### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3292

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

W ILLIAM T. B URROWS

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 17

‐ cr

‐ 40007

— Sara Darrow

, Judge

.

____________________

A RGUED S EPTEMBER 7, 2018

— D ECIDED O CTOBER 9, 2018

____________________

Before F LAUM

, R IPPLE

, and B ARRETT

, Circuit Judges

.

F LAUM

, Circuit Judge

. William Burrows conditionally

pleaded guilty to one count of receiving child pornography

pursuant to 18 U.S.C. § 2252A(a)(2)(A). He argues that

§ 2252A(a)(2)(A) is void for vagueness as applied to him, and

therefore, that his indictment should have been dismissed.

Additionally, he maintains that the district court erred at sen

‐ tencing by basing his sentence, in part, on the need for sex2 No. 17

‐ 3292

o ff ender treatment. We disagree, and we a ffi rm Burrows’s

conviction and sentence.

I. Background

From July to August 2015, United States Secret Service

agents used a peer

‐ to

‐ peer sharing network to download

eight images of child pornography from a computer using an

internet protocol address assigned to William Burrows’s

home. The Secret Service obtained a search warrant for his

home and executed it on September 9, 2015.

A forensic search of a computer at the residence revealed

a number of fi les received through the peer

‐ to

‐ peer sharing

program, including videos depicting sexually explicit content

of prepubescent females as young as six years old. Burrows

waived his Miranda rights and stated that prior to deleting his

child pornography collection ten days earlier, he had approx

‐ imately twenty to thirty movies and several thousand images

of child pornography on his computer.

On January 24, 2017, a grand jury indicted Burrows for

knowingly receiving three digital media fi les of child pornog

‐ raphy in violation of 18 U.S.C. § 2252A(a)(2)(A). Burrows

moved to dismiss the indictment, arguing § 2252A(a)(2)(A) is

unconstitutionally vague. The district court disagreed, and on

May 31, 2017, Burrows entered a conditional guilty plea.

On October 19, 2017, the district court conducted a sen

‐ tencing hearing. It concluded that Burrows’s total adjusted of

‐

fense level was 32 and his criminal history category was I, re

‐ sulting in a Guidelines range of 121–155 months’ imprison

‐

ment. The court then examined the various 18 U.S.C. § 3553(a)

factors. The court explained that not only was it concernedNo. 17

‐ 3292 3

about “general deterrence” and the “seriousness of the of

‐

fense,” but also, it believed Burrows posed a “greater risk to

recidivate than other similarly situated individuals” based on

his “juvenile history” and “pa tt ern of violent outbursts.” The

court also addressed mitigating factors, including abuse Bur

‐

rows su ff ered as a child. Then, it concluded:

I did consider going towards the high end of

what I think is the appropriate

... guideline

range of 121 to 151

... and I actually don’t think

that that’s necessary after considering every

‐ thing because I think that a sentence at the low

end of 121 months will be su ffi cient to address

the seriousness of the o ff ense and also my con

‐

cerns about your risk to recidivate and the need

for general deterrence. But I also think that put

‐ ting you on a life term of supervised release—

you’re relatively young; you’re 33 years old....

[Y]ou’re going to prison as an adult for the fi rst

time, and I think that that will be su ffi cient time

to address the harm caused by your conduct

and to also hopefully speci fi cally deter you and

give you time to avail yourself of the sex of

‐

fender treatment as an adult because you ha

‐

ven’t had that opportunity as an adult, just as a

juvenile. And pu tt ing you on lifetime super

‐

vised release will be necessary given your prior

history as a juvenile and all the other things that

I mentioned that support my concern of your

risk to recidivate and will be su ffi cient

... to o ff‐

set any need for additional time in prison above

that low end of 121 months.4 No. 17

‐ 3292

Finally, the court asked Burrows’s counsel if he wished for

“further elaborat[ion] on any of the reasons for imposing the

sentence.” He stated he did not. The court also asked whether

it “addressed all of [Burrows’s] principal arguments in miti

‐ gation.” Counsel indicated that it did. The court then o ffi cially

imposed the 121

‐ month sentence and asked whether either

party had “anything further.” Both responded in the negative.

