United States v. Whited, Matthew

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1015

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

M ATTHEW W. W HITED,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 05 CR 50060—Philip G. Reinhard, Judge.

____________

A RGUED S EPTEMBER 13, 2007—D ECIDED A UGUST 25, 2008

____________

Before E ASTERBROOK, Chief Judge, and C UDAHY and

S YKES, Circuit Judges.

S YKES, Circuit Judge. Defendant Matthew Whited was

charged with possession, receipt, and distribution of

child pornography based on evidence gathered in a

search of his home pursuant to an anticipatory warrant.

Federal agents obtained the warrant after Whited ordered

a videotape of child pornography from an undercover

postal inspector; the warrant was premised upon a suc-

2 No. 07-1015

cessful controlled delivery of the package Whited had

ordered. There were two conditions precedent to the

search: Whited’s acceptance of the package and entry

into his home with it.

Whited challenged the legality of the search under the

Fourth Amendment, arguing that one of the conditions

precedent in the warrant did not occur—he claimed he

was on his front stoop when he accepted the delivery and

never entered his house after signing for the package.

Federal agents executing the warrant testified otherwise.

The district court believed the agents and denied the

suppression motion.

Whited pleaded guilty and reserved the right to appeal

the denial of his suppression motion. At sentencing the

district court applied the sentencing guidelines enhance-

ment specified in U.S.S.G. § 2G2.2(b)(3)(B), which adds

five levels to the base offense level when the distribution

of child pornography is for “receipt, or expectation of

receipt, of a thing of value.” The factual basis for this

enhancement was Whited’s transmission of child-pornog-

raphy images to an e-mail correspondent with whom he

was trying to arrange a sexual encounter.

Whited now appeals his conviction and sentence,

challenging the denial of his suppression motion, the

application of the § 2G2.2(b)(3)(B) enhancement, and the

reasonableness of his sentence under 18 U.S.C. § 3553(a).

We affirm. Anticipatory warrants are constitutional, and

although the testimony at the suppression hearing was

conflicting, the district court’s determination that the

warrant’s triggering conditions had occurred was not

No. 07-1015 3

clear error. The court properly applied the § 2G2.2(b)(3)(B)

sentencing enhancement based on the e-mail correspon-

dence establishing that Whited reasonably expected his

transmission of child pornography would lead to the

sexual encounter he and his e-mail correspondent were

then discussing. Finally, the 300-month sentence im-

posed by the district court was within the applicable

guidelines range and is therefore presumed reasonable;

Whited’s perfunctory challenge to the district court’s

consideration of the § 3553(a) factors is not enough to

rebut the presumption.

I. Background

In March 2004 an undercover postal inspector received

an e-mail responding to an advertisement the inspector

had posted on the Internet offering child-pornography

videos. The e-mail came from an address later determined

to be Whited’s. After an initial exchange of e-mails,

Whited sent the inspector $30 for a video depicting child

pornography. The inspector then forwarded this infor-

mation on to the federal Child Exploitation Strike Force

in Chicago.

The Strike Force then arranged for a controlled delivery

of the package and obtained an anticipatory warrant

permitting agents to search Whited’s residence after two

conditions were satisfied: (1) Whited accepted the

control package; and (2) he entered his house with it. On

July 29, 2004, Postal Inspector Lary Maxwell, dressed as a

postal carrier, approached Whited’s home with the control

package and rang the doorbell. Michael Hoeft, a friend of

4 No. 07-1015

Whited’s 12-year-old son who had stayed overnight on a

“sleepover,” answered the door and then called Whited.

Whited came down the stairs, accepted the package, and

walked to his car. Whether he was inside or outside of the

house when he accepted the package is disputed; we will

discuss the testimony in more detail in a moment. As

Whited was getting into his car, he was detained by

FBI agents.

The agents then searched the home and found child

pornography in a locked suitcase in a closet, on compact

discs, and on the hard drive of Whited’s computer. The

agents also discovered e-mail correspondence on Whited’s

computer between Whited and a man named “Will,” in

which child-pornography images were transmitted and

arrangements for a sexual encounter were discussed.

