United States of America v. Ralph William Adamson

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The Honorable Donald W. Molloy, United States District Judge for**
the District of Montana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RALPH WILLIAM ADAMSON,
Defendant - Appellant.
No. 09-10421
D.C. No. 2:08-cr-173-EJG-EJG
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, Senior District Judge, Presiding
Argued and Submitted October 5, 2010
San Francisco, California
Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY, District
Judge.**
Defendant Ralph Adamson appeals his prison sentence of 78 months
following his guilty plea to one count of possessing child pornography, in violation
FILED
OCT 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of 18 U.S.C. § 2252(a)(4)(B). Adamson possessed 53 images of child
pornography depicting known child victims, roughly 6,000 images characterized
by the probation officer in the presentence report as “suspected pre-teen and teen
child pornography and child erotica,” and more than 9,000 composite sexual
images created by Adamson using photo manipulation software. The composite
images consist of faces of identifiable children electronically cut and pasted onto
adult models in scenes depicting sexually explicit activity.
The presentence investigation report recommended an adjusted offense level
of 31, including a five-level increase under U.S.S.G. § 2G2.2(b)(7)(D) because the
offense involved 600 or more images. Adamson objected, arguing that the
composite images do not meet the definition of child pornography. He also
objected to including in the image count the undoctored images, contending that a
lay person would not find that such images are of minors. The record suggests that
no one at the sentencing hearing looked at the images. Without viewing the
images or hearing testimony, the district court ruled that the 9,000-plus composite
images qualified as child pornography under 18 U.S.C. § 2256(8)(C), and then
applied the five-level increase because there were 600 or more images. The district
court, on the record, did not determine whether any of the 6,000 or so undoctored
images also constitute child pornography.

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Adamson insists that the sentencing court erred in applying the five-level
increase because it either misapplied 18 U.S.C. § 2256(8)(C) or, in the alternative,
that the statute violates the First Amendment. Neither issue is ripe because it is
unclear whether the district court resolved the disputed issues of fact, as required,
at sentencing. See Fed. R. Crim. P. 32(i)(3)(B). Moreover, to the extent that the
court did make factual findings, the findings are not reviewable because the
sentencing judge apparently did not view any of the disputed images, so the
findings are not supported by the record.
We vacate and remand for the district court to make a factual determination
on whether the disputed undoctored images include a sufficient number of child
pornography images to warrant the five-level increase under U.S.S.G. §
2G2.2(b)(7)(D). If they do not, the district court shall then make a factual
determination on whether any of the composite images are child pornography. If
so, the district court shall determine whether they include a sufficient number of
images to warrant the five-level increase. The court need not view any images if
both parties concede that the number is within a particular Guideline or if the
parties stipulate to the number that should be counted as child pornography.
VACATED and REMANDED.

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