United States of America v. Michael Henry Harrison, a/k/a Emmanuel Henry Harrison, III Michael Henry Harrison

PRECEDENTIAL
THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 02-4030
___________
UNITED STATES OF AMERICA
v.
MICHAEL HENRY HARRISON,
a/k/a Emmanuel Henry Harrison, III
Michael Henry Harrison,
Appellant
___________
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 01-cr-00025-1E)
District Judge:
The Honorable Maurice B. Cohill, Jr.
___________
ARGUED SEPTEM BER 3, 2003
BEFORE: SLOVITER, NYGAARD, and
ROTH, Circuit Judges.
(Filed February 6, 2004)
___________
Renee Pietropaolo, Esq. (Argued)
Karen S. Gerlach, Esq.
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Paul M. Thompson, Esq. (Argued)
Bonnie R. Schlueter, Esq.
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Michael Henry Harrison challenges
the sixty-three month sentence imposed by
the District Court for trafficking in child
pornography. The single issue on appeal is
whether the sentencing enhancement under
United States Sentencing Guideline
(“U.S.S.G.”) § 2G2.2(b)(5), for when “a
computer was used for the transmission of
the material or a notice or advertisement of
the material,” was properly applied. For
the reasons that follow, we will affirm the
application of the enhancement.
I.
Harrison was indicted as a result of
a sting operation aimed at traders and
collectors of child pornography. He
responded to the following advertisement
from an undercover government agent,

-- 1 of 10 --

2
posted on a web site geared toward those
interested in child pornography:
Hi, I am a discreet collector of
ACTION VHS Vids on the topic of
pre-teens and very young teens and
I am looking for others who share
my TABOO interests especially if
you are from Pennsylvania.
Please e-mail me at the below
address but you must state that you
are NOT a cop, fbi, or postal or I
will NOT reply.
Also, please state that you saw this
post in YAHOO WILD AND
ACTIVE PRE-TEENS so I know
your reply is legit.
Please no flamers, trolls or fantasy
trippers.
At the bottom of this advertisement was
the email address used by the undercover
agent. Harrison responded with the
following message:
Hi, I am a 45 year old male living
in NW PA. I saw your post in
Active pre teens and want to write.
I am not a cop, fbi or postal angent
(sic.) and don’t much care for them.
I am very interested and turned on
by young teen and pre teens. Mike.
The undercover agent responded
the next day with a message indicating that
he possessed sexually explicit videotapes
featuring children as young as eight years
old. He offered to send a list of these
videotapes, and asked Harrison if he had
“anything in the way of pics/vids.”
Harrison responded:
Hi, I am interested in seeing your
list and I have a lot of pics on all
ages from 5 to 17 mostly hardcore.
I am from Pa. also.
Harrison and the undercover agent
exchanged numerous other emails, in
which the undercover agent described the
explicit contents of the videotapes, and
Harrison commented, among other things,
“Hope you’re not a cop LoL!” and
suggested that “Perhaps we could meet
someday with some little playmates.”
Eventually, the two men arranged a trade:
Harrison agreed to mail computer disks
with at least 150 pornographic pictures to
the undercover agent, and in return, the
agent agreed to mail Harrison three
videotapes entitled “Bath Time,”
“Doctor’s Appointment,” and “Incest
Family.” The undercover agent received
four computer disks from Harrison in the
mail, each containing explicit pictures of
underage boys and girls engaging in sexual
conduct. The three videotapes were
subsequently conveyed to Harrison in a
controlled delivery.
Government agents executed a search
warrant on Harrison’s house moments
after this delivery, seizing the videotapes
and Harrison’s computer, which contained
numerous pornographic pictures and video
images of children. While the search was
being executed, Harrison agreed to speak

