United States of America v. VERNON EARL PARMELEE a/k/a VERNON EARL PARMALEE Appeal from the United States…

PRECEDENTIAL
Filed February 11, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2941
UNITED STATES OF AMERICA,
Appellant
v.
VERNON EARL PARMELEE a/k/a
VERNON EARL PARMALEE
Appeal from the United States District Court
for the District of New Jersey, Newark
(Criminal Action No. 98-cr-0618)
District Judge: Judge John W. Bissell
Argued on December 10, 2002
Before: FUENTES and GARTH, Circuit Judges, and
WALLACH, Judge*
(Opinion Filed: February 11, 2003)
_________________________________________________________________
* The Honorable Evan J. Wallach of the United States Court of
International Trade, sitting by designation.
CHRISTOPHER J. CHRISTIE
United States Attorney
GEORGE S. LEONE
Chief, Appeals Division
NORMAN GROSS [Argued]
Assistant United States Attorney
United States Attorney’s Office
401 Market Street
Camden, N.J. 08101
Attorneys for Appellant
United States of America
NEIL G. DUFFY, III
WILLIAM STRAZZA [Argued]
2100 Morris Avenue
Union, N.J. 07083
Attorneys for Appellee
Vernon Earl Parmelee

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OPINION OF THE COURT
WALLACH, Judge:
The United States (the "Government") appeals the
judgment of sentence imposed by the district court upon
Vernon Earl Parmelee ("Parmelee"). Parmelee was charged
with four counts of possession of child pornography using
media that traveled in interstate commerce, in violation of
18 U.S.C. S 2252A(a)(5)(B) (2000).1 A jury convicted
_________________________________________________________________
1. The statute provides as follows:
(a) Any person who --
(5) either --
(B) knowingly possesses any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains an
image of child pornography that has been mailed, or shipped or
transported in interstate or foreign commerce by any means,
2
Parmelee on all four counts. At the sentencing hearing on
August 21, 2000, the district court refused to apply the
cross-reference to the child pornography trafficking
sentencing guideline, United States Sentencing Guidelines
Manual ("U.S.S.G.") S 2G2.2,2 found in the child
pornography possession sentencing guideline, U.S.S.G.
S 2G2.4(c)(2), on the ground that application of the cross-
reference would violate the then recently issued Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000). The court also refused to apply the two-level
enhancement pursuant to U.S.S.G. S 2G2.4(b)(2), which
applies when the offense involved the possession of"ten or
more . . . items, containing a visual depiction involving the
sexual exploitation of a minor." We have jurisdiction over
the Government’s appeal pursuant to 18 U.S.C. S 3742 and
28 U.S.C. S 1291. For the reasons that follow, we reverse
Parmelee’s sentence and remand this case to the district
court for re-sentencing consistent with this opinion.
I.
On September 16, 1998, a local police officer from the
Edison Police Department and an investigator from the New
Jersey Division of Youth and Family Services ("DYFS")
interviewed Parmelee’s eight-year-old son, William,
regarding reported unlawful activities at his home. William
told the investigators that he had observed his father
download pornographic images involving children,
teenagers, and adults onto computers that his father kept
in the basement of their home.
_________________________________________________________________
including by computer, or that was produced using materials that
have been mailed, or shipped or transported in interstate or