Burrows now appeals.

II. Discussion

A. Vagueness Challenge

We “review de novo the constitutionality of a statute.”

United States v. Morris

, 821 F.3d 877, 879 (7th Cir. 2016). “A

statute is unconstitutionally vague if it ‘fails to give ordinary

people fair notice of the conduct it punishes, or [is] so stand

‐

ardless that it invites arbitrary enforcement.’” Id. (alteration in

original) (quoting Johnson v. United States

, 135 S. Ct. 2551, 2556

(2015)).

At issue here is 18 U.S.C. § 2252A. The receipt provision

makes it illegal for a person to “knowingly receive[]

... any

child pornography that has been mailed, or using any means

or facility of interstate or foreign commerce shipped or trans

‐ ported in or a ff ecting interstate or foreign commerce by any

means, including by computer.” Id. § 2252A(a)(2)(A). A per

‐

son who violates the receipt provision faces a mandatory min

‐

imum of fi ve years’ imprisonment. Id. § 2252A(b)(1). In con

‐

trast, the possession provision targets individuals who:No. 17

‐ 3292 5

knowingly possess[]

... any

... material that

contains an image of child pornography that has

been mailed, or shipped or transported using

any means or facility of interstate or foreign

commerce or in or a ff ecting interstate or foreign

commerce by any means, including by com

‐

puter, or that was produced using materials that

have been mailed, or shipped or transported in

or a ff ecting interstate or foreign commerce by

any means, including by computer.

Id. § 2252A(a)(5)(B). A person who violates the possession

provision faces no mandatory minimum except in circum

‐

stances not relevant here. Id. § 2252A(b)(2). 1

Burrows alleges § 2252A “is unconstitutionally vague be

‐

cause it does not distinguish receiving child pornography

from possessing it, which does not impose a mandatory min

‐

imum sentence.” He claims that in application, “he was una

‐

ble to di ff erentiate conduct prohibited by § 2252A(a)(2)(A)

(receiving child pornography) from conduct prohibited by

1 It may seem “puzzl[ing]

... why receiving

... should be punished

more severely than possessing, since possessors, unless they fabricate

their own pornography, are also receivers.” United States v. Richardson

, 238

F.3d 837, 839 (7th Cir. 2001). “The explanation may be that receivers in

‐

crease the market for child pornography and hence the demand for chil

‐

dren to pose as models for pornographic photographs; possessors, at least

qua possessors, as distinct from receivers, though most of them are that

too, do not.” Id. Thus, “[t]he possessor who creates his own pornography

strictly for his personal use is not part of the interstate and international

tra ffi c in child pornography,” and the distinction is important because that

tra ffi c “not only increases the demand for the production of such pornog

‐ raphy but, by virtue of its far

‐ fl ung scope, makes it extremely di ffi cult to

locate, let alone protect, the children exploited by it.” Id.6 No. 17

‐ 3292

§ 2252A(a)(5)(B) (possessing child pornography).” As a result

of this supposed lack of distinction, he claims “the statute in

‐

vites arbitrary enforcement by law enforcement, prosecutors,

judges, and juries.”

To agree with Burrows, we would need to overrule our

decision in United States v. Wa tz man

, 486 F.3d 1004 (7th Cir.

2007). In Wa tz man we rejected a vagueness challenge to

§ 2252A(a)(2). We held that “[b]y distinguishing receipt from

possession, the two subsections of the statute are su ffi ciently

clear about what conduct each prohibits,” and that “it cannot

be said that the receiving child pornography statute relies on

the discretion of those who enforce it to de fi ne its terms.” Id.