-- 2 of 10 --

3
to the agents. He told them he had been
collecting child pornography for about
seven months by downloading it onto his
computer from various Internet sites, but
that this was the first time he had traded
pornography. He admitted he had
downloaded the explicit pictures that he
later copied onto disks and mailed to the
undercover agent. He said he collected
child pornography because he was “just
curious,” and denied ever having sexual
involvement with a child.
A grand jury indicted Harrison on
three counts. Count one charged him with
transporting child pornography in violation
of 18 U.S.C. § 2252(a)(1), while counts
two and three, respectively, charged him
with receiving child pornography in
violation of 18 U.S.C. § 2252(a)(2) and
possessing child pornography in violation
of 18 U.S.C. § 2252(a)(4)(B). Harrison
agreed to plead guilty to count one under a
plea agreement which dismissed counts
two and three. The plea agreement further
stipulated that Harrison “acknowledges his
responsibility for the conduct charged in
Counts Two and Three of the Indictment”
and “that the conduct charged in those
counts may be considered by the Probation
Office or by the District Court in imposing
sentence.”
In the plea colloquy, the District
Court asked Harrison if he was admitting
to the transportation of child pornography
that had been “obtained through the use of
a computer and shipped by way of the
United States mail.” Harrison indicated
that he admitted this charge, and also
verbally accepted the portion of the plea
agreement under which he acknowledged
responsibility for the conduct charged in
counts two and three.
The maximum sentence under 18
U.S.C. § 2252(a)(2) is fifteen years, and
the base offense level is seventeen. The
District Court used an offense level of
twenty-five, which included eleven levels
of enhancement and a three-level reduction
for acceptance of responsibility. Together
with a criminal history category of II, this
yielded a a guideline range of sixty-three
to seventy-eight months imprisonment.
The Court sentenced Harrison at the
bottom of this range: sixty-three months in
prison, to be followed by three years of
supervision.
The only issue is the District Court’s
application of § 2G2.2(b)(5), which
provides for a two-level enhancement if “a
computer was used for the transmission of
the material or a notice or advertisement of
the material.” Before the District Court’s
decision to apply the enhancement, both
parties presented briefs and oral argument
on the issue.
II.
Under 18 U.S.C. §§ 3742(a)(1) and
(a)(2), this Court has jurisdiction to review
sentences imposed in violation of the law
or as the result of an incorrect application
of the sentencing guidelines. This Court
reviews a district court’s interpretation of
the sentencing guidelines de novo, and a
district court’s findings of fact supporting

-- 3 of 10 --

4
application of the guidelines for clear
error. See United States v. Butch, 256 F.3d
171, 177 (3d Cir. 2001). This Court also
reviews for plain error a district court’s
determination of what constitutes relevant
conduct for the purposes of sentencing.
See United States v. Perez, 280 F.3d 318,
352-54 (3d Cir. 2002).
It is important to note at the outset
of this analysis that the language of §
2G2.2(b)(5) is phrased in the passive
voice. It does not say, as does a similar
e n h a n c e m e n t u n de r U .S .S .G . §
2G2.4(b)(3), that the sentence shall be
enhanced because of “the defendant’s use
of a computer.” (emphasis added). Instead,
§ 2G2.2(b)(5) applies if “a computer was
used for the transmission of the material”
(emphasis added). The enhancement
therefore applies whether the defendant
uses a computer to transmit “the material”
to someone else, or someone else uses a
computer to transmit “the material” to the
defendant. In other words, in the language
of § 2G2.2(b)(5), “transmission” covers
both the sending and the receiving of
pornographic material, so if the defendant
received child pornography by means of a
computer, the enhancement is applicable.
This interpretation is consistent with the
intent evident throughout the sentencing
guidelines for offenses involving child
pornography, which apply the same
penalties for receiving pornography as for
sending it – for example, all of the
enhancements under § 2G2.2 apply equally
to defendants guilty of “receiving,
t r a n sp o r t in g o r s h i p p in g ” c h i ld
pornography.
The Seventh Circuit Court of Appeals
took a simila r approach to the
interpretation of § 2G2.2(b)(5) in United
States v. Richardson, 238 F.3d 837 (7th
Cir. 2001). In Richardson, the defendant
pleaded guilty to receiving and possessing
child pornography in violation of 18
U.S.C. §§ 2252 (a)(2) and (a)(4), admitting
that he had downloaded more than 70,000
pornographic images from the Internet. In
holding that the enhancement under §
2G2.2(b)(5) should apply, the court
examined the structure of the sentencing
guidelines in regard to the child
pornography statutes, and observed that
they seemed intended to impose the same
punishment for receiving and sending
pornography:
Use of the Internet enhances the
dangers that child pornography
poses, because it is a more discreet
a n d e f f i c i e n t m e t h o d o f
distribution; but if this makes the
sender more dangerous, it likewise
makes the receiver more dangerous.
A market has two sides, supply and
demand; without both, the market
collapses. The senders of child
pornography supp ly it; the
demanders receive it. The guideline
is acknowledged to treat both sides
of the market symmetrically when
any method of transmission other
than the Internet is used; it would
make no sense to treat them
differently when the more ominous
method is used.
Richardson, 238 F.3d at 842.

