United States v. Dustin Randall

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF No. 20-10339

AMERICA,

Plaintiff-Appellee, D.C. Nos.

2:18-cr-00303-JCM-EJY-1

v. 2:18-cr-00303-JCM-EJY

DUSTIN RANDALL,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted December 10, 2021

San Francisco, California

Filed May 20, 2022

Before: Kim McLane Wardlaw, Daniel A. Bress, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bumatay;

Dissent by Judge Wardlaw

2 UNITED STATES V. RANDALL

SUMMARY *

Criminal Law

Answering two questions of first impression in this

circuit, the panel affirmed a sentence imposed on Dustin

Randall for distributing and receiving child pornography in

violation of 18 U.S.C. § 2252A.

The panel held that to be eligible for a five-level

enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which

applies to offenders who distribute child pornography “in

exchange for any valuable consideration,” the defendant

need not actually receive the “valuable consideration,” and

that the district court therefore did not err in applying the

enhancement.

The panel held that the Justice for Victims of Trafficking

Act, 18 U.S.C. § 3014(a), mandates a $5,000 assessment for

each of a defendant’s counts of conviction—not a single

assessment per defendant in the case. The panel explained

that § 3014(a) works in conjunction with 18 U.S.C. § 3013,

to which § 3014 is closely related in terms of text, purpose,

and statutory structure; and observed that every circuit court

has interpreted § 3013’s assessment on a person “convicted

of an offense” to apply separately to each count of conviction

rather than to each offender. The panel wrote that the

ordinary meaning of § 3014’s “convicted of an offense” also

supports a separate assessment per conviction. The panel

concluded that the district court therefore did not err in

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. RANDALL 3

assessing a fine of $5,000 for each of Randall’s two counts

of conviction.

Judge Wardlaw dissented from the portion of the

majority opinion concerning the § 3014(a) assessment. She

wrote that the majority’s conclusion that § 3014(a) imposes

a per-count assessment is based on a flawed reading of

§ 3013, an earlier enacted statute that differs markedly from

§ 3014 in both text and structure. She wrote that whether the

court should impose the § 3014 assessment turns on the

nature of the offense—not the number of offenses of

conviction.

The panel rejected Randall’s remaining objections to his

sentence in a concurrently filed memorandum disposition.

COUNSEL

Amy B. Cleary (argued), Assistant Federal Public Defender;

Rene L. Valladares, Federal Public Defender; Office of the

Federal Public Defender, Las Vegas, Nevada; for

Defendant-Appellant.

Elham Roohani (argued), Assistant United States Attorney;

Elizabeth O. White, Appellate Chief; Christopher Chiou,

Acting United States Attorney; United States Attorney’s

Office, Las Vegas, Nevada; for Plaintiff-Appellee.

4 UNITED STATES V. RANDALL

OPINION

BUMATAY, Circuit Judge:

Dustin Randall was convicted of distributing and

receiving child pornography in violation of 18 U.S.C.

§ 2252A. He challenges the sentences imposed, raising two

questions of first impression:

First, U.S. Sentencing Guideline § 2G2.2(b)(3)(B)

provides for a five-level enhancement for offenders who

distribute child pornography “in exchange for any valuable

consideration.” While the enhancement requires that the

offender share pornographic material, we have never

answered whether the offender must also receive the

“valuable consideration.” Our sister circuit courts are

seemingly divided on this question. One circuit holds that

the enhancement does not depend on the receipt of valuable

consideration. See United States v. Oliver, 919 F.3d 393,

403–04 (6th Cir. 2019). Another circuit appears to hold the

opposite. See United States v. Halverson, 897 F.3d 645, 652

(5th Cir. 2018).

Second, the Justice for Victims of Trafficking Act,

18 U.S.C. § 3014(a), mandates a $5,000 special assessment

for defendants convicted of certain sex crime offenses,

including the distribution and receipt of child pornography.

We must decide whether the $5,000 assessment attaches to

each offense of conviction or whether the statute permits

only a single assessment of $5,000 for each defendant per

case. Once again, the circuit courts are split. One circuit

holds that a $5,000 assessment must be imposed for each

eligible conviction. See United States v. Johnman, 948 F.3d

612, 617 (3d Cir. 2020). Another concludes that a defendant

can only be assessed one time per case—no matter the

UNITED STATES V. RANDALL 5

number of convictions. See United States v. Haverkamp,

958 F.3d 145, 149 (2d Cir. 2020).

We answer both questions today. Based on the text of

the Guideline and the statute, we hold (1) that

§ 2G2.2(b)(3)(B) does not require the defendant to receive

any “valuable consideration”; and (2) that § 3014(a) requires

a $5,000 fine per offense. We thus affirm the district court’s

sentence. 1

I.

In 2017, Las Vegas Metropolitan Police Department

detectives assigned to the Internet Crimes Against Children

Task Force uncovered Randall’s criminal activity through

the investigation of David Proctor—a suspected trader of

child pornography. Detectives investigated Proctor’s use of

Kik, a free instant messaging mobile application, for

distribution of child pornography.

After securing a warrant for Proctor’s Kik account,

detectives discovered a June 2017 conversation between

Proctor and Randall. In relevant part, Proctor and Randall

discussed the following:

Proctor: Can I join group? How young

Randall: Young and send to join

Proctor: [sends a Dropbox link containing

child pornography]

1

In a concurrently filed memorandum disposition, we reject

Randall’s remaining objections to his sentence.