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foreign commerce by any means, including by computer,
shall be punished as provided in subsection (b).
18 U.S.C. S 2252A(a)(5)(B) (2000).
2. The Guidelines Manual is codified under the Appendices of Title 18 of
the United States Code, Crimes and Criminal Procedure, Sentencing
Guidelines for the United States Courts.
3
Later that day, Edison police officers and FBI agents
obtained a search warrant and searched Parmelee’s home.
During the search, the authorities went to the basement
where Parmelee’s computers were located. Parmelee
admitted that the computers in the basement were his.
Investigators seized evidence, including four recordable
compact discs ("CD-Rs").
Recorded on each of the CD-Rs seized by investigators
were numerous photographs depicting minor children
engaged in sexually explicit conduct.3 A subsequent search
_________________________________________________________________
3. Among the photographs on the four CD-Rs were:
(1) RICOH CD-R marked "Jpegs" -- (a) a naked, minor girl who appears
to be screaming in pain as she is digitally penetrated on a bed; (b) two
Asian girls, one naked and kneeling with a dog collar and leash around
her neck; the other standing in a see-through bodysuit holding a whip
in one hand and a leash in the other; (c) a series titled "Young Bondage"
depicting a naked, minor female with a metal collar around her neck
that was approximately two-and-a-half inches thick and had chains
coming from it connected to straps around her wrists;
(2) Maxell CD-R marked "Jpegs 0-9 10-13 14-17 18-21 22-29 30-39 40-
49 50-59 60-up Cheelder Nudists Show" - (a) a picture of a naked, minor
female lying on a towel, spreading her legs and touching her labia; (b) a
picture of a naked, minor female of native Indian descent, lying down
and inserting a partially peeled banana into her vagina; (c) a picture of
a naked, minor female lying on a bed with her legs partially spread and
a scarf tied around her waist;
(3) RICOH CD-R marked "Jpegs Tits Kinky" -- (a) a picture of a minor
female wearing only thigh high stockings and kneeling on a bed with her
arms over her head; (b) a picture of a naked, minor female standing and
holding the neck of a bottle which has been inserted into her vagina; (c)
a picture of a naked, minor female sitting on a rattan chair with her legs
spread to expose her vaginal area; (d) a picture entitled "OBABY B-
1POKE" depicting a partially clothed baby having a pacifier inserted into
her vagina;
(4) TDK CD-R marked "Jpegs-Standard Stuff " - (a) a picture of a naked,
minor female on a bed with her legs raised, spreading her labia with her
hand to expose her vaginal area; (b) a picture of a naked, minor female
partially dressed in panties and a t-shirt, engaging in genital-genital
intercourse with a male; (c) a picture of a naked, minor female standing
with one knee on a rattan chair holding a drape made of netting in one

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hand.
4
of Parmelee’s residence uncovered, among other materials,
another CD-R labeled "Personal Files," which contained
various documents reflecting purported "contracts" and
"agreements" to the effect that Parmelee’s wife, Clara, was
Parmelee’s slave.
Joseph DiGiacomo, Parmelee’s former business partner
and best friend, who lived in the Parmelee household for
almost two years between 1995 and 1997, told law
enforcement investigators that he had observed Parmelee
showing William pornographic images that Parmelee
downloaded from the Internet onto his computer.
DiGiacomo also told investigators that Parmelee treated his
wife as his slave; ordered her to appear topless in the
home; ordered her to dress provocatively and seek out other
men for sex; beat her, on at least one occasion when
William was present; and disciplined her, on at least one
occasion by tying her up and leaving her on the bedroom
floor for two days.
On October 8, 1998, a federal grand jury indicted
Parmelee on four counts of possession of child pornography
using media that traveled in interstate commerce, in
violation of 18 U.S.C. S 2252A(a)(5)(B). Each count
pertained to one of the four CD-Rs seized from Parmelee’s
home.
Parmelee’s case proceeded to trial on February 2, 2000.
At trial, DiGiacomo testified that he personally observed
Parmelee download pornographic images from the Internet
and store them on CD-Rs. DiGiacomo also testified that
Parmelee told DiGiacomo that Parmelee intended to barter
the pornographic images for goods and services. Parmelee’s
wife, Clara, and a former house-mate, Kathy Adams, each
testified that Parmelee had shown them images of child
_________________________________________________________________
The various CD-Rs also contained photographs of: minor females
blindfolded with their hands and feet tied to a table; a minor female with
her finger inserted into her vagina; a minor female about to perform
fellatio on an older man; a minor female sitting with her legs straight up
in the air in a "V" position while holding a bottle inserted into her vagina
and what appears to be either a penis or a banana inserted into her
mouth. Pre-Sentence Investigation Report ("PSR") at P 21, 22.
5
pornography on his computer. On February 3, 2000, a jury
returned a guilty verdict on all four counts against
Parmelee.
In preparation for sentencing, the Probation Office
prepared a Pre-Sentence Investigation Report ("PSR").4 The
Guidelines Manual section that applies to violations of 18

