United States v. Robert Haggerty

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________________

No. 23-2084

_______________________

UNITED STATES OF AMERICA

v.

ROBERT HAGGERTY,

Appellant

_______________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-22-cr-00015-001

District Judge: Honorable J. Nicholas Ranjan

__________________________

Argued April 16, 2024

Before: HARDIMAN, SMITH, and FISHER,

Circuit Judges

(Filed: July 9, 2024)

Samantha Stern [ARGUED]

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 152220

Counsel for Appellant

Adam N. Hallowell [ARGUED]

Laura S. Irwin

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

____________________________

OPINION OF THE COURT

____________________________

SMITH, Circuit Judge.

I. INTRODUCTION

In imposing a sentence on a defendant who has been

found guilty of a child pornography-related offense, a district

judge is required, under the United States Sentencing

Guidelines, to enhance the applicable Guideline Sentencing

range based on the number of “images” “involved” in the

offense. Specifically, under U.S.S.G. § 2G2.2(b)(7)’s

graduated sentencing enhancement scheme, that defendant’s

2

Guideline Sentencing range may be enhanced by up to five

levels based on the number of images involved.

The calculus is a simple one where the pornographic

matter consists only of “still” images. But what about when a

moving image—that is, a video—is involved in an offense?

The Guideline itself does not answer that question. So may the

judge look to the Commentary to the Guideline, which

specifies that each video—no matter its length—constitutes 75

images for purposes of calculating the applicable sentencing

enhancement? Whether we should defer to this commentary is

the issue we now confront.

We hold that “image,” in the moving picture or video

context, unambiguously means “frame.” Deference to the

Commentary’s 75-images rule is therefore unwarranted under

Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of

frames comprising a moving picture or video will determine

the specific sentencing enhancement that a District Judge must

apply. Because the case before us involved videos with over

14,000 total frames, Haggerty probably possessed the requisite

number of images to warrant a five-level enhancement under

the Guideline. But because the District Court did not use the

frame-counting calculus we now hold is the correct one, we

will vacate the District Court’s sentencing order and remand

for resentencing in a manner consistent with our holding.

II. BACKGROUND

This appeal is brought by Robert Haggerty, a 62-year-

old first-time offender. In February of 2022, a federal grand

jury indicted Haggerty on three counts of receiving a visual

depiction of a minor engaging in sexually explicit conduct, as

3

well as one count of possessing such depictions (including

depictions of prepubescent minors and minors less than twelve

years of age). See 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), (b)(2).

Haggerty admitted at his plea hearing that he had

communicated with undercover detectives posing as underage

girls in Montgomery County, Pennsylvania, using the online

messaging platforms Skout and Kik Messenger. 1 Acting on

information derived from the undercover operation, agents

obtained and executed a federal warrant to search Haggerty’s

house. There, they seized a Samsung tablet, which contained

five still files and one video file depicting child sexual abuse.

Agents arrested Haggerty and recovered a second Samsung

tablet from his truck. Haggerty, on his own, informed the

agents that the second tablet contained sexual abuse material

depicting minors. Examination of the device revealed 92 still

image files and 8 video files depicting child sexual abuse,

including sadistic and masochistic content involving

prepubescent children and even toddlers.

Haggerty entered an open guilty plea to the indictment.

The District Court applied multiple Guideline enhancements at

sentencing, including a five-level enhancement under U.S.S.G.

§ 2G2.2(b)(7). 2

1

Skout is a mobile application that purports to facilitate online

social interaction. About, SKOUT, https://perma.cc/9SN7-

2QYT. Kik Messenger is an instant messaging mobile

application. Help, KIK, https://perma.cc/7AP8-5US3.

2

The U.S. Sentencing Commission has explained that

“[e]ach type of crime is assigned a base offense level,

4

U.S.S.G. § 2G2.2(b)(7) provides for a graduated

enhancement scheme, based on the number of “images”

involved in a child-exploitation offense. Under that scheme, a

defendant receives a two-level enhancement if the offense

involved 10 to 149 images and up to a five-level enhancement

for 600 or more images. U.S.S.G. §§ 2G2.2(b)(7)(A)-(D).

However, the text of the Guideline does not explain how courts

should determine the number of images contained in any given

video. Instead, that direction appears in the Commentary to §

2G2.2(b)(7), which states that: “[e]ach video, video-clip,

movie, or similar visual depiction shall be considered to have

75 images.” U.S.S.G. § 2G2.2 app. n.6(B)(ii). 3

which is the starting point for determining the seriousness

of a particular offense.” U.S. SENT’G COMM’N, How the

Sentencing Guidelines Work, AN OVERVIEW OF THE

FEDERAL SENTENCING GUIDELINES 1,

https://www.ussc.gov/sites/default/files/pdf/about/overvi

ew/Overview_Federal_

Sentencing_Guidelines.pdf. Under the Sentencing

Guidelines, there are “43 levels of offense seriousness —

the more serious the crime, the higher the offense level.”

Id. The Sentencing Guidelines provide enhancements,

which raise the base offense level based on various criteria

related to a given offense.

3

“If the length of the visual depiction is substantially more

than 5 minutes, an upward departure may be warranted.”

U.S.S.G. § 2G2.2 app. n.6(B)(ii).

