United States v. Sromalski, David J.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-4236

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID SROMALSKI,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00 CR 0011—Barbara B. Crabb, Chief Judge.

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ARGUED MAY 13, 2002—DECIDED FEBRUARY 7, 2003

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Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Like a distressing num-

ber of others, David Sromalski kept images portraying

child pornography on his computer. Authorities caught on

to his activities, and in time Sromalski was prosecuted on

a two-count information charging him with possessing

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)

and seeking forfeiture of his computer and related ma-

terials, pursuant to 18 U.S.C. § 2252. Sromalski pleaded

guilty to the charges; his challenge on appeal relates solely

to the sentence he received. The presentencing report (PSR)

prepared after his plea recommended the application of

a Sentencing Guidelines cross-reference from U.S.S.G.

2 No. 01-4236

§ 2G2.4(c)(2) to § 2G2.2, a more severe offense category. The

district court accepted this recommendation, at least in

part because it found that Sromalski’s relevant conduct

included a separate event of receipt and possession of

child pornography that was not charged in the informa-

tion. Sromalski contends that the district court erred in

applying the cross-reference to his sentence because the

prior conduct should not have been factored into his

sentence. While the Government concedes that the move

from § 2G2.4 to § 2G2.2 was not warranted by the rele-

vant conduct, it suggests that it was otherwise appropri-

ate and urges affirmance on an alternative ground. For

the reasons stated in this opinion, we vacate the sen-

tence imposed and remand for resentencing.

I

During a major bust of a large computer server in Texas,

which appears to have been dedicated to facilitating

the sharing of pornographic materials, evidence emerged

that Sromalski was one of the users of the server’s Napster-

like services. (Napster was an Internet company that

permitted users to trade files directly; it has now gone

out of business because of the copyright implications of

that practice. See A&M Records, Inc. v. Napster, Inc., 239

F.3d 1004, 1011 (9th Cir. 2001).) The Texas computer

records showed that on March 5, 1999, Sromalski trans-

mitted to other computers (uploaded) seven images of

child pornography and received from others (downloaded)

28 such images.

Based on the information gathered in Texas, customs

agents searched Sromalski’s residence on February 2,

2000. There they found some 300 images of child pornog-

raphy on his computer. Sromalski admitted to the agents

that he had downloaded the images from various sources

on the Internet.

No. 01-4236 3

Even though Sromalski could have been charged with

receipt of child pornography, which is prohibited by 18

U.S.C. § 2252A(a)(2), the information filed against him

(after an original indictment was dismissed on the Gov-

ernment’s motion) charged only a violation of 18 U.S.C.

§ 2252A(a)(5), which prohibits knowingly possessing child

pornography that has traveled through interstate com-

merce, including by computer. The information made

no reference to any trafficking activities in which Sromal-

ski may have engaged—a fact that plays a central role in

this case.

At the plea hearing, Sromalski conceded that he was

guilty as charged with respect to the possession of the

images the agents found during their February 2, 2000,

search. He also admitted that the images had been trans-

ported in interstate commerce. He further admitted to

having “downloaded” the images. The PSR indicated

that between September 7, 1999, and January 13, 2000,

Sromalski’s computer had stored some 300 files in a

subdirectory; those images had all been obtained through

downloading. The PSR took note of the interactions be-

tween Sromalski’s computer and the Texas server that

had occurred on March 5, 1999.

II

All parties agree that the 1998 Guidelines apply to

this case. Appendix A to that version provides that both

§ 2G2.2 and § 2G2.4 are appropriate guidelines to use for

violations of 18 U.S.C. § 2252A, depending on what else

can be shown. See United States v. Thompson, 281 F.3d

1088, 1097 (10th Cir. 2002). The two guidelines are none-

theless aimed at different conduct that falls within the

ambit of § 2252A. Section 2G2.2 covers “trafficking in

material involving the sexual exploitation of a minor;

receiving, transporting, shipping, or advertising material

4 No. 01-4236

involving the sexual exploitation of a minor; possessing

material involving the sexual exploitation of a minor with

intent to traffic”; section 2G2.4, on the other hand, covers

“possession of materials depicting a minor engaged in

sexually explicit conduct.” When more than one guide-

line potentially covers an offense defined in a single stat-

ute, the district court must select the most appropriate

guideline based upon the nature of the conduct charged

in the count for which the defendant was convicted.