6 UNITED STATES V. RANDALL

Can I get one or join group

?

Do you trade back

Randall: I trade back and yeah the group is

dead now it was going last night

[sends Dropbox link]

Proctor: Do you have babies

Or mega link

Have more. I sent two

Can you send from group

[sends three Dropbox links

containing child pornography]

Have any more or younger

...

Proctor: Can you send more or different

CAn you send more [sic]

?

Send more

UNITED STATES V. RANDALL 7

Randall: I don’t trade with impatient

mother fuckers

Proctor: Sorry I’ll wait

Send when you can no rush

I have baby to trade

Randall: [sends Dropbox link containing

child pornography]

So Proctor began the conversation by requesting to join

the Kik group Randall belonged to, and Randall responded

that he had to “send” child pornography “to join” the group.

Proctor then sent Randall a link to Dropbox, a cloud-based

virtual storage provider, that contained 272 videos and

34 images of child pornography. Later, Proctor asked

Randall if he “trade[s] back”—inquiring if Randall wanted

to send back pornography in return. Randall confirmed that

he “trade[s] back” and then sent Proctor a Dropbox link,

which the government asserted contained child

pornography. Proctor later sent three more Dropbox links to

Randall, presumably also containing child pornography. In

return, Proctor repeatedly asked Randall to “[s]end more.”

After some back and forth, Randall eventually sent Proctor

another Dropbox link containing child pornography.

After identifying Randall in December 2017, detectives

executed a search warrant on his home. Randall waived his

Miranda rights and agreed to speak with the investigators.

Randall admitted to trading child pornography on his Kik

account. He expressed remorse and stated that he knew his

actions were wrong.

8 UNITED STATES V. RANDALL

In January 2018, detectives received information from

Randall’s Dropbox account. The account contained

92 videos and 24 images of child pornography. Between

Randall’s own Dropbox account and the link sent to him by

Proctor, Randall had 364 videos of child pornography and

75 images involving the sexual exploitation of children.

In August 2018, Las Vegas detectives arrested Randall

on state charges. A federal criminal complaint was then filed

against him in September 2018, and he was arraigned in

federal court. Without a plea agreement, Randall pleaded

guilty to one count of receipt of child pornography and one

count of distribution of child pornography, both in violation

of 18 U.S.C. § 2252A(a)(2), (b).

At sentencing, the district court determined that Randall

had a total offense level of 37, with a Sentencing Guidelines

range of 210 to 262 months. The statutory maximum term

of imprisonment for each of Randall’s offenses was

240 months. In calculating Randall’s offense level, the

district court applied a five-level enhancement for the

exchange of child pornography for valuable consideration.

See U.S.S.G. § 2G2.2(b)(3)(B). The district court sentenced

Randall to 96 months’ imprisonment and a lifetime term of

supervised release. Under the Justice for Victims of

Trafficking Act, the district court also imposed a $5,000 fine

on each of Randall’s two offenses—for a total of $10,000.

Randall now appeals his sentence and fine. We review a

district court’s interpretation of the Guidelines de novo, its

application of the Guidelines to the facts of the case for abuse

of discretion, and its factual findings for clear error. United

States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019). We

review a district court’s interpretation of a statute de novo.

United States v. Harris, 983 F.3d 1125, 1126 (9th Cir. 2020).

UNITED STATES V. RANDALL 9

II.

We confront two important questions in this case:

(1) whether a defendant must receive “valuable

consideration” to be eligible for the five-level enhancement

under U.S.S.G. § 2G2.2(b)(3)(B); and (2) whether

assessments under the Justice for Victims of Trafficking Act,

18 U.S.C. § 3014(a), should be imposed on a per-count or a

per-defendant basis. We answer the first question in the

negative—the defendant need not actually receive the

“valuable consideration” to receive the § 2G2.2(b)(3)(B)

enhancement. As to the second question, we conclude that

§ 3014(a) mandates a $5,000 assessment for each of a

defendant’s counts of conviction—not a single assessment

per defendant in the case.

A The Valuable Consideration Enhancement

We first turn to the valuable consideration enhancement

under § 2G2.2(b)(3)(B). Randall challenges two aspects of

the district court’s application of the valuable consideration

enhancement—first on legal and second on factual grounds.

We disagree with Randall on both.

1.

As amended in 2016, § 2G2.2(b)(3)(B) provides for a

five-level enhancement when a defendant exchanges child

pornography for “valuable consideration.” U.S.S.G.

§ 2G2.2(b)(3)(B). “Valuable consideration” refers to the

exchange of “something of valu[e],” such as “other child

pornographic material, preferential access to child

pornographic material, or access to a child.” U.S.S.G.

§ 2G2.2 cmt. n.1. As the Sentencing Commission explained,

the enhancement accounts for the “higher level of

culpability” when a defendant has a “specific purpose” to

10 UNITED STATES V. RANDALL

distribute child pornographic material to another person in

“exchange for valuable consideration.” U.S.S.G. Supp. to

App. C at 136–37. Without the exchange for “valuable

consideration,” unless another enumerated enhancement

applies, offenses involving only distribution generally lead

to a two-level increase. U.S.S.G. § 2G2.2(b)(3)(F).

