Revised November 17, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-40148

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

EDDIE EUGENE NORRIS,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

October 29, 1998

Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Eddie Eugene Norris pleaded guilty to ten counts of receiving

child pornography in violation of 18 U.S.C. § 2252(a)(2). He was

sentenced to a 78-month prison term. He appeals from that sentence

on the theory that his ten count s of conviction should have been

grouped pursuant t o U.S.S.G. § 3D1.2(b) because each offense

invo lved the same “victim” (namely, society as a whole), and-2-

therefore involved substantially the same harm. We disagree, and

therefore affirm.

I.

Norris took his computer to a shop in Corpus Christi, Texas,

for the purpose of havi ng the hard drive repaired. The employee

who performed the rep airs noticed that the filenames of several

documents stored in the computer’s hard dri ve contained sexually

explicit words. Upon opening several of these files, the employee

discovered that the file s contained explicit images of children

engaged in sexual conduct. Local law enforcement and the United

States Customs Service were notified, the contents of the hard

drive were ex amined, and Norris was arrested following a

“controlled delivery” of his computer.

Norris was indicted on ten counts of “knowingly receiv[ing] a

visual depiction, the producing of which involved the use of a

minor engaging in sexually explicit conduct

. . . which visual

depiction had been transported and shipped in i nterstate and

foreign commerce,” in violation of 18 U.S.C. § 2252(a)(2), and one

count of “knowingly possess[ing] three (3) or more visual

depictions, the producing of which invoked the use of a minor

engaging in sexually explicit conduct, which visual depictions are

of such conduct,” in violation of 18 U.S.C. § 2252(a)(4)(B). He

pleaded gui lty to the ten counts of receiving child pornography,1 The United States Sentencing Commission Guidelines Manual in

effect on the date of sentencing is used to calculate a defendant’s

sentence. S ee U.S.S.G. § 1B1.11(a) (Nov. 1997). The district

court imposed judgment on Norris on December 4, 1997, and the

judgment was entered on December 9, 1997. Accordingly, the

sentencing issues in this case are governed by the G uidelines

Manual incorporating guideline amendments effective November 1,

1997. All sentencing guidelines references in this opinion refer

to the November 1997 edition, though the presentence investigation

report indicates that it was based on the 1995 edition.

2 As a justificat ion for the grouping recommendation, the

presentence investigation report stated:

Individual grouping would be appropriate if each

picture actually victimized the minors in the

visual depictions. . . . [T]he adult participants

in the visual depictions, the photographers, and

the individuals who have made financial profit from

such items are the ones who victimize the minors.

This defendant is a p parently more of a passive

v iewer of the depictions and his actions do no t

serve to perpetrate the crimes as much as the other

-3- and the one count of possessing child pornography was dismissed on

the government’s motion, pursuant to a plea agreement. The

district co urt accepted Norris’s guilty plea and scheduled a

sentencing hearing.

The sentencing recommendation of the presentence investigation

report originally prepared for Norris by a United States Probation

Officer recomme nded a total offense level of 18 and criminal

history category of I, which together carry an imprisonment range

of 27 to 33 months. 1 This recommendation reflected a base offense

level of 17 for ten grouped counts of receiving child pornography

in violation of 18 U.S.C. § 2522(a)(2) (U.S.S.G. §§ 2G2.2(a),

3D1.2(b)), 2 two specific offense characteristic increases of twoparticipants.

3 The addendum stated that the counts of receiving child

pornography should not be grouped because “these offenses involved

separate minors.”

-4- levels each for inv olvement of material involving prepubescent

mino rs (U.S.S.G. § 2G2.2(b)(1)) and use of a computer for

transmission (U.S.S.G. § 2G2.2(b)(5)), and downward adjustments of

two levels for acceptance of responsibility (U.S.S.G. § 3E1.1(a))

and one level for timely notification to the government of intent

to plead guilty (U.S.S.G. § 3E1.1(b)(2)).

