07-1312 | Omnilex

Gesamter Gesetzestext

1
2
3
4
5
6
7
8

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: May 30, 2008

Final briefs

submitted

November 13, 2008

Decided: January 28, 2009)

Docket No. 07-1312 - cr

UNITED STATES OF AMERICA,

Appellee,

\- V. -

STEFAN IRVING,

Defendant-Appellant.

Before: KEARSE, SACK, and RAGGI, Circuit Judges.

Appeal from an order of the United States District Court
for the Southern District of New York, Lewis A. Kaplan, Judge,
declining to resentence defendant, following a remand from this
Court pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.
2005), on his convictions for receiving and possessing child
pornography and traveling outside the United States with intent
to engage in sexual acts with minors. See 18 U.S.C. §§ 2241 (c) ,
2423 (b) , 2252A (a) (2) (B), 2252A (a) (5) (B) .

Affirmed.

KATHERINE POLK FAILLA, Assistant United States
Attorney, New York, New York (Michael J.
Garcia, United States Attorney for the

9
10
11
12
13
14
15
16

17
18
19
20
21
22
23
24
25
26
27
28

1
2
3
4
5
6

Southern District of New York, Stephen A.
Miller, Assistant United States Attorney,
New York, New York, on the brief), for
Appellee.

CHERYL J. STURM, Chadds Ford, Pennsylvania, for
Defendant-Appellant.

KEARSE, Circuit Judge :

This case returns to us on the appeal of defendant Stefan
Irving from an order of the United States District Court for the
Southern District of New York, Lewis A. Kaplan, Judge, entered on
remand following a decision of this Court which (a) upheld
Irving's convictions, (b) postponed consideration of his
sentencing challenges, and (c) remanded to the district court
pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005)
("Crosby") , cert. denied, 549 U.S. 915 (2006), for consideration
of resentencing in light of United States v. Booker, 543 U.S. 220,
244 (2005) . Irving was convicted, following a jury trial, on two
counts of traveling outside the United States with intent to
engage in a sexual act with a minor, in violation of 18 U.S.C.
§ 2423 (b) (counts 1 and 2) ; one count of aggravated sexual abuse,
to wit, traveling outside the United States with intent to engage
in a sexual act with a minor under the age of 12 years, in
violation of 18 U.S.C. § 2241 (c) (count 3) ; one count of knowingly
receiving child pornography, in violation of 18 U.S.C.
§ 2252A (a) (2) (B) (count 4) ; and one count of knowingly possessing
child pornography, in violation of 18 U.S.C. § 2252A (a) (5) (B)
(count 5). He was sentenced principally to concurrent 262-month

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

prison terms on each count, to be followed by two concurrent five-
year terms of supervised release on counts 3 and 4 and,
concurrently, three concurrent three-year terms of supervised
release on counts 1, 2, and 5; he was ordered to pay a $200,000
fine. On the Crosby remand, the district court declined to
resentence Irving.

On this appeal, Irving contends that his sentence is
unreasonable, asserting that the district court (a) applied the
wrong sections of the United States Sentencing Guidelines (1998)
("Guidelines") in calculating the base offense levels for his
crimes, (b) improperly increased his offense level on the ground
of vulnerability of his victims, and (c) failed to consider, as
required by 18 U.S.C. § 3553 (a) (6), the need to avoid unwarranted
sentencing disparities. In addition, in response to a request
from this Court to address a double jeopardy question, Irving
contends that his conviction on either count 4 or count 5 should
be vacated on the ground that receipt of child pornography and
possession of child pornography are the same crime for purposes of
double jeopardy, and that his conviction on both counts thus
violates the Double Jeopardy Clause.

For the reasons that follow, we reject all of Irving's
contentions and affirm the order of the district court.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Irving is a formerly-licensed pediatrician who was
convicted in 1983 of attempted sexual abuse of a seven-year-old
boy. See generally United States v. Irving, 452 F.3d 110, 114 (2d
Cir. 2006) ("Irving II") , superseding, on rehearing, United States
v. Irving, 432 F.3d 401 (2d Cir. 2005) ("Irving I"). In the late
1990s, Irving became a target of a federal investigation into
individuals suspected of traveling to Mexico for the purpose of
engaging in sexual acts with children. The present prosecution
centered on Irving's travel to Mexico in 1998 and to Honduras in
1999 and his later receipt and possession of child pornography.

# A. The Evidence at Irving's Trial

The evidence presented at Irving's trial is discussed in
Irving II, familiarity with which is assumed. Addressing Irving's
initial appeal from the judgment of conviction, our description of
the evidence with regard to his Mexico trip included the
following :

In May 1998 Irving traveled to Acapulco, Mexico
to visit Castillo Vista del Mar, a guest house that
served as a place where men from the United States
could have sexual relations with Mexican boys. When
defendant visited, seven or eight boys ranging in age
from eight to 20 years old were residing there.
Irving learned of Castillo Vista del Mar from Robert
Decker -- its then manager, and a friend from the
1970s.