Here, the parties disagree about whether the

§ 2G2.2(b)(3)(B) enhancement requires the completion of

the exchange for “valuable consideration.” Randall asserts

that a defendant must actually receive the “valuable

consideration” for the enhancement to apply. But the

government contends that a defendant must only complete

his end of the bargain; it is unnecessary for the defendant to

receive valuable consideration. As we note below, Randall

could not prevail even if receipt of valuable consideration

were required; Randall did, in fact, receive valuable

consideration in the form of child pornography. But because

the legal question is squarely presented here, and because

there is value in providing clarity on the scope of criminal

law and punishment, we proceed to address whether Randall

must have received valuable consideration in order for the

§ 2G2.2(b)(3)(B) enhancement to be imposed.

To resolve the parties’ competing interpretations, we

turn to the Guideline’s text and any accompanying

Application Notes. See United States v. Prien-Pinto,

917 F.3d 1155, 1157 (9th Cir. 2019) (observing that

Application Notes are the “authoritative” interpretation and

explanation of the Guidelines, unless they are “inconsistent

with, or a plainly erroneous reading of,” the Guidelines

(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)).

Section 2G2.2(b)(3)(B) provides that “[i]f the defendant

distributed [child pornography] in exchange for any valuable

consideration, but not for pecuniary gain, increase

UNITED STATES V. RANDALL 11

by 5 levels.” Application Note 1 to § 2G2.2 further explains

that the phrase “‘[t]he defendant distributed in exchange for

any valuable consideration’ means the defendant agreed to

an exchange with another person under which the defendant

knowingly distributed to that other person for the specific

purpose of obtaining something of valuable consideration

from that other person[.]” U.S.S.G. § 2G2.2 cmt. n.1.

Based on the text of the Guideline and commentary,

§ 2G2.2(b)(3)(B) has three elements: (1) the defendant

agreed to an exchange with another person; (2) the defendant

knowingly distributed child pornography to the other person;

and (3) the defendant’s distribution was for the specific

purpose of obtaining something of valuable consideration

from the other person.

But we can’t find a requirement that the defendant must

also receive the valuable consideration from the other

person. Look at the text. An “exchange” means the

“action,” “act,” or “process” of “reciprocal giving and

receiving.” Oxford English Dictionary Online. An

“exchange” then involves two actions—giving and

receiving—that can occur in either order. So a defendant can

distribute pornographic material in “exchange” for valuable

consideration by sending first or receiving first—the

sequence doesn’t matter.

For example, a defendant can send pornography after

receiving pornography from another person or can send the

pornography in expectation of receiving pornography from

the other person. In both cases, the defendant has acted as

part of an exchange or trade for pornography. And nothing

in the text of the Guideline or the Application Note requires

the completion of the two-step process of giving and

receiving. Indeed, the commentary focuses on the

defendant’s agreement to the exchange and the defendant’s

12 UNITED STATES V. RANDALL

completion of his part of the bargain (distributing the child

pornography)—not the completion of the transaction. See

U.S.S.G. § 2G2.2 cmt. n.1. So whether the defendant

ultimately receives the valuable consideration in return is

immaterial.

With that interpretation, we align ourselves with the

Sixth Circuit. It too rejected a requirement that the

“defendant actually receive the thing of value” for the

§ 2G2.2(b)(3)(B) enhancement to apply. See Oliver,

919 F.3d at 403–04. The Sixth Circuit looked to the

Guideline’s text and held that “the plain language of the

enhancement and application Note fail to support such an

element.” Id. It also viewed such a requirement as

hamstringing law enforcement because undercover officers

cannot comply with a defendant’s request to send child

pornography. Id. Randall criticizes this rationale. In his

view, cases involving undercover law enforcement officers

should warrant a lesser enhancement. Contrary to Randall’s

view, however, the Guideline’s commentary makes clear

that the critical factors are the defendant’s state of mind and

actions—not the other person’s state of mind, actions, or

status as an undercover police officer.

To be sure, the Fifth Circuit has potentially adopted the

position that Randall now takes. See Halverson, 897 F.3d at

652. In describing the “test” for the valuable consideration

enhancement, the Fifth Circuit held that a court must find

that “the valuable consideration came from th[e] person”

with whom the defendant agreed to an exchange. Id. The

Fifth Circuit purportedly derived this element from the

Application Note. Id. But for the reasons stated above, we

think the better textual argument is that § 2G2.2(b)(3)(B)

requires no such element.

UNITED STATES V. RANDALL 13

Randall lastly points to the pre-2016 Guidelines to show

that § 2G2.2(b)(3)(B) requires a defendant to receive

valuable consideration. Before 2016, § 2G2.2(b)(3)(B)

stated, “Distribution for the receipt, or expectation of

receipt, of a thing of value, but not for pecuniary gain,

increase by 5 levels.” U.S.S.G. § 2G2.2(b)(3)(B) (2015)

(emphasis added). Randall contends that, since the

Guideline now excludes the phrase “expectation of receipt,”

anticipation of receiving pornography and the like is not

enough; the trade must be consummated. The Commission,

however, stated that the amendment to § 2G2.2(b)(3)(B) was

meant to clarify the “mental state required for distribution.”

U.S.S.G. Supp. to App. C at 137. So according to the

Commission, the amendment focused on the defendant’s

state of mind, not whether the transaction was completed.