-- 4 of 10 --

5
Based on this reasoning, the
Richardson court concluded that
“‘computer . . . used for the transmission’
in section 2G2.2(b)(5) of the sentencing
guidelines does not mean, as the defendant
argues, ‘computer . . . used by the
defendant for the transmission’.” Id. at
841. On the contrary, the court found it
clear that the language of the guideline
was intended to cover receiving as well as
sending, and affirmed the application of
the enhancement to Richardson, who
pleaded guilty to receiving pornographic
images.
Each of the other circuits that has
addressed this issue has followed the lead
of the Seventh Circuit, in finding that §
2G2.2(b)(5) applies to receiving as well as
sending. In United States v. Dotson, 324
F.3d 256 (4th Cir. 2003), the Fourth
Circuit Court of Appeals held that the
computer enhancement was applicable to
a defendant who responded to an
advertisement for child pornography
posted on the Internet. The court found the
guideline’s use of the passive voice
significant:
Had the Sentencing Commission
intended to limit the scope of the
enhancement to defendants who
f o r w a r d e d n o t i c e s o r
advertisements, it could have easily
done so by referring to the
defendant in the text of the
guideline. . . . In wording the
guideline as it did, the Commission
addressed not only the solicitor, but
also the recipient of such
solicitation. . . . Under the
guideline, those who seek out and
r e s p o n d t o n o t i c e a n d
advertisement of such materials are
as culpable as those who initially
s e n d o u t t h e n o t i c e a n d
advertisement.
Id. at 259-60.
The Eighth Circuit Court of
Appeals made a similar finding in United
States v. Stulock, 308 F.3d 922 (8th Cir.
2002), in which the court affirmed the
application of the § 2 G2.2(b )(5)
enhancement to a defendant who had seen
an advertisement for a pornographic
videotape on the Internet, and then ordered
and received the tape by mail. The Stulock
court reviewed with approval the
reasoning employed in Richardson,
finding that the intent of the guidelines
was fulfilled by punishing receivers with
the same severity as senders. Id. at 925.
The Sixth Circuit Court of Appeals
likewise condoned the conclusions of the
Richardson court in United States v. Boyd,
312 F.3d 213 (6th Cir. 2002), in which it
approved the imposition of the
enhancement on a defendant convicted of
receiving child pornography through his
computer.
The facts in this case are not in
dispute. Harrison pleaded guilty to
transporting through the mail visual
depictions of minors engaging in sexually
explicit conduct, “such visual depictions
having been obtained through the use of a
computer.” Harrison told a federal agent
that he had downloaded some of the

-- 5 of 10 --

6
specific pictures which he later sent to the
undercover federal investigator. During the
sentencing hearing, Harrison’s attorney
admitted that Harrison downloaded
pornographic images onto his computer,
copied them onto disks, and later mailed
them to the federal agent.1 Based on these
facts, we find it clear that “a computer was
used for the transmission of the material”
and that the District Court properly applied
§ 2G2.2(b)(5).
Harrison attempts to sidestep the direct
application of the guidelines by defining
“the material” as the computer disks sent
to the undercover agent, rather than the
pornographic material contained on those
computer disks. By this reasoning, a
computer had not been used to transmit
“the material,” because “the material”
encompasses only the computer disks
themselves, which were unquestionably
sent through the mail and not via a
computer.2 Therefore, Harrison argues, the
source of the pornographic pictures can
only be considered if it qualifies as
“relevant conduct” under U.S.S.G. §
1B1.3.
This interpretation of the guidelines
is absurd. There is nothing illegal about
sending computer disks through the mail –
Harrison’s crime was the transmission of
the pornographic images contained on
those disks, not the disks themselves. The
heading of § 2G2.2(b)(5) reinforces this
obvious reading, since it applies to
trafficking “in material involving the
sexual exploitation of a minor.” The words
“the material” found later in the guideline
refer back to this heading, and thus “the
material” means “the material involving
sexual exploitation of a minor.”
In Harrison’s case, “the material”
means the pornographic images contained
on the computer disks, and he does not
dispute that these images were transmitted
to him using a computer. In fact, the count
1. Harrison’s attorney does not
dispute that the images Harrison sent
through the mail had, at some point, been
downloaded using his computer. During
argument before the District Court,
Harrison’s attorney conceded that:
“[E]veryone agrees that he obtained
some of these images from downloading
them from the Internet, that he put those
on disks, mailed them to the undercover
agent, and in return had the three video
tapes mailed to him.” Harrison’s attorney
made a similar concession in oral
argument before this Court.
2. Harrison’s attorney conceded
during oral argument before this Court
that § 2G2.2(b)(5) would apply if he had
been convicted of possession of child
pornography, but argued that it did not
apply because that charge had been
dropped. Since possession of
pornography is an integral part of the
ability to traffic in pornography, and thus
incorporated as part of Harrison’s
offense of conviction, we do not find this
distinction compelling.