Decker testified that prior to visiting, Irving
asked if specific boys -- whom he knew from previous
visits -- would be there. Decker said Irving
specifically asked about an eight-year-old boy.

2
3
4
5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30

Decker testified further that he saw Irving fondle
some of the boys who lived at the guest house while
swimming with them. He also stated he saw defendant
go upstairs to his bedroom at various times with
different boys. Decker said that during Irving's
visit the two of them discussed a previous trip to
Honduras that Irving had taken, trips to the beaches
he took while there, and the boys he met. One of the
boys at the guest house when Irving visited, Jesus
Santiago Percastegui, corroborated relevant portions
of Decker's testimony. Although unable to identify
Irving in court, this witness stated that he saw
"Esteban" (the name by which he knew Irving) at the
beach caressing two other boys that lived at the
guest house and twice go upstairs to his room with
them.

Decker admitted while he was in Mexico he
experienced financial difficulties, and that Irving
gave him ATM cards, connected to an account he
funded, up until Decker's September 2000 arrest.
Irving gave Decker over $5,000 in support over the
years. The two men also communicated regularly.
Irving provided Decker with Internet web addresses of
sites containing child pornography and on one
occasion gave him images of boys engaged in sex acts
with each other, with men, or by themselves. Irving
told Decker he preferred prepubescent boys, under the
age of 11, and that he preferred oral sex or
fondling.

452 F.3d at 114-15 (emphases added) .

On Irving's return to the United States from Mexico, a
customs search of his luggage turned up, inter alia, computer
diskettes containing " [i]mages of child erotica." Id. at 115. As
to Irving's 1999 trip to Honduras, his personal journal described,
inter alia, "details [of] his activities while there, particularly
his luring of a 12-year-old boy back to his hotel with him and the
sexual activities in which they engaged." Id. at 116.

In a search in 2003 pursuant to a warrant, agents found,
inter alia, 76 video files on Irving's home computer, which had
40 been downloaded on two days in July 2000. The government

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39

introduced the hard drive of that computer at trial. The video
files "revealed 'prepubescent boys engaging in various sexual acts
with each other and in other cases of sexual acts by themselves. '"
Id.

# B. The Verdicts and Sentence

The jury found Irving guilty on all five of the counts
against him: (1) traveling to Mexico with the intent to engage in
a sexual act with a minor, in violation of 18 U.S.C. § 2423 (b) ;
(2) traveling to Honduras with the intent to engage in a sexual
act with a minor, in violation of the same section; (3) traveling
to Honduras with the intent to engage in a sexual act with a minor
under the age of 12, in violation of 18 U.S.C. § 2241 (c) ; (4)
receiving child pornography, in violation of 18 U.S.C.
§ 2252A (a) (2) (B) ; and (5) possessing child pornography, in
violation of 18 U.S.C. § 2252A (a) (5) (B) .

The district court sentenced Irving using the 1998 version
of the Guidelines, as the defense requested. As set forth in
greater detail in Part II.B.1. below, with respect to counts 1, 2,
and 3 (collectively the "travel counts"), the court used the base
offense level provided in § 2A3.1, which applies to crimes of
sexual abuse, or attempted sexual abuse, of children; and, as
discussed in Part II.B.3., it increased that level pursuant to
§ 3A1. 1 (b) (1) on the ground that Irving knew that the children he
abused were homeless and without parental supervision, and hence
were unusually vulnerable. To determine Irving's base offense

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

level for counts 4 and 5 (collectively the "child pornography
counts"), the court looked to Guidelines § 2G2.2, which applies
to, inter alia, receiving material involving the sexual
exploitation of a minor. See Part II. B.2. below.

Applying the grouping rules for multi-count convictions,
the court concluded that Irving's total offense level for all
counts combined was 36. Given his criminal history category of
II, the recommended Guidelines range was 210-262 months. Denying
both Irving's motion for a downward departure and the government's
motion for an upward departure, the court sentenced Irving at the
top of the recommended range to 262 months' imprisonment, stating
that Irving was "a predator" who had "abused . . . a lot of
children" (Sentencing Transcript ("S. Tr. ") 34) ; that he was "an
extremely dangerous individual with respect to . . . sexual abuse
of children" (id. at 39) ; and that Irving had shown himself to be
quite proficient at abusing children, including "providing
financial support, at least for a while, to keep the house in
Acapulco, Ca[s]tillo Vi [st]a del Mar, open so that the service of
providing young kids hustled off the streets of Acapulco to
American pedophiles could go on" (id.) .

The court also referred to Irving's conviction some 20
years earlier for attempted sexual abuse of a seven-year-old boy,
pointing out that Irving, "as a school physician, [had taken]
advantage of that position to abuse the kids [he was] supposed to
be caring for." (Id. at 40.) Thus, Irving "ha [d] spent a

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

lifetime doing a great deal of harm to a great many extremely
vulnerable children." (Id. at 39-40.)

