RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0061p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

TIMOTHY MCNERNEY,

Defendant-Appellant.

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No. 09-4011

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 08-00511-001—Dan A. Polster, District Judge.

Argued: January 11, 2011

Decided and Filed: March 1, 2011 

Before: SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Darin G. Thompson, FEDERAL PUBLIC DEFENDER’S OFFICE,

Cleveland, Ohio, for Appellant. Carol M. Skutnik, ASSISTANT UNITED STATES

ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Darin G. Thompson,

FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Carol

M. Skutnik, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for

Appellee.

CLAY, J., delivered the opinion of the court, in which SUHRHEINRICH, J.,

joined. ROGERS, J. (p. 13), delivered a separate concurring opinion.

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendant Timothy McNerney appeals his sentence of

120 months of incarceration, followed by 10 years of supervised release. The district

court sentenced Defendant on August 12, 2009 following Defendant’s guilty plea to one

1
No. 09-4011 United States v. McNerney Page 2

count of receiving and distributing visual depictions of real minors engaged in sexually

explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

For the reasons stated below, we AFFIRM the district court’s decision.

BACKGROUND 

On February 20, 2007, federal agents obtained a valid search warrant to search

Defendant Timothy McNerney’s house based on a federal task force agent’s

determination, through an internet search, that Defendant was sharing 166 files depicting

child pornography online via a peer-to-peer file-sharing program. Pursuant to this valid

search warrant, federal agents searched Defendant’s house, and seized Defendant’s

computer. A forensic analysis of Defendant’s computer revealed that the file-sharing

program was installed on Defendant’s computer, and that numerous images of child

pornography were located in the shared folder, allowing other users of the file-sharing

program to access them. The agents also found that Defendant had backed up his files

on a second hard drive, creating an identical second copy of all of the data contained on

his computer, including the images of child pornography.

A federal grand jury indicted Defendant on December 10, 2008, for receiving and

distributing visual depictions of real minors engaged in sexually explicit conduct in

violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography in violation of

18 U.S.C. § 2252A(a)(5)(B). On April 22, 2009, Defendant pled guilty to both counts

of the indictment. On August 13, 2009, the district court held a sentencing hearing, and

sentenced Defendant to an 120 month term of imprisonment, followed by 10 years of

supervised release.

At the sentencing hearing the district court calculated Defendant’s total offense

level at 30, and Defendant’s criminal history category at I, producing an advisory

sentence range of 97 to 121 months. In calculating Defendant’s offense level, the district

court began with a base offense level of 22, which both parties agreed was correct. The

district court proceeded to add the following enhancements: a two level enhancement for
No. 09-4011 United States v. McNerney Page 3

1

Although the district court and the litigants are not clear on this point, thumbnail images are not

counted separately for U.S.S.G. § 2G2.2(b)(7) purposes because thumbnails are not duplicate digital

images. Rather, thumbnails are simply previews of digital images that are viewable without opening the

digital folder in which the digital images are contained.

images of prepubescent minors pursuant to U.S.S.G § 2G2.2(ii); a two level

enhancement for transferring materials over the internet pursuant to U.S.S.G

§ 2G2.2(b)(3)(F); a two level enhancement for using a computer in the crime pursuant

to U.S.S.G § 2G2.2(b)(6); and a five level enhancement for having more than 600

images pursuant to U.S.S.G § 2G2.2(b)(7), producing a total offense level of 33. The

district court then adjusted Defendant’s offense level for acceptance of responsibility,

placing Defendant’s final offense level at 30.

Regarding its computation of the number of images Defendant possessed, based

on which the district court enhanced Defendant’s offense level by five points, and which

is disputed in this appeal, the district court stated:

[T]here’s a dispute about the number of images.1 The Probation

Department has recommended an additional five levels based on the

finding that there are more than 600 images, specifically 766. The

[D]efendant has argued that there’s double counting because there are

multiple copies of the same image and, therefore, those images should be

counted only once in reaching the total . . . . Mr. McNerney had two hard

drives and many of the images are found on both hard drives . . . .