-- 6 of 10 --

7
to which Harrison pleaded guilty
specifically alleged that the images he sent
to the undercover agent had been
downloaded from the Internet. Further, the
language of § 2G2.2(b)(5) is specifically
targeted toward “the material” and not “the
offense,” as are other portions of § 2G2.2.
The application of the enhancement,
therefore, does not hinge on whether the
defendant used a computer to commit “the
offense” for which he was convicted.
Instead, the enhancement hinges on “the
material” implicated in the offense, and
whether this material had at some point
been transmitted using a computer. There
is no dispute that “the material” in this
case had been so transmitted, and as a
result, § 2G2.2(b)(5) is applicable.
The District Court encourages
Harrison’s foray into the realm of relevant
conduct by appearing to base its decision
to grant the § 2G2.2(b)(5) enhancement on
the conduct detailed in counts two and
three, which were dropped by the
prosecution, but for which Harrison
accepted responsibility in the plea
agreement. The Court need not have taken
this extra step, since the conduct necessary
for the enhancement had been specified in
the text of the count to which Harrison
pleaded guilty, and thus made an integral
part of the offense of conviction. The extra
step taken by the District Court, however,
takes us to the same place.
First of all, it was entirely
appropriate for the District Court to
consider the conduct alleged in the
dismissed counts. Harrison explicitly
accepted responsibility for this conduct,
and we have recognized that a sentencing
enhancement, and even a departure from
the guidelines, can be applied based on
conduct alleged in counts that were
dismissed as result of a plea agreement.
See United States v. Baird, 109 F.3d 856,
864 (3d Cir. 1997). Although this conduct
must be in some way “related” to the
offense conduct, it need not fit into the
guidelines’ definition of relevant conduct
found in § 1B1.3. Id. at 865.
In order to be “related” to the
offense, “the acts in question must exhibit
commonalities of factors sufficient to
allow for a reasonable grouping of the
separate, individual acts into a larger,
descriptive whole. . . . [T]he similarities of
the acts must arise from the character or
type of the acts.” Id. Certainly, the conduct
involved in receiving child pornography,
as charged in count two, is closely related
in character to the charge to which
Harrison pleaded guilty – especially since
receiving pornographic images over the
computer was an essential precursor to
later trading those images for pornographic
videotapes. The District Court was
therefore correct in its finding that this
related conduct justified the application of
the § 2G2.2(b)(5) enhancement, and no
discussion of relevant conduct under §
1B1.3 is necessary.
Harrison contends that downloading the
pornography is not related conduct,
because he downloaded the pictures well
before he made an agreement to trade

-- 7 of 10 --

8
them.3 In any case, the temporal
relationship between the two actions is not
decisive. If Harrison had not downloaded
the images, he could not have trafficked in
them, and the two actions are therefore
closely tied.
Harrison further contends that to
apply the guideline in his case would be to
cause it to lose all its meaning, and turn it
into an enhancement that applies whenever
the defendant used a computer in some
way related to the pornography, a role
already filled by U.S.S.G. § 2G2.4(b)(3).
This argument ignores the fact that under
our interpretation, the requirement that a
computer be used for “transmission” of the
pornography still plays an important role
in the application of § 2G2.2(b)(5). The
guideline applies no matter who used the
computer for transmission – the defendant
or another party – but it does not apply if a
computer was used in a way which is not
“transmission,” for example to help create,
alter, or copy pornography.
Harrison also contends that the
application of the “transmission”
enhancement to his case would obliterate
the distinction between “transmission” and
“distribution,” the word used in §
2G2.2(2)(A-E). The enhancements for
distribution are not limited by any
particular method of distribution, however,
while “transmission” is specifically
qualified by the requirement that it be by a
computer. The sections therefore serve
distinct purposes: § 2G2.2(b)(5) punishes
a specific method of transmission – by
computer – while § 2G2.2 (2)(A-E)
addresses other forms of distribution.
Under these guidelines, handing out
p o r n o g raphic l ea fl et s w o u l d b e
“distribution ,” but cle arly not a
“transmission” by computer.
III.
The enhancement under § 2G2.2(b)(5)
is also applicable to Harrison’s conduct
because he used his computer to transmit
a “notice” of child pornography. The
transportation of child pornography to
which Harrison pleaded guilty would not
have been possible without the extensive
email correspondence that took place
between Harrison and the undercover
federal agent. The communications began
3. Since Harrison told police he
had only been downloading child
pornography for about seven months
before his arrest, the time lapse between
his downloading of the material and his
use of it to barter can not have been that
great – especially because it was nearly
three months from the time Harrison first
made contact with the undercover agent
to the time of his interview with police.
Harrison’s attorney asserted at
oral argument that the holding we make
today would mean that the § 2G2.2(b)(5)
enhancement would apply to a defendant
convicted of trafficking in pornography
that he had downloaded from the
computer many years beforehand.
Although we do not specifically decide
this issue, neither are we particularly
troubled by the prospect.