5

Applying that commentary, the Presentence

Investigation Report (“PSR”) calculated that the 8 videos on

the tablet contained 600 images, bringing the total image count

on the second tablet alone to 692 images. 4

Haggerty objected to the application of a five-level,

number-of-images enhancement. He asserted that the

Guideline is unambiguous and does not include videos. Thus,

Haggerty argued that the sentencing court should not defer to

the Commentary’s interpretation that a video contains 75

“images,” based on the standards set forth in Kisor v. Wilkie.

Based on that argument, he contended that only the 92 still

images found on his tablets should count toward the

enhancement, not the 8 videos. He also acknowledged that “if

‘image’ is genuinely ambiguous . . . the only acceptable

alternative interpretation would be to count a video as one

image.” Appx. 73. So, he asserted, his offense involved no

4

The Government points out in its brief:

Haggerty’s two tablets contained a total of 97

still images and 9 videos of child sexual

abuse material. For unclear reasons, the

[PSR’s] calculations included only the still

images and videos on the tablet from

Haggerty’s truck, and ignored the tablet from

Haggerty’s residence. Compare PSR ¶ 30

with PSR ¶¶ 12, 14. Haggerty’s brief repeats

this mistake. See Br. at 5, 16.

Response Br. at 7 n.2.

6

more than 92 to 100 “images,” and he should receive no more

than a two-level enhancement under § 2G2.2(b)(7)(A).

In response, the Government asserted that the Guideline

itself is ambiguous and that, under the standards set forth in

Kisor, the Commentary was entitled to deference.

Accordingly, the Government contended, the five-level

enhancement should be applied in calculating Haggerty’s

Guideline Sentencing range. The Government also argued, in

the alternative, that the enhancement for 600 or more “images”

would apply, even without deference to the Commentary. In

other words, if “image” is synonymous with “frame,” the

Government was prepared to present evidence that Haggerty’s

videos had a total length of over 600 seconds. Using the

standard frames-per-second rate of a video derived from the

Motion Picture Association’s definition of video, the

Government argued that, at a standard rate of 24 frames per

second, the tablets contained over 14,000 frames, or “images,”

of offending content. 5

5

The Government offered that

[it] . . . would present evidence that the eight

videos found on the second Samsung tablet

seized in the Defendant’s tractor trailer on

October 7, 2021, contain[ed] 313 seconds of

content depicting the sexual exploitation of

eight separate minors, ranging in age from

approximately three years old to

approximately eight years old. In addition,

7

The District Court overruled Haggerty’s objection to the

five-level, number-of-images enhancement. It determined,

based on what it viewed as a persuasive majority opinion from

a panel of the Sixth Circuit, that “construing ‘image’ to equal

‘visual depiction’ is not a reasonable interpretation of the

Guideline.” Appx 1 (citing United States v. Phillips, 54 F.4th

374, 381 (6th Cir. 2022)). The District Court held that “the term

‘image’ is ambiguous,” and that the Commentary’s 75-image

rule was entitled to deference. Appx 1. Alternatively, the

District Court recognized that, even if it were to adopt a

definition in which “image” in the video context meant each

video frame, the enhancement for 600 or more images “would

still apply based on the government’s representations of the

duration of the videos that Mr. Haggerty possessed.” Appx 2

n.1. The District Court applied the five-level enhancement and

the Government would present evidence that

the first Samsung tablet seized from the

Defendant’s residence on that same date

contains a video that is 311 seconds in length

depicting the sexual exploitation of a minor

female who is approximately 12 years old. As

described above, because each second of

video contains 24 frames, the 624 seconds of

offending content in Defendant’s possession

could count as 14,976 separate images, well

over the 600 images needed to apply the five-

level enhancement under § 2G2.2(b)(7).

Appx 87.

8

calculated a total offense level of 32. This offense level,

together with Haggerty’s criminal history category of I, yielded

an advisory Guideline range of 121 to 151 months in prison.

Haggerty argued for a downward variance to a prison

sentence of 60 months, while the Government requested a

sentence within the Guideline range. Based on Haggerty’s age,

health, lack of criminal history, and statement of remorse, the

District Court varied downward from the advisory Guideline

range to a prison sentence of 96 months, to be followed by five

years of supervised release.

The District Court also required Haggerty to pay $3,500

in restitution to one victim, ordering “that the first $1,000 of

that restitution be paid within the next six months” following

sentencing. Appx 171. Haggerty objected to the six-month

partial payment deadline, but the District Court was unmoved.

The Court noted that the PSR identified assets Haggerty and

his wife owned jointly. The judge also pointed out that

Haggerty had agreed to pay as much restitution as possible to

the victim “up front,” and concluded that it was “appropriate

for [the Court] to impose as much as [it] can that wouldn’t

otherwise . . . create [an] undue . . . hardship.” Appx 173.

This appeal followed.

III. JURISDICTION

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231 (offenses against the laws of the United States).

Haggerty timely filed a notice of appeal. We have jurisdiction

pursuant to 28 U.S.C. § 1291 (final decisions of the District

Court) and 18 U.S.C. § 3742(a) (appeal of a final sentence).

9

IV. STANDARD OF REVIEW

We exercise plenary review of the District Court’s

interpretation of the Sentencing Guidelines. United States v.

Gray, 942 F.3d 627, 630-31 (3d Cir. 2019). And we review the

District Court’s restitution payment order for abuse of

discretion. United States v. Fallon, 61 F.4th 95, 125 (3d Cir.