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U.S.C. S 2252A(a)(5)(B) is found in U.S.S.G.S 2G2.4,
entitled "Possession of Materials Depicting a Minor Engaged
in Sexually Explicit Conduct." Within the text of
S 2G2.4(c)(2) is a cross-reference to S 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." Specifically, the cross-
reference states:
If the offense involved trafficking in material involving
the sexual exploitation of a minor (including receiving,
transporting, shipping, advertising, or possessing
material involving the sexual exploitation of a minor
with intent to traffic), apply S 2G2.2.
U.S.S.G. S 2G2.4(c)(2).
The Probation Office applied the cross-reference to
U.S.S.G. S 2G2.2 in Parmelee’s case because the offense
involved the receipt of material that involved the sexual
exploitation of a minor. U.S.S.G. S 2G2.2 includes not only
a higher base offense level than U.S.S.G. S 2G2.4 (17
instead of 15), but also contains several specific offense
characteristics which are not included in U.S.S.G.S 2G2.4.
These include two characteristics that the Probation Office
applied here: U.S.S.G. S 2G2.2(b)(3), which permits a four-
level increase if the offense "involved material that portrays
sadistic or masochistic conduct or other depictions of
violence," and U.S.S.G. S 2G2.2(b)(4), which permits a five-
level increase if the defendant "engaged in a pattern of
_________________________________________________________________
4. The Probation Office prepared the pre-sentence investigation report
using the 1998 edition of the United States Sentencing Guidelines
Manual.
6
activity involving the sexual abuse or exploitation of a
minor,"5 U.S.S.G. SS 2G2.2(b)(3), 2G2.2(b)(4).
The Probation Office also applied two additional specific
offense characteristics from U.S.S.G. S 2G2.2: a two-level
enhancement if "the material involved a prepubescent
minor or a minor under the age of twelve years," U.S.S.G.
S 2G2.2(b)(1); and a two-level enhancement"if a computer
was used for the transmission of the material or a notice or
advertisement of the material," U.S.S.G. S 2G2.2(b)(5).
Finally, the Probation Office added two levels for
Parmelee’s aggravating role in the offense, pursuant to
U.S.S.G. S 3B1.3, entitled "Abuse of Position of Trust or Use
of Special Skill." These adjustments, based on specific
characteristics and Parmelee’s role in the offense, resulted
in an adjusted and total offense level of 32. PSRP 52. Due
to two criminal history points from prior criminal
convictions, a criminal history category of II was

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established. Id. P 66. Based on a total offense level of 32
and a criminal history category of II, the Probation Office
calculated the guideline range for imprisonment at 135 to
168 months. Id. P 101.
Parmelee objected to the use of the cross-reference to
U.S.S.G. S 2G2.2 on the ground that there was no evidence
that he trafficked in, as opposed to merely possessed,
material involving the exploitation of a minor. He also
objected to the four-level enhancement for sadistic material,
_________________________________________________________________
5. The Pre-Sentence Investigation Report determined that the five-level
enhancement for engaging in a "pattern of activity involving the sexual
exploitation or abuse of a minor," U.S.S.G. S 2G2.2(b)(4), should be
applied because Parmelee repeatedly exposed his son to the
pornographic images Parmelee downloaded from the Internet. For the
U.S.S.G. S 2G2.2(b)(4) enhancement to apply, however, Parmelee had to
sexually exploit a minor in the manner prescribed in 18 U.S.C. S 2251(a)
and covered by U.S.S.G. S 2G2.1 by using minors to produce, not merely
traffic in, child pornography. See United States v. Ketcham, 80 F.3d 789,
793-95 (3d Cir. 1996). There was no evidence in this case that Parmelee
personally produced any child pornography, so this particular
enhancement does not apply. Its exclusion, however, does not alter the
adjusted offense level to which Parmelee is subject under application of
the cross-reference; application of U.S.S.G. S 2G2.2 exposes Parmelee to
a five-level distribution enhancement under U.S.S.G.S 2G2.2(b)(2).
7
claiming that, although the images on the discs did depict
children in bondage, such images could not be described as
sadistic or masochistic. Parmelee also objected to the five-
level enhancement for engaging in a pattern of activity
involving the sexual abuse or exploitation of a minor,
claiming that there was no credible evidence to support
that enhancement. Finally, he objected to the two-level
enhancement for use of a computer to transmit the
material because he claimed there was no evidence that he
employed a computer to obtain the images contained on the
discs.
On June 26, 2000, the Supreme Court issued Apprendi.
The sentencing hearing in Parmelee’s case was conducted
on August 21, 2000. At the sentencing hearing, the district
court expressed its concern that "a so-called sentencing
consideration, such as allegations of trafficking or receiving
pornography, rather than merely possessing it could or
should be employed here when that is itself an element of
a more aggravated offense in the same package of statutes
with which we are involved." Transcript of Sentencing
Hearing, App. at 288.6 The court noted that "Parmelee was
prosecuted on a pure possession statute . . . when other
sections within that very statute or statutory family
provided for more aggravated offenses with 15-year
penalties rather than 5-year penalties."7 Id. The district
court remarked that "in light of such Supreme Court
decisions as Apprendi v. New Jersey . . . and Jones v.
United States . . . the Supreme Court might have some

