United States v. Daniel Scott Crow

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 1 of 10

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14267

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL SCOTT CROW,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:22-cr-14035-JEM-1

____________________

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 2 of 10

2 Opinion of the Court 22-14267

Before ROSENBAUM, JILL PRYOR, and BLACK, Circuit Judges.

PER CURIAM:

Daniel Crow appeals his sentence of 360 months’ imprison-

ment for enticement of a minor to engage in sexual activity and

production of child pornography. Crow asserts several issues on

appeal, which we address in turn. After review, 1 we affirm in part,

and vacate and remand for resentencing in part.

I. DISCUSSION

A. Grouping of Counts

Crow contends the district court erred in failing to group his

counts together when calculating his guideline range, because his

counts involved substantially the same harm under U.S.S.G.

§ 3D1.2. The Government concedes error on this issue.

Offenses “shall be grouped” for guideline offense level calcu-

lation purposes when they “involve substantially the same harm.”

U.S.S.G. § 3D1.2. The Guidelines list four circumstances where

counts involve “substantially the same harm”:

1 When reviewing the district court’s findings with respect to Guidelines is-

sues, we consider legal issues de novo, factual findings for clear error, and the

court’s application of the Guidelines to the facts with due deference, which is

akin to clear error review. United States v. Rothenberg, 610 F.3d 621, 624 (11th

Cir. 2010). In order to be clearly erroneous, the finding of the district court

must leave us with a “definite and firm conviction that a mistake has been

committed.” Id. (quotation marks omitted).

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 3 of 10

22-14267 Opinion of the Court 3

(a) When counts involve the same victim and the

same act or transaction.

(b) When counts involve the same victim and two or

more acts or transactions connected by a common

criminal objective or constituting part of a common

scheme or plan.

(c) When one of the counts embodies conduct that is

treated as a specific offense characteristic in, or other

adjustment to, the guideline applicable to another of

the counts.

(d) When the offense level is determined largely on

the basis of the total amount of harm or loss, the

quantity of a substance involved, or some other meas-

ure of aggregate harm, or if the offense behavior is

ongoing or continuous in nature and the offense

guideline is written to cover such behavior.

Id. Subsection (d) specifically precludes the grouping of a “produc-

tion of child pornography” offense under that subsection. Id.

However, offenses need only meet the criteria of one subsection of

§ 3D1.2 to qualify for grouping as “substantially the same harm.”

See id. § 3D1.2(d) (“Exclusion of an offense from grouping under

this subsection does not necessarily preclude grouping under an-

other subsection”).

The district court erred in failing to group Crow’s counts.

See United States v. Nagel, 835 F.3d 1371, 1374 (11th Cir. 2016) (re-

viewing the district court’s decisions regarding grouping de novo).

The conduct embodying Crow’s enticement offense was used to

apply a specific offense characteristic enhancement to his

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 4 of 10

4 Opinion of the Court 22-14267

production offense. Namely, Crow’s production of child pornog-

raphy “involved the use of a computer [to] persuade, induce, en-

tice, coerce, or facilitate the travel of, a minor to engage in sexually

explicit conduct, or to otherwise solicit participation by a minor in

such conduct.” This enhancement placed Crow’s counts squarely

within § 3D1.2(c), which requires grouping “[w]hen one of the

counts embodies conduct that is treated as a specific offense char-

acteristic in . . . another of the counts.” U.S.S.G. § 3D1.2(c). Thus,

the court erred in failing to group Crow’s offenses, and we vacate

and remand for resentencing as to this issue.

B. Pattern of Activity Enhancement

Crow asserts the court erred in applying a five-level enhance-

ment for a “pattern of activity involving prohibited sexual con-

duct” under U.S.S.G. § 4B1.5, because the court sustained the pat-

tern enhancement on facts that were not sufficiently proven at the

sentencing hearing.

Under § 4B1.5, the district court applies a five-level enhance-

ment when the defendant engaged in a “pattern of activity involv-

ing prohibited sexual conduct.” U.S.S.G. § 4B1.5(b)(1). For pur-

poses of § 4B1.5, “prohibited sexual conduct” includes, among

other things, “any offense described in 18 U.S.C. § 2426(b)(1)(A) or

(B)” and “the production of child pornography.” U.S.S.G. § 4B1.5,

comment. (n.4(A)). 2 It does not include receipt or possession of

2Deferral to the Guidelines commentary is necessary only if the text of the

Guidelines is ambiguous. United States v. Dupree, 57 F.4th 1269, 1275-77 (11th

Cir. 2023) (en banc).