[G]iven that as the government pointed out the computer automatically

creates a mirror image of the first hard drive on the second hard drive,

and so if hard drive number one is damaged or erased all the images

would still exist on the backup hard drive in pristine form, and in my

view then we have multiple images and it’s not double counting because

we’ve got two separate hard drives and this means if one were damaged,

the [D]efendant would still have them on the other hard drive. That’s the

only reason to have them on two hard drives, so I don’t believe it’s unfair

or inappropriate to count, you know, we have image A on hard drive one

and the same image is on hard drive two, we have two separate images

and they could both be used and they are there in case one hard drive

crashes. So I don’t believe we have double counting, and given that,

there are more than 600 images in total and so the plus five applies.

(R. 30, Tr. of Sentencing Proceeding at 4-5.)
No. 09-4011 United States v. McNerney Page 4

2

We use the term “digital image” to refer to any image saved on a digital medium, including, by

way of example, a computer hard drive, a camera memory card, a flash drive, or the internet.

We use the term “duplicate digital image” to refer to an identical copy of a digital image.

We use the term “unique digital image” to refer to a digital image of which there are no

duplicates.

We use the term “hard copy image” to refer to any printed image, including, by way of example,

a printed photograph, a picture in a magazine or book, or a videotape.

We use the term “duplicate hard copy image” to refer to an identical copy of a hard copy image.

We use the term “unique hard copy image” to refer to a hard copy image of which there are no

duplicates.

3

Three cases have raised the issue at the federal appellate level, only one of which analyzed

whether duplicate digital images are counted for U.S.S.G. § 2G2.2(b)(7) purposes. See United States v.

Sampson, 606 F.3d 505 (8th Cir. 2010); United States v. Havens, 331 F. App’x 280, 282 (5thCir. 2009)

Defendant objected to the district court’s computation, and the five level

enhancement under U.S.S.G § 2G2.2(b)(7). (Id. at 13-14.) Defendant timely appealed

his sentence.

DISCUSSION

I. Standard of Review

We review “de novo a district court’s interpretation of the Sentencing

Guidelines.” United States v. Gibson, 409 F.3d 325, 338 (6th Cir. 2005).

II. Analysis

Defendant challenges the district court’s application of a five level enhancement

to his offense level for possessing 600 or more images, pursuant to U.S.S.G

§ 2G2.2(b)(7). Section 2G2.2(b)(7) of the Sentencing Guidelines provides for an

increase in a defendant’s offense level for child pornography based on the number of

images possessed as follows: “If the offense involved – (A) at least 10 images, but fewer

than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by

3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600

or more images, increase by 5 levels.”

Defendant contends that only unique digital images, not duplicate digital

images,2 should be counted in computing an enhancement under this provision of the

Sentencing Guidelines. This particular interpretive issue is a question of first impression

for this Court. There is also a dearth of case law on this question in other circuits.3
No. 09-4011 United States v. McNerney Page 5

(summarily dismissing the defendant’s argument that “there was evidence at trial that some of the images

he possessed were duplicates.”); United States v. Goff, 501 F.3d 250, 255 n.9 (3d Cir. 2007) (allowing the

prosecution in that case to discount duplicate images for U.S.S.G. § 2G2.2(b)(7) purposes, although

neither explicitly approving of this interpretation nor analyzing the Guidelines provision). 

A. History of § 2G2.2

As noted by several of our sister circuits, Congress has taken an active role in

creating the sentencing scheme for child pornography offenses. See, e.g., United States

v. Grober, 624 F.3d 592, 608 (3d Cir. 2010); United States v. Dorvee, 604 F.3d 84, 95

(2d Cir. 2010). The Child Pornography Sentencing Guidelines are “fundamentally

different from most . . . . Sentencing Guidelines are typically developed by the

Sentencing Commission using an empirical approach based on data about past

sentencing policies.” Dorvee, 604 F.3d at 95 (citing Rita v. United States, 551 U.S. 338,

349 (2007)). However, “the Commission did not use this empirical approach in

formulating the Guidelines for child pornography.” Id.

The Child Pornography Sentencing Guidelines “have been substantively

amended nine times since 1987.” Grober, 624 F.3d at 604. As Congress has placed a

“laser-like focus on the child pornography Guidelines, particularly in the last several

years,” id., the Sentencing Commission’s amendments to the Child Pornography

Guidelines have often been at Congress’ behest.

