PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4208

ROBERT MORRIS DOTSON, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CR-01-249)

Argued: February 25, 2003

Decided: March 28, 2003

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion, in

which Judge Luttig and Judge King joined. 

COUNSEL

ARGUED: Thomas Norman Cochran, Assistant Federal Public

Defender, Greensboro, North Carolina, for Appellant. Clifton Thomas

Barrett, Assistant United States Attorney/Chief, Criminal Division,

Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills

Wagoner, United States Attorney, Greensboro, North Carolina, for

Appellee. 
OPINION

TRAXLER, Circuit Judge: 

Robert Morris Dotson, Jr., pled guilty to attempting to receive in

commerce a child pornography videotape, in violation of 18 U.S.C.A.

§ 2252A(a)(2)(B) and (b)(1) (West 2000). He now appeals the district

court’s application of the United States Sentencing Guidelines

("U.S.S.G."). In particular, he disputes a two-level increase under

U.S.S.G. § 2G2.2(b)(5) (2000) for the use of a computer in connection with the offense. He also appeals the imposition of potential

polygraph and penile plethysmograph testing for treatment during his

supervised release. For the reasons set forth below, we affirm. 

I.

On November 30, 2000, a postal inspector in Ohio, posing as a pornography peddler, posted an advertisement on a predisposed Internet

newsgroup, soliciting individuals to buy videotapes depicting child

pornography. The next day, the inspector received an e-mail message

from Dotson requesting more information about this offer. On

December 21, 2000, Dotson sent an Internet message letting the

inspector know he was preparing to order tapes. Two days later, Dotson again used the Internet to contact the inspector. He ordered two

"custom" videotapes of girls between 9 and 12 years old, for which

he provided graphic details of his preferences. On January 16, 2001,

the Ohio postal inspector delivered to the postal inspector in North

Carolina a package of the pornographic materials ordered by Dotson,

plus Dotson’s money order for the purchase, as well as assorted gifts

Dotson had sent for the young participants in the video. The controlled package was delivered on February 22, 2001, and agents

apprehended Dotson who later pled guilty to violations of 18

U.S.C.A. § 2252A(a)(2)(B) and (b)(1). 

After the guilty plea, the probation officer prepared a presentence

report ("PSR"). At the sentencing hearing, there remained an unresolved objection to the PSR’s recommended two-level increase under

U.S.S.G. § 2G2.2(b)(5) for the use of a computer for the notice or

advertisement of the pornographic material. Dotson also objected to

a special condition of his supervised release, requiring his participa2 UNITED STATES v. DOTSON
tion "in an evaluation and a mental health program with emphasis on

sex offender treatment at the discretion of the probation officer." J.A.

53. The district court stated that such "[t]reatment may include physiological testing such as the polygraph and penile plethysmograph,

[and] the use of prescribed medications. The results of any polygraph

or penile plethysmograph testing shall not be made public." Id. Dotson specifically objected to the potential use of these two types of

testing as part of his treatment program. The district court rejected

Dotson’s objection as to the guideline enhancement and the potential

use of the physiological tests during his supervised release. The court

also imposed another special condition on Dotson’s release, ordering

him not to form a romantic interest or sexual relationship with anyone

having custody of a child under age eighteen. Dotson now appeals the

increase in his sentence under U.S.S.G. § 2G2.2(b)(5) and the physiological tests with which he may be confronted upon his release.*

II.

Legal determinations concerning a guideline application are subject

to de novo review. United States v. Blake, 81 F.3d 498, 503 (4th Cir.

1996). Special conditions of supervised release are reviewed for abuse

of discretion. United States v. Crandon, 173 F.3d 122, 127 (3d Cir.),

cert. denied, 528 U.S. 855 (1999). 

A.

The first question is whether the court properly applied the Sentencing Guidelines in finding that Dotson’s receipt of a notice or

advertisement for child pornography qualified for the two-point

enhancement under U.S.S.G. § 2G2.2(b)(5). Section 2G2.2(b)(5)

states that "[i]f a computer was used for the transmission of the material or a notice or advertisement of the material, increase by 2 levels."