Further, the court noted that the record contained no
indication that Irving conceded that his conduct toward children

was in any way wrong. The court reminded Irving of

a letter you wrote at the end of August or
thereabouts, 1996, to somebody about some of your
activities, all of which focused on young boys, and
there is a handwritten postscript at the end and in
relevant part it reads as follows:

"You asked if I would be writing more explicitly
about Mexico. Sadly, the newest focus of the witch
hunt is on travel with intent to have underaged sex,
so that kind of journal won't be possible until the
government finds something more important to pay
attention to. "

You may think it's a witch hunt. Your fellow
citizens think it is protecting the children of this
country. The fact that you think it's a witch hunt
proves to me that you have to be locked up for a very
long time.

# C. Irving's Initial Appeal

Irving appealed, principally challenging the sufficiency
of the evidence to support his conviction on any count. He also
challenged the district court's calculation of his sentence. This
Court affirmed Irving's conviction on counts 1, 4, and 5, the
counts relating to Irving's travel to Mexico and to his receipt
and possession of child pornography; but as to counts 2 and 3, we
initially ruled that his convictions could not stand because there
was insufficient evidence as to Irving's intent in traveling to
Honduras. See Irving I, 432 F.3d at 404. Subsequently, however,

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22 (S.Tr. 40.)

23
24
25
26
27
28
29
30
31
32

on the government's petition for rehearing, we were persuaded that
Irving's conduct in Mexico provided competent evidence, admissible
under Fed. R. Evid. 404 (b), as to his intentions in traveling to
Honduras. Accordingly, we withdrew the decision issued in
Irving I, and concluded that the evidence was sufficient to
support Irving's convictions on all five counts. See Irving II,
452 F.3d at 114, 119.

Because Booker, which ruled that the Guidelines are not
mandatory but advisory, had been decided during the pendency of
Irving's appeal, and the district court had treated the Guidelines
as mandatory, we concluded that a Crosby remand was required in
order to allow the district court to determine whether it would
have imposed a nontrivially different sentence had it known that
the Guidelines were not mandatory. Given the need for the Crosby
remand, we refrained from addressing Irving's challenges to the
details of the court's calculation of his original sentence. See
Irving II, 452 F.3d at 114.

D. The District Court's Order on the Crosby Remand

On remand, the district court declined to impose a
different sentence. See United States v. Irving, S3 03 Crim.
0633, 2007 WL 831814 (S.D.N.Y. Mar. 19, 2007) ( "Irving III") .
Adhering to the original sentence, the court stated:

As the original sentencing minutes make clear,
the Court sentenced the defendant at the high end of
the Sentencing Guideline range because the defendant,
in the Court's view, "is an extremely dangerous
individual with respect to the sexual abuse of
children, " that "there isn't the slightest hint that

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1
2
3
4
5
6
7
8
9
10
11
12
13

[the defendant]
recognize [s] that there is
anything wrong" with his conduct, and that a sentence
"at the top end of the [Guideline [s]] range is
necessary for specific deterrence, that is to say, to
prevent [defendant] from abusing others in the
future. "

The Court now has considered all of the factors
enumerated in [18] U.S.C. § 3553. It is persuaded
that the sentence imposed is sufficient, but no
greater than necessary, to serve the other factors
there enumerated and that all of the factors, taken
together, justify the sentence previously imposed.

Irving III, 2007 WL 831814, at *1.

## II. DISCUSSION

Irving has appealed from Irving III, largely renewing the
challenges he made in his initial appeal with respect to the
district court's calculation of his sentence. He does not
otherwise challenge the district court's Irving III refusal to
resentence him in light of Booker.

Irving contends that the district court erred by
calculating his base offense level for counts 1, 2, and 3 under
Guidelines § 2A3.1, rather than § 2A3.2; by calculating his base
offense level for counts 4 and 5 under Guidelines § 2G2.2, rather
than § 2G2.4; by increasing his offense level on the ground that
his victims were vulnerable; and by failing to consider the need
to avoid unwarranted sentencing disparities. And in response
this Court's sua sponte inquiry, Irving contends that his
conviction on count 4 or count 5 should be vacated on the ground
that possession of child pornography is a lesser-included offense

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29

1
2
3
4

of his count-4 offense of receipt of child pornography, and that
his conviction on both counts thus violates his rights under the
Double Jeopardy Clause. For the reasons that follow, we find no
merit in his contentions.

### A. Sentencing and the Standard of Review After Booker

In the wake of Booker and the Supreme Court's elaborations
on its import, see, e.g., Gall v. United States, 128 S. Ct. 586
(2007), our review of sentencing decisions "is limited to
determining whether they are 'reasonable. '" Id. at 594. In
conducting reasonableness review, we apply "the familiar abuse-of-
discretion standard of review." Id .; see, e.g., Rita v. United
States, 127 S. Ct. 2456, 2465 (2007) .

Reasonableness review has both a procedural and a
substantive component. See, e.g., United States v. Canova, 485
F.3d 674, 679 (2d Cir. 2007) .
Review for procedural

reasonableness requires us to

ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing
to consider the § 3553 (a) factors, selecting a
sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence.

