REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

Nos. 96-30319 and 96-30320 

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOE CANADA,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

_________________________________________________________________

April 7, 1997

Before REAVLEY, KING, and BARKSDALE, Circuit Judges.

PER CURIAM:

Joe Canada appeals his sentence for convictions under 18

U.S.C. §§ 2252(a)(2), 2252(a)(4)(B), and 2423(2)(b). Finding no

error, we affirm.

I. BACKGROUND

The convictions that underlie the sentence that is the

subject of this appeal relate to Canada’s computer solicitation

of a person whom Canada thought to be a thirteen-year-old male

minor, and Canada’s resulting travel across state lines with

intent to engage in sexual acts with the minor. On March 10,
2

1995, Canada was indicted in the United States District Court for

the Eastern District of Louisiana in a three-count indictment. 

Count one charged Canada’s violation of 18 U.S.C. § 2252(a)(2) by

his willful and knowing distribution through interstate commerce

of a visual depiction of minors engaging in sexually explicit

conduct. Canada sent the depiction by computer from his home in

Tupelo, Mississippi, to the location of the purported thirteenyear-old male in New Orleans, Louisiana. Count two dealt with

Canada’s travel from Tupelo to New Orleans for the purpose of

engaging in sexual acts with the purported thirteen-year-old male

in violation of 18 U.S.C. § 2423(2)(b). Count three invoked

governmental authority under 18 U.S.C. § 2253 to gain the

forfeiture of the computer equipment used by Canada to commit the

offense under count one.

 Canada pleaded guilty to counts one and two of the

indictment on June 22, 1995. Canada also entered a consent

judgment on the same date in regard to the forfeiture count.

Canada was subsequently charged with an additional count in

the United States District Court for the Northern District of

Mississippi for violation of 18 U.S.C. § 2252(a)(4)(B). This

additional count alleged that Canada had knowingly possessed

three or more matters containing visual depictions of minors

engaged in sexually explicit conduct and that these matters had

come into Canada’s possession through interstate commerce. The

government discovered the matters during a search of the memory

of Canada’s computer that was located in his residence in Tupelo. 
 

1Canada consented to the transfer.

3

After the additional count had been transferred and consolidated

with the case in the district court in Louisiana,1 Canada

likewise entered a guilty plea as to this count.

The district court accepted Canada’s guilty plea as to all

counts and ordered that a Pre-Sentence Report be prepared. 

Canada filed a motion objecting to the guidelines calculations on

February 8, 1996, and subsequently filed supplemental objections

to the Pre-Sentence Report on March 5, 1996. The district court

held a hearing on March 13, 1996, to address Canada’s objections.

On March 21, 1996, the district court sentenced Canada to

two seventy-eight-month terms and one sixty-month term of

imprisonment for his three criminal convictions. All terms were

to be served concurrently. In addition, the court sentenced

Canada to a three-year period of supervised release upon his

release from imprisonment. The court also imposed a $7500 fine

on Canada, as well as a $150 special assessment that was due

immediately.

The district court calculated Canada’s sentence under the

U.S. SENTENCING GUIDELINES MANUAL § 2G2.2. U.S.S.G. § 2G2.2 sets the

base offense level at fifteen for acts that constitute

“Trafficking in Material Involving the Sexual Exploitation of a

Minor; Receiving, Transporting, Shipping, or Advertising Material

Involving the Sexual Exploitation of a Minor; Possessing Material

Involving the Sexual Exploitation of a Minor with Intent to

Traffic.” The district court enhanced Canada’s sentence from
 

2The court also gave, under the authority granted in 18

U.S.C. §3553(b), an additional four-level enhancement that was

outside the sentencing guidelines range. The court possessed the

authority to order such enhancement if it found “that there

exists an aggravating or mitigating circumstance of a kind or to

a degree not adequately taken into consideration by the

Sentencing Commission.” See 18 U.S.C. § 3553(b). The district

court noted that Canada’s history of sexual abuse, the use of a

computer as an instrumentality in the commission of the offenses,

and the evidence of Canada’s active participation in the receipt

or trading of child pornography warranted the four-level increase

because such factors were not accounted for in the sentencing

guidelines. The district court thereafter reduced Canada’s base

offense level by three levels, however, because Canada had

accepted responsibility for the violations.