There is no dispute that a computer was used to transmit notice and

advertisement of the material from the inspector to Dotson, and that

Dotson replied to the advertisement and made arrangements for the

purchase and receipt of the materials advertised by way of computer.

*Dotson’s appeal initially included an objection to the court-imposed

limitations on his ability to form romantic attachments, but because of a

change in circumstances he withdrew this objection at oral argument. 

UNITED STATES v. DOTSON 3
Dotson argues that the enhancement should not apply, however,

because it should be read as offender, rather than offense, specific.

That is to say, he contends that it should only apply if he sent out the

notice or advertisement. However, the plain language of the guideline

reads otherwise. Had the Sentencing Commission intended to limit

the scope of the enhancement to defendants who forwarded notices or

advertisements, it could have easily done so by referring to the defendant in the text of the guideline. For example, U.S.S.G. § 2G2.2(b)(4),

which immediately preceeds the provision at issue, inserts the word

"defendant" into the text to describe patterns of activity involving

abuse or exploitation of a minor that merit a five-level increase. By

contrast, U.S.S.G. § 2G2.2(b)(5) makes no mention of the defendant,

but focuses on the mechanism involved in the offense — the computer itself — as a ground for a two-level increase. In wording the

guideline as it did, the Commission addressed not only the solicitor,

but also the recipient of such solicitation — here, Dotson interacting

with a predisposed Internet news group — who purposely avails himself of a discreet way to access illicit material. The guideline also captures those who first obtain notice of the material by way of

computer, but later adopt other methods (e.g., via telephone or mail)

for consummating their illegal transactions. 

In a similar case, where a defendant downloaded child pornography

onto his computer in response to an advertisement, the Seventh Circuit Court of Appeals determined that the U.S.S.G. § 2G2.2(b)(5)

enhancement was applicable even though the defendant had not himself sent out notice or advertisement of the offending material. See

United States v. Richardson, 238 F.3d 837, 841-42 (7th Cir.), cert.

denied, 532 U.S. 1057 (2001). There, the court found that the phrase

"computer . . . used for the transmission" did not mean "computer . . .

used by the defendant for transmission." Id. at 841 (internal quotation

marks omitted). Rather, the court explained, the 

[u]se of the Internet enhances the dangers that child pornography poses, because it is a more discreet and efficient

method of distribution; but if this makes the sender more

dangerous, it likewise makes the receiver more dangerous.

A market has two sides, supply and demand; without both,

the market collapses. The senders of child pornography supply it; the demanders receive it. The guideline is acknowl4 UNITED STATES v. DOTSON
edged to treat both sides of the market symmetrically when

any method of transmission other than the Internet is used;

it would make no sense to treat them differently when the

more ominous method is used. 

Id. at 842. This rationale rings just as true in the present case. Dotson

used his computer to access a predisposed Internet news group, where

he found the advertisement and initiated a course of correspondence

that culminated in his decision to place a special order for a customized pornographic video involving two young girls engaged in a variety of illegal sexual acts that Dotson specifically requested that they

be made to undertake. As the Richardson court acknowledged, the

very nature of the Internet provides an "ominous method" for anonymous predatory criminal conduct. Id. Under the guideline, those who

seek out and respond to notice and advertisement of such materials

are as culpable as those who initially send out the notice and advertisement. Thus, we conclude that the district court acted appropriately

in applying section 2G2.2(b)(5) to increase the punishment for Dotson’s crime. 

Dotson also argues that the Sentencing Commission exceeded its

authority in implementing the enhancement under U.S.S.G.

§ 2G2.2(b)(5), Congress having directed that only two statutes, neither of which is involved in this case, result in a two-level enhancement for the use of a computer. However, the government notes that

the offense of conviction, 18 U.S.C.A. § 2252A, could not have

formed part of the legislative history behind the enhancement because

it had yet to be enacted when the enhancement was devised. Moreover, Congress has afforded considerable discretion to the Commission in formulating and revising the guidelines. See Mistretta v.