2023).

V. ANALYSIS

A. SENTENCING ENHANCEMENT

On appeal, Haggerty argues that ordinary usage and plain

text require us to interpret “each image – whether still (a

photograph) or moving (a video)” – as one image for purposes

of § 2G2.2(b)(7). Opening Br. at 13. He further asserts that the

Guideline’s context, history, and purpose support this reading.

Id. Finally, he contends that we should give no deference to the

Commentary. Id. Because we conclude that the term “image”

unambiguously means “frame” when applied in the video

context, we reject Haggerty’s arguments.

Section 2G2.2(b)(7) of the Sentencing Guidelines applies

to child-exploitation crimes and sets forth the following

gradations for applying the enhancement:

(7) If the offense involved –

(A) at least 10 images, but fewer than 150,

increase [the offense level] by 2 levels;

(B) at least 150 images, but fewer than 300,

increase by 3 levels;

10

(C) at least 300 images, but fewer than 600,

increase by 4 levels; and

(D) 600 or more images, increase by 5

levels.

Ordinarily, the United States Sentencing Commission,

“an independent commission in the judicial branch,” created

by the Sentencing Reform Act provisions of the

Comprehensive Crime Control Act of 1984, establishes the

Sentencing Guidelines. 28 U.S.C. § 991(a); U.S.S.C., AN

OVERVIEW OF THE UNITED STATES SENTENCING COMMISSION

1 (2011), https://perma.cc/Q949-QPB5; 28 U.S.C. § 994. To

update the Guidelines, the Commission “promulgate[s] and

submit[s] to Congress amendments.” Rule 4.1, U.S.

SENTENCING COMMISSION RULES OF PRACTICE AND

PROCEDURE (as amended Aug. 18, 2016). In doing so, it must

comply with standard agency rule-making procedures “relating

to publication in the Federal Register and public hearing

procedure,” provided by 5 U.S.C. § 553, though it may

promulgate commentary and policy statements, as well as

related amendments, without complying with those

procedures. 28 U.S.C. § 994(x); Rule 4.3, U.S. SENTENCING

COMMISSION RULES OF PRACTICE AND PROCEDURE. Congress

retains authority over the Guidelines, and it has, at times,

specifically directed the Commission to establish particular

Guidelines. U.S. SENTENCING GUIDELINES MANUAL ch. 1, Pt.

A (quoting Kimbrough v. United States, 552 U.S. 85, 103

(2007) (“Congress has shown that it knows how to direct

sentencing practices in express terms. For example, Congress

has specifically required the Sentencing Commission to set

11

Guideline sentences for serious recidivist offenders ‘at or near’

the statutory maximum.”); 28 U.S.C. § 994(h).

It was through Congress’s direct exercise of its

legislative authority that § 2G2.2(b)(7), the provision at issue

here, became part of the Sentencing Guidelines. Congress

added this Guideline provision through the Prosecutorial

Remedies and Tools Against the Exploitation of Children

Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003)

(“PROTECT Act”). The Act amended the Sentencing

Guidelines to increase penalties “based on the amount of child

pornography involved in the offense.” H.R. Rep. No. 108-66,

at 59 (2003). 6

None of the courts that have considered the issue before

us have concluded that a video is an image. 7 That said, jurists

6

While the Sentencing Commission has renumbered the

number-of-images provision to its current position at §

2G2.2(b)(7), see U.S.S.G. App. C. amend. 664 (2004),

there have been no amendments to the text of the provision

since it took effect in 2003. See U.S. SENTENCING

COMM’N, FEDERAL SENTENCING OF CHILD PORNOGRAPHY:

NON-PRODUCTION OFFENSES 2-3 (June 2021),

https://perma.cc/QQR3-RCPP (“NON-PRODUCTION

OFFENSES”) (discussing that the Commission has put

forward statutory or guideline recommendations for §

2G2.2, but Congress has not implemented them).

7

United States v. Phillips, 54 F.4th 374, 384 (6th Cir.

2022); United States v. Vandyke, Nos. 23-11268, 23-

12

have taken different approaches in determining whether the

term “image” is ambiguous when applied to the video context

for purposes of § 2G2.2(b)(7). Notably, when considering this

issue, a majority of a Sixth Circuit panel determined that

“image” is ambiguous in this context and that deference to the

Commentary is warranted. Phillips, 54 F.4th at 384. A third

member of that panel, Judge Larsen, concurred only in the

judgment. She persuasively expressed the view that “image”

unambiguously means “frame” in the video context. Id. at 391

(Larsen, J., concurring in the judgment). We agree, and hold

that based on the term’s ordinary meaning, and supported by

the Guideline’s structure, purpose, and history, “image”

unambiguously means “frame” when applied to a video in the

context of § 2G2.2(b)(7).

i. Post-Kisor Approach

The Supreme Court has declared that the United States

Sentencing Commission’s Guidelines are legislative rules,

while the Commentary interpreting the Guidelines consists of

11794, 2024 WL 505080, at *4 (11th Cir. Feb. 9, 2024)

(per curiam) (unpublished); see also United States v.

