2d 50, 52 (1st Cir. 1991); see McDowell,        _____________    _____                                   ___ ________        918  F.2d at 1011 (cautioning  that "'considerable respect  be paid to        the views of the nisi prius court'") (quoting United States v. Ocasio,                                                      _____________    ______        914 F.2d 330, 333 (1st Cir. 1990)).            A two-level  enhancement is  warranted  under U.S.S.G.    3B1.1(c)        where the  criminal enterprise involved at least two participants, and        "the defendant  exercised control  over, or was  otherwise responsible        for organizing the  activities of,  at least one  other individual  in        committing the  crime."  United States  v. Akitoye, 923 F.2d  221, 227                                 _____________     _______        (1st Cir. 1991).  The conspiracy to which Schultz pled guilty involved        three  participants.  The largely  uncontested facts set  forth in the        PSR were sufficient as well to support the finding that Schultz "exer-        cised control over" at least one coconspirator.            According to the PSR, Schultz instructed coconspirator Mark  Colen        to  bring  several  videotapes,  including  "JUDO"  and  "CESC"  to  a                                    ____________________        sufficient basis  for reasoned appellate  review.   See McDowell,  918        sufficient basis  for reasoned appellate  review.   See McDowell,  918                                                            ___ ________        F.2d  at  1012  (  3553(c)  requires  findings  sufficient  to  enable        F.2d  at  1012  (  3553(c)  requires  findings  sufficient  to  enable        effective appellate  review).   In McDowell,  we remanded because  the        effective appellate  review).   In McDowell,  we remanded because  the                                           ________        sentencing court failed to make sufficient findings to support a four-        sentencing court failed to make sufficient findings to support a four-        level  "role   in  the  offense"  enhancement   pursuant  to  U.S.S.G.        level  "role   in  the  offense"  enhancement   pursuant  to  U.S.S.G.          3B1.1(a) (conspiracy  "involving five  or more participants").   The          3B1.1(a) (conspiracy  "involving five  or more participants").   The        McDowell PSR  "neither suggested who  the 'five or  more participants'        McDowell PSR  "neither suggested who  the 'five or  more participants'        ________        might  have been,  nor discussed  why five  or more  participants were        might  have been,  nor discussed  why five  or more  participants were        necessarily involved . . . ."   Id. at 1011.  Accordingly, we  refused        necessarily involved . . . ."   Id. at 1011.  Accordingly, we  refused                                        ___        to engage in the "substantial guesswork" required to conduct appellate        to engage in the "substantial guesswork" required to conduct appellate        review.   Id. at 1012.   The PSR in  the present case  suffers from no        review.   Id. at 1012.   The PSR in  the present case  suffers from no                  ___        such deficiency.        such deficiency.                                          9        January 10,  1991 meeting with a government agent.  Colen arrived with        the  tapes, and  remained  while Schultz  conducted  the sale  to  the        informant.   Although Schultz  concedes that  the meeting  occurred as        represented, he disputes the PSR characterization that Colen delivered        the  tapes on  instructions from  Schultz.   Instead, Schultz  argues,                   __  ____________        without testimonial or other evidentiary support, that Colen  acted at        the  behest of  the agent.   The  district court  was not  required to        credit Schultz's unsubstantiated contention.            The district  court finding  that Schultz  exercised a  leadership        role  over Colen is supported by  undisputed evidence as well.  First,        Schultz  drew a diagram for the undercover agent, depicting himself at        the  apex of the criminal  enterprise.  Second,  Schultz possessed the        greater  capacity to  reproduce  videotapes, rented  the office  space        where tapes were reproduced, and  rented storage space for videotapes,        mailing  lists, and  other  materials used  to facilitate  the illegal        enterprise.  Third,  the record  indicates that "most"  of the  porno-        graphic materials  involved  in the  conspiracy  were turned  over  to        Schultz by his coconspirators.   Fourth, when the coconspirators  were        arrested, 420 tapes were seized from Schultz, 400 from Bailey, and 100        from Colen.   Finally, "most" of  the 96 videotapes made  available to        the government  operatives during  the course  of the  conspiracy were        acquired from Schultz.   There was sufficient evidence to  support the        two-level enhancement under U.S.S.G.   3B1.1(c).            Affirmed.            ________                                          10