Id. Without further textual evidence, we will not read a new

element into § 2G2.2(b)(3)(B) based on pre-2016

considerations.

We thus join the Sixth Circuit in rejecting the

requirement that a defendant receive valuable consideration

in return for distributing child pornography for

§ 2G2.2(b)(3)(B) to apply.

2.

Randall next argues, regardless of the legal

interpretation, that § 2G2.2(b)(3)(B) doesn’t apply to the

facts of his case. We disagree. That’s because the Kik

thread between Randall and Proctor readily supports

application of § 2G2.2(b)(3)(B). To recap, the elements of

§ 2G2.2(b)(3)(B) are: (1) the defendant agreed to an

exchange with another person; (2) the defendant knowingly

distributed child pornography to the other person; and (3) the

defendant’s distribution was for the specific purpose of

14 UNITED STATES V. RANDALL

obtaining something of valuable consideration from the

other person.

First, Randall and Proctor agreed to an exchange for

valuable consideration. Proctor initially asked to join the

Kik group and Randall responded, “send to join”—meaning

send child pornography to be added to the group. In

response, Proctor sent a link containing child pornography.

Proctor then asked, “Do you trade back[?]”—inviting

Randall to trade pornographic material with him. Randall

agreed to barter by replying, “I trade back,” and by sending

a Dropbox link containing child pornography. Later on,

Proctor asked Randall, “Have any more or younger[?]”

Randall eventually responded by sending another link of

child pornography. This conversation easily satisfies the

first element of § 2G2.2(b)(3)(B).

Second, Randall distributed child pornography to

Proctor. Two times during the Kik conversation, Randall

sent Proctor a Dropbox link, which the government

contended contained child pornography. From the context

of the conversation, Randall meant to send child

pornography in the Dropbox links. Randall sent the first

Dropbox link after Proctor sent him child pornography and

agreed to “trade back.” Randall then sent the second

Dropbox link after Proctor sent him three more links of child

pornography and implored him to “[s]end when you can[.]” 2

On appeal, Randall doesn’t seriously contest that he sent

2

Because Randall received pornographic material from Proctor in

return for sending child pornography, the valuable consideration

enhancement would apply even under the test articulated by the Fifth

Circuit in Halverson.

UNITED STATES V. RANDALL 15

child pornography during the conversation; so the second

element of § 2G2.2(b)(3)(B) is satisfied.

Finally, Randall acted with the specific purpose of

obtaining valuable consideration in return for sending the

child pornography to Proctor. As the conversation above

establishes, Randall expected to (and did) receive

pornographic material from Proctor in exchange for sending

him child pornography. To the extent Randall argues that

the district court failed to make sufficient findings to support

this element, we disagree. The district court stated that

Randall was “trading” images of child pornography.

Moreover, at sentencing, the government explained that the

Kik messages showed that “Randall was trading child

pornography for child pornography.” The government also

stated that the chat established that Randall was telling

Proctor to “send child pornography to get in [the group]” and

that they then “discussed trading child pornography.” The

government contended that this was sufficient to show

“intent there[.]” The district court agreed and overruled the

defense’s objection to the enhancement. We thus see no

abuse of discretion and affirm the district court’s application

of the five-level enhancement under § 2G2.2(b)(3)(B).

B. The Justice for Victims of Trafficking Act

We next discuss whether the Justice for Victims of

Trafficking Act, 18 U.S.C. § 3014(a), mandates an

assessment on a per-count or per-offender basis. The district

court imposed a $5,000 special assessment under § 3014(a)

for each of Randall’s two convictions—totaling $10,000.

Randall argues that the Act permits only one $5,000

assessment per defendant per case—no matter the number of

qualifying convictions. The government instead argues that

the statute authorizes a $5,000 assessment for each eligible

conviction. As mentioned, our sister courts are divided on

16 UNITED STATES V. RANDALL

the issue. The Third Circuit agrees with the government, see

United States v. Johnman, 948 F.3d 612, 616–20 (3d Cir.

2020), while the Second Circuit concurs with Randall, see

United States v. Haverkamp, 958 F.3d 145, 149 (2d Cir.

2020). Based on the text and the relevant statutory scheme,

we hold that § 3014(a) requires an assessment of $5,000 for

each qualifying conviction.

As always, we begin with the text. See United States v.

Herrera, 974 F.3d 1040, 1047 (9th Cir. 2020). The Act

provides:

(a) In General.—Beginning on the date of

enactment of the Justice for Victims of

Trafficking Act of 2015 and ending on

September 11, 2022, in addition to the

assessment imposed under section 3013, the

court shall assess an amount of $5,000 on any

non-indigent person or entity convicted of an

offense under—

(1) chapter 77 (relating to peonage,

slavery, and trafficking in persons);

(2) chapter 109A (relating to sexual

abuse);

(3) chapter 110 (relating to sexual

exploitation and other abuse of children);

(4) chapter 117 (relating to transportation

for illegal sexual activity and related

crimes); or

UNITED STATES V. RANDALL 17

(5) section 274 of the Immigration and

Nationality Act (8 U.S.C. 1324) (relating

to human smuggling) . . . .