Carmody, Nos. 22-12539, 22-13542, 2023 WL 7014048,

at *2-3 (11th Cir. Oct. 25, 2023) (per curiam)

(unpublished); United States v. Pratt, No. 20-10328, 2021

WL 5918003, at *2 (9th Cir. Dec. 15, 2021) (unpublished)

(deferring to the Commentary under Stinson, but

alternatively concluding that § 2G2.2(b)(7) is genuinely

ambiguous).

13

interpretive rules. 8 Stinson v. United States, 508 U.S. 36, 44-

45 (1993); United States v. Adair, 38 F.4th 341, 347-48 (3d Cir.

2022). 9 Within this paradigm, we must consider whether the

Commentary to § 2G2.2(b)(7) warrants so-called Auer

deference.

The Supreme Court has recognized that there are times

that agency regulations “may be genuinely ambiguous.” Kisor,

588 U.S. at 566. That is, “[t]hey may not directly or clearly

address every issue,” and “when applied to some fact patterns,

they may prove susceptible to more than one reasonable

reading.” Id. And when a court must “apply the rule to some

unanticipated or unresolved situation,” it “must make a

judgment call.” Id. at 568. Kisor provides lower courts with

8

We recently noted the difference between these two types

of rules: “The term ‘legislative rule’ generally refers to an

agency rule promulgated through formal or informal

(notice-and-comment) rulemaking, although certain

subject-matter exceptions exist,” and “[t]o qualify as an

interpretive rule, a rule must ‘derive a proposition from an

existing document whose meaning compels or logically

justifies the proposition.’” United States v. Adair, 38 F.4th

341, 347 nn.1-2 (3d Cir. 2022) (citation omitted).

9

As we noted in Adair, “[t]he paradigm applies only to the

Commission’s interpretive commentary, not its

commentary related to either background information or

circumstances that may warrant a departure from a

guideline.” Id. at 347-48.

14

guidance regarding whether to defer to an agency’s own

interpretation of its regulations. Id.

Federal court deference to an administrative agency’s

interpretation of its own regulations is no recent jurisprudential

invention. The current namesake case for this type of

deference, Auer v. Robbins, 519 U.S. 452 (1997), was decided

in 1997. Kisor, 588 U.S. at 569. Before Auer, courts referred

to the doctrine as Seminole Rock deference, named after a 1945

case. Id. at 568 (citing Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 414 (1945)). And the Supreme Court has

recognized that “[d]eference to administrative agencies traces

back to the late nineteenth century, and perhaps beyond.” Id. at

569 (citing United States v. Eaton, 169 U.S. 331, 343 (1898)).

The Supreme Court roots this deference in “a presumption that

Congress would generally want the agency to play the primary

role in resolving regulatory ambiguities.” Id. That presumption

rested upon assumptions that (1) “the agency that promulgated

a rule is in the ‘better position [to] reconstruct’ its original

meaning,” id. at 570 (internal citation omitted); (2) resolving

such ambiguities “entails the exercise of judgment grounded in

policy concerns,” id. (cleaned up); and (3) such a presumption

promotes “consistency in federal regulatory law,” id. at 573.

Kisor changed the jurisprudential landscape by

providing instructions for when Auer deference should be

applied. Before Kisor, Auer deference permitted courts to

afford controlling weight to an agency’s interpretation of its

own regulation (or Guideline) unless its interpretation was

“plainly erroneous or inconsistent with the regulation” or

Guideline. Stinson, 508 U.S. at 45 (quoting Seminole Rock, 325

U.S. at 414). Since Kisor, Auer deference applies only if a court

15

determines that a regulation is “genuinely ambiguous” after

“exhaust[ing] all the ‘traditional tools’ of construction.” Kisor,

588 U.S. at 575 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def.

Council Inc., 467 U.S. 837, 843 n.9 (1984)).

In determining whether a regulation or Guideline is

“genuinely ambiguous,” we must “consider the text, structure,

history, and purpose of a regulation, in all the ways [we] would

if [we] had no agency to fall back on.” Id. at 575 (cleaned up).

That means exhausting the contents of our “legal toolkit”

before concluding that there is “no single right answer” to the

interpretive question and that the question “is ‘more [one] of

policy than of law.’” Id. (internal citation omitted). And if we

determine that a regulation or Guideline is “genuinely

ambiguous”—and before deferring to the agency’s

interpretation—we then look to the “character and context” of

the agency’s interpretation. Id. at 576. That inquiry requires us

to determine whether the interpretation: (1) is “the agency’s

‘authoritative’ or ‘official position,’” (2) “implicate[s] its

substantive expertise,” and (3) reflects its “fair and considered

judgment.” Id. at 577-79 (internal citations omitted).

Here, however, we need not undertake an “independent

inquiry into whether the character and context” of the

Commentary “entitles it to controlling weight.” Id. at 576.

After fully engaging in the process mandated by Kisor, we

conclude that “image” unambiguously means “frame” in the

video context.

16

ii. The Text Conveys an Unambiguous

Meaning

When interpreting a Guideline issued by the U.S.

Sentencing Commission, “[w]e start with the plain text and

presume that words carry their ordinary meaning.” United

States v. Caraballo, 88 F.4th 239, 246 (3d Cir. 2023) (internal

citations omitted). Haggerty contends that a moving image

should be quantitatively treated as if it were a still image. But

such an interpretation is oxymoronic. If “image” needs the

modifier “moving” to accurately describe what is depicted or

displayed, then the term “image” can hardly be equated with

the term “video.”