The parties filed no objections to this recommendation, but an

addendum to the p resentence investigation report and a revised

sentencing recommendation were filed b y the probation office in

response to a request by the district court. The new report and

recommendation contained two changes. An additional four-level

increase was suggested because the pornographic items received by

Norris depicted acts of violence (U.S.S.G. § 2G2.2(b)(3)), and,

re scinding the previous grouping analysis, 3 a five-level increase

was recomme nded to account for the multiple counts of conviction

(U.S.S.G. § 3D1.4). The new recommendation thus suggested a total

offense level of 27, which carries an imprisonment range of 70 to

87 months for a criminal history category of I.

Norris objected to the failure to group the counts for

sentencing purposes, but the objection was overruled. Adopting the

presentence investigation report, the district cou rt assigned a-5-

total offense level of 27, a criminal history category of I, and a

sentence of 78 months of imprisonment. Norris timely appeals from

the district court’s calculation of his sentence.

II.

Norris contends that the district court erred by refusing to

group his offenses under U.S.S.G. § 3D1.2. That section provides,

in pertinent part:

All counts involving substantially the same harm

shall be grouped together into a single Group.

Counts involve substantially the same harm within

the meaning of this rule:

* * *

(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.

U.S.S.G. § 3D1.2(b). The commentary to this guideline states that:

The term “victim” is not intended t o include

indirect or secondary victims. Generally, there

will be one person who is directly and most

seriously affected by the offense and is therefore

identifiable as the victim. For offenses in which

there are no identi fiable victims ( e .g.

, drug or

immigration offenses, where society at large is the

victim), the “victim” for purposes of subsections

(a) and (b) is the societal interest that is

harmed. In such cases, the counts are grouped

together when the societal interests that are

harmed are closely related. . . . Ambiguities

should be resolved in accordance with the purpose

of this sec tion as stated in the lead paragraph,

i.e.

, to identify and group “counts involving

substantially the same harm.”-6-

U.S.S.G. § 3D1.2 cmt. 2. This commentary “must be given

controlling weight unless it is plainly erroneous or inconsistent”

with the text of § 3D1.2. Stinson v. United States , 508 U.S. 36,

45, 113 S. Ct. 1913, 1919 (1993) (int ernal quotation marks

omitted).

Analogizing to the commentary’s examp le of drug offenses,

Norris contends that his receipt of child pornography is a

victimless crime. According to Norris, society at large is

therefore the “victim” for the purposes of the grouping rule, and

because each time he received child pornography that same societal

interest was harmed, the counts should be grouped. In addition, to

the extent that the children portrayed in the pictures received by

Norris may be considered to be victims of his crimes, he contends

that they are indirect or secondary victims of his actions of the

sort not contemplated by § 3D1.2.

A.

The issue of whether the district court correctly interpreted

the sentencing guidelines to permit the children depicted in child

pornography to be considered the victims of the crime of receiving

child pornography for the purposes of the guidelines’ grouping rule

is a question of law which we review de novo. S ee United States v.

Hibbler

, Nos. 96-2345 & 96-2450, 1998 WL 729540, at *2 (6th Cir.

Oct. 21, 1998), United States v. Boos , 127 F.3d 1207, 1209 (9th-7-

Cir. 1997), cert. denied , 118 S. Ct. 734 (1998); United States v.

Ketcham

, 80 F.3d 789, 792 (3d Cir. 1996); United Sta tes v. Rugh

,

968 F.2d 750, 755 (8th Cir. 1992); United States v. Toler

, 901 F.2d

399, 402 (4th Cir. 1990). In reviewing the district court’s

findings of fact and application of the guidelines to the specific

facts of a case, w e review for clear error. S ee, e.g.

, United

States v. Powell

, 124 F.3d 655, 663 (5th Cir. 1997), cert. denied

,

118 S. Ct. 1518 (1998).

B.

The question of whether multiple children depicted in multiple

pornographic images may be treated as different “victims” for

sentencing purposes is not novel

-- it has been considered by five

other circuits. S ee Hibbler

, 1998 WL 729540, at *2-*4 (yes); Boos

,

127 F.3d at 1209-13 (yes); Ketcham

, 80 F.3d at 792-93 (yes); Rugh

,

968 F.2d at 754-56 (yes); cf. Toler

, 901 F.2d at 402-03 (no

-- the

depicted minor is the primary “victim” for the purposes of 18

U.S.C. § 2423 (interstate transportation of a minor wi th intent

that the minor engage in prohibited sexual conduct), but not under

18 U.S.C. § 2252(a) (interst ate transportation of child

p ornography)). We agree with those circuits which have decided

that the children depicted in child pornography may be considered

to be the victims of the crime of receiving child pornography.-8- 1.

