United States of America v. Francis Barevich

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2879
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
F RANCIS B AREVICH ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-CR-301—J.P. Stadtmueller, Judge.
____________
A RGUED J ANUARY 10, 2006—D ECIDED A PRIL 26, 2006
____________
Before B AUER , R IPPLE , and W OOD , Circuit Judges.
B AUER , Circuit Judge. Francis Barevich pleaded guilty to
transporting a visual depiction of a minor engaged in
sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(1). On June 14, 2005, the district court sentenced
Barevich to 76 months’ imprisonment and two years of
supervised release. Barevich challenges sentencing en-
hancements applied by the district court.

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2 No. 05-2879
I. Background
In 2003, the New York City Police Department (“NYPD”)
took control of a file transfer protocol server (“server”) that
had been used to distribute child pornography. A server
acts as an online information clearinghouse that allows
Internet users to upload or download files to and from the
server. When the NYPD took over the server, they modified
it so that the server would accept uploads only. The NYPD
then advertised the server’s availability in pre-teen Internet
chat rooms; such chat rooms are frequented by pedophiles.
The NYPD discovered that on October 2, 2003, a six-
second video had been uploaded to the server from
Barevich’s Internet Protocol Address (“IPA”). The video,
entitled “PEDO-MOM.MPEG,” depicted an adult male
vaginally penetrating a four to six-year-old female with the
assistance of an adult female. Under the statute, uploading
such images from a computer to the server constitutes
transporting child pornography. See 18 U.S.C. § 2252(a)(1).
Once investigation confirmed that the video had been
uploaded from Barevich’s IPA, a federal search warrant was
secured and executed at his home in Waukesha, Wisconsin,
on May 22, 2004. A forensic examination of Barevich’s
computers revealed 8,178 picture files of what appeared to
be children in various stages of undress or engaged in
sexually explicit activity. Some of the images depicted
sadomasochistic conduct, with children tied up, restrained,
or bound, while sexual acts were being performed on them.
The children in these pictures appeared to range from
under eight years of age to mid-teens. Additionally,
Barevich’s computers contained 3,083 text files that
recounted stories of incest and children engaged in sexual
acts with other children and adults. Finally, 80 video files
were found depicting children either in various stages of
undress or in assorted acts of graphic sexual activity with
other children and adults.

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No. 05-2879 3
In the district court, Barevich pleaded guilty to transport-
ing a visual depiction of a minor engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(1).
Based on the Pre-Sentence Investigation Report, Barevich
was given an offense level of 27, which included a four-level
increase pursuant to U.S.S.G. § 2G2.2(b)(3). The district
court applied this enhancement based on sadomasochistic
images found in Barevich’s possession when he was ar-
rested for transporting child pornography. This yielded an
advisory Guidelines range of 87 to 108 months; without the
enhancement the range would have been 57 to 71 months.
The district court sentenced Barevich to 76 months’ impris-
onment and two years of supervised release. He filed a
timely notice of appeal.
II. Discussion
Barevich objects to the four-level enhancement applied
under U.S.S.G. § 2G2.2(b)(3). The increase to Barevich’s
sentence was based on images in his possession, but not
on the images he transported. The defendant raises the
issue because if he had been convicted of possession only,
the enhancement would not have been available.
We review a district court’s decision to apply specific
sentencing Guidelines de novo and its factual findings for
clear error. United States v. Bothun, 424 F.3d 582, 586 (7th
Cir. 2005); see also United States v. Ellison, 113 F.3d 77, 79
(7th Cir. 1997). While the government urges that the
material Barevich transported was sadomasochistic as a
matter of law, Judge Stadtmueller made no factual find-
ing regarding the sadomasochistic nature of the transported
material. In fact, the video was never introduced into
evidence, as the government conceded in briefing and in
argument. So we only address the district court’s applica-
tion of the sentencing enhancement based on Barevich’s
relevant conduct.

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4 No. 05-2879
Barevich was convicted of the greater crime of trans-
porting child pornography, under 18 U.S.C. § 2252(a)(1). He
argues that if he were convicted of the lesser crime, posses-
sion of child pornography, he would not be subject to the
four-level enhancement for possession of sadomasochistic
child pornography and his base level would have been
lower. While Barevich points out this interesting discrep-
ancy, it is a discrepancy that was contemplated by the
Guidelines. See United States v. Grosenheider, 200 F.3d 321,
332-33 (5th Cir. 2000) (delineating the differences between
the various offenses and sentences involving child pornogra-
phy). Possession of sadomasochistic child pornography by a
defendant who has committed the greater offense of
transporting child pornography in interstate commerce
informs the severity of the crime. Those who traffic in child
pornography, either by receiving or transporting the
material, “increase the market for child pornography and
hence the demand for children to pose as models for
pornographic photographs . . . .” United States v. Richard-
son, 238 F.3d 837, 839 (7th Cir. 2001). The Guidelines
demonstrate a concern for the welfare of the children who
are exploited in order to create the pornography. This
makes the trafficker a “greater malefactor than the pos-
sessor.” Id.
Barevich’s claims in this Court are limited by his conces-
sions in the district court. At his sentencing hearing and in
his briefs to this Court, Barevich conceded that his posses-
sion of sadomasochistic child pornography constituted
relevant conduct for his offense of transporting
child pornography. Under U.S.S.G. § 1B1.3, his concession
is significant since the Guidelines call for all acts committed
by the defendant “during the commission of the offense” to
be considered for relevant conduct. Id.
This Circuit has held that possession of sadomasochistic
images and magazines constitutes relevant conduct for
crimes similar to Barevich’s offense. In United States v.

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No. 05-2879 5
Ellison, we decided, with facts comparable to the case
at hand, that this same four-level enhancement can be
applied when the relevant conduct evinces sadomasochistic
images but the actual image under which the defendant
is charged does not. 113 F.3d at 78-79, 82. Barevich’s
argument mirrors the issue in Ellison, where the defendant
claimed that the enhancement was inapplicable because the
child pornography video for which he was convicted did not
contain depictions of sadomasochism; only the magazines in
his possession contained such images. Id. at 82. We rejected
Ellison’s argument because his possession of the
sadomasochistic images constituted relevant conduct to his
receipt of the child pornography video. Id. As we explained
in Ellison, a greater purpose is served when we include
“uncharged but relevant conduct . . . and take into account
all conduct indicating the seriousness of the charged offense
. . . .” Id. at 83. Similarly here, Barevich’s possession of
sadomasochistic child pornography is properly included as
uncharged but relevant conduct for the charged offense of
transporting child pornography.
The overarching goal of the sentencing guideline enhance-
ments is to weaken the market for child pornography that
“keeps the producers and distributors of this filth
in business.” Id. at 81. See also Richardson, 238 F.3d at
839; United States v. Turchen, 187 F.3d 735, 737 n.2 (7th
Cir. 1999). Transporting and receiving child pornography
increases market demand. The greater concern under the
Guidelines is for the welfare of these exploited children. The
avenue Congress has chosen to weaken the child pornogra-
phy industry is to punish those who traffic in it. See United
States v. Johnson, 221 F.3d 83, 98 (2d Cir. 2000) (explaining
that the Guidelines expressly contemplate more severe
punishment by application of § 2G2.2 if the con-
duct involved something more than “simple possession”). As
a result, given our decision in Ellison and the guidance that
U.S.S.G. § 1B1.3 provides, we hold that the district court

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6 No. 05-2879
did not clearly err in applying U.S.S.G. § 2G2.2(b)(3) to
increase Barevich’s sentence.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-06

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