In its report entitled, “The History of the Child Pornography Guidelines,” issued

in October 2009, the United States Sentencing Commission explained that “Congress has

been particularly active over the last decade creating new offenses, increasing penalties,

and issuing directives to the [Sentencing] Commission regarding child pornography

offenses. Indeed, in 2008 [alone] the 110th Congress passed three new laws amending

child pornography statutes.” History of the Child Pornography Guidelines, Oct.2009,

at 1, available at http://www.ussc.gov/Research/Research_Projects/Sex_Offenses/

20091030_History_Child_Pornography_Guidelines.pdf (last visited Feb. 8, 2011).

Moreover, Congress’ child pornography legislation initiatives have been unambiguously

motivated by a desire to cast a wider criminal net, and impose harsher punishments for

child pornography offenses. As the Second Circuit stated, “at the direction of Congress,
No. 09-4011 United States v. McNerney Page 6

the Sentencing Commission has amended the Guidelines under § 2G2.2 several times

since their introduction in 1987, each time recommending harsher penalties.” Dorvee,

604 F.3d at 95; see also Grober, 624 F.3d at 604-05 (stating that “[i]t is clear . . . that [in

its several amendments to the Guidelines increasing penalties for child pornography] the

Commission was constantly reacting to Congress’s (sic.) repeated directives, and the

penalties for child pornography offenses that were steadily, and often dramatically,

increasing.”).

In its recent report, the Sentencing Commission elaborated, “Congress has

demonstrated its continued interest in deterring and punishing child pornography

offenses, prompting the [Sentencing] Commission to respond to multiple public laws that

created new child pornography offenses, increased criminal penalties, directly (and

uniquely) amended the child pornography guidelines, and required the [Sentencing]

Commission to consider offender and offense characteristics for the child pornography

guidelines.” History of the Child Pornography Guidelines, supra, at 54. Specifically,

[f]or more than 30 years, and particularly in recent years, Congress has

focused attention on the scope of child pornography offenses and the

severity of penalties for child pornography offenders. Through creating

new offenses, enacting new mandatory minimums, increasing statutory

maximums, and providing directives to the [Sentencing] Commission,

Congress has repeatedly expressed its will regarding appropriate

penalties for child pornography offenders. Congress has specifically

expressed an intent to raise penalties associated with certain child

pornography offenses several times through directives to the Commission

and statutory changes aimed at increasing the guideline penalties and

reducing the incidence of downward departures for such offenses.

Id. at 6. See also United States v. Gellatly, 2009 U.S. Dist. LEXIS 2693, at *15-24 (D.

Neb. Jan. 5, 2009) (summarizing the history of child pornography legislation).

The Guidelines provision at issue in this case, § 2G2.2(b)(7), providing for a

sentence enhancement of between two and five levels based on the number of images

involved in the crime, was the direct product of one such Congressional initiative.

Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation

of Children Today Act (“PROTECT Act”), which “made several changes with respect
No. 09-4011 United States v. McNerney Page 7

to the child pornography guidelines and contained provisions by which Congress for the

first and only time to date, directly amended the guidelines.” Id. at 38. “The PROTECT

Act of 2003 instructed the Commission to amend § 2G2.2 to include the number-ofimages enhancements, which are currently codified at § 2G2.2(b)(7) and range from two

levels to five levels.” Dorvee, 604 F.3d at 95 n.6. Thus, “[i]n 2003, pursuant to the

Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act

(“PROTECT Act”), the Commission again revised the guidelines covering child

pornography offenses,” and added the quantity of images enhancement mandated by the

PROTECT Act. History of the Child Pornography Guidelines, supra, at 38.

Congress, in repeatedly enacting legislation regarding child pornography,

“demonstrated its continued interest in deterring and punishing child pornography

offenses.” Id. at 54. As one court explained,

[t]he clear focus of [the child pornography] legislation and concomitant

Guidelines revision is on the patent evils of child pornography and the

new dimension that computer technology adds to those evils. In

particular, the amendments to the Guidelines reflect Congressional

concerns that pedophiles, including those who use the Internet, are using

child pornographic and obscene material to desensitize children to sexual

activity, to convince children that sexual activity involving children is

normal, and to entice children to engage in sexual activity.