at 1010. We rejected the argument that “receipt and posses

‐

sion are substantially the same o ff ense,” and we emphasized

that a possessor of child pornography need not have received

child pornography. Id. at 1009–10. We also noted that “‘pos

‐

session and receipt

... threaten distinct harms’” because “re

‐ ceiving materials that have been shipped in interstate com

‐

merce is conduct more closely linked to the market for child

pornography.” Id. at 1009 (quoting United States v. Myers

, 355

F.3d 1040, 1042–43 (7th Cir. 2004)); see United States v. Barevich

,

445 F.3d 956, 959 (7th Cir. 2006) (“Transporting and receiving

child pornography increases market demand.”). In short, we

concluded that “all receivers are possessors but not all posses

‐

sors are receivers, and so the ma tt er of which crime to charge

is not simply a product of the prosecutor’s whims.” Wa tz man

,

486 F.3d at 1010

. Instead, because the defendant violated both

statutes, the government simply exercised its discretion in

choosing to prosecute under § 2252A(a)(2)(A) rather than

§ 2252A(a)(5)(B). See United States v. Batchelder

, 442 U.S. 114,

123–24 (1979) (“This Court has long recognized that when an

act violates more than one criminal statute, the GovernmentNo. 17

‐ 3292 7

may prosecute under either so long as it does not discriminate

against any class of defendants.”).

Burrows claims Wa tz man ’s analysis has “been undermined

by other courts of appeals and this Court’s subsequent deci

‐

sions.” He points primarily to cases that held convicting a de

‐

fendant of both receiving and possessing child pornography

violates the Double Jeopardy Clause. See United States v. Ehle

,

640 F.3d 689, 694–99 (6th Cir. 2011); United States v. Davenport

,

519 F.3d 940, 943–47 (9th Cir. 2008); United States v. Miller

, 527

F.3d 54, 70–74 (3d Cir. 2008). “The Double Jeopardy Clause

... ‘protects against multiple punishments for the same o ff ense.’”

Brown v. Ohio

, 432 U.S. 161, 165 (1977) (quoting North Carolina

v. Pearce

, 395 U.S. 711, 717 (1969)). “[W]here the same act or

transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there

are two o ff enses or only one, is whether each provision re

‐ quires proof of a fact which the other does not.” Blockburger v.

United States

, 284 U.S. 299, 304 (1932). The Third, Sixth, and

Ninth Circuits all found Double Jeopardy Clause violations

because they concluded that possessing child pornography is

a lesser

‐ included o ff ense of receiving it. Ehle

, 640 F.3d at 695;

Davenport

, 519 F.3d at 945; Miller

, 527 F.3d at 72. 2

These cases are not helpful to Burrows’s argument. While

it might be true that one cannot receive child pornography

without also possessing it, one can possess child pornography

without receiving it. Indeed, six years after determining that

2 In United States v. Halliday

, we declined to decide “whether to align

ourselves with [other circuits] on the issue of whether possession of child

pornography is a lesser

‐ included o ff ense of receipt.” 672 F.3d 462, 470 (7th

Cir. 2012).8 No. 17

‐ 3292

possession of contraband is a lesser

‐ included o ff ense of re

‐ ceipt for double jeopardy purposes, the Sixth Circuit held that

§ 2252A is not unconstitutionally vague. United States v. Dun

‐ ning

, 857 F.3d 342, 348–49 (6th Cir. 2017). As it reasoned,

“there is at least one di ff erence between [receipt and posses

‐

sion]: a person who produces child pornography has not re

‐

ceived it.” Id. at 349; 3 see also United States v. Richardson

, 238

F.3d 837, 839 (7th Cir. 2001) (“[P]ossessors, unless they fabricate

their own pornography

, are also receivers.” (emphasis added)).

Additionally, Burrows contends that, because our holding

in Wa tz man “was premised on a fi nding that possessing child

pornography contained no scienter requirement,” Wa tz man is

no longer good law. See United States v. Halliday

, 672 F.3d 462,

469 (7th Cir. 2012) (“Admi tt edly, the reasoning of [cases in

‐ cluding Wa tz man ] is now in question, both because of our

more recent views of the scienter requirement in possession

cases, and because of how our sister circuits have viewed pos

‐

session and receipt in the child pornography context.”). It is

true that, after Wa tz man

, we held that “[p]ossession of a pho

‐ tograph of an underage girl or boy must be knowing.” United

States v. Peel

, 595 F.3d 763, 771 (7th Cir. 2010). Likewise, other

circuits also apply a scienter requirement to both receipt and

possession. See e.g.