Gall, 128 S. Ct. at 597. We review a district court's
interpretations of the Guidelines de novo and its factual findings
for clear error. See, e.g., United States v. Selioutsky, 409 F.3d
114, 119 (2d Cir. 2005). The burden of proving a fact relevant to
sentencing is on the government, which must prove the fact "by a

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

preponderance of the evidence." United States v. Proshin, 438
F.3d 235, 238 (2d Cir. 2006); see also United States v. Garcia,
413 F.3d 201, 220 n.15 (2d Cir. 2005) ("Judicial authority to find
facts relevant to sentencing by a preponderance of the evidence
survives Booker. ") .

As to substantive reasonableness, Booker instructed that
" [s]ection 3553 (a) . . . sets forth numerous factors that guide
sentencing. Those factors [are to] guide appellate courts
in determining whether a sentence is unreasonable." 543 U.S. at
261. In the absence of record evidence suggesting otherwise, we
presume that the district court has faithfully discharged its duty
to consider the § 3553 (a) factors. See, e.g., United States v.
Fernandez, 443 F.3d 19, 30 (2d Cir.), cert. denied, 549 U.S. 882
(2006) .

The same standards of review also apply to our review of a
sentence after the district court has declined to resentence
following a Crosby remand. See United States v. Williams, 475
F.3d 468, 474 (2d Cir. 2007), cert. denied, 128 S. Ct. 881 (2008).

### B. Determination of the Applicable Guidelines

1\.
The Travel Counts

In calculating Irving's offense level for the travel
counts, i.e., his travels to Mexico (count 1) and Honduras (counts
2 and 3), with intent to engage in sexual acts with minors, the
district court began with Guidelines § 2A3.1, entitled "Criminal
Sexual Abuse; Attempt to Commit Criminal Sexual Abuse." The 1998

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

version of that guideline provided a base offense level of 27, see
Guidelines § 2A3.1 (a) , and required a four-step enhancement " [i] f
the victim had not attained the age of twelve years," id.
§ 2A3. 1 (b) (2) (A) . Irving contends that the court should instead
have applied Guidelines § 2A3.2 (entitled "Criminal Sexual Abuse
of a Minor (Statutory Rape) or Attempt to Commit Such Acts"),
which provided a base offense level of 15, with no calibrations
based on the minor's age. He argues that "the facts do not
indicate anything beyond sexual contact with a minor (as opposed
to a sexual act or sexual abuse) ." (Irving brief on appeal
at 23.) We see no error in the court's application of § 2A3.1 to
these three counts.

To begin with, the Statutory Index in Appendix A to the
Guidelines Manual ( "Statutory Index") specifies which sections in
Guidelines "Chapter Two - Offense Conduct" are ordinarily
applicable to which statutes of conviction. In the 1998 version
of the Guidelines, for a conviction under 18 U.S.C. § 2241 (c) -- the
section under which Irving was convicted on count 3 -- the only
guideline listed in the Statutory Index was § 2A3.1, governing
commission of, and attempts to commit, criminal sexual abuse of
minors. The evidence supporting Irving's conviction on count 3
included his own personal journal "detail [ing] his activities
while [in Honduras], particularly his luring of a 12-year-old boy
back to his hotel with him and the sexual activities in which they
engaged, " Irving II, 452 F.3d at 116, and the evidence that
"Irving told Decker he preferred prepubescent boys, under the age

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

of 11," id. at 115. Irving has not shown that his conduct was
atypical in any way that would warrant the calculation of his
offense level for count 3 under any guideline other than § 2A3.1.

For a conviction under 18 U.S.C. § 2423 (b), the section
under which Irving was convicted on counts 1 and 2, the Statutory
Index listed Guidelines §§ 2A3.1, 2A3.2, and 2A3.3. When more
than one guideline is listed for a count of conviction under a
given statutory section, the court is to apply the guideline that
is most appropriate for the defendant's offense conduct in that
count. See Statutory Index, Introduction. Several factors
indicated that § 2A3.1 was the most appropriate guideline for
Irving's convictions on counts 1 and 2. First, even if § 2A3.2
would have been applicable to count 2 if it had been the only
count of conviction, counts 2 and 3 concerning Irving's trip to
Honduras involved the same transaction and the same or overlapping
victims and thus were required to be grouped for calculation of a
single combined offense level, see Guidelines § 3D1.2 (a) . When
counts of conviction governed by different guidelines are grouped,
the court is instructed to apply the "highest offense level of the
counts in the Group." Guidelines § 3D1.3 (a) . Hence the offense
level for count 2 was properly calculated, in combination with
that for count 3, under § 2A3.1.