Having rejected Haggerty’s plain text argument, we

attempt “[t]o discern if [the] Guideline is ‘genuinely

ambiguous.’” United States v. Mercado, 81 F.4th 352, 356 (3d

Cir. 2023) (internal citations omitted). And in furtherance of

that inquiry, we examine “contemporary ‘dictionary

definitions while keeping in mind the whole statutory text, the

purpose, and context of the statute, and relevant precedent.’”

Id. (internal citations omitted). For example, the Oxford

English Dictionary defines image as “[a] physical or digital

representation of something, originally captured using a

camera from visible light, and typically reproduced on paper,

displayed on a screen, or stored as a computer file” or as “any

picture or graphic . . . in printed form.” 10 And though other

10

Image, OXFORD ENGLISH DICTIONARY (2009),

https://perma.cc/4V2P-GZP5 (last accessed May 2024).

17

definitions vary somewhat, they are to similar effect. 11 In short,

none of the definitions we have found support interpreting

“image” to naturally include videos. 12

11

The Cambridge Dictionary defines “image” as “any

picture, especially one formed by a mirror or a lens [or] .

. . through a camera . . . [or on a] computer or television

screen.” Image, CAMBRIDGE DICTIONARY (2013),

https://perma.cc/3JHT-54WR (last accessed May 2024).

Merriam-Webster defines “image” as

1 a: a visual representation of something:

such as (1): a likeness of an object produced

on a photographic material[;] (2): a picture

produced on an electronic display (such as a

television or computer screen)

b: the optical counterpart of an object

produced by an optical device (such as a lens

or mirror) or an electronic device

Image, MERRIAM-WEBSTER, https://perma.cc/6TBN-

HQWB (last accessed May 2024). Per the American

Heritage Dictionary of the English Language, an

“image” is “[a] representation of the form of a person or

object, such as a painting or photograph,” and Webster’s

New World College Dictionary provides that an “image”

is “[a] representation or likeness of a person or thing, as

in a drawing, painting, photograph, or sculpture.” Image,

THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH

18

Further, as the Government points out, what we now

hold to be the meaning of “image” in the video context accords

with how dictionaries defined “image” at the time that

§ 2G2.2(b)(7) was drafted in 2003. 13 Notably, we have recently

relied on the Oxford English Dictionary definition of “video,”

i.e., “images for display on a television screen or other

LANGUAGE (2022), https://perma.cc/6QSA-8VUX (last

accessed May 2024); Image Definition, WEBSTER’S NEW

WORLD COLLEGE DICTIONARY (2014),

https://perma.cc/E973-NKAV (last accessed May 2024).

12

The Merriam-Webster definition, set forth in n.11 supra,

might possibly be stretched to include a video, but

nowhere does it specifically make space for “moving”

images within the definition.

13

See Image, MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2003) (“a reproduction or imitation

of the form of a person or thing”; “a visual representation

of something” such as “a likeness of an object produced

on a photographic material” or “a picture produced on an

electronic display”); Image, AMERICAN HERITAGE

DICTIONARY (4th ed. 2000) (“A reproduction of the form

of a person or object”). Later definitions are also in accord.

See, e.g., Image, NEW OXFORD AMERICAN DICTIONARY

(3d ed. 2010) (“a visible impression obtained by a camera,

telescope, microscope, or other device, or displayed on a

computer or video screen”).

19

electronic device.” United States v. Heatherly, 985 F.3d 254,

272 (3d Cir. 2021) (quoting Video (def. 1a), OXFORD ENGLISH

DICTIONARY (3d ed. 2016)). In doing so, we recognized that a

video inherently contains multiple “images.”

Ordinary usage makes plain that an “image” is a fixed

visual representation. True, “the human eye cannot perceive

any individual frame” when viewing a video or motion picture.

Phillips, 54 F.4th at 382. Nonetheless, in a video or motion

picture, a fixed visual representation of something is a frame,

based on the term’s ordinary usage. See id. at 391 (Larsen, J.,

concurring in the judgment). In her concurring opinion, Judge

Larsen hits the nail on the head when she explains: “‘Images’

means exactly what you’ll find in every dictionary—a ‘still

representation’; and vis-à-vis a video, an ‘image’ is a ‘frame.’”

Id. at 398 (Larsen, J., concurring in the judgment).

Multiple dictionary definitions of “frame” support this

interpretation. The Oxford English Dictionary defines “frame”

as “one of the individual images on a strip of film; (later also)

a single complete image in a series forming a television picture,

film, or video sequence.” Id. at 391(Larsen, J., concurring in

the judgment) (quoting Frame, Oxford English Dictionary

(2022)). Other definitions are similarly worded. 14 Based on

14

Merriam-Webster defines “frame” as “one picture of the

series on a length of film” or “a complete image for

display.” Frame, MERRIAM-WEBSTER,

https://perma.cc/37KU-CB89 (last accessed May 2024).

The American Heritage Dictionary defines “frame” as

“[o]ne of the set of still images that constitute a film or

20

ordinary usage and dictionary definitions of the terms, “image”

is synonymous with “frame” in the video context.

iii. Structure, History, and Purpose

Support that “Image” Means “Frame”

in the Video Context

Consistent with the analysis called for by Kisor, we now

consider the structure, history, and purpose of the Guideline.