 

3Canada formerly filed a motion with this court requesting

the court to consolidate his appeals as to both cases below. 

This court granted his unopposed motion. 

4

this base offense level by applying the enhancement provisions in

U.S.S.G. § 2G2.2(b).2 The court added two levels to Canada’s

base offense level under § 2G2.2(b)(1) because the material

related to count one and the additional count involved minors

under the age of twelve years. The court also imposed a fivelevel enhancement under § 2G2.2(b)(2) because Canada had

distributed the materials related to the same counts as a means

of enticing a minor to have sex with him. The court added four

levels under § 2G2.2(b)(3) because it found that Canada intended

to traffic in materials depicting minors involved in sadistic

conduct. Canada objected to the five- and four-level increases.

Canada filed this appeal to challenge the five- and fourlevel increases to his base offense level.3

II. STANDARD OF REVIEW

In examining sentences imposed under the federal sentencing

guidelines, “we review the trial court’s findings of fact for
5

clear error and review purely legal conclusions or

interpretations of the meaning of a guideline de novo.” See

United States v. Kimbrough, 69 F.3d 723, 733 (5th Cir. 1995),

cert. denied, 116 S. Ct. 1547 (1996). The government generally

must prove factors for enhancement of sentencing by a

preponderance of the evidence. See United States v. Watts, 117

S. Ct. 633, 637 (1997); United States v. Gaytan, 74 F.3d 545, 558

(5th Cir.), cert. denied, 117 S. Ct. 77, and cert. denied, 117 S.

Ct. 506 (1996).

III. DISCUSSION

A. Five-Level Enhancement for Distribution

U.S.S.G. § 2G2.2(b)(2) provides for an enhancement of

sentencing “[i]f the offense involved distribution.” Canada

argues that the distribution contemplated by § 2G2.2(b)(2)

requires a purpose to exact a pecuniary gain. Moreover, Canada

contends that the failure to require an additional element of

pecuniary gain for distribution under § 2G2.2(b)(2) makes the

original base offense level superfluous since any “trafficking”

would then be tantamount to distribution and the five-level

increase would therefore be automatic. Canada asserts that the

necessary additional element for § 2G2.2(b)(2) “distribution”

must be pecuniary gain because Application Note 1 under the

commentary to the guideline states, “‘[d]istribution,’ as used in

this guideline, includes any act related to distribution for

pecuniary gain, including production, transportation, and

possession with intent to distribute.”
 

4Because the district court found this additional element

present, we do not address the issue of whether such additional

element must be present in order for the court to enhance

sentencing under § 2G2.2(b)(2).

6

Canada correctly notes that the commentary in the Guidelines

Manual is generally binding on the courts. See Stinson v. United

States, 508 U.S. 36, 38 (1993) (holding that the “commentary in

the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading

of, that guideline”). Nevertheless, the wording of Application

Note 1 under the commentary for § 2G2.2 supports a broader

interpretation than that proffered by Canada. The clause in

Application Note 1 in which pecuniary gain is mentioned is

predicated by the verb includes. The plain meaning of this

wording unambiguously indicates that the intended definition of

‘distribution’ for the sake of the guideline is meant to be

inclusive of pecuniary gain purposes, but not exclusive of all

other purposes. This interpretation receives explicit support in

the part of the Guidelines Manual noting “General Application

Principles.” Application Note 2 in the commentary to § 1B1.1

(“Application Instructions”) states that “[t]he term ‘includes’

is not exhaustive.”

The fact that Application Note 1 is inclusive, and not

exclusive, is determinative in the current context. The district

court determined that Canada’s distribution was accompanied by an

additional element, albeit not one of pecuniary gain.4 The
7

sentencing court found that Canada had distributed the material

at issue for the purpose of enticing the thirteen-year-old minor

to have sex with him. Canada does not challenge this factual

finding of the sentencing court.