Second, the Guidelines provided that " [a]ny criminal
sexual abuse with a child less than twelve years of age,
regardless of 'consent, ' is governed by § 2A3.1 (Criminal Sexual
Abuse) ." Guidelines § 2A3.1 Background. Thus, if, within the

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

meaning of that section, Irving sexually abused a child under the
age of 12 on his trip to Mexico, the court was required to apply
§ 2A3.1 to count 1. Third, the Guidelines provided that
" [b]ecause of their dangerousness, attempts are treated the same
as completed acts of criminal sexual abuse." Id. Thus, if Irving
attempted sexual abuse of a child under 12 on his trips to Mexico
and Honduras, there was sexual abuse within the meaning of the
Guidelines, and again § 2A3.1 was applicable to both counts 1
and 2.

In concluding that § 2A3.1 was applicable to count 1, the
district court found, inter alia, that Irving

clearly went to Mexico to engage in sex with young
boys. There was ample evidence that his preferred
age group was in the range of roughly six years of
age to twelve years of age.

I refer to, among other things, . . . a March
23, 1995 document written by the defendant in which
he indicates a preference for boys roughly in the
range of age nine to puberty with a little leeway on
either side, and Government Exhibit 103, where he
speaks in terms of ages six to twelve.

I find that there was attempted, at least
attempted sexual abuse of a child under twelve in
Mexico.

(S.Tr. 5.) In concluding that § 2A3.1 was applicable to Irving's
trip to Honduras, the court stated that

[t]he same analysis applies to [counts 2 and 3].
I find that there was at least attempted sexual abuse
of one or more children under twelve during the 1999
trip to Honduras.

31 (Id.)

32
33

These findings that Irving at least attempted sexual abuse
of children under the age of 12 on his trips to both Mexico and

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30

1
2
3
4
5
6

Honduras were amply supported by the evidence referred to by the
district court and by other evidence at trial -- summarized in Part
I.A. above -- which Irving II found was sufficient to support
Irving's convictions on the travel counts. We see no error in the
district court's conclusion that § 2A3.1 was the appropriate
guideline to apply to Irving's convictions on counts 1, 2, and 3.

#### 2. The Child Pornography Counts

In calculating Irving's offense level for count 4,
receiving child pornography in violation of 18 U.S.C.
§ 2252A (a) (2) (B), and count 5, possessing child pornography in
violation of id. § 2252A (a) (5) (B), the district court applied
Guidelines § 2G2.2, entitled "Trafficking in Material Involving
the Sexual Exploitation of a Minor; Receiving, Transporting,
Shipping, or Advertising Material Involving the Sexual
Exploitation of a Minor; Possessing Material Involving the Sexual
Exploitation of a Minor with Intent to Traffic" (italics omitted;
emphases added) . Irving argues that the district court should
instead have applied Guidelines § 2G2.4, entitled "Possession of
Materials Depicting a Minor Engaged in Sexually Explicit Conduct"
(italics omitted; emphasis added), because he was not shown to
have received or possessed child pornography with the intent to
traffic in it. For several reasons, we see no error.

First, on count 4, the jury found Irving guilty of
receiving child pornography, in violation of § 2252A (a) (2) (B) .
At the times relevant to Irving's conduct, that section applied to

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

any person who knowingly "receives or distributes
any
material that contains child pornography that has been mailed, or
shipped or transported in interstate or foreign commerce by any
means, including by computer, " 18 U.S.C. § 2252A (a) (2) (B) .
Nothing in that section or in Guidelines § 2G2.2 imposed any
intent-to-traffic requirement with respect to an offense of
receiving such material.

Second, the 1998 version of § 2G2.4, the guideline that
Irving argues should have been applied to counts 4 and 5, could
not have been applied to count 4 because that guideline provided
offense levels only for possession, not for receipt, of child
pornography. Further, the history of that guideline reveals that
its inapplicability to receipt at the time of Irving's receipt
offense was deliberate. When § 2G2.4 was first added to the
Guidelines in 1991, it was in fact entitled "Receipt or Possession
of Materials Depicting a Minor Engaged in Sexually Explicit
Conduct, " Guidelines Appendix C, amend. 372 (effective Nov. 1,
1991) (emphasis added). Less than a month later, however, the
words "Receipt or" were deleted from the title of § 2G2.4, see
Guidelines Appendix C, amend. 436 (effective Nov. 27, 1991). The
deletion was made to "implement []
instructions to the

[Sentencing] Commission" from Congress, id., to " [change
guideline 2G2.4 to provide that such guideline shall apply only
to offense conduct that involves the simple possession of [child
pornography] and [change] guideline 2G2.2 to provide that such
guideline shall apply to offense conduct that involves receipt or

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

trafficking, " Treasury, Postal Service and General Government
Appropriations Act of 1992, Pub. L. No. 102-141, § 632 (1) (B), 105
Stat. 834, 876 (Oct. 28, 1991) (emphases added). Accordingly,
§ 2G2.4 could not properly have been applied to Irving's receipt-
of-child-pornography conviction on count 4.

Third, although Irving's offense level for his count-5
possession offense would have been calculated under § 2G2.4 if it
had been unaccompanied by any other child pornography conviction,
his convictions on counts 4 and 5 were for closely related
offenses of the same general type, and it was not unreasonable for
the court to group those counts for calculation of a single
combined offense level. In such circumstances, the court is
directed to "apply the offense guideline that produces the highest
offense level." Guidelines § 3D1.3 (b). Hence, Irving's base
offense level for counts 4 and 5 was properly calculated under
16 § 2G2.2.