Bolstering our interpretation of the plain text, our examination

of the structure, history, and purpose of § 2G2.2(b)(7) confirms

that a video contains multiple images, thereby supporting our

conclusion that an “image” constitutes a “frame” in the video

context.

We have described § 2G2.2(b)(7) as setting forth

“gradations.” In other words, it establishes increased

enhancement of a defendant’s sentence based on a numerical

range of “images” involved in his offense. A defendant

possessing at least 10 images but fewer than 150 is to receive

a two-level enhancement; one possessing at least 150 but fewer

than 300 would receive a three-level enhancement; and a

defendant possessing at least 300 but fewer than 600 faces a

video.” Frame, THE AMERICAN HERITAGE DICTIONARY

(2022), https://perma.cc/WUZ9-BVTU (last accessed

May 2024). Webster’s New World provides the definition

“the rectangular image on a film screen, or the particular

objects or activity focused on by the camera.” Frame,

WEBSTER’S NEW WORLD (2014), https://perma.cc/4M9B-

8E7A (last accessed May 2024).

21

four-level enhancement. 15 The maximum enhancement is

reserved for possession of at least 600 images and calls for

enhancing the sentence by five levels.

Section 2G2.2(b)(7) does not define the term “image,”

nor does it clarify how the term “image” applies to videos.

Consequently, after Congress passed the PROTECT Act, the

Sentencing Commission sought public comment concerning

proposed amendments to the Guideline commentary,

acknowledging the lack of definition for “what constitutes an

‘image’ for purposes of applying” the Guideline. Sentencing

Guidelines for United States Courts, 68 Fed. Reg. 75340,

75353 (Dec. 30, 2003). The Commission explicitly asked for

comments or instructions on “how to count images” and

“[h]ow [] videos, films, or AVI files [should] be considered.”

Id. It also inquired as to whether, in a video with multiple

“scenes” depicting “the same minor engaging in sexually

15

U.S.S.G. § 2G2.2’s graduated enhancement scheme

applies in the same manner based on number of images

involved in possessing, trafficking, receiving,

transporting, shipping, soliciting, or advertising material

involving the sexual exploitation of a minor. The case

before us concerns charges of possession and receipt of

visual depictions involving the sexual exploitation of

minors. As a form of shorthand, we use the term “possess”

throughout this opinion when discussing the graduated

enhancement scheme. .

22

explicit conduct with a different adult,[] each scene with a

different adult” should “be considered a separate image.” Id. 16

The Commission received a plethora of comments. The

Federal Sentencing Guidelines Committee of the Federal

Public and Community Defenders proposed defining “image”

as “a single item such as one photograph, or video” instead of

“each frame in a video or each person depicted.” 17 In

addressing what it described as the “complex” question of

“how many ‘images’ are in a video/movie clip,” the

Department of Justice (the “DOJ” or “the Department”)

asserted that it “would be arbitrary” to treat “a video/movie and

a still image as both being one image.” 18 It also explained that

16

Video possession in this context has become more

common over time. The Sentencing Commission noted in

2021 that “the prevalence of videos in an offender’s

collection is higher today than in the data provided in the

2012 Child Pornography Report.” NON-PRODUCTION

OFFENSES at 30.

17

U.S. Sentencing Commission, The History of the Child

Pornography Guidelines 43 (2009), available at

https://perma.cc/4J8F-ALHP (“Sentencing Commission,

History”).

Letter from Deborah J. Rhodes, Counselor to the

18

Assistant Attorney General, to the U.S. Sentencing

23

“[a] video/movie that contains even one second of sexually

explicit conduct is a more serious item than a still image.”

Rhodes Letter at 5.

The Department of Justice further supported its position

by citing the Motion Picture Association of America’s

definition of “video as 24 frames per second,” where “[e]ach

frame is equivalent to one still image.” Id. That translates into

“a one minute video [being] equivalent to 1440 still images.”

Id. The DOJ contended that “counting each minute of video as

1440 images would be inappropriate.” Id. Instead, the

Department proposed that, “considering the increased harm

caused by moving videos,” the Commission should apply “a

two or three level enhancement for offenses that involve video

clips (defined as any type of moving images).” Id. The

Sentencing Commission has described this as “a more modest

enhancement” than that which a frame-counting approach

would prompt. Sentencing Commission, History at 43 n.201.

After the public comment period, “[t]he Commission

ultimately determined that because each video contained

multiple images it should be counted as more than one image.”

Id. at 43. The resulting commentary “instructs that each

photograph, picture, computer or computer-generated image,

or any similar visual depiction shall be considered one image”

and “each video, video-clip, movie, or similar recording shall

Commission, at 5 (Mar 1, 2004), available at

https://perma.cc/NCF7-ADKH (“Rhodes Letter”).

24

be considered to have 75 images for purposes of the specific

offense characteristic.” U.S.S.G. App. C amend. 664 (2004).

“Given that the image table enacted by Congress

assigned a 2-level increase for between ten images and 150

images, and a 3-level increase for 150 to 300 images, the

Commission adopted a definition of video that considered each

video to contain 75 images, squarely in the middle of the 2-

level increase range.” Sentencing Commission, History at 43-

44. The foregoing recital of the Commission’s decision-

making process reflects its desire to achieve a compromise. In

the legislative process, compromise is often essential to

reaching a result. Yet no matter how salutary this compromise

may have been in reaching a consensus, it was not an exercise

in interpretation.