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 5 of 10

22-14267 Opinion of the Court 5

child pornography. Id. Section 2426(b)(1)(A) cross-references to

offenses contained in chapter 117, which includes enticement of a

minor under 18 U.S.C. § 2422(b). 18 U.S.C. § 2426(b)(1)(A).

A defendant engaged in a “pattern” under § 4B1.5 if he en-

gaged in such conduct “on at least two separate occasions.” Id.

§ 4B1.5, comment. (n.4(B)(i)). “[R]epeated prohibited sexual con-

duct with a single victim may qualify as a ‘pattern of activity’ for

purposes of § 4B1.5(b)(1).” United States v. Fox, 926 F.3d 1275, 1279

(11th Cir. 2019). But “separate occasions” requires events that are

“independent and distinguishable” from one another. Id. at 1280.

Noncontinuous instances of prohibited sexual conduct that occur

on different days constitute “separate occasions.” United States v.

Isaac, 987 F.3d 980, 994 (11th Cir. 2021).

The Government did not put forth “sufficient and reliable”

evidence at the sentencing hearing in support of any facts sustain-

ing the pattern enhancement. See United States v. Washington, 714

F.3d 1358, 1361 (11th Cir. 2013) (“When the government seeks to

apply an enhancement under the Sentencing Guidelines over a de-

fendant’s factual objection, it has the burden of introducing ‘suffi-

cient and reliable’ evidence to prove the necessary facts by a pre-

ponderance of the evidence.”). Because Crow made a factual ob-

jection to the enhancement, the record to be considered was lim-

ited to Crow’s factual proffer, which admitted to only a single sex-

ual encounter involving oral sex with Victim 1 on May 22, 2020.

The Government’s assertion of facts at the sentencing hearing be-

yond those contained in the factual proffer, absent additional

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 6 of 10

6 Opinion of the Court 22-14267

supporting evidence, could not be relied upon by the district court.

See id. (“[A]bsent a stipulation or agreement between the parties,

an attorney’s factual assertions at a sentencing hearing do not con-

stitute evidence that a district court can rely on.”). The district

court stated the support for the enhancement was provided “based

on what [Victim 1] said,” suggesting that it relied upon every state-

ment by or about Victim 1 contained in the PSI when imposing the

enhancement, despite Crow’s factual objections. The court relied

upon insufficiently proven evidence when it sustained Crow’s pat-

tern enhancement based upon the “separation in time of the vari-

ous relationships with Victim 1.”

However, the facts contained in Crow’s factual proffer are

sufficient to sustain his pattern enhancement. See United States v.

Gill, 864 F.3d 1279, 1280 (11th Cir. 2017) (explaining we may affirm

on any ground supported by the record, regardless of whether the

district court considered or relied upon that ground below). Crow

concedes in his factual proffer that he engaged in oral sex with Vic-

tim 1 on May 22, 2020, and that he produced child pornography

when he filmed that sexual encounter. He further concedes that at

unidentified points prior to his May 22 meeting with Victim 1,

Crow requested naked photos and videos from Victim 1 and made

plans with Victim 1 to meet and engage in sexual acts. Between his

requests for illicit images from Victim 1 and his formulation of

plans to meet up with Victim 1 for sex, Crow engaged in entice-

ment prohibited by 18 U.S.C. § 2422(b), which qualifies as “prohib-

ited sexual conduct” under the commentary to § 4B1.5. This con-

duct occurred on a different day than his production of child

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 7 of 10

22-14267 Opinion of the Court 7

pornography on May 22, constituting distinct, “separate occasions”

sufficient to establish a pattern under § 4B1.5. See Fox, 926 F.3d at

1279; Isaac, 987 F.3d at 994. Thus, while the district court sustained

Crow’s enhancement on insufficiently proven factual allegations,

the existing and undisputed record supports the enhancement on

alternative grounds. Thus, we affirm as to this issue.

C. Distribution Enhancement

Crow also argues the court erred in applying a two-level en-

hancement for “distribution” of child pornography under U.S.S.G.

§ 2G2.1(b)(3), because his sending of a video from his phone to

Victim 1’s phone did not constitute “distribution.”