#### 3. The Vulnerable Victim Adjustment

After calculating Irving's base offense level for counts
1, 2, and 3, i.e., traveling to Mexico and Honduras with intent to
engage in sexual acts with minors, the district court adjusted
Irving's offense level upward by two steps pursuant to Guidelines
§ 3A1 . 1 (b) (1) . That guideline provides that "[i]f the defendant
knew or should have known that a victim of the offense [of
conviction] was a vulnerable victim," his offense level should be
increased by two steps. Guidelines § 3A1. 1 (b) (1) .
The
25

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

17
18
19
20
21
22
23
24

commentary with respect to subsection (b) states, inter alia, as
1
2
follows :

"vulnerable victim" means a person . . . who is
unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly
susceptible to the criminal conduct.

Subsection (b) applies to offenses involving an
unusually vulnerable victim in which the defendant
knows or should have known of the victim's unusual
vulnerability.

Do not apply subsection (b) if the factor that
makes the person a vulnerable victim is incorporated
in the offense guideline. For example, if the offense
guideline provides an enhancement for the age of the
victim, this subsection would not be applied unless
the victim was unusually vulnerable for reasons
unrelated to age.

Guidelines § 3A1.1 Application Note 2 (emphases added) .

Irving contends that the vulnerable victim adjustment, as
explicated by the Guidelines commentary, was inappropriate because
his victims' vulnerability was already accounted for by the
enhancement provided in § 2A3.1 for offenses against children
under the age of 12 years, and that his victims had no "unusual"
vulnerability. We disagree.

In imposing the vulnerable victim adjustment, the district
court stated that Irving

is getting bumped up not because they were kids, but
because they were street urchins who were especially
vulnerable because anybody who comes along and offers
the promise of a free meal has a special attraction
to people in that economic and social circumstance.

[S]ome 11 year old who is living on the
street in Acapulco is a little bit more likely to
fall for a predator of a sexual nature than an 11
year old coming out of the Dalton School into a
limousine to go home.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36

(S.Tr. at 18.)

We see no error in this decision. The facts that Irving's
victims in Mexico and Honduras were children who were homeless and
were without parental or other appropriate guidance made them
unusually vulnerable, independently of their ages. The adjustment
was entirely appropriate.

### C. Consideration of Possible Sentencing Disparity

In arguing that the district court erred in failing to
consider "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct, " 18 U.S.C. § 3553 (a) (6), Irving contends that
the district court was required to consider "statistics kept by
the Sentencing Commission regarding sentences imposed locally and
nationally on similarly situated offenders." (Irving brief on
appeal, at 29.) We find no merit in this contention.

Preliminarily, we note that Irving relies on the
statistics found in the United States Sentencing Commission
Statistical Information Packet, Fiscal Year 2004, Second Circuit,
Table 7. That Table, however, refers to "Sexual Abuse" crimes
generally and provides no assurance of comparability because it
does not distinguish between defendants who committed crimes of
sexual abuse against children and those who committed such crimes
against adults. And nothing reveals how many other defendants
went to the lengths that Irving did to secure his victims. The
district court was not required to consult these statistics.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

" [A]verages of sentences that provide no details underlying the
sentences are unreliable to determine unwarranted disparity
because they do not reflect the enhancements or adjustments for
the aggravating or mitigating factors that distinguish individual
cases." United States v. Willingham, 497 F.3d 541, 544 (5th Cir.
2007) .

More importantly, "a reviewing court's concern about
unwarranted disparities is at a minimum when a sentence is within
the Guidelines range, " id. at 545. The "avoidance of unwarranted
disparities was clearly considered by the Sentencing Commission
when setting the Guidelines ranges." Gall, 128 S. Ct. at 599.
Thus, where, as here, "the District Judge correctly calculated and
carefully reviewed the Guidelines range, he necessarily gave
significant weight and consideration to the need to avoid
unwarranted disparities." Id .; see also United States v.
Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) ("A sentence within a
properly ascertained range . . . cannot be treated as unreasonable
by reference to § 3553 (a) (6) ."), cert. denied, 127 S. Ct. 3041
(2007) .

The district court here stated that it had "considered all
of the factors enumerated in 28 U.S.C. § 3553," Irving III, 2007
WL 831814, at *1, a statement that is well supported by the
detailed explanations given by the court in imposing sentence.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

### D. Double Jeopardy

The Double Jeopardy Clause provides that no person shall
"be subject for the same offence to be twice put in jeopardy of
life or limb." U.S. Const. amend. V. As to whether two
convictions are for the same offense where "'the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied . . . is whether each provision
requires proof of a fact which the other does not. '" Rutledge v.
9 United States, 517 U.S. 292, 297 (1996) (quoting Blockburger v.
United States, 284 U.S. 299, 304 (1932)). Typically, when one
offense is lesser than and wholly included within another offense,
the two offenses are considered to be the same for double jeopardy
purposes. See, e.g., Rutledge, 517 U.S. at 297 & n.6. In Ball v.
United States, 470 U.S. 856 (1985), for example, the Court held
that statutes directed at "receipt" and "possession" of a firearm
amounted to the "same offense" for double jeopardy purposes, in
that proof of receipt "necessarily" included proof of possession.
Id. at 861-64 (emphasis in original) .