18 U.S.C. § 3014(a). Put simply, § 3014(a) requires that

courts: “(1) assess (2) an amount of $5,000 (3) on any non-

exempt person or entity (4) convicted of an offense (5) under

certain enumerated chapters of the criminal code.”

Johnman, 948 F.3d at 617.

The key issue here is how to interpret “convicted of an

offense.” Does it mean a $5,000 assessment for each time

the person is “convicted of [a discrete enumerated] offense”?

If that’s the case, then Randall’s assessment of $10,000 was

proper since he was twice “convicted of an offense.” Or

does it mean a single $5,000 assessment when a person is

“convicted of [any one of the enumerated] offense[s]?” If

so, then Randall could be fined only $5,000 for his two child

pornography convictions.

Lucikly, we do not operate on a blank slate in unpacking

this tricky textual question. That’s because Congress

enacted the Justice for Victims of Trafficking Act against the

backdrop of the phrase’s settled meaning. As expressly

mentioned in the statute, § 3014(a) works in conjunction

with 18 U.S.C. § 3013. See 18 U.S.C. § 3014(a) (imposing

the special assessment “in addition to the assessment

imposed under [18 U.S.C.] section 3013”). Section 3013, in

turn, provides:

(a) The court shall assess on any person

convicted of an offense against the United

States—

(1) in the case of an infraction or a

misdemeanor—

18 UNITED STATES V. RANDALL

(A) if the defendant is an individual—

[an amount ranging from $5 to $25]

...

(2) in the case of a felony—

(A) the amount of $100 if the

defendant is an individual[.]

18 U.S.C. § 3013(a).

As you can see, the special assessments in both § 3013(a)

and § 3014(a) apply to any person “convicted of an offense.”

And that wasn’t accidental. By way of background,

Congress enacted § 3013 in 1984 to fund the Crime Victims

Fund. See Victims of Crime Act of 1984, Pub. L. No. 98-

473, §§ 1402, 1405(a) (1984). The Crime Victims Fund

provides, among other things, funding resources to programs

supporting crime victims. 34 U.S.C. § 20101. In 2015,

Congress established a similar Domestic Trafficking

Victims’ Fund to provide financial support to victims of

human trafficking and child exploitation. Justice for Victims

of Trafficking Act of 2015, Pub. L. No. 114-22, § 101

(2015). Congress simultaneously enacted the special

assessment in § 3014(a) to fund the Domestic Trafficking

Victims’ Fund. 18 U.S.C. § 3014(c), (e), (h). In sum, § 3014

is closely related to § 3013 in terms of text, purpose, and

statutory structure.

How courts have interpreted the phrase “convicted of an

offense” under § 3013 provides important guidance. That’s

because when a phrase is “obviously transplanted from

another legal source,” such as other legislation, “it brings the

old soil with it.” Sekhar v. United States, 570 U.S. 729, 733

UNITED STATES V. RANDALL 19

(2013) (quoting Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). In

other words, when Congress adopts a phrase with a settled

judicial interpretation, absent some indication to the

contrary, we presume that Congress chose to give the phrase

its established meaning. Shirk v. U.S. ex rel. Dep’t of

Interior, 773 F.3d 999, 1004 (9th Cir. 2014); see also United

States v. Prasad, 18 F.4th 313, 322–23 (9th Cir. 2021)

(observing that the “prior construction canon” applies “to

interpretations of the same wording in related statutes”).

In this case, we have buckets of “soil” to help us give

meaning to the phrase “convicted of an offense.” Every

circuit court has interpreted § 3013’s assessment on a person

“convicted of an offense” to apply separately to each count

of conviction rather than to each offender. See United States

v. Pagan, 785 F.2d 378, 381 (2d Cir. 1986); United States v.

Donaldson, 797 F.2d 125, 128 (3d Cir. 1986); United States

v. Dobbins, 807 F.2d 130, 132 (8th Cir. 1986); United States

v. Smith, 857 F.2d 682, 686 (10th Cir. 1988); United States

v. Nguyen, 916 F.2d 1016, 1020 (5th Cir. 1990); United

States v. McGuire, 909 F.2d 440, 441–42 (11th Cir. 1990)

(per curiam); United States v. Luongo, 11 F.3d 7, 10 (1st Cir.

1993).

Most significantly, the Supreme Court formally settled

the question in Rutledge v. United States, 517 U.S. 292

(1996). In that case, the Court held that “[Section] 3013

requires a federal district court to impose a [then-]$50

special assessment for every conviction.” Id. at 301

(emphasis added). The Court further blessed an assessment

on “both convictions” in the case and held that § 3013

“required” it. Id. at 301–02. So under § 3013, the Court

said, “a second conviction will amount to a second

punishment.” Id.

20 UNITED STATES V. RANDALL

We think the fact that the meaning of § 3013’s text is

settled is not just persuasive, it’s all but conclusive.

Congress sought to accomplish similar goals in enacting

§ 3013 and § 3014; it created a statutory framework where

the two provisions work together and employed nearly

identical language for the two. By doing so, Congress

endorsed the long-settled interpretation of § 3013’s

“convicted of an offense” phrase.

Even without the prior construction canon, the ordinary

meaning of § 3014’s “convicted of an offense” supports a

separate assessment per conviction. In another federal

statute, we’ve accepted that “offense” means a “discrete

criminal violation.” Miranda v. Anchondo, 684 F.3d 844,

851 (9th Cir. 2012); see also Johnman, 948 F.3d at 617

(reaching a similar meaning for “offense” through dictionary

definitions).