The Sentencing Guidelines provide for a two-level enhance-

ment when a defendant “knowingly engaged in distribution” of

child pornography. U.S.S.G. § 2G2.1(b)(3). The commentary to the

Guidelines provides that:

“Distribution” means any act, including possession

with intent to distribute, production, transmission,

advertisement, and transportation, related to the

transfer of material involving the sexual exploitation

of a minor. Accordingly, distribution includes posting

material involving the sexual exploitation of a minor

on a website for public viewing but does not include

the mere solicitation of such material by a defendant.

Id. § 2G2.1, comment. (n.1(A)). We have stated “distribute” ordi-

narily means “to deliver, give out, dispense, or disperse to others.”

United States v. Grzybowicz, 747 F.3d 1296, 1307 (11th Cir. 2014)

(holding a defendant did not engage in a “distribution” of child

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 8 of 10

8 Opinion of the Court 22-14267

pornography under 18 U.S.C. § 2252A(a) when he sent four images

of child pornography from his cellphone to his personal email ac-

count, because the images were not transferred “to others”). More-

over, distribution impliedly involves “deliver[y] to someone other

than the person who does the delivering.” Id. at 1307-08.

The district court did not clearly err in imposing the distri-

bution enhancement under § 2G2.1. By airdropping a video from

his cell phone to Victim 1’s cell phone, Crow delivered, gave out,

dispersed, or dispensed that video to another. See id. at 1307. While

Crow asserts Victim 1, presumably by virtue of her inclusion in the

video, does not constitute another person to whom Crow could

“distribute” the video, Crow provides no argument or legal author-

ity as to why Victim 1 should not constitute an “other” for purposes

of determining whether he engaged in a distribution. Thus, be-

cause airdropping a video to another’s cell phone is a “deliver[y]”

to another, the court did not clearly err in applying a two-level en-

hancement for Crow’s distribution. Accordingly, we affirm as to

this issue.

D. Use of Computer Enhancement

Crow asserts the court erred in applying a two-level en-

hancement for “use of a computer” pursuant to U.S.S.G.

§ 2G2.1(b)(6)(B), because an iPhone is not a “computer” as in-

tended in the Guidelines.

Section 2G2.1 provides for a two-level enhancement when,

as part of a defendant’s production of child pornography, the of-

fense involved:

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 9 of 10

22-14267 Opinion of the Court 9

the use of a computer or an interactive computer ser-

vice to (i) persuade, induce, entice, coerce, or facili-

tate the travel of, a minor to engage in sexually ex-

plicit conduct, or to otherwise solicit participation by

a minor in such conduct; or (ii) solicit participation

with a minor in sexually explicit conduct . . . .

U.S.S.G. § 2G2.1(b)(6). The Guidelines Commentary cross-refer-

ences to 18 U.S.C. § 1030(e)(1), which defines “computer” as “an

electronic, magnetic, optical, electrochemical, or other high speed

data processing device performing logical, arithmetic, or storage

functions.” 18 U.S.C. § 1030(e)(1) (cited in U.S.S.G. § 2G2.1, com-

ment. (n.1)). We have previously held a defendant’s use of a cell

phone constitutes the use of a computer as defined by 18 U.S.C.

§ 1030(e)(1). United States v. Mathis, 767 F.3d 1264, 1283 (11th Cir.

2014), abrogated on other grounds by Lockhart v. United States, 577 U.S.

347 (2016)).

The court did not clearly err in applying a two-level enhance-

ment for “use of a computer.” Crow’s iPhone possessed much of

the functionality of a typical computer, and he used it as such: send-

ing and receiving messages over the internet, booking a hotel

room, and filming and distributing a video. Thus, Crow’s use of an

iPhone falls within the unambiguous, plain reading of “use of a

computer” as it appears in § 2G2.1(b)(6). Accordingly, we affirm as

to this issue.

E. Downward variance

Crow lastly argues the court abused its discretion in denying

a downward variance, because the facts and circumstances of his

USCA11 Case: 22-14267 Document: 31-1 Date Filed: 12/07/2023 Page: 10 of 10

10 Opinion of the Court 22-14267

case place it outside the heartland of cases for which the Sentencing

Guidelines were intended to apply. Because our vacatur and re-

mand of Crow’s sentence under Issue I will result in a new sentenc-

ing hearing under a new Guidelines range, we do not address the

merits of the district court’s denial of a downward variance.

II. CONCLUSION

We affirm the district court’s imposition of enhancements

for pattern of activity, distribution, and use of a computer. We va-

cate and remand for resentencing because the district court erred

in failing to group Crow’s counts, and decline to address the denial

of a downward variance.

AFFIRMED IN PART, VACATED AND REMANDED IN

PART.