More specifically, Whited sent Will two images of child

pornography and expressed his interest in using child

pornography in connection with the sexual encounter

they were then planning. Will, in turn, expressed his

approval of the images and asked Whited to continue

to send him child pornography to “keep me happy” until

the proposed encounter could take place.

Whited was charged with two counts of distribution of

child pornography under 18 U.S.C. § 2252A(a)(1), one

count of receipt of child pornography under 18 U.S.C.

§ 2252A(a)(2)(A), and one count of possession of child

pornography under 18 U.S.C. § 2252A(a)(5)(B). He moved

to suppress the evidence seized during the search of his

home. Whited testified at the suppression hearing that

when he came to the door after being summoned by his

No. 07-1015 5

son’s friend, he stepped out onto the stoop and closed

both the main door and the exterior screen door before

speaking with Inspector Maxwell.

In contrast, Inspector Maxwell testified that when

Whited came to the door, he stood on the threshold

between the main door and the screen door, opened the

screen door for Inspector Maxwell, and from that

position—with the main door still open behind

him—accepted and signed for the control package. Inspec-

tor Maxwell then turned and began to walk away, but

looked back over his shoulder and saw Whited retreat

back into the house momentarily before exiting the

house, closing both doors behind him, and starting toward

his car. Maxwell testified that when Whited signed for

the package, he had not closed either door but stood on

the threshold between them. FBI Special Agent Scott

McDonough, observing the operation from about 200

feet away, also testified that the exchange of the package

took place when Whited was standing on the threshold

between the doors; he testified that he saw Whited briefly

go back into the house before leaving with the package.

Michael Hoeft—the friend of Whited’s son who had

spent the night and answered the door when Inspector

Maxwell rang the bell—testified that he had been asleep

in the living room when he was awakened by the doorbell

ringing. He said he answered the door and a mailman

asked for Matthew Whited. Michael went to get Whited,

and then observed as Whited talked to the mailman while

standing in the doorway with both feet still in the house.

He saw Whited sign for and take the package from the

6 No. 07-1015

mailman and then leave the house. Ryan Manley, another

friend of Whited’s son who was at the “sleepover,” did not

remember much; he testified only that he saw Whited

leave through the front door of the house.

The district court denied Whited’s suppression motion,

holding that the conditions triggering the execution of the

warrant had been satisfied. The court credited the testi-

mony of Inspector Maxwell and Special Agent McDonough

and found that Whited had been standing on the threshold

between the outer screen door and the inside main door

of the house when he received the control package, and

then had retreated into the house, however briefly, to

close the main door behind him before leaving.

Whited pleaded guilty to one count of distribution, one

count of possession, and one count of receipt of child

pornography, reserving the right to challenge the search.

At sentencing the district court determined that Whited

had distributed child pornography in expectation of

receiving a thing of value, warranting application of the

five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B).

The court found that Whited distributed child pornogra-

phy to Will in the reasonable expectation that it would

lead to the sexual encounter the two were then arranging.

This produced an advisory sentencing guidelines range

of 296 to 365 months. The judge made specific mention of

several § 3553(a) factors, including the defendant’s lack of

criminal history; his lack of documented aggression

against minors; the seriousness of child-pornography

crimes; the results of Whited’s psychological evaluation,

which had diagnosed pedophilia; the need to deter Whited

No. 07-1015 7

from escalating from child pornography to child molesta-

tion; and the need for general deterrence and protection of

the public. The court imposed a sentence of 300 months

in prison, at the low end of the guidelines range.

II. Discussion

Whited raises three issues on appeal. He renews his

argument that the search of his home violated the Fourth

Amendment because the triggering conditions precedent

in the anticipatory warrant did not occur. He also argues

that the district court should not have applied the five-

level sentencing enhancement under § 2G2.2(b)(3)(B)

because his distribution of child pornography to Will was

merely gratuitous and not in reasonable expectation of

receiving sex. Finally, he argues that the district court

failed to properly consider the relevant factors under

18 U.S.C. § 3553(a) and therefore his sentence is unrea-

sonable. None of these arguments has merit.