, United States v. McNealy

, 625 F.3d 858, 870

(5th Cir. 2010). But the fact that possession and receipt both

have a scienter requirement does not change our conclusion

3 Burrows argues Dunning is not relevant because “there was no evi

‐

dence” that Burrows produced child pornography. But this is precisely

why Dunning is relevant: Like Burrows, the defendant in Dunning was not

a producer. The Sixth Circuit’s use of this distinction was simply to show

that the two provisions encompass di ff erent conduct.No. 17

‐ 3292 9

in Wa tz man

. Indeed, as noted above, by creating child pornog

‐ raphy himself, one can possess it without having received it.

In sum, we rea ffi rm our holding from Wa tz man : 18 U.S.C.

§ 2252A(a)(2)(A) is not unconstitutionally vague. 4

B. Sentencing

Next, Burrows maintains the district court erred under

Tapia v. United States

, 564 U.S. 319 (2011), by impermissibly

lengthening his prison term to promote his rehabilitation. In

Tapia

, the Supreme Court held that 18 U.S.C. § 3582(a) “pre

‐

cludes federal courts from imposing or lengthening a prison

term in order to promote a criminal defendant’s rehabilita

‐

tion.” Id. at 321. At the same time, it made clear that “[a] court

commits no error by discussing the opportunities for rehabil

‐

itation within prison or the bene fi ts of speci fi c treatment or

training programs,” nor by “trying to get [a defendant] into

an e ff ective drug treatment program.” Id. at 334.

1. Standard of Review

As an initial ma tt er, the parties disagree about the proper

standard of review. Generally, we review a district court’s

4 Burrows also cites Whatley v. Zatecky

, 833 F.3d 762 (7th Cir. 2016), to

support his vagueness challenge. There, an Indiana statute prohibited pos

‐

session of cocaine within one

‐ thousand feet of a youth program center. Id.

at 765. The statute de fi ned “youth program center” as any “building or

structure that on a regular basis provides

... services for [minors].” Id.

(quoting Ind. Code § 35

‐ 41

‐ 1

‐ 29(a)). We found the statute unconstitution

‐ ally vague because “the use of the word ‘regular’ in the de fi nition of ‘youth

program center’ provides no objective standard, and thereby fails to place

persons of ordinary intelligence on notice of the conduct proscribed and

allows for arbitrary enforcement.” Id. at 784. Whatley is inapposite. Unlike

the word “regular,” a person of ordinary intelligence can understand the

meaning of the word “receive” and conform his behavior appropriately.10 No. 17

‐ 3292

sentencing procedure de novo. United States v. Holman

, 840

F.3d 347, 352 (7th Cir. 2016). Here, however, the government

argues that Burrows’s claim should be reviewed only for

plain error because he failed to raise a Tapia objection at the

time of sentencing. See United States v. Seals

, 813 F.3d 1038,

1044–45 (7th Cir. 2016) (“[M]ore deference is due

... where an

appellant failed to properly raise a claim below ....”); United

States v. Guajardo

‐ Martinez

, 635 F.3d 1056, 1058 (7th Cir. 2011)

(“Because the appellant did not raise these objections during

the sentencing hearing, we review the decisions for plain er

‐

ror.”).

Burrows admits he did not raise a Tapia objection in the

district court, yet still contends we should review de novo. He

asserts that “an ‘objection’ to the district court’s sentence in

this context should be considered an ‘exception’ to the district

court’s order, which [he] need not raise in the district court to

preserve de novo appellate review.” The Federal Rules of

Criminal Procedure “do not require a litigant to complain

about a judicial choice after it has been made. Such a com

‐ plaint is properly called, not an objection, but an exception.”

United States v. Bartle tt

, 567 F.3d 901, 910 (7th Cir. 2009); see

Fed. R. Crim. P. 51(a) (“Exceptions to rulings or orders of the

court are unnecessary.”). Still, “a district court can announce

a tentative decision or view and invite objections. A failure to

object in those circumstances can amount to waiver” or forfei

‐

ture. United States v. Gabriel

, 831 F.3d 811, 814 (7th Cir. 2016);

see also United States v. Lewis

, 823 F.3d 1075, 1083–84 (7th Cir.