The stage was set, then, for the controversy that

confronts us. Before the PROTECT Act, the Sentencing

Guidelines contained a provision that increased the defendant’s

offense level by two points if the offense involved “ten or

more . . . video tapes . . . containing a visual depiction

involving the sexual exploitation of a minor.” U.S.S.G. §

2G2.4(b)(2) (2003). Through § 2G2.2(b)(7), which effectively

superseded that provision, Congress made clear that the

number of videos would no longer be the focus. Instead, to

further the PROTECT Act’s goal of increasing punishment

“based on the amount of child pornography involved in the

offense,” the severity of an enhancement would be tied to the

number of images involved. H.R. Rep. No. 108-66, at 59. And

a video, of any length, almost always includes more content

than a single still image. Thus, as the Government now argues,

the purpose and history of the Guideline, as amended by the

25

PROTECT Act, “suggest[s] that videos should be treated as

containing more than one ‘image’ to serve the Guideline’s

purpose of punishing more culpable offenders more harshly.”

Response Br. at 25.

The Government’s primary position, however, is that

the structure of § 2G2.2(b)(7) “weighs against treating every

frame of a video as an ‘image.’” Response Br. at 24. Its

argument that the Guideline’s structure indicates the term

“image” is ambiguous stems from an apparent concern over the

practical result of equating “frame” with “image.” Applying

the frame interpretation to § 2G2.2(b)(7), it argues, will skew

many sentences in the direction of the maximum number of

images, 600 or more. Citing the Phillips majority, the

Government argues that if “‘images’ meant ‘frames,’ then

possessing any video would nearly automatically vault the

offender to the top of the range, thereby obviating the purpose

of prescribing different levels.” Response Br. at 23 (quoting

Phillips, 54 F.4th at 383). But it is not our role as a court to

subordinate an inquiry into the plain meaning of a

congressionally imposed Guideline to subjective concerns

about the severity of a sentence that results from application of

that Guideline. See, e.g., Lamie v. U.S. Trustee, 540 U.S. 526,

536 (2004) (“We should prefer the plain meaning since that

approach respects the words of Congress.”). Severe though

resulting sentences may appear, § 2G2.2(b)(7) reflects a policy

decision made by Congress—and the making of policy is

solely within the province of the legislative branch. The

judiciary’s role is to heed the text that Congress has provided

and to interpret that text, faithfully, in a manner that is

consistent with the words themselves and the purpose behind a

particular congressional action.

26

Similarly, it is not our role to question Congress’s

choice of language because we believe that such language

would produce unreasonable sentence variations between

defendants. The Government argues that “[t]he image table’s

precision indicates that Congress sought to vary the penalty

based on proportionate quantities of images, not quarter-

second differences.” Response Br. at 24 (quoting Phillips, 54

F.4th at 383). Still, notwithstanding the image table’s

precision, enhancements prompting longer prison sentences

for more pornographic content—i.e., more frames of content—

align with the Guideline’s history and purpose, discussed

further infra. And where applying the Guideline would be

overly harsh or unreasonable, sentencing judges maintain the

discretion to vary downward from the Guideline.

The Sentencing Guidelines are not mandatory. United

States v. Booker, 543 U.S. 220, 245 (2005); Gall v. United

States, 552 U.S. 38, 46 (2007). After a sentencing judge

accurately calculates the applicable Guidelines’ range, and

having given both parties the opportunity to argue for the

sentence they believe to be appropriate, that judge “must make

an individualized assessment based on the facts presented,” to

determine whether justification exists for an outside-the-

Guidelines sentence. Gall, 552 U.S. at 50. She “must

adequately explain the chosen sentence,” which “allow[s] for

meaningful appellate review and [] promote[s] the perception

of fair sentencing.” Id. Thus, if a sentencing judge determines

that applying the § 2G2.2(b)(7) enhancement would be overly

harsh or unreasonable based on the facts of a given case, she

has the discretion to vary downward from the Guideline range

and impose what she considers to be a reasonable sentence.

27

Judges retain discretion to consider factors that can ameliorate

a sentence that is overly harsh or unreasonable.

And such variances have become common. The U.S.

Sentencing Commission reported in 2021 that “[i]n fiscal year

2019, less than one-third (30.0%) of non-production child

pornography offenders received a sentence within the

guideline range,” and “[t]he majority (59.0%) of non-

production child pornography offenders received a variance

below the guideline range.” Child Pornography Report.” NON-

PRODUCTION OFFENSES at 5.

Finally, we reject the argument that reading “image” to

mean “frame” in the video context is unreasonable because it

would create a burdensome process for a court in calculating a

Guideline Sentencing range. The Phillips majority expressed

just such a concern. It claimed that “a frame-by-frame analysis

of each video to ascertain the number of frames that include

illegal images” would be “an onerous and unrealistic task given

the multitude of frames in any one video and the many cases

that involve multiple videos.” Phillips, 54 F.4th at 382. But the

Government has conceded here that it is prepared to present

evidence showing the number of frames containing explicit

content in Haggerty’s videos, based on the standard frames-

per-second rate. We fail to understand how parties could not

do the same in other cases. If the Government is confident that

it can meet such an evidentiary burden in this case, we are

equally confident that the Article III judiciary—often tasked

with making findings in far more complicated settings—is

equally up to meeting its responsibility in sentencing child

pornography offenders. The court would merely need to

determine how many seconds within each video contain child

28

pornography—as defined under 18 U.S.C. § 2256(8)—and

then apply the standard rate of 24 frames per second.