Gellatly, 2009 U.S. Dist. LEXIS 2693, at * 24 (internal quotations and citations

omitted). Simply put, Congress sought to protect “[t]he primary victims of the crime of

possession of child pornography,” namely, “the exploited children.” Id.; see also

Connection Distrib. Co. v. Holder, 557 F.3d 321, 324 (6th Cir. 2009) (en banc) (stating

that in enacting numerous pieces of legislation regarding child pornography, “Congress

[was] attempt[ing] to prevent the exploitation of children through pornography.”).

Despite Congress’ significant purpose in prohibiting the dissemination of child

pornography, some courts and commentators have questioned the wisdom of the

congressionally-directed Child Pornography Sentencing Guideline because they were

the product of Congressional mandate rather than the Commission’s preferred

systematic, empirical approach. See, e.g., Grober, 624 F.3d at 608 (“§ 2G2.2 was not
No. 09-4011 United States v. McNerney Page 8

developed pursuant to the Commission’s institutional role and based on empirical data

and national experience, but instead was developed largely pursuant to congressional

directives.”); Dorvee, 604 F.3d at 95, 97 (stating that the § 2G2.2 Guidelines are

“fundamentally different from most and that, unless applied with great care, can lead to

unreasonable sentences,” and describing § 2G2.2 as irrational); Gellatly, 2009 U.S. Dist.

LEXIS 2693, at *10 (stating that in areas such as child pornography, “[w]hen Guidelines

are not the result of the Commission’s exercise of its characteristic institutional role,

such as when they are not based on an empirical approach, but are instead keyed to or

guided by statutory directives . . . the Guideline ranges of imprisonment for those crimes

are a less reliable appraisal of a fair sentence.”); (R. 21-3, Troy Stabenow,

Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the

Child Pornography Guidelines at 3 (explaining that “the changes to the child

pornography guidelines are not the product of an empirically demonstrated need for

consistently tougher sentencing. Instead, these changes are largely the consequence of

numerous morality earmarks, slipped into larger bills over the last fifteen years, often

without notice, debate, or empirical study of any kind.”).) However, the debate

regarding the wisdom of congressionally-mandated enhancements notwithstanding, it

is unquestionably Congress’ constitutional prerogative to issue sentencing directives

such as the sentencing enhancements for quantity of images at issue in this case.

It is axiomatic that “[i]n our system, so far as at least concerns the federal

powers, defining crimes and fixing penalties are legislative . . . functions.” United States

v. Evans, 333 U.S. 483, 486 (1948). The Supreme Court has reiterated that “Congress,

of course, has the power to fix the sentence for a federal crime.” Mistretta v. United

States, 488 U.S. 361, 364 (1989); see also United States v. Evanouskas, 386 F. App’x

882, 884 (11th Cir. 2010). Thus, “[n]othwithstanding the delegation of authority

provided to the Commission in the [Sentencing Reform Act], Congress retained ultimate

authority over the federal sentencing guidelines . . . . Congress [thus] retains the ability

to influence federal sentencing policy by enacting directives to the Commission,”

History of the Child Pornography Guidelines, supra, at 5-6, “which the Commission is

obliged to implement.” Grober, F.3d at 608.
No. 09-4011 United States v. McNerney Page 9

B. Interpretation of § 2G2.2(b)(7)

The Guidelines provision at issue in the instant appeal is U.S.S.G § 2G2.2(b)(7).

It provides for an increase in a defendant’s offense level for child pornography based on

the number of images possessed. Defendant challenges the application of the Guidelines

to duplicate digital images. In his brief to this Court, Defendant admits that duplicate

hard copy images are counted separately for § 2G2.2(b)(7) purposes. However,

Defendant nevertheless argues that only unique digital images, not duplicate digital

images, should be counted in determining a sentencing enhancement under this

Guideline provision.

As discussed above, § 2G2.2(b)(7) was properly enacted pursuant to explicit

congressional mandate, and congressional will should be considered in construing its

parameters. In so doing, we note that congressional directives regarding sentencing for

child pornography have consistently increased penalties. We further note that although

Congress has explicitly expressed its desire to enhance punishments for child

pornography offenses, Congress has not differentiated between digital images and hard

copy images for the purposes of § 2G2.2(b)(7) image enumeration.