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difficulty with essentially imposing a sentence for a more
aggravated offense than the one on which the indictment
was secured and the convictions secured." Id. at 288-89.
_________________________________________________________________
6. All appendix references are to the "Appendix for Appellant," submitted
by the Government.
7. Section 2252A(b)(1) establishes a fifteen-year maximum sentence for a
violation of paragraph (1) (mailing, transporting, or shipping of child
pornography), paragraph (2) (receiving or distributing child pornography),
paragraph (3) (reproducing child pornography), or paragraph (4) (selling
or possessing with intent to sell child pornography) of subsection (a);
section 2252A(b)(2), on the other hand, establishes a five-year maximum
sentence for a violation of paragraph (5) (possession of child
pornography) of subsection (a). 18 U.S.C. S 2252A(b)(1), (b)(2).
8
The court, however, acknowledged that "there are cross-
references in the guidelines." Id. at 289.
The district court asked the Government if the court
could make findings regarding Parmelee’s relevant conduct,
and the Government replied that the court could determine
that "the conduct in this case was much more egregious
than what was charged in the indictment." Id. at 289. The
court then stated:
I am prepared for the purposes of this argument to
state that I could find by a preponderance of the
evidence at least that there was [ ] present here the
receiving, transporting, shipping and/or advertising of
material here, in addition to the mere possession.
Id. at 290-91.
Even though the court conceded that it could find the
facts necessary to apply the cross-reference, the court
concluded that, although not "absolutely compelled to do so
in this case," it would decline to apply the cross-reference
to U.S.S.G. S 2G2.2, in light of Apprendi . Id. at 291. The
court acknowledged that, given Parmelee’s four convictions
"under the statute at least he could be sentenced
consecutively for a total of 20 years imprisonment," which
exceeded the top of the guidelines range, 168 months, as
calculated by the Probation Office under U.S.S.G.S 2G2.2.
See id. Given that 20-year maximum for all four counts, the
court also acknowledged that "it might be argued that
Apprendi and its holding do not directly fit the facts of this
case." Id. at 291-92. Nonetheless, the district court refused
to apply the cross-reference.
After concluding that it would not apply the cross-
reference to U.S.S.G. S 2G2.2, but would instead calculate
the offense level under U.S.S.G. S 2G2.4, the district court
noted that, in addition to employing a base offense level of
15 rather than 17, neither the four-level enhancement for
sadistic or masochistic images, nor the five-level

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enhancement for engaging in a pattern of activity involving
the sexual abuse of a minor (both of which arise exclusively
under U.S.S.G. S 2G2.2), could be applied in this case. Id.
at 294. The court did, however, apply certain
enhancements available to it under U.S.S.G. S 2G2.4,
9
including the U.S.S.G. S 2G2.4(b)(1) enhancement for
possession of pornographic material involving a minor
under the age of twelve, the U.S.S.G. S 2G2.4(b)(3)
enhancement for the use of a computer to acquire the child
pornography, and the enhancement for abuse of a position
of private trust found in U.S.S.G. S 3B1.3. Id.
The district court’s refusal to apply the cross-reference
resulted in an eleven-level reduction in the total offense
level calculated by the Probation Office (from 32 to 21) and
a consequent reduction in the applicable guidelines range
from 135-168 months to 41-51 months. See id. at 294-95.
Once the district court determined that it would apply
U.S.S.G. S 2G2.4 rather than U.S.S.G. S 2G2.2, the
Government sought the application of a two-level
enhancement available exclusively under U.S.S.G.S 2G2.4,
arguing that the court should apply the enhancement
because "the offense involved possessing ten or more books,
magazines, periodicals, films, video tapes, or other items,
containing a visual depiction involving the sexual
exploitation of a minor." Id. at 305. After noting there was
no evidence that Parmelee had possessed any of the child
pornography images as "hard copy visual depictions" that
"were taken off the discs," the court declined to apply the
enhancement, reasoning that the units to be counted under
U.S.S.G. S 2G2.4(b)(2) were the four recordable compact
discs and not the multiple digital files on each of those
discs. Id. at 305-08.8
_________________________________________________________________
8. Although we need not fully address the district court’s decision as to
the number of items Parmelee possessed because we reverse the
sentence on other grounds, we note that an amendment to the
Sentencing Guidelines, promulgated after the sentencing hearing,
clarifies the meaning of the term "item" in U.S.S.G. S 2G2.4(b)(2).
Effective November 1, 2000, the Sentencing Commission adopted
Amendment 592 to the Sentencing Guidelines, which promulgated the
following application to U.S.S.G. S 2G2.4:
For purposes of subsection (b)(2), a file that (A) contains a visual
depiction; and (B) is stored on a magnetic, optical, digital, other
electronic, or other storage medium or device, shall be considered to
be one item.
If the offense involved a large number of visual depictions, an
upward departure may be warranted, regardless of whether
subsection (b)(2) applies.
10