U.S.S.G. § 1B1.2 cmt. n.1; see also United States v. Prin-

cipe, 203 F.3d 849, 851 (5th Cir. 2000).

Because Sromalski’s offense of conviction was 18 U.S.C.

§ 2252A(a)(5)(B)—which, as we noted earlier, deals with

possession, in contrast to § 2252A(a)(2), which explicitly

addresses “receipt” of these materials—the district court

correctly started by looking at § 2G2.4, which is entitled

“Possession of Materials Depicting a Minor Engaged in

Sexually Explicit Conduct,” and which establishes a base

offense level of 15. That section contains a cross-reference

that is at the heart of the present dispute. Section

2G2.4(c)(2) instructs that “[i]f the offense involved traf-

ficking in material involving the sexual exploitation of a

minor (including receiving, transporting, shipping, adver-

tising, or possessing material involving the sexual ex-

ploitation of a minor with intent to traffic), apply § 2G2.2.”

The latter guideline’s title makes it clear that it is directed

at trafficking offenses, such as receiving, transporting,

shipping, or advertising the prohibited materials; it pro-

vides for a base offense level of 17, reflecting the more

serious harms inflicted by child pornography traffickers.

At the government’s urging, the district court decided

to accept the recommendation in the PSR to apply this

cross-reference, and thus it sentenced Sromalski using

the stricter rules found in § 2G2.2. It did so based in part

on the evidence about Sromalski’s downloads from the

Texas server.

No. 01-4236 5

Sromalski properly objected to the application of the

cross-reference. He argued first that the March 1999

conduct should not be counted as “relevant conduct” for

purposes of the application of the cross-reference. When

pressed, the government conceded that this was correct.

In light of this concession, the correctness of which we do

not address here, we are left with a simple possession

offense and no evidence of trafficking. The government

argues that it was nonetheless still proper to apply the

cross-reference of § 2G2.4(c)(2) and sentence on the basis

of § 2G2.2; Sromalski argues otherwise. We agree with

him that the interpretation of the guidelines for which

the government is arguing is too strained, and that under

the particular facts of this case as they are now pre-

sented to us, the district court should not have applied

the cross-reference.

III

The decision to apply a specific guideline is reviewed

de novo, United States v. Ellison, 113 F.3d 77, 79 (7th Cir.

1997), as is a district court’s application of a cross-refer-

ence under the Sentencing Guidelines and a legal inter-

pretation of the language of the Guidelines. We defer to

the court’s findings of fact unless they are clearly errone-

ous. United States v. McGiffen, 267 F.3d 581, 586 (7th

Cir. 2001).

Had the Government not conceded that the March 1999

conduct was out of the picture, we would have a very

different case. There is no doubt that the use of a “trading”

server like the one in Texas, coupled with actions of both

uploading and downloading files, is the kind of traf-

ficking activity to which the cross-reference found in

§ 2G2.4(c)(2) refers. Thus, had this activity been part of

Sromalski’s relevant conduct, we have no doubt that

our prior cases would have required the application of the

6 No. 01-4236

cross-reference. See Ellison, 113 F.3d at 81-82; United

States v. Richardson, 238 F.3d 837, 839 (7th Cir. 2001). But

the question of what conduct should be considered as

“relevant conduct” for purposes of U.S.S.G. § 1B1.3 is

normally regarded as a question of fact; we routinely re-

view these determinations under the clear error stan-

dard. See, e.g., United States v. Anderson, 259 F.3d 853, 858

(7th Cir. 2001); United States v. Ofcky, 237 F.3d 904, 907

(7th Cir. 2001); United States v. Polichemi, 201 F.3d 858,

866 (7th Cir. 2000). Like other factual issues, this one

may be subject to a stipulation by the parties, which is

what the government appears to have done here.

As the case has finally reached us, therefore, we must

decide whether the cross-reference provision of § 2G2.4(c)

can be used if the facts show only simple possession of

child pornography on a computer. To answer this, we

must look at the language of all relevant guidelines; in

addition, we must also consider whether, even if the dis-

trict court erred in applying the cross-reference, any

such error was harmless because it was correct for some

other reason to use § 2G2.2. See Williams v. United

States, 503 U.S. 193, 203 (1992) (“[O]nce the court of

appeals has decided that the district court misapplied

the Guidelines, a remand is appropriate unless the re-

viewing court concludes, on the record as a whole, that

the error was harmless, i.e., that the error did not affect

the district court’s selection of the sentence imposed.”);

see also United States v. Benitez, 92 F.3d 528, 538 (7th

Cir. 1996) (a Guideline determination may be upheld on

appeal if the record as a whole shows that the error was

harmless).