The Government argues further that “[t]he purpose and

history of § 2G2.2(b)(7) also do not resolve the ambiguity –

although they do confirm that a video contains multiple

images.” Id. It contends that “Congress’s goal of increasing

punishments based on the amount of child pornography

involved in the offense, would be served more precisely if each

frame were not considered an ‘image.’” Id. (cleaned up).

However, the Government fails to explain its rationale behind

that assertion. The history surrounding § 2G2.2(b)(7), outlined

above, shows that Congress’s purpose in passing the

PROTECT Act was to ensure that defendants who possess

greater amounts of child pornography would face sentences of

greater length. That alone does not resolve the ambiguity

surrounding what “image” means in the video context. But the

plain meanings of “image” and “frame” resolve that ambiguity,

and the history and purpose reinforce our conclusion that

“image” and “frame” are synonymous for purposes of §

2G2.2(b)(7). After all, as the Government acknowledged, “it is

reasonable to conclude ‘that videos and movies cause more

harm and so should be weighed much more heavily than photos

or pictures.’” Id. (quoting United States v. Lynde, 926 F.3d

275, 280 (6th Cir. 2019)). Possessing more frames of explicit

content necessarily means possessing more pornographic

material. Accordingly, concluding that an “image” is a “frame”

in the video context aligns well with the PROTECT Act’s

history and purpose.

29

iv. The Traditional Tools of Construction

Yield a Definitive Meaning of the

Term “Image”

To summarize, we hold that, based on the ordinary

meaning of both terms, an “image”—in the video context—is

a “frame.” With that understanding, “[t]he [Guideline] then

just means what it means—and the court must give it effect, as

the court would any law.” Kisor, 588 U.S. at 575. As discussed

above, the Guideline’s structure, history, and purpose further

support that conclusion. We should not defer to the

Commentary where there is “only one reasonable

construction” of the Guideline. Id. And that is the case here.

We will, therefore, vacate the sentencing order and remand for

sentencing in accordance with this opinion.

Haggerty further argues that the rule of lenity supports

his interpretation of the Guideline. However, “[t]hat rule

applies only when a [provision] contains a ‘grievous ambiguity

or uncertainty,’ and ‘only if, after seizing everything from

which aid can be derived,’ the Court ‘can make no more than

a guess as to what Congress intended.’” Ocasio v. United

States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v.

United States, 524 U.S. 125, 138-39 (1998)). That is not our

case. Because the term “image” is not ambiguous when applied

to videos, resort to the rule of lenity is not appropriate here.

While we concede that application of this Guideline by

quantifying pornographic matter contained in a video or

motion picture on the basis of the number of frames contained

within it may yield sentences that seem unusually harsh, we

cannot engage in an exercise of semantic selection with an

30

over-riding concern for results. We must give effect to the

words Congress has chosen, and we must do so through the

faithful use of the tools that Kisor reminds us are available.

And where harshness suggests injustice, a sentencing judge

should thoughtfully consider a downward variance.

B. RESTITUTION

Haggerty also challenges the District Court’s imposition

of a requirement that he make a $1,000 partial payment within

six months of the $3,500 restitution ordered. Haggerty argues

that “the record was clear that no substantial payment toward

restitution would be feasible until after [he] finished serving

his term of incarceration.” Opening Br. at 14. Because the

payment schedule was both procedurally and substantively

proper, the District Court did not abuse its discretion in

imposing the $1,000 payment requirement.

“The issuance of a restitution order” for child-

exploitation offenses like Haggerty’s “is mandatory.” 18

U.S.C. § 2259(b)(4)(A). The Probation Office is required by

18 U.S.C. § 3664 to include “to the extent practicable . . .

information relating to the economic circumstances of each

defendant” in the Presentence Report. 18 U.S.C. § 3664(a).

The District Court must then resolve at sentencing “[a]ny

dispute as to the proper amount or type of restitution” “by the

preponderance of the evidence,” and “[t]he burden of

demonstrating the financial resources of the defendant . . . shall

be on the defendant.” Id. at § 3664(e). Further, the court must

specify “the manner in which, and the schedule according to

which, the restitution is to be paid.” Id. at § 3664(f)(2). The

sentencing judge is to consider, among other things, “the

31

financial resources and other assets of the defendant, including

whether any of these assets are jointly controlled.” Id. Payment

schedules may include “partial payments at specified

intervals.” Id. at § 3664(f)(3)(A).

Because the District Court considered Haggerty’s jointly

owned assets and his agreement to pay a victim as much

restitution as possible, up front, it committed no abuse of

discretion. See Fallon, 61 F.4th at 125-26.

VI. CONCLUSION

Because “image” unambiguously means frame in the

context of § 2G2.2(b)(7), and Haggerty possessed well over

600 images, the District Court did not err in imposing a five-

level sentencing enhancement based on § 2G2.2(b)(7). Nor did

it err in imposing the restitution order as it did.

We will vacate the District Court’s judgment and

remand so that the District Court may resolve any factual

disputes related to a frame-based sentencing analysis.

32