While it is permissible to prosecute a defendant
simultaneously on two or more counts charging offenses that are
the same for double jeopardy purposes, the Double Jeopardy Clause
protects him against multiple punishments for the same offense.
When the jury returns verdicts of guilty on more than one such
count, the district court should enter judgment on only one. See,
e.q., id. at 865; Illinois v. Vitale, 447 U.S. 410, 415 (1980).

1
2
3
4
5
6
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Two of our Sister Circuits have ruled that a defendant's
convictions of both "receiving and possessing the same images of
child pornography" violated his right to be free from double
jeopardy, United States v. Miller, 527 F.3d 54, 58 (3d Cir. 2008)
( "Miller") ; see United States v. Davenport, 519 F.3d 940, 947 (9th
Cir. 2008) ("Davenport"), reasoning that to receive an item means
to take possession of it, see Miller, 527 F.3d at 71 & n.15;
Davenport, 519 F.3d at 943; see also United States v. Morgan, 435
F.3d 660, 662-63 (6th Cir. 2006) (referring briefly in dicta to
possession of child pornography as a lesser-included offense of
receipt). But see Missouri v. Hunter, 459 U.S. 359, 366-68
(1983) (the presumption against allowing multiple punishments for
the same crime may be overcome if there is a clear indication of
legislative intent to allow courts to impose them); id. at 368

(" ' Where Congress intended
to impose multiple punishments,

imposition of such sentences does not violate the Constitution. '"
(quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)
(emphasis in Hunter) ) ) ; Davenport, 519 F.3d at 948-49 (Graber, J.,
dissenting) (expressing the "view[ that] Congress clearly intended
to authorize cumulative punishment for receipt of child
pornography and possession of child pornography," as the two
prohibitions are directed at "distinct harms") .

This Court in United States v. Anson, No. 07-0377, 2008 WL
4585338 (2d Cir. Oct. 15, 2008) ("Anson"), considered the
arguments of a defendant who had been convicted of receiving and
possessing child pornography, but we did not reach the merits of

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

the double jeopardy issue because it was possible that the jury
had found the defendant guilty of receiving one group of images
and guilty of possessing a different group. Compare Anson with
Miller, 527 F.3d at 58 (defendant convicted of "receiving and
possessing the same images"). The defendant in Anson had not
requested a jury charge that would have instructed the jury that
the same images could not support guilty verdicts on both counts.
We concluded, citing United States v. Washington, 861 F.2d 350,
352-53 (2d Cir. 1988) ("Washington"), that any objection on the
ground that both verdicts might have been based on the same set of
images was waived. See Anson, 2008 WL 4585338, at *4. In
Washington, we had stated that if a defendant believes that the
evidence on which the jury might rely in its consideration of
multiple counts would expose him to multiple punishments for the
same offense, he must request an instruction that ensures that the
jury not consider evidence on which a conviction on a given count
cannot properly be based; we ruled that in the absence of such a
request the objection is deemed waived. See Washington, 861 F.2d
at 352-53; see also id. at 353 ("it is not plain error to fail to
give such a [n unrequested] charge") .

On the present appeal, although Irving had not made a
double jeopardy argument, this Court sua sponte requested that the
parties address the issue of whether Irving's right to be free
from double jeopardy was violated by the entry of judgment
convicting him on both count 4 and count 5. In response, Irving
contends that the entry of judgment on both convictions violated

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

1
2
3
4
5
6
7

8
9
10
11

the Double Jeopardy Clause because receipt of child pornography
and possession of child pornography are, for double jeopardy
purposes, "the same crime, " as a person "cannot receive child
pornography without possessing it." (Irving Nov. 13, 2008 letter
brief on appeal at 4, 5.) The government, in addition to
contending that Irving's argument is procedurally barred, contends
that there was no double jeopardy violation. It argues, inter
alia, that Congress evidently intended to create separate and
distinct crimes, as the prohibition against possession of child
pornography was added to an existing criminal scheme that
prohibited receipt of such pornography and the prohibitions
against receipt and possession are directed toward different
evils. The government points out that "the receiver [of child
pornography] creates a market for exploitation and production,
whether or not he retains them, " whereas "the possessor (i.e.,
retainer) often uses the pornography to seduce children and whet
his sexual appetite, and also helps create a permanent record of
the exploitation." (Government Nov. 13, 2008 letter brief on
appeal at 19.)