A. Denial of Suppression Motion

The district court’s denial of Whited’s suppression is

subject to a dual standard of review; we review legal

conclusions de novo and findings of fact for clear error,

giving special deference to the district court’s superior

vantage point on matters of witness credibility. United

States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir. 1993).

“An anticipatory warrant is ‘a warrant based upon an

affidavit showing probable cause that at some future time

8 No. 07-1015

(but not presently) certain evidence of crime will be located

at a specified place.’ ” United States v. Grubbs, 547 U.S. 90, 94

(2006) (quoting 2 W AYNE R. L AF AVE, S EARCH AND S EIZURE

§ 3.7(c), p. 398 (4th ed. 2004)). Anticipatory warrants

generally “subject their execution to some condition

precedent other than the mere passage of time—a so-called

‘triggering condition.’ ” Id. An anticipatory warrant may

issue if “the magistrate . . . determine[s] (1) that it is now

probable that (2) contraband, evidence of a crime, or a

fugitive will be on the described premises (3) when the

warrant is executed.” Id. at 96. The probable-cause

inquiry is twofold: there must be a fair probability that

contraband or evidence of a crime will be found in the

described place if the triggering condition occurs and

probable cause to believe the triggering condition will

occur. Id. at 96-97.

The focus here, however, is on the execution of the

anticipatory warrant, not its issuance.1 Whited claims one

of the warrant’s triggering conditions—his entry into his

1

Whited does not, for example, raise an argument regarding

the scope of the warrant under the Fourth Amendment. That is,

he does not challenge the particularity of the warrant’s descrip-

tion of the place to be searched and things to be seized. See

Grubbs, 547 U.S. at 97-99 (explaining the Fourth Amendment’s

“particular description” requirement). Accordingly, this opin-

ion should not be read as suggesting that a controlled delivery

of one parcel automatically authorizes a general search of a

home. But see United States v. Watzman, 486 F.3d 1004, 1008-09

(7th Cir. 2007) (discussing the general sufficiency of information

in warrant application to establish probable cause to search

for and seize child pornography in a home).

No. 07-1015 9

home with the control package—did not occur. This is a

challenge to the district court’s fact-finding at the suppres-

sion hearing, which is subject to deferential review for

clear error. Here, the district court weighed the con-

flicting testimony regarding the circumstances of

Whited’s receipt of the control package and specifically

rejected Whited’s claim that he closed both the inside

main door and the exterior screen door behind him

before he accepted the package from Inspector Maxwell.

Inspector Maxwell and Special Agent McDonough, who

was observing Whited’s interaction with Maxwell from

the street, both testified that Whited was on the threshold

between the doors when he took delivery of the package.

Maxwell also testified that he specifically checked to

make sure that Whited entered his house after receiving

the package; he said that if Whited had not entered the

house, he planned to ask Whited for permission to use his

bathroom to ensure that he entered the house with the

package. Michael Hoeft, the youngster who answered

the door and summoned Whited, testified that he saw

Whited talking with Maxwell and signing for a package;

this would have been impossible if Whited had closed

both doors prior to talking with Maxwell. Also, Michael

testified that Whited had both feet in the house when he

accepted the package.

The district court’s findings that Whited received the

control package while standing on the threshold between

the doors and briefly retreated into the house with it were

10 No. 07-1015

not clearly erroneous.2 The triggering conditions for the

anticipatory warrant were satisfied, and Whited’s motion

to suppress the evidence obtained in the search was

properly denied.

B. Sentencing Enhancement Under § 2G2.2(b)(3)(B)

Whited argues the district court should not have applied

the sentencing enhancement under § 2G2.2(b)(3)(B),

which adds five levels to the defendant’s base offense

level if the distribution of child pornography was “for the

receipt, or expectation of receipt, of a thing of value, but

not for pecuniary gain.” He maintains that his transmission

of child-pornography images to Will was gratuitous and

not in connection with any “precise bargain” for sex, and

therefore was not in “expectation of receipt[] of a thing

of value.” To the extent this argument raises a question

about the interpretation of the guideline, our review is

de novo; to the extent that it challenges the district

court’s factual findings, our review is for clear error.