Both the cross-reference of § 2G2.4(c)(2) and § 2G2.2

refer to “receiving” child pornography, and so we must

decide whether all instances of “receiving” that can be

proved in a possession prosecution require the applica-

tion of the cross-reference. Logically, the images had to

No. 01-4236 7

get into Sromalski’s computer somehow. Either he re-

ceived them from someone else, or he produced them. Both

of those methods are covered by guidelines other than

§ 2G2.4: as we just noted, “receiving” is mentioned in

§ 2G2.2, and producing pornography is covered by § 2G2.1.

Different statutes cover possession, production, and traf-

ficking, and we think it important to adopt an interpreta-

tion of the Guidelines that relates them to the charged

offenses and the graduated harms Congress was identify-

ing. See United States v. Grosenheider, 200 F.3d 321, 332-33

(5th Cir. 2000) (“It is clear that Congress established a

series of distinctly separate offenses respecting child

pornography, with higher sentences for offenses involv-

ing conduct more likely to be, or more directly, harmful

to minors than the mere possession offense.”).

In this case, to the extent that Sromalski “received” the

images found in his computer (as opposed to, say, produced

them, which would have involved a different statutory

section), he could have been charged under 18 U.S.C.

§ 2252A(a)(2), and he then could not have complained

about the use of § 2G2.2 for sentencing purposes. This

court pointed out in Ellison that it was important to

follow “the specific and unequivocal indication” of the Sen-

tencing Commission that § 2G2.2 must be applied for all

offenses other than simple possession. 113 F.3d at 80.

United States v. Wind, 128 F.3d 1276 (8th Cir. 1997), held

on the other hand that § 2G2.4 was the correct starting

point where the actual plea was for simple possession,

despite evidence that the defendant had in fact sent child

pornography to undercover agents. Id. at 1277; see also

United States v. Paul, 274 F.3d 155, 161 (5th Cir. 2001)

(§ 2G2.2 is not the correct guideline to apply to a convic-

tion for possession of child pornography). As Sromalski

was charged only with possession, we must at least start

with § 2G2.4.

8 No. 01-4236

Once the correct starting guideline has been identified,

the only way to move to a different section is through the

application of a cross-reference. See United States v.

Rogers, 270 F.3d 1076, 1083 (7th Cir. 2001). Cross-refer-

ences appear throughout the Guidelines. They need not be,

and often are not, linguistic mirror images of the cross-

referenced guideline. They are just a device to handle

potentially overlapping statutes and sentencing provi-

sions—a device that is triggered when the policies of a

second guideline more closely match the conduct that is

being punished. The question is thus whether the cross-

reference of § 2G2.4 comes into play when the government

shows receipt, which would be enough for § 2252A(a)(2)

and U.S.S.G. § 2G2.2, or if the language in § 2G2.4(c)(2)

calling for the cross-reference only when there is an “of-

fense involv[ing] trafficking . . . (including receiving . . .

with intent to traffic)” requires more.

We cannot accept the notion that “receipt with intent

to traffic” is an exact synonym for “receipt.” The Sentenc-

ing Commission would not have added the extra phrase

about trafficking if it was nothing but excess verbiage;

it must have been intended to serve some substantive

purpose. That purpose, it seems to us, is to limit the gov-

ernment’s ability to have sentencing proceed under

§ 2G2.2, in cases where the charge is brought only under

§ 2252A(a)(5) (simple possession). Unless the more strin-

gent requirements of the cross-reference provision are

met, the government must prove the receipt offense be-

yond a reasonable doubt before it can use the receipt

guideline.

This does not place an impossible burden on prosecutors.

The Eleventh Circuit has recently ruled that evidence

of receiving and sending pornographic images is sufficient

to qualify as “trafficking” for purposes of the cross refer-

ence. See United States v. Bender, 290 F.3d 1279, 1285

(11th Cir. 2002), which echoes United States v. Johnson,

No. 01-4236 9

221 F.3d 83, 98 (2d Cir. 2000) (admission of “sending and

receiving” sufficient). This seems quite reasonable to us.