The phrasing “an offense” is also significant. Its singular

construction tells us that each “offense” requires a separate

assessment. See Luongo, 11 F.3d at 10 (“[B]ecause the

statute is phrased in the singular, its terms imply that each

offense . . . calls for a separate special assessment, even

when a single defendant is simultaneously convicted of

multiple charges.”); see also Villavicencio-Rojas v. Lynch,

811 F.3d 1216, 1220 (9th Cir. 2016) (Berzon, J., concurring)

(interpreting “an offense” in the context of another statute to

refer to “each offense of the kind covered”).

We also agree that “convicted” is “normally understood

[a]s an offense-specific term.” Johnman, 948 F.3d at 617

(explaining that “convicted” is the past participle of

“convict,” which means “to find or declare guilty of an

offense or crime” or “to find (a person) guilty of a criminal

offense” under dictionary definitions).

UNITED STATES V. RANDALL 21

So taken together, “convicted of an offense” is best read

as applying to each separate conviction for a statutory

violation. We are also persuaded by the Third Circuit’s

reasoning that “it is illogical to read § 3014’s application to

depend not upon the number of offenses of which [the

defendant] was convicted, but on the happenstance of

whether she was tried for those offenses in one or more

proceedings.” Id. at 619 (simplified).

We acknowledge that the Second Circuit reached the

opposite conclusion. That circuit held that “[a]s a matter of

grammar and common understanding, ‘an amount’ on any

person convicted means the amount is assessed one time.”

Haverkamp, 958 F.3d at 149. While we agree that the

$5,000 amount is “assessed one time,” that doesn’t answer

whether it is one time per defendant or per count.

The Second Circuit also relied on post-enactment

legislative history—specifically, a single statement from the

lead House sponsor of the Justice for Victims of Trafficking

Act on the two-year anniversary of its passage. Id. at 150

(quoting 163 Cong. Rec. H4564 (daily ed. May 24, 2017)

(statement of Rep. Poe)). But we side with most judges that

find “[p]ost-enactment legislative history (a contradiction in

terms)” a questionable tool of statutory interpretation.

Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011).

Finally, the Second Circuit focused on differences

between § 3013 and § 3014 to conclude that the two

provisions should be interpreted differently:

• § 3013 imposes a varying assessment

amount based on the severity of the

offense (e.g., infraction, misdemeanor, or

felony), while § 3014 requires only a

22 UNITED STATES V. RANDALL

“single assessment” of $5,000 for

conviction of an eligible offense;

• § 3013 provides for a “nominal” amount

(ranging from $5 to $100), while

§ 3014’s assessment is $5,000; and

• § 3013 does not include an indigency

exception, while § 3014 does.

Haverkamp, 958 F.3d at 149–50 & n.3. The Second Circuit

considered these differences “too pronounced” to interpret

the two statutes in “lockstep.” Id. at 150 n.3. But none of

these distinctions are significant enough to overcome the

plain and settled meaning of “convicted of an offense.” That

Congress sought to create an assessment program for all

victims of federal crimes with more “nominal” amounts is

not inconsistent with Congress also seeking to create a

similar scheme focused on victims of trafficking and child

exploitation with a heftier amount. 3

3

We therefore respectfully disagree with our dissenting colleague,

who finds the Second Circuit’s approach more persuasive. The dissent

makes one additional point that the Second Circuit does not appear to

have advanced: that the durational provision in § 3014(g) refers to “an

assessment” and “the assessment” in the singular, whereas the durational

provision in § 3013(c) refers to “all assessments” in the plural. Dissent

at 29. The dissent reasons that “[i]f Congress intended multiple

assessments for multiple counts, it would have used the plural

‘assessments’” in § 3014. Dissent at 29. But § 3014(a) itself refers to

“the assessment imposed under section 3013,” using the singular to the

describe “the assessment” that we know is imposed per count of

conviction. Rutledge, 517 U.S. at 301. And § 3013(c) earlier refers to

“an assessment.” The dissent thus reads too much into Congress’s use

of the words “assessment” and “assessments.”

UNITED STATES V. RANDALL 23

So, considering the text and relevant statutory scheme,

we conclude that Congress intended that assessments under

§ 3014 be imposed on a per-count basis. Section 3014

requires a $5,000 assessment for each of a defendant’s

eligible convictions. The district court thus properly

imposed a $10,000 assessment for Randall’s two counts of

conviction. 4

III.

The district court did not err in applying the five-level

sentence enhancement under U.S.S.G. § 2G2.2(b)(3)(B) or

in assessing a fine of $5,000 for each of Randall’s two counts

of conviction under 18 U.S.C. § 3014(a).

AFFIRMED.