-- 8 of 10 --

9
when Harrison resp ond ed to an
advertisement on the Internet announcing
the availability of videotapes containing
child pornography. Harrison’s response to
the government agent’s advertisement was
to indicate his interest in the videotapes,
and to tell him in the process of bartering
that he had “a lot of pics on all ages from
5 to 17 mostly hardcore.” The government
argues this response is sufficient to
constitute “notice . . . of the material”
under § 2G2.2(b)(5). We agree.
It is not disputed that Harrison
transmitted a description of his
pornog raphy collection using his
computer, and this transmission is part and
parcel of the resulting transportation of the
specified pornographic materials through
the mail. The only question is whether a
message to one person constitutes
“notice,” or whether the term comprehends
information posted to a wider audience, as
Harrison contends. The guidelines offer
little direct help on this question, as they
do not define what constitutes a “notice.”
Harrison cites to dictionaries for the
proposition that a notice is an
announcement, and an announcement is a
“public statement or notice.” Appellant’s
Reply Brief at 7 (citing to BLACK’S LAW
D ICTIONARY (7th ed. 1999) and
W E B S T E R ’ S I I N E W R I V E R S I D E
UNIVERSITY DICTIONARY (1984)). On its
face, these definitions are counterintuitive,
since if the meaning of “notice”
comprehended that it was “public,” it
would not be necessary to modify the
definition of “announcement” by
designating it as a “public” notice. Other
definitions of notice indicate that it may
m e a n m e r e l y “ i n f o rm a t i o n ” o r
“[I]ntelligence by whatever means
c o m m u n i c a t e d . ” B L A C K ’ S L A W
DICTIONARY 1061 (6th ed. 1990). As a
result, all that these definitions make clear
is that the issue can not be decided through
a battle of the dictionaries, and we must
look to the purpose and structure of the
sentencing guidelines for aid.
The purpose behind the child
pornography sente ncing guidelines
supports a broad definition of the term
“notice.” The guidelines recognize the
enhanced threat posed by the Internet,
which greatly increases the ease with
which child pornography may be traded.
This ease is heightened by an offender’s
ability to find a suitable partner in a child
pornography “chat room,” with whom the
offender may then trade anonymous emails
in order to establish terms for the sale or
barter of explicit materials. This method of
trafficking eliminates the need for
traditional forms of “notice and
advertisement” directed toward large
numbers of people at random.
Commenting on this method of
communication, the Fourth Circuit Court
of Appeals found that “the very nature of
the Internet provides an ‘ominous method’
for anonymous predatory criminal
conduct.” See Dotson, 324 F.3d at 260
(quoting Richardson, 238 F.3d at 842).
Because the sentencing guidelines are
clearly aimed at targeting this sort of
“ominous” conduct with enhanced

-- 9 of 10 --

10
punishment, it makes sense to define
“notice” in a way that will encompass the
savvy and discreet trader in child
pornography, who is able to avoid the
more dangerous route of p ublic
advertisement that would expose his
scheme to an unselect audience.
In fact, the language of § 2G2.2(b)(5)
contemplates this broader definition of
“notice,” by contrasting it with an
“advertisement.” If “notice” is interpreted
to mean an announcement to the general
public, it leaves very little useful work for
the word “advertisement,” which is itself
defined as “a public notice.” See
WEBSTER’S NINTH NEW COLLEGIATE
DICTIONARY 59 (1988). We assume that by
including both terms, the drafters meant
there to be a difference between them –
“advertisement” implicates announcement
to a wider audience, while “notice” may
simply mean the communication of
information to another party. As a result,
we hold that by sending an email telling
the undercover agent that he possessed a
variety of pornographic “pics,” Harrison
used his computer to transmit a “notice” of
child pornography, as contemplated under
§ 2G2.2(b)(5).
IV.
For the reasons set forth above, we find
that the District Court properly applied the
two-level sentencing enhancement under
U.S.S.G. § 2G2.2(b)(5), because “a
computer was used for the transmission of
the material” that Harrison later mailed to
the undercover agent, and because
Harrison also used a computer to transmit
“notice or advertisement of the material.”
_____________________

-- 10 of 10 --