Intent to traffic has also been found on the part of some-

one convicted under § 2252A(a)(5) for “simple possession”

where the defendant sent several e-mails to acquaintances

offering to send child pornography in exchange for the cost

of postage. See Paul, 274 F.3d at 163; see also United

States v. Horn, 187 F.3d 781, 791 (8th Cir. 1999) (posses-

sion plus bartering warranted cross-reference). We also

have no quarrel with those holdings. Sromalski, however,

has not conceded that he sent any images during the

relevant time frame. His admissions support a finding that

he received the images (as opposed to producing them).

Nonetheless, unless we were to equate “receiving” with

“receiving with intent to traffic”—and we have said that

we are not prepared to take this step—his admission of

receipt is not enough to trigger the cross-reference.

The Government claims, however, that the result we

propose to reach would be inconsistent with our earlier

decision in United States v. Ellison. We disagree. The

important point to bear in mind about Ellison is that

the defendant there was convicted for the offense of re-

ceiving child pornography, not for the possession offense,

and thus the guideline he started with was § 2G2.2. Ellison,

113 F.3d at 78. Under those circumstances, Ellison merely

held that the Commission might rationally have thought

that receiving these materials was worse than simply

possessing them. It had nothing to say about the cross-

reference with which we are concerned here.

The question, though, arises whether, if receiving is

enough to constitute a form of trafficking under Ellison

(if we give any weight to the title of § 2G2.2, which argu-

ably we should not), why then is it not enough to re-

quire use of the cross-reference section in § 2G2.4,

which speaks of receiving with intent to traffic? The

Government argues that receipt inherently involves

10 No. 01-4236

trafficking, and it supports its position with a grammatical

exegesis of 2G2.4(c)(2): it suggests that the word “receiving”

is not modified by the final phrase “with intent to traffic,”

and that this phrase applies only to “possessing.” The worst

problem with this reading is that it effectively reads

§ 2G2.4 out of the Guidelines. Virtually everything § 2G2.4

covers would be covered by something else—usually

§ 2G2.2, but sometimes § 2G2.1 (production). A look at

the history of § 2G2.4 also undermines the Government’s

position. Section 2G2.4 was added after § 2G2.2 by way

of an amendment in which the Sentencing Commission

stated:

This amendment inserts an additional guideline at

§ 2G2.4 to address offenses involving receipt or posses-

sion of materials depicting a minor engaged in sexually

explicit conduct, as distinguished from offenses involv-

ing trafficking in such material, which continue to

be covered under § 2G2.2. Offenses involving receipt

or transportation of such material for the purpose of

trafficking are referenced to § 2G2.2 on the basis of

the underlying conduct (subsection (c)(2)).

U.S.S.G. app. c amend. 372 (2001) (emphasis added).

Thus, before the cross-reference can be used in cases

for which § 2G2.4 is the proper starting point, we con-

clude that something more than simple receipt must be

shown: the government must show receipt, or one of the

other described actions, with intent to traffic. Our conclu-

sion applies only to cases in which the charges are limited

to simple possession under § 2252A(a)(5), like Sromalski’s.

Where the government has charged and proven receipt

as described in § 2252A(a)(2), the Guidelines themselves

dictate that the cross-reference to § 2G2.2 is appropriate.

United States v. Amirault, 173 F.3d 28 (1st Cir. 1999), is

not to the contrary. There the court held that receipt

of pornography was sufficient to trigger the cross-refer-

No. 01-4236 11

ence, but it did not consider the issue of intent to traffic

one way or the other. Id. at 30. Indeed, it had no occasion

to do so, because the defendant in Amirault did not raise

the argument that he lacked the intent to traffic. In any

event, our decision is consistent with the rulings of the

Eighth and Eleventh Circuits, discussed above. If the

Sentencing Commission wishes to clarify the interaction

of these two sections for the future, it is of course free to

do so. For now, however, we believe they are best recon-

ciled as we have described here.

Because we have concluded that the cross-reference

from § 2G2.4 to § 2G2.2 should not have been made in

Sromalski’s case, he is entitled to re-sentencing based

solely on § 2G2.4. This is a significant matter for him: as

noted above § 2G2.4 has a base offense level of 15, not 17,

and it does not contain a provision permitting a four-

level enhancement for sadistic portraits like the one

found in § 2G2.2(b)(3). This decision will also affect his

adjustment for acceptance of responsibility from three

to two levels, because the base offense level is now

lower than 17. See U.S.S.G. § 3E1.1(b).

For these reasons, we VACATE and REMAND the case

to the district court for resentencing in accordance with

this opinion.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-7-03