We hold that Canada’s distribution of materials involving

the sexual exploitation of minors with a purpose of enticing

another person to have sex with him is sufficient to trigger the

enhancement characteristic in § 2G2.2(b)(2). While § 2G2.2(b)(2)

calls upon the sentencing court to impose enhancement based on

the retail value of the material distributed, in cases such as

this where the material was distributed for a purpose which is

difficult to evaluate monetarily, the sentencing court is within

its province to impose the threshold five-level enhancement. See

U.S.S.G. § 2G2.2(b)(2) (setting the enhancement level for

distribution “in no event by less than 5 levels”); see also

United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996)

(noting that loss determinations under U.S.S.G. § 2F1.1 “need not

be determined with precision” and “are reviewed for clear

error”).

B. Four-Level Increase for Material Portraying Sadistic Conduct

U.S.S.G. § 2G2.2(b)(3) provides for a four-level increase in

the base offense level for trafficking in materials involving the

sexual exploitation of a minor “[i]f the offense involved

material that portrays sadistic or masochistic conduct or other

depictions of violence.” Canada contends that the four-level

enhancement imposed by the court under U.S.S.G. § 2G2.2(b)(3) was
8

not warranted by the evidence. Canada argues in particular that

the sadistic photographs extracted from his computer’s hard drive

were insufficient to indicate his “trafficking” in materials

involving the sexual exploitation of a minor.

Additionally, Canada argues that his mere receipt of the

photos should be insufficient to establish the applicability of

guideline 2G2.2 because guideline 2G2.4 (“Possession of Materials

Depicting a Minor Engaged in Sexually Explicit Conduct”) would

thus become superfluous. Canada makes this argument by equating

possession of child pornography with the receipt of such material

for the purposes of the sentencing guidelines since, as he

claims, such material would had to have been previously received

in order to be currently in a person’s possession.

Canada’s equivalence of the receipt of child pornography

with its possession for the purposes of sentencing under §§ 2G2.2

and 2G2.4 is unconvincing. See, e.g., United States v. Romualdi,

101 F.3d 971, 975 (3d Cir. 1996) (remarking that “[b]oth the

relevant statute and the Sentencing Guidelines make a distinction

between receipt and possession of child pornography”). As Canada

himself admits, possession of such materials may be obtained

through other means, e.g., by manufacturing it. To hold that

receiving child pornography should only be covered by § 2G2.4

would abrogate the specific coverage of § 2G2.2--”Receiving,

Transporting, Shipping, or Advertising Material Involving the

Sexual Exploitation of a Minor” (emphasis added). We decline to

reach such a result. See Reiter v. Sonotone Corp., 442 U.S. 330,
 

5Canada does not challenge the court’s characterization of

this material as sadistic.

 

6The government concedes that the child pornographic photo

that was sent to the purported thirteen-year-old male in New

Orleans did not portray sadistic conduct.

9

339 (1979) (observing with regard to statutory construction that

courts “are obliged to give effect, if possible,” to statutory

wording and noting that terms connected by the disjunctive be

given separate meanings); see also United States v. Rocha, 916

F.2d 219, 243 (5th Cir. 1990) (noting that the sentencing

guidelines are subject to the rules of statutory construction). 

Moreover, the provisions under § 2G2.4 expressly instruct the

court to look to § 2G2.2 in situations like Canada’s:

If the offense involved trafficking in material

involving the sexual exploitation of a minor (including

receiving, transporting, shipping, advertising, or

possessing material involving the sexual exploitation

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

See U.S.S.G. § 2G2.4(c)(2) (emphasis added). 

The district court’s determination that Canada received

sadistic photos with an intent to traffic in them was not clearly

erroneous. See Kimbrough, 69 F.3d at 734. A government witness

testified during the sentencing hearing that sadistic photos,

showing anal and vaginal penetration of minors through the use of

sexual devices,5 were located on the hard drive of Canada’s

computer. The government also adduced evidence at the hearing

that detailed Canada’s active trading in child pornography.6 The

government’s evidence, in toto, provides proof by a preponderance

of the evidence that Canada had received material portraying
10

sadistic conduct and that he intended to traffic in such

material. This is sufficient for the district court’s imposed

four-level enhancement under § 2G2.2(b)(3).

IV. CONCLUSION

For the foregoing reasons, Canada’s sentence is AFFIRMED.