WARDLAW, Circuit Judge, dissenting in part:

The Justice for Victims of Trafficking Act of 2015

(JVTA) provides that “the court shall assess an amount of

$5,000 on any non-indigent person or entity” convicted of

certain federal sexual offenses. 18 U.S.C. § 3014(a)

(emphasis added). The majority interprets this fine to apply

4

Randall asks us to apply the rule of lenity in rendering our

interpretations of U.S.S.G. § 2G2.2(b)(3)(B) and 18 U.S.C. § 3014. But

the rule of lenity is a tool of last resort—“only [to be] applie[d] where

there is grievous ambiguity or uncertainty[.]” United States v. D.M.,

869 F.3d 1133, 1144 (9th Cir. 2017). Such an ambiguity does not exist

“merely because there is a division of judicial authority over [a statute’s]

proper construction.” Reno v. Koray, 515 U.S. 50, 64–65 (1995)

(simplified). As the above shows, after consulting the traditional tools

of interpretation, we see no grievous ambiguity and so the rule of lenity

has no place here.

24 UNITED STATES V. RANDALL

on a per-count basis, based on its reading of an earlier

enacted, entirely different, statute that plainly assesses fines

for each count of conviction, 18 U.S.C. § 3013. But § 3014

was written to impose an additional amount of $5,000 on top

of the fines assessed under § 3013 for offenders convicted of

sexual exploitation and trafficking, particularly of children,

and differs markedly from § 3013 in both text and structure;

differences we can’t ignore when interpreting the meaning

of § 3014. Recognizing the existing circuit split on this

question, the majority chooses to follow the Third Circuit’s

approach in United States v. Johnman, 948 F.3d 612 (3d Cir.

2020), and holds that § 3014 applies on a per-count basis like

§ 3013. However, the Second Circuit in United States v.

Haverkamp, 958 F.3d 145 (2d Cir. 2020), explains how

thoroughly flawed that reading is and concludes that § 3014

applies on a per-offender basis. I think the Second Circuit

has the better side of this split, so I respectfully dissent from

that portion of the majority opinion.

We begin with the text of § 3014. See Flo & Eddie, Inc.

v. Sirius XM Radio, Inc., 9 F.4th 1167, 1172 (9th Cir. 2021).

“We interpret statutory terms in accordance with their

ordinary meaning, unless the statute clearly expresses an

intention to the contrary.” United States v. Neal, 776 F.3d

645, 652 (9th Cir. 2015) (citation omitted). And we

“interpret the statute as a whole, giving effect to each word

and making every effort not to interpret a provision in a

manner that renders other provisions of the same statute

inconsistent, meaningless or superfluous.” Id. (international

quotations and citation omitted). Section 3014 provides:

(a) In general. – Beginning on the date of

enactment of the Justice for Victims of

Trafficking Act of 2015 and ending on

September 11, 2022, in addition to the

UNITED STATES V. RANDALL 25

assessment imposed under section 3013,

the court shall assess an amount of $5,000

on any non-indigent person or entity

convicted of an offense under—

(1) chapter 77 (relating to peonage,

slavery, and trafficking in persons);

(2) chapter 109A (relating to sexual

abuse);

(3) chapter 110 (relating to sexual

exploitation and other abuse of

children);

(4) chapter 117 (relating to transportation

for illegal sexual activity and related

crimes); or

(5) section 274 of the Immigration and

Nationality Act (8 U.S.C. § 1324)

(relating to human smuggling), unless

the person induced, assisted, abetted,

or aided only an individual who at the

time of such action was the alien’s

spouse, parent, son, or daughter (and

no other individual) to enter the

United States in violation of law.

18 U.S.C. § 3014(a).

The plain text of the statute directs the district court to

“assess an amount of $5,000 on any non-indigent person or

entity convicted of [a qualifying] offense . . . .” As the

Second Circuit explained, “[a]s a matter of grammar and

26 UNITED STATES V. RANDALL

common understanding ‘an amount’ on any person

convicted means the amount is assessed one time.”

Haverkamp, 958 F.3d at 149. When, as here, “amount” is

followed by “of” and a numerical value, that numerical

value, in this case $5,000, represents a “precise sum, total,

or quantity amounting to the specified figure.” Amount,

Oxford English Dictionary Online,

https://tinyurl.com/3jjhrkd9 (last visited May 10, 2022).

Congress could have included language that assessed an

amount of $5,000 for each qualifying count of conviction,

but it chose not to do so. In other words, “the text of § 3014,

taken as a whole and in its context, is straightforwardly

meant to be applied on a per-offender, not a per-count,

basis.” Haverkamp, 958 F.3d at 149. This should be the end

of the matter.

In holding that § 3014 applies on a per-count basis, the

majority adopts the Third Circuit’s analysis in Johnman,

948 F.3d 612. Maj. Op. at 15–23. The Third Circuit in

Johnman locked on to the phrase “convicted of an offense,”

Johnman, 948 F.3d at 616–20, and determined that, “how

many assessments a court must impose turns on the meaning

of the phrase ‘convicted of an offense.’” Id. at 617. But both

the Third Circuit and the majority go astray by laser-

focusing on a phrase that is not determinative of the key

issue: whether the district court should impose the additional

assessment. Rather, whether the court should impose the

assessment turns on the nature of the offense—not the

number of offenses of conviction. If one offense is a

qualifying offense under the statute, the defendant is subject

to the $5,000 assessment. Therefore, delving into the

meaning of the phrase “convicted of an offense” sheds no

light on whether Congress intended the assessment to apply

on a per-count or per-offender basis. See United States v.

Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995) (“Particular

UNITED STATES V. RANDALL 27

phrases must be construed in light of the overall purpose and

structure of the whole statutory scheme.”) (citation omitted).