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After denying Parmelee’s motion for a downward
departure under U.S.S.G. S 4A1.3 (based on Parmelee’s
claim that his Criminal History Category significantly over-
represented the seriousness of his criminal history), the
court imposed concurrent sentences of 48 months each on
all four counts.
III.
We exercise plenary review over the district court’s
application of the Sentencing Guidelines, and the possible
5th and 6th Amendment constitutional implication, of
Parmelee’s sentence under Apprendi. United States v.
Williams, 235 F.3d 858, 861 (3d Cir. 2000) (citing Bose
Corp. v. Consumers Union, 466 U.S. 485, 510, 104 S. Ct.
1949, 80 L. Ed. 2d 502 (1984)).
_________________________________________________________________
U.S.S.G. S 2G2.4, Application Note 2 (Nov. 2000). A post-sentencing
amendment to a guideline, or to its comments, should be given
retroactive effect if the amendment "clarifies" the guideline or comment
in place at the time of sentencing. United States v. Marmolejos, 140 F.3d
488, 490 (3d Cir. 1998). Explaining the reason for the amendment, the
Commission wrote:
[T]he amendment clarifies the meaning of the term "item" in
subsection (b)(2) of S 2G2.4 . . . . The amendment adopts the holding
of all circuits that have addressed the matter that a computer file
qualifies as an item for purposes of the enhancement. The
amendment also provides for an invited upward departure if the
offense involves a large number of visual depictions of child
pornography, regardless of the number of "items" involved. This
provision invites courts to depart upward in cases in which a
particular item, such as a book or a computer file, contains an
unusually large number of pornographic images involving children.
Amendment 592, Supp. to App. C. at 50 (2001) (emphasis added).
Because Amendment 592 clarifies U.S.S.G. S 2G2.4(b)(2), the amendment
would apply retroactively to Parmelee in this case and would contradict
the district court’s conclusion that a computer file is not an "item" for
purposes of U.S.S.G. S 2G2.4(b)(2). However, as stated, because we
reverse the district court’s judgment of sentence on other grounds, we
need not reach this point.
11
IV.
In this case, we confront the issue of whether a
sentencing court can apply the trafficking cross-reference of
U.S.S.G. S 2G2.4(c)(2) to enhance a defendant’s sentence for
possession of child pornography, when the court finds by a
preponderance of the evidence that the requisites for the
trafficking cross-reference have been established, even
though the defendant was convicted only of possession of
materials depicting a minor engaged in sexually explicit
conduct.

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The district court stated that it could find, by a
preponderance of the evidence, that the requisites for the
U.S.S.G. S 2G2.4(c)(2) cross-reference (i.e., that Parmelee
received, transported, shipped and/or advertised, in
addition to merely possessed, child pornography) had been
established. However, the court concluded that, based on
Apprendi, those factual findings had to be made by a jury,
based on proof "beyond a reasonable doubt." App. at 291.
The court reasoned that application of the cross-reference,
and the specific offense characteristics resulting from
application of the cross-reference, would cause Parmelee to
be sentenced as if he had been convicted of trafficking in
child pornography, even though he had been charged and
convicted only of possession of child pornography. App. at
288. Because the court believed that Apprendi prohibited
such a result, it refused to apply the cross-reference.
In Apprendi, the defendant fired several shots into the
home of an African-American family; after his arrest, the
defendant allegedly stated that he did not know the
occupants personally, but did not want African-Americans
in his neighborhood. Apprendi, 530 U.S. at 469. The
defendant later denied having made such a statement. Id.
at 469, 471. The defendant pled guilty in state court to two
counts of second-degree possession of a firearm for an
unlawful purpose, each of which carried a sentencing range
of 5 to 10 years, and to one count of third-degree unlawful
possession of an antipersonnel bomb, which carried a
penalty of 3 to 5 years. Id. at 469-70. He was sentenced to
12 years, however, because a separate "hate crimes" statute
permitted an enhancement when the sentencing judge
found, by a preponderance of the evidence, that the
12
defendant acted with bias towards a protected group. Id. at
470, 491-92; see also N. J. Stat. Ann. S 2C:44-3(e) (2000).
The Supreme Court concluded that the New Jersey
sentencing procedures violated the 6th Amendment right of
the accused to a trial by jury and held that "[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 530 U.S. at 490.
At the time of the sentencing hearing in this case the
district court did not have the benefit of Third Circuit
precedent addressing the effect of Apprendi on sentencing
proceedings. This court has, however, applied Apprendi
numerous times since, and has frequently repeated the
position that the limitations of Apprendi do not apply
unless the sentence imposed exceeds the statutorily
prescribed maximum. See United States v. Vasquez , 271
F.3d 93, 98 (3d Cir. 2001); United States v. DeSumma, 272
F.3d 176, 181 (3d Cir. 2001) ("This Court has since
concluded . . . that when the actual sentence imposed does
not exceed the statutory maximum, Apprendi is not
implicated."); Williams, 235 F.3d at 862-63 (stating "that