24
25
26

This case is similar to Anson, and although we decided
Anson by nonprecedential summary order, " [d]enying summary orders
precedential effect does not mean that the court considers itself
free to rule differently in similar cases, " Order dated June 26,
2007, adopting 2d Cir. Local R. 32.1. In the district court,
Irving raised no double jeopardy issue with respect to the counts
charging him with receiving and possessing child pornography,

12
13
14
15
16
17
18
19
20
21
22
23

either by requesting a jury instruction or a special verdict that
would have required the jury to specify which of the 76 images it
relied on in returning verdicts of guilty on the respective child
pornography counts, or by requesting that the court enter judgment
on only count 4 or 5, but not both, on the ground that they
resulted in two convictions for the same offense. And in this
Court, Irving made no double jeopardy challenge to the district
court's entry of judgment on both counts, either in his initial
appeal or in his original briefs in the present appeal.
Nonetheless, "[a] plain error that affects substantial rights may
be considered even though it was not brought to the court's
attention." Fed. R. Crim. P. 52 (b) .

In order to reverse on the ground of plain error, "there
must be (1) 'error, ' (2) that is 'plain, ' and (3) that 'affect [s]
substantial rights.'" Johnson v. United States, 520 U.S. 461,
467-68 (1997) (quoting United States v. Olano, 507 U.S. 725, 732
(1993) ) . An error is "plain" if the ruling was contrary to law
that was clearly established by the time of the appeal. See
Johnson, 520 U.S. at 468. "If all three conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error '"seriously affect [s]
the fairness, integrity, or public reputation of judicial
proceedings. "'" Id. (quoting Olano, 507 U.S. at 732 (quoting
United States v. Young, 470 U.S. 1, 15 (1985) ) (other internal

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
quotation marks omitted) ) .

We conclude that Irving has not met this standard. First,
assuming that possessing child pornography is a lesser-included
offense of receiving such pornography, a question we need not
resolve here, it remains unclear that the entry of judgment on
both count 4 and count 5 in this case was error. The court had
instructed the jury that the statute under which Irving was
charged in count 4 provided that " 'Any person who knowingly
receives or distributes any material that contains child
pornography that has been mailed, or shipped or transported in
interstate or foreign commerce by any means, including by
computer' commits a crime." (Trial Transcript ("T. Tr. "), at 537
(quoting former 18 U.S.C. § 2252 (a) (2) (B) ) (emphases ours) .) As
to count 5, the court instructed the jury that the government was
required to prove that Irving "possessed three or more images of
child pornography." (T.Tr. 544, 545 (emphasis added) ). We note
that, in giving this instruction, the court apparently invoked the
version of § 2252A (a) (5) (B) that was in effect from September 30,
1996, through October 29, 1998, which prohibited possession of
"material that contains 3 or more images of child pornography, "

rather than the stricter version of that section that was in
effect from October 30, 1998, through November 1, 2002. The
latter version of § 2252A (a) (5) (B) covered most of the period from
in or about July 2000 through May 6, 2003 -- during which time
Irving possessed the images -- and prohibited possession of
"material that contains an image of child pornography," setting no
threshold number of images. In any event, given that the

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

government introduced Irving's computer hard drive containing 76
images of child pornography, the effect of these instructions was
to allow the jury to find Irving guilty of possessing child
pornography based on any three of those 76 images and guilty of
receiving child pornography based on any one of the 76 images,
including 73 that were not needed for the return of a verdict of
guilty on the possession count. If the jury's verdicts on counts
4 and 5 were based on different images, there was no double
jeopardy violation in the entry of judgment on both counts.

Second, even if the jury based its verdicts on counts 4
and 5 on the same images, it is questionable whether we could call
that result a "plain" error given the lack of a clearly
established principle that possessing child pornography is a
lesser-included offense of receiving such pornography. At the
time of trial, no court of appeals had so held; as of the writing
of this opinion, this Court still has not so held; so far as we
are aware at the present time, only the Third and Ninth Circuits
have so held, with a member of the Ninth Circuit panel in
Davenport dissenting; and the Seventh Circuit, in the context of a
Guidelines challenge, has held it reasonable to impose different
base offense levels for receiving and possessing child
pornography on the ground that "possession and receipt are not the
same conduct and threaten distinct harms, " United States v.
Myers, 355 F.3d 1040, 1043 (7th Cir. 2004) .

Finally, even if the first three Olano factors were met,
we could not conclude that Irving's convictions on both counts 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

and 5 seriously affect the fairness, integrity, or public
reputation of judicial proceedings. It was within Irving's power
to request clarifying instructions or a special verdict to have
the jury particularize the bases of its verdicts on those counts.
It hardly serves the interests of fairness to overturn verdicts
that his inaction allowed to be ambiguous and that may be
substantively unflawed.

# CONCLUSION

8
9
10
11

We have considered all of Irving's arguments on this
appeal and have found them to be without merit. The order of the
district court is affirmed.

1
2
3
4
5
6

August Term, 2007 Argued: May 30, 2008 Final briefs submitted November 13, 2008… v. - Stefan Irving

Gesamter Gesetzestext

Setzen Sie Ihre Recherche in ChatGPT oder Claude fort