It is no real surprise that the meaning of “convicted of an

offense” in § 3013 is well-settled. See Rutledge v. United

States, 517 U.S. 292, 301 (1996). After all, § 3013 was

enacted some twenty-five years before Congress enacted the

JVTA and § 3014. But the majority’s determination that the

settled interpretation of § 3013 is “all but conclusive” as to

§ 3014’s application is incorrect. Maj. Op. at 20.

Congress’s choice to enact separate statutes with significant

structural differences demonstrates that, in fact, the exact

opposite is true. Section 3013 reads:

(a) The court shall assess on any person

convicted of an offense against the

United States—

(1) in the case of an infraction or a

misdemeanor—

(A) if the defendant is an individual—

(i) the amount of $5 in the

case of an infraction or a

class C misdemeanor;

(ii) the amount of $10 in the

case of a class B

misdemeanor; and

(iii) the amount of $25 in the

case of a class A

misdemeanor; and

28 UNITED STATES V. RANDALL

(B) if the defendant is a person other

than an individual—

(i) the amount of $25 in the

case of an infraction or a

class C misdemeanor;

(ii) the amount of $50 in the

case of a class B

misdemeanor; and

(iii) the amount of $125 in the

case of a class A

misdemeanor;

(2) in the case of a felony—

(A) the amount of $100 if the

defendant is an individual; and

(B) the amount of $400 if the

defendant is a person other than

an individual.

18 U.S.C. § 3013. “Comparing § 3014 to § 3013 reinforces

our conclusion that when Congress intended multiple

amounts to be assessed rather than ‘an amount’ it knew how

to do so.” Haverkamp, 958 F.3d at 149. By contrast to

§ 3014, Congress directed the courts in applying § 3013 to

impose varying amounts of assessments dependent on the

grade or classification of the specific offenses of which the

defendant is convicted. As the Second Circuit explained,

“Section 3013 specifically ties the amount of the special

assessment to the classification of the offense of conviction,

and therefore plainly authorizes multiple assessments where

UNITED STATES V. RANDALL 29

there are multiple counts of conviction.” Id. at 150.

Moreover, the special assessments in § 3013 range from $5

to $400 based on the classification of the offense as an

infraction, specific class of misdemeanor, or felony. By

contrast, § 3014 “authorizes a single assessment: $5,000 if a

defendant is convicted of an eligible offense. The

classification of the offense and the number of offenses is

not relevant to the assessment.” Id. Had Congress intended

the additional $5,000 assessment to apply on a per-count

basis, it could have simply amended § 3013 to include the

assessment there. Congress’s choice not to do so, and to

instead enact § 3014, setting forth a distinct textual structure,

is telling. See Univ. of Texas Sw. Med. Ctr. V. Nassar,

570 U.S. 338, 353 (2013) (“Just as Congress’ choice of

words is presumed to be deliberate, so too are its structural

choices.”) (citation omitted).

Comparing the duration sections of the two statutes

further supports a per-offender reading of § 3014. Section

3013(c) explains that “[t]he obligation to pay an assessment

ceases five years after the date of the judgment. This

subsection shall apply to all assessments irrespective of the

date of imposition.” (emphasis added). Congress used the

plural “all assessments” in § 3013, signaling its intent that

courts impose the assessments for each qualifying offense.

By contrast, Section 3014(g) provides that “the obligation to

pay an assessment imposed on or after the date of enactment

of the Justice for Victims of Trafficking Act of 2015 shall

not cease until the assessment is paid in full.” (emphasis

added). If Congress intended multiple assessments for

multiple counts, it would have used the plural “assessments”

here as well. That it did not do so further supports the

conclusion that the $5,000 assessment in § 3014 is applied

per-offender.

30 UNITED STATES V. RANDALL

This reading is also supported by the statement of

Representative Poe, the lead House sponsor of the JVTA, on

the two-year anniversary of the JVTA’s passage. He

confirmed that the Act “allows a federal judge to impose an

additional assessment of up to $5,000.” 163 Cong. Rec.

H4564 (daily ed. May 24, 2017) (statement of Rep. Poe). As

the Second Circuit explained, “[w]hile not conclusive in

itself, this remark lends further support to our conclusion that

the special assessment in § 3014 applies on a per-offender

basis.” Haverkamp, 958 F.3d at 150.

I agree with the Second Circuit’s criticism of the Third

Circuit’s conclusion in Johnman that § 3014 should be read

“lockstep” with § 3013 and interpreted the same way. The

two statutes are significantly different in both text and

structure. As the Second Circuit reasoned,

Section 3013 is a reticulated provision that

calibrates assessments according to the

severity of the offense(s)—from infractions

to felonies and then sub-classifies them

according to the class of misdemeanors. The

assessment of § 3014 is far larger (one

hundred to one thousand times greater) than

the assessments provided for in § 3013.

Section 3013 does not contain an indigency

exception, whereas § 3014 does. Most

importantly, the provision, “an amount,” that

underpins § 3014 differs sharply from

§ 3013, which specifies “the amount” for

each discrete category of offense. We believe

that these differences are too pronounced to

justify Johnman’s “lockstep’” approach.”

Id. at 150 n.3.

UNITED STATES V. RANDALL 31

For these reasons, I would reverse the district court on

the JVTA assessment, vacate the $10,000 assessment, and

remand with instructions to impose a $5,000 assessment.