2016).

Here, after the district court announced its 121

‐ month sen

‐

tence, it explicitly asked Burrows: “Do you wish for me to

...No. 17

‐ 3292 11

further elaborate on any of the reasons for imposing the sen

‐

tence?” His counsel responded no. The court continued,

“Have I addressed all of your principal arguments in mitiga

‐

tion?” Counsel answered a ffi rmatively. At that point, “[t]he

sentence was not yet de fi nitive, and [Burrows] still had an op

‐ portunity to object and potentially a ff ect [his] ultimate sen

‐

tence.” See Holman

, 840 F.3d at 353. Burrows “did not do so

with respect to a possible Tapia violation, and we thus review

for plain error.” See id.

2. Plain Error Review

“To establish plain error, the defendant must show: ‘(1) an

error; (2) that is plain; (3) that a ff ected his substantial rights;

and (4) that seriously a ff ects the fairness, integrity, or public

reputation of the judicial proceedings.’” Id. (quoting Guajardo

‐

Martinez

, 635 F.3d at 1059). While acknowledging that “the

district court’s sentence was not based entirely, or even pri

‐ marily, on rehabilitation needs,” Burrows contends the court

commi tt ed a Tapia error because “the sentence was at least

based, in part, on the district court’s conclusion that Burrows

needed to a tt end sex o ff ender treatment.” He relies on the

court’s statement made immediately after it initially an

‐

nounced a 121

‐ month sentence, in the context of explaining

its decision to impose a life term of supervised release:

But I also think that pu tt ing you on a life term

of supervised release—you’re relatively young;

you’re 33 years old. I think that—you’re going

to prison as an adult for the fi rst time, and I

think that that will be su ffi cient time to address

the harm caused by your conduct and to also

hopefully speci fi cally deter you and give you time

to avail yourself of the sex o ff

ender treatment as an12 No. 17

‐ 3292

adult because you haven’t had that opportunity as an

adult

, just as a juvenile. And pu tt ing you on life

‐

time supervised release will be necessary given

your prior history as a juvenile and all the other

things that I mentioned that support my con

‐

cern of your risk to recidivate and will be su ffi‐

cient

... to o ff set any need for additional time in

prison above that low end of 121 months.

(emphasis added).

Read in context, this statement does not suggest that the

court “impos[ed] or lengthen[ed] [Burrows’s] prison term in

order to promote [his] rehabilitation.” See Tapia

, 564 U.S. at

321. Rather, “the district court did what Tapia plainly allows:

discuss the opportunities for rehabilitative programs while

[Burrows] is imprisoned.” See United States v. Lucas

, 670 F.3d

784, 795 (7th Cir. 2012). There is “no indication that the district

court chose the length of the sentence based upon the greater

opportunities for rehabilitation a longer prison sentence al

‐

lowed.” See id. ; cf. United States v. Gallagher

, 526 F. App’x 658,

663–64 (7th Cir. 2013) (“[W]hile the district court’s statement

demonstrates that it sincerely hopes that [the defendant] re

‐

ceives treatment while in prison, the statement does not es

‐

tablish that the district court imposed or lengthened [the de

‐ fendant’s] prison sentence in order to ensure that she received

treatment.”). Indeed, it appears the court determined the

length of Burrows’s sentence, in its words, “to address the se

‐

riousness of the o ff ense and also [the] concerns about [Bur

‐

rows’s] risk to recidivate and the need for general deter

‐

rence.” Thus, the court did not commit any error under Tapia

,

let alone error that is “plain”—“so obvious that ‘the trial judge

and prosecutor were derelict in countenancing it.’” See UnitedNo. 17

‐ 3292 13

States v. Ramirez

, 783 F.3d 687, 694 (7th Cir. 2015) (quoting

United States v. Turner

, 651 F.3d 743, 748 (7th Cir. 2011)).

III. Conclusion

For the foregoing reasons, we A FFIRM the judgment of the

district court.