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Apprendi does not apply to the increase in a defendant’s
sentence under the U.S.S.G. where the sentence imposed
does not exceed the statutorily prescribed maximum").
The Supreme Court recently confirmed the "distinction
the law has drawn between the elements of a crime and
factors that influence a criminal sentence," Harris v. United
States, 122 S. Ct. 2406, 2410, 153 L. Ed. 2d 524 (June 24,
2002), and reiterated that Apprendi restricts only those
factual findings that result in a sentence above the
statutory maximum penalty. The issue in Apprendi , the
Court explained, "was a sentencing factor that did ‘swell the
penalty above what the law has provided.’ " Id. at 2417. In
those cases in which a sentencing factor or enhancement
does not increase the penalty for a crime beyond the
prescribed statutory maximum, Apprendi is not implicated
and the facts supporting the sentencing factor or
enhancement need not be charged in an indictment or
submitted to a jury. Id. at 2417-18. The Court explained
that once the jury finds a defendant guilty,
13
Apprendi says that the defendant has been convicted of
the crime; the Fifth and Sixth Amendments have been
observed; and the Government has been authorized to
impose any sentence below the maximum. That is why,
as Apprendi noted, "nothing in this history suggests
that it is impermissible for judges to exercise discretion
-- taking into consideration various factors relating
both to offense and offender -- in imposing a judgment
within the range." . . . The judicial factfinding does not
"expose a defendant to a punishment greater than that
otherwise legally prescribed."
Id. at 2418 (citation omitted).
The factual findings that the district court provisionally
made, i.e., that Parmelee had "receiv[ed], transport[ed],
shipp[ed] and/or advertis[ed] . . . material . . . in addition
to mere possession," App. at 290-91, are not facts that
would shift the elements of the offense of conviction from
trial to sentencing. The jury found, beyond a reasonable
doubt, all of the elements necessary to convict Parmelee of
four counts of possessing child pornography. He was
therefore subject to "any sentence below the maximum."
See Harris, 122 S. Ct. at 2418; see also United States v.
Gamez, 301 F.3d 1138, 1147-48 (9th Cir. 2002) (stating
that Apprendi does not bar application of a cross-reference,
even if cross reference applies to an offense for which
defendant was not charged or convicted).
Each of the four counts on which Parmelee was convicted
carry a maximum statutory sentence of "not more than 5
years" (60 months). See 18 U.S.C. S 2252A(b)(2). Thus, the
sum of the statutory maximum sentences Parmelee faced
on all four counts was 240 months.9 This sum exceeds the
_________________________________________________________________

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9. The authority for multiplying statutory maximum sentences on
multiple counts of conviction is found in 18 U.S.C.S 3584 (2000), which
provides for the imposition of consecutive terms of imprisonment "[i]f
multiple terms of imprisonment are imposed on a defendant at the same
time." 18 U.S.C. S 3584(a) (2000). In determining whether to impose
either consecutive or concurrent sentences, a sentencing court is
instructed to consider, among other factors, the nature and
circumstances of the offense and the history and characteristics of the
defendant, the need for the sentence imposed to reflect the seriousness
14
applicable guidelines range of 135-168 months suggested
by the Probation Office that arose by application of the
cross-reference from U.S.S.G. S 2G2.4 to U.S.S.G. S 2G2.2.
Thus, Apprendi is not implicated under the Probation
Office’s recommended sentence here because application of
the cross-reference and resultant enhanced sentence would
fall below the statutory maximum of 240 months. 10 In a
case involving multiple counts of conviction, the Sentencing
Guidelines instruct that if the total punishment mandated
by the guidelines exceeds highest statutory maximum on a
single count, consecutive terms of imprisonment shall be
imposed to the extent necessary to achieve the total
punishment.11 In particular, U.S.S.G. S 5G1.2 provides that
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of the offense and to provide just punishment for the offense, to afford
adequate deterrence to criminal conduct, and to protect the public from
further crimes of the defendant. See 18 U.S.C. S 3553(a)(2).
Consideration of these factors, the nature of Parmelee’s offense, and the
fact that Parmelee repeatedly violated 18 U.S.C.S 2252A(a)(5)(B) leads to
the conclusion that Parmelee is properly subject to a higher statutory
maximum sentence achieved through the imposition of consecutive
terms of imprisonment.
10. The district court, in fact, conceded the possibility that Apprendi
would not prohibit application of the cross-reference in this case when
it stated:
Now, in this case, of course, with the conviction of four counts,
which under the statute at least he could be sentenced
consecutively for a total of 20 years [240 months] imprisonment,
even the enhanced sentence under guideline S 2G2.2 would not
reach that level, so it might be argued that Apprendi and its holding
do not directly fit the facts of this case.
App. at 291-92.
11. To the extent that Parmelee argues that United States v. McCulligan,
256 F.3d 97 (3d Cir. 2001) compels a different result, he is in error. In
McCulligan, the defendant was convicted of assaulting a federal officer
under a statute that established separate offenses based on how
dangerous the assault was, with the least dangerous assault having a
one-year statutory maximum, and the other two types of assaults having
a statutory maximum of three years. 256 F.3d at 99, 102. Although the
jury was not instructed to, nor did it find any facts beyond those
required for a simple assault, the sentencing court imposed a sentence