Section 2G2.2(b)(7) provides for enhancements to a defendant’s sentence as

follows: “If the offense involved – (A) at least 10 images, but fewer than 150, increase

by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least

300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images,

increase by 5 levels.”

Like the congressional directive itself, the Application Note to § 2G2.2(b)(7) is

similarly devoid of any indication that § 2G2.2(b)(7) differentiates between digital

images and hard copy images.

Application of Subsection (b)(7) – 

(A) Definition of “images” – “Images” means any visual depiction, as

defined in 18 U.S.C. § 2256(5), that constitutes child pornography, as

defined in 18 U.S.C. § 2256(5).
No. 09-4011 United States v. McNerney Page 10

(B) Determining the number of images:– For purposes of determining the

number of images under subsection (b)(7):

(i) Each photograph, picture, computer or computergenerated image, or any similar visual depiction shall be

considered one image. If the number of images

substantially underrepresents the number of minors

involved, an upward departure may be warranted.

U.S.S.G. § 2G2.2 Application Note 4. In defining the term “image,” the Application

Note refers only to “any visual depiction.” This suggests that duplicate visual

depictions, digital or otherwise, should each be counted separately for purposes of this

enhancement.

Previous versions of the Child Pornography Sentencing Guidelines similarly

treated digital images and hard copy images equivalently. The Commission’s 2000

amendments to the Guidelines clarified that the enhancement then contained in

§ 2G2.4(b)(2) providing for “a two-level enhancement if the offense involved possession

of ten or more items of child pornography,” stated that a “computer file qualifies as an

item for purposes of the enhancement,” thus providing for identical treatment of digital

images and hard copy images. (R. 21-3, Troy Stabenow, Deconstructing the Myth of

Careful Study: A Primer on the Flawed Progression of the Child Pornography

Guidelines at 18.)

Defendant nevertheless attempts to distinguish duplicate hard copy images from

duplicate digital images, stating: “the rationale underlying the increase in levels based

upon the number of images is obvious: each picture represents a separate victimization

of those pictured.” (Br. of Appellant at 9.) Defendant maintains, however, that duplicate

digital images, such as those contained on Defendant’s second hard drive, are not

“multiple victimizations.” (Id.) Defendant argues that, as distinguished from duplicate

digital images, “there are practical reasons why [duplicate] hard copies could be treated

[as multiple images]. Most obviously, because making [duplicate] hard copies requires

more than a minimal amount of effort, and having [duplicate] hard copies makes it

possible to potentially distribute them.” (Id.)
No. 09-4011 United States v. McNerney Page 11

4

The recent Eighth Circuit case United States v. Sampson, 606 F.3d 505 (8th Cir. 2010), is the

only case on the circuit level that we have identified which discusses whether duplicate digital images

should be counted for purposes of a § 2G2.2(b)(7) sentence enhancement. In Sampson the Eighth Circuit

held that § 2G2.2(b)(7) does not include a uniqueness requirement for counting digital images. The Eighth

Circuit maintained that possessing duplicate digital images increases the supply of digital child

pornography, and therefore, duplicate digital images should be counted separately for purposes of a

§ 2G2.2(b)(7) enhancement. See id. at 510. 

However, although we agree with the Eighth Circuit’s holding in Sampson that duplicate digital

images should be counted for purposes of a § 2G2.2(b)(7) sentence enhancement, we disagree with its

reasoning to the extent that it is premised on a misunderstanding of the methods used to distribute digital

images of child pornography. Possessing duplicate digital images does not affect the supply of digital

child pornography. An individual possessing a unique digital image can disseminate that single image as

widely as an individual possessing duplicate digital images. Once an individual uploads a digital image,

an infinite number of people can download that single digital image. Therefore, possessing duplicate

digital images does not increase an individual’s capacity to facilitate wide dissemination of that digital

image. 

Defendant’s argument implies that digital images and hard copy images are

disseminated by dissimilar methods of distribution. In this vein, Defendant contends that

it is significant that dissemination of hard copy images requires duplication. According

to Defendant’s reasoning, duplicate hard copy images should be counted separately

pursuant to § 2G2.2(b)(7) inasmuch as the duplicates themselves are necessary for

dissemination. However, this rationale does not similarly justify counting duplicate

digital images separately.