United States, 488 U.S. 361, 377-78 (1989). Specifically included is

the power to identify "circumstances under which the offense was

committed which mitigate or aggravate [its] seriousness." See 28

U.S.C.A. § 994(c)(2) (West 1993 & Supp. 2002). Section 2G2.2(b)(5)

falls within that grant of discretionary authority and, as explained

above, the enhancement itself is reasonable in that it focuses on the

use of computers, which provide criminals with an effective method

of communicating with a broad audience in connection with the specific crime of conviction. 

UNITED STATES v. DOTSON 5
B.

Dotson next argues that the court abused its discretion in providing

for the possible use of physiological testing by devices such as a polygraph or penile plethysmograph test in conjunction with his treatment.

District courts have broad latitude to impose conditions on supervised release. Crandon, 173 F.3d at 127. In addition to a number of

mandatory conditions, see 18 U.S.C.A. § 3583(d) (West 2000 &

Supp. 2002), the sentencing court may impose any other condition it

considers to be appropriate, as long as that condition is "reasonably

related" to statutory factors referred to in § 3583(d)(1). These factors

are: "the nature and circumstances of the offenses and the history and

characteristics of the defendant," 18 U.S.C.A. § 3553(a)(1) (West

2000); providing adequate deterrence, see § 3553(a)(2)(B); protecting

the public from further crimes, see § 3553(a)(2)(C); and providing the

defendant with training, medical care, or treatment, see

§ 3553(a)(2)(D). Conditions imposed in connection with these factors

must "involve[ ] no greater deprivation of liberty than is reasonably

necessary" for achieving the specified goals, 18 U.S.C.A.

§ 3583(d)(2), and they must be consistent with Sentencing Commission policy statements on supervised release, see § 3583(d)(3). 

Because we have already noted that the plethysmograph test is

"useful for treatment of sex offenders," United States v. Powers, 59

F.3d 1460, 1471 (4th Cir. 1995), the district court clearly acted within

its discretion in imposing this condition on Dotson’s release. The test

also meets the "reasonably related" requirement in that it is aimed at

providing Dotson with treatment, fostering deterrence, and protecting

the public. See Berthiaume v. Caron, 142 F.3d 12, 17 (1st Cir. 1998)

(describing this usage of the plethysmograph as "an accepted tool"

and "a standard practice" in the field of sex offender treatment); see

also Walrath v. United States, 830 F.Supp. 444 (N.D. Ill. 1993), aff’d,

35 F.3d 277 (7th Cir. 1994) (holding that the use of the plethysmograph for treatment as a condition of parole is valid). 

As for the polygraph test, it is undisputed such evidence is inadmissible in nearly every circumstance at trial. See, e.g., United States v.

Porter, 821 F.2d 968, 974 (4th Cir. 1987); United States v. Brevard,

739 F.2d 180, 182 (4th Cir. 1984). Obviously, however, evidentiary

6 UNITED STATES v. DOTSON
cases do not govern our evaluation of the use of polygraphs in connection with the treatment of an offender. The use of a polygraph test

here is not aimed at gathering evidence to inculpate or exculpate Dotson. Rather, the test is contemplated as a potential treatment tool upon

Dotson’s release from prison — as witnessed by the district court’s

direction that the results of any polygraph testing not be made public.

See J.A. 53; see also United States v. Zinn, ___ F.3d ___, 2003 WL

328925, at *6 (11th Cir. Feb. 14, 2003) (holding that the court did not

err in requiring the defendant to submit to polygraph testing as a condition of his supervised release); United States v. Lee, 315 F.3d 206,

217 (3d Cir. 2003) (polygraphs may be imposed for treatment and

deterrence purposes); cf. United States v. Sines, 303 F.3d 793, 799-

800 (7th Cir. 2002) (district court may delegate to a probation officer

details of treatment for an offender, including the use of a polygraph

test). 

For these reasons, we agree that the court acted within its discretion

in providing for the possible use of the plethysmograph and polygraph

tests in connection with Dotson’s treatment as special conditions of

his release. 

III.

For the reasons set forth above, we affirm.

AFFIRMED

UNITED STATES v. DOTSON 7