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15
"[i]f the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then
the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to
produce a combined sentence equal to the total
punishment." The "total punishment" is the"combined
length of the sentences" which are "formally imposed on
each count in a multiple count case," and "is determined by
the adjusted combined offense level." U.S.S.G.S 5G1.2,
Commentary; see also U.S.S.G. S 3D1.5 (stating that the
"combined offense level" should be used "to determine the
appropriate sentence in accordance with the provisions of
Chapter Five").
Here, the Guidelines stated that the "total punishment,"
based on an offense level of 32 and a criminal history
category of II, was to be selected from a range of 135 to 168
months. See U.S.S.G. Chapter 5, Part A, Sentencing Table.
Pursuant to S 5G1.2(d), the district court had discretion to
order that the sentences for each count of conviction be
served consecutively to the extent necessary to create a
total punishment within the range of 135 to 168 months.12
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for the assault conviction that exceeded the one-year statutory
maximum. In McCulligan, the Government contended that the sentence
actually imposed did not offend Apprendi because it was less than the
statutory maximum of a separate count of conviction of which he was
also convicted, i.e., destroying government property. Id. at 105. This
Court stated that Apprendi itself foreclosed the argument that mistakes
in determining the sentence on one count may be ignored so long as a
greater sentence might have been imposed on another count, because in
Apprendi, the constitutional question was whether the 12-year sentence
imposed on the count at issue was permissible given that it was above
the 10-year maximum for the offense charged in that count. Id.
Accordingly, the sentencing court could not impose a sentence on the
assault conviction which exceeded that offense. Id. at 105-6. Here, by
contrast, the Government does not seek to impose a sentence on each
count that exceeds the maximum for each count. See page 18, note 13,
infra.
12. Parmelee concedes that "a line of case law, accurately cited by the
government" repudiates the notion that Apprendi is violated when
sentences for multiple counts of conviction are ordered to be served
16
Because Apprendi does not prohibit application of the
S 2G2.4(c)(2) cross-reference in this case, the district court
erred by declining to apply it. The district court stated it
could find, by a preponderance of the evidence, that there
was present in this case "the receiving, transporting,
shipping and/or advertising of material . . . in addition to
the mere possession." App. at 290-91. U.S.S.G.
S 2G2.4(c)(2) mandates that "[i]f the offense involved
trafficking in material involving the sexual exploitation of a