Digital distribution of child pornography is facilitated by file-sharing programs

that allow users to access other users’ computers to download shared digital images.

Once an individual uploads a single digital image onto the file-sharing platform, an

infinite number of users can access that digital image. Thus, possessing a duplicate

digital image does not affect the quantity of child pornography available for digital

distribution.

However, although the rationale for individual counting of duplicate hard copy

images does not extend to duplicate digital images, we remain mindful that the Child

Pornography Guidelines contain no indication that either Congress or the Sentencing

Commission intended to differentiate between hard copy images and digital images. See

U.S.S.G. § 2G2.2 Application Note 4.4

Moreover, it is significant that § 2G2.2(b)(7) applies to all of the following child

pornography crimes: trafficking in material involving the sexual exploitation of a minor;
No. 09-4011 United States v. McNerney Page 12

receiving, transporting, shipping, soliciting, or advertising material involving the sexual

exploitation of a minor; possessing material involving the sexual exploitation of a minor

with intent to traffic; and possessing material involving the sexual exploitation of a

minor. See U.S.S.G. § 2G2.2(b)(7). The Guidelines provision applies equally to

distribution and possession of child pornography. Its applicability is not dependent on

a defendant’s capacity to distribute child pornography. Thus, the rationale for

differentiating between duplicate hard copy images and duplicate digital images based

on differences in distribution methods is not persuasive.

Furthermore, it is undisputed that § 2G2.2(b)(7) applies to possession of

duplicate hard copy images, and that even in cases of simple possession of child

pornography we consider the quantity of images involved in the crime relevant to the

measure of a defendant’s culpability. See United States v. Borho, 485 F.3d 904, 910 (6th

Cir. 2007); see also United States v. Acosta, 619 F.3d 956, 962 (8th Cir. 2010)

(explaining that application of § 2G2.2(b)(7)(D) was proper in that case because

“enhancing a defendant’s sentence for the number of illegal items with which he was

involved is a common practice throughout the Guidelines”). Therefore, neither

application nor interpretation of § 2G2.2(b)(7) is tied to facilitation of distributing child

pornography.

We therefore find that duplicate digital images, like duplicate hard copy images,

should be counted separately for purposes of calculating a sentence enhancement

pursuant to § 2G2.2(b)(7).

III. Summary

The district court did not err by counting duplicate images in calculating

Defendant’s U.S.S.G. § 2G2.2(b)(7) enhancement based on the number of images he

possessed.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision.
No. 09-4011 United States v. McNerney Page 13

___________________

CONCURRENCE

___________________

ROGERS, Circuit Judge, concurring. I concur in the result and in much of the

reasoning of the majority opinion. Defendant makes the categorical argument in this

case that identical duplicate images may not be counted separately for the purposes of

calculating a sentencing enhancement pursuant to U.S.S.G. § 2G2.2(b)(7). For the

reasons given in the majority opinion, we reject this argument.

To reject an argument that duplicate digital images are never to be counted

separately, however, does not require us to hold that they are always to be counted

separately. It is not necessary for us to decide that broader issue in order to resolve this

appeal. Indeed, the Government concedes that certain “thumbnail” duplicate images

need not be separately counted. In the instant case, the duplicate images were in a

back-up hard drive, thus decreasing the chance that the images would be lost. In that

sense, the copies increase the likelihood of further distribution. In such a context, the

district court could properly count the digital images separately. It is not necessary for

us to rule more broadly that duplicate images must be counted even when their presence

on the computer does not increase the likelihood of further distribution.

As a related matter, I think it may be misleading to say that “[p]ossessing

duplicate digital images does not affect the supply of digital child pornography” and that

“possessing duplicate digital images does not increase an individual’s capacity to

facilitate wide dissemination of that digital image.” Maj. Op. 12 n.4. While the

individual’s ultimate capacity to disseminate may be the same, the likelihood of

dissemination is obviously greater in some cases than others. The present instance is a

good example: the existence of a back-up hard drive increases the risk that the images

will be preserved and later viewed by the user or someone else. Similarly, having

duplicates in different folders versus the same folder, or in undeleted versus deleted

status, can change the likelihood of dissemination.