United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006).

We have not yet had occasion to consider the meaning of

the “expectation of receipt” alternative in § 2G2.2(b)(3)(B).

The application notes broadly explain that this enhance-

2

The threshold is part of the home, although it may be con-

sidered exposed to the public and therefore not carrying an

expectation of privacy for Fourth Amendment purposes,

depending on the circumstances. See United States v. Santana,

427 U.S. 38, 42 (1976).

No. 07-1015 11

ment applies to “any transaction, including bartering or

other in-kind transaction, that is conducted for a thing

of value, but not for profit.” U.S.S.G. § 2G2.2 cmt. n.1. A

“thing of value” is specifically defined in the application

notes as “anything of valuable consideration.” Id. Whited

concedes that the sexual encounter he and Will were

contemplating would qualify as a “thing of value.”

The district court relied on a decision from the Sec-

ond Circuit interpreting the word “expectation” in

§ 2G2.2(b)(3)(B) according to its dictionary definition: “the

act or action of looking forward: anticipation.” United

States v. Maneri, 353 F.3d 165, 169 (2d Cir. 2003) (quoting

W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY 799

(1976)). The court in Maneri rejected the defendant’s

argument that “expectation of receipt” in § 2G2.2(b)(3)(B)

required a “specific agreement.” Id. Instead, the court

held that if the defendant distributed child pornography

“in anticipation of, or while reasonably believing in the

possibility of, the receipt of a thing of value,” the enhance-

ment applied. Id. The defendant in Maneri had sent child-

pornography images to a sheriff’s deputy posing on the

Internet as an adolescent girl with the screen name

“nygrl12,” and had engaged in detailed chat-room dis-

cussions with “nygrl12 ” about a time and place to meet

for sex. The court upheld the application of the enhance-

ment.

We agree with the Second Circuit that “expectation of

receipt” under § 2G2.2(b)(3)(B) does not require an ex-

plicit agreement or precise bargain, as Whited contends.

Distribution of child pornography in the reasonable

12 No. 07-1015

anticipation or reasonable belief of receiving a thing of

value is enough for the enhancement to apply. The dis-

trict court did not clearly err in finding that Whited

distributed child pornography in reasonable anticipation

of obtaining sex from Will. Here, as in Maneri, Whited and

his Internet correspondent engaged in detailed online

discussions to arrange their sexual encounter. Whited, like

Maneri, sent his correspondent images of child pornogra-

phy to facilitate that transaction. In this case Will went

so far as to request that Whited send more child pornog-

raphy to “keep me happy” until the encounter could

take place. The enhancement was properly applied.

C. District Court’s Application of § 3553(a) Factors

Finally, Whited contends that his 300-month sentence is

unreasonable because the district court did not give

adequate consideration to the § 3553(a) factors that favored

a below-guidelines variance. A sentence within a properly

calculated guidelines range enjoys a rebuttable presump-

tion of reasonableness. United States v. Mykytiuk, 415

F.3d 606, 608 (7th Cir. 2005). “[W]hen a judge decides

simply to apply the Guidelines to a particular case, doing

so will not necessarily require lengthy explanation.” Rita

v. United States, 127 S. Ct. 2456, 2468 (2007).

Here, the district court calculated the appropriate

guidelines range and then gave consideration to Whited’s

lack of criminal record and the absence of any documented

history of aggression against children. On the other side

of the ledger, however, the court considered the serious-

ness of child-pornography distribution; Whited’s psycho-

No. 07-1015 13

logical evaluation, diagnosis of pedophilia, and pattern

of placing of himself in a position of power over children;

and the need for protection of the public and specific and

general deterrence. On appeal Whited does little more

than question the weight the court assigned to these

factors; this is insufficient to rebut the presumption of

reasonableness. The district court more than satisfied

its obligations under § 3553(a).

A FFIRMED.

8-25-08