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minor (including receiving, transporting, shipping,
advertising, or possessing material involving the sexual
exploitation of a minor with intent to traffic), apply
S 2G2.2." U.S.S.G. S 2G2.4(c)(2). Even if an individual is
convicted for possession of child pornography, the
Guidelines expressly contemplate more severe punishment
by application of U.S.S.G. S 2G2 if the conduct involved
something more than "simple possession." See, e.g., United
States v. Johnson, 221 F.3d 83, 97-98 (2d Cir. 2000). The
conditions specified in the U.S.S.G. S 2G2.4 cross-reference
were satisfied; application of the cross-reference was thus
mandatory. See United States v. Harvey, 2 F.3d 1318, 1326
(3d Cir. 1993). The district court was thus required to apply
the higher base offense level and the specific offense
characteristics of U.S.S.G. S 2G2.2.
The evidence presented at trial established that Parmelee
downloaded, and therefore "received" pornographic images
from the internet. In addition to merely receiving such
pornography, however, Parmelee also stored it on easily
distributable CD-Rs which he intended to barter with other
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consecutively. Respondent’s Brief at 11-12. Indeed, overwhelmingly, the
circuit courts have held that the stacking of consecutive sentences
pursuant to U.S.S.G. S 5G1.2(d) to create a total sentence that exceeds
the statutory maximum for a particular count of conviction does not
violate Apprendi. See, e.g., United States v. McLean, 287 F.3d 127, 137
(2d Cir. 2002); United States. v. McWaine, 290 F.3d 269, 276 (5th Cir.
2002); United States v. Campbell, 279 F.3d 392, 401-02 (6th Cir. 2002);
United States v. Buckland, 289 F.3d 558, 570-71 (9th Cir. 2002); United
States v. Price, 265 F.3d 1097, 1107-09 (10th Cir. 2001); United States
v. Angle, 254 F.3d 514, 518-19 (4th Cir. 2001); United States v.
Caldwell, 255 F.3d 532, 533-34 (8th Cir. 2001); United States v. Parolin,
239 F.3d 922, 929-30 (7th Cir. 2001).
17
people for programs or services. That evidence supports the
district court’s provisional finding that Parmelee trafficked
in child pornography by receiving, transporting, shipping,
and/or advertising, in addition to merely possessing,
pornographic images. See also United States v. Horn, 187
F.3d 781, 791 (8th Cir. 1999) (explaining that "exchange or
barter is a form of ‘trafficking.’ ‘Traffic,’ like ‘trade,’ includes
both ‘the business of buying and selling for money’ and ‘the
business of exchanging commodities by barter . . .’ ").
Because the district court stated that it could find by a
preponderance of the evidence that the requirements for
application of the cross-reference had been satisfied, and
because the evidence presented at trial supports such a
finding, the court should have applied the cross-reference,
and enhanced the applicable guidelines range accordingly,
as recommended by the pre-sentence report.
To accommodate the requirement of U.S.S.G. S 5G1.2(d)
that the total sentence for all four counts of conviction fall
within the applicable guidelines range of 135 to 168

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months, as well as abide by the five-year maximum for
each count, the district court could have imposed
sentences on each count under the statutory maximum
(i.e., 60 months) and run such sentences consecutively to
achieve the recommended total punishment range. 13
Because the district court refused to apply the cross-
reference to U.S.S.G. S 2G2.2, it did not have the
opportunity to consider whether additional sentencing
enhancements under that section applied. Had the district
court applied S 2G2.2, it should have additionally
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13. As recommended by the Government, the district court could have
imposed a 34-month sentence on counts 1, 2, and 3, and a 33-month
sentence on count 4, resulting in a total sentence of 135 months. See
Reply Brief for Appellant at 5. Alternatively, the court could have
imposed a 60-month sentence on counts 1 and 2 to run consecutively,
a 60-month sentence on count 3, with 15 months running consecutively
and 45 months running concurrently (totaling 135 months), and a 60-
month sentence on count 4, to run concurrently with the other
sentences. In either scenario, because each count of conviction would
support a sentence that does not exceed the 60-month statutory
maximum term for that count, Apprendi would not be implicated.
18
considered the distribution enhancement under U.S.S.G.
S 2G2.2(b)(2), and the enhancement for material involving
sadistic conduct under U.S.S.G. S 2G2(b)(3); the evidence
presented at trial supports the application of both
enhancements. Application of these two enhancements
would subject Parmelee to an adjusted offense level of 32,
the same level calculated by the Pre-Sentence Investigation
Report, albeit by a slightly different route.14
V.
Based on the foregoing reasons, we reverse Parmelee’s
sentence and remand this case to the district court for re-
sentencing consistent with this opinion in light of
Parmelee’s present status.15 We direct the district court to
schedule Parmelee’s resentencing as promptly as its
schedule will permit.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
14. As explained in note 4, the Government concedes that the five-level
enhancement under U.S.S.G. S 2G2.2(b)(4) does not properly apply to
Parmelee. Nonetheless, because sufficient evidence exists that Parmelee
planned to use the pornographic photographs to barter with other
people, or in other words possessed with intent to distribute, the
distribution enhancement in U.S.S.G. S 2G2.2(b)(2) applies. Because this
enhancement also calls for a five-level enhancement, the total adjusted

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offense level remains the same.
15. At oral argument, counsel for the United States informed the Court
that Parmelee had been released after completing the custodial portion
of his sentence and was serving a sentence for supervised release. The
Government could not say, however, where Parmelee was serving such a
sentence. In a subsequent letter to the Court, the Government reported
that Parmelee was serving his supervised release in Indiana. The
Government further related that on December 20, 2002, Judge Robert L.
Miller of the United States District Court of the Northern District of
Indiana revoked Parmelee’s supervised release and imposed a custodial
sentence of six months, based on Parmelee’s failure to report in person
to his probation officer following his release from custody.
19

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