Just as in the case of interpreting a statute, when

interpreting a provision of the sentencing guidelines our starting

point is the text of that provision. C f., e.g.

, Hightower v. Texas

Hosp. Ass’n

, 65 F.3d 443, 448 (5th Cir. 1995) (“When courts

interpret statutes, the initial inquiry is the language of the

statute itself.”). We must look first, then, to the text of

U.S.S.G. § 3D1.2 and the plain meaning of the word “victim.”

Section 3D1.2(b) permits the grouping of counts which “involve the

sam e victim.” A “victim” in this sense is “anyone who suffers

either as a result of ruthless design or incidentally or

accidentally.” Webster’s Third New International Dictionary 2550

(1971).

Norris argues that when he committed th e crime of receiving

child pornography, the children depicted were not “victimized” by

that act, and therefore were not “victims” for sentencing purposes.

Under this theory the victimization of the children occurred at the

time the pornographic images were produced. Therefore, according

to Norris, the criminal act of simply receiving child pornography

is a victimless crime, and the children depicted in the child

pornography can only be victims of the crime of receiving child

pornography in an indirect or secondary sense.

Norris takes an unrealistically narrow view of th e scope of

harms experienced by the child victims of the child pornography-9-

industry. Unfortunately, the “victimization” of the children

involved does not end when the pornographer’s camera is put away.

The consumer, or en d recipient, of pornographic materials may be

considered to be causing the children depicted in those materials

to suffer as a result of his actions in at least three ways.

First

, the simple fact that the images have been disseminated

perpetuates the abuse initiated by the producer of the materials.

“[T]he materials produced are a permanent record of the children’s

participation and the harm to the child is exacerbated by their

circulat ion .” N

ew York v. Ferber

, 458 U.S. 747, 759, 102 S. Ct.

3348, 3355 (1982) (emphasis supplied); see also Child Pornography

Prevention Act of 1996, Pub. L. 104-208, sec. 121, 110 Stat. 3009-

26, reprinted in 18 U.S.C. § 2251 note at 611 (Supp. II 1996)

(hereinafter, 1996 Act) (“Congress finds that

. . . where children

are used in its production, child pornography permanently records

the victim’s abuse, a nd its continued existence causes the child

victims of sexual abuse continuing harm by haunting those children

in future years

. . . .”); Osborne v. Ohio

, 495 U.S. 103, 111, 110

S. Ct. 1691, 1697 (1990) (“ The pornography’s continued existence

causes the child victims continuing harm by haunting the children

for years to come.”). The consumer who “merely” or “passively”

receive s or possesses child pornography directly contributes to

this continuing victimization.-10-

Second

, the mere existence of child pornography represents an

invasion of the privacy of the child depicted. Both the Supreme

Court and Congress have explicitly acknowledged tha t the child

victims of child pornography are directly harmed by this despicable

intrusion on the lives of the young and the innocent. S ee Ferber

,

456 U.S. at 759 n.10, 102 S. Ct. at 3356 n.10 (“[D]istribution of

the material violates ‘the individual interest in avoiding

disclosure of personal matters.’” (quoting Whalen v. Roe

, 429 U.S.

589, 599, 97 S. Ct. 869, 876 (1977))); 1996 Act, 110 Stat. at 3009-

26 (“Congress finds that . . . the creation or distribution of

child pornograph y . . . invades the child’s privacy and

reputational interests

. . . .”). The recipient of child

pornography obviously perpetuates the exis t ence of the images

received, and therefore th e recipient may be considered to be

invading the privacy of the children depicted, directly victimizing

these children.

Third

, the consumer of child pornography instigate s the

original production of child pornography by providing an economic

motive for creating and distributing the materials. See Osborne

,

495 U.S. at 109-12, 110 S. Ct. at 1696-97; F erber

, 458 U.S. at

3355-56. As Congress put it in explicit factual findings:

[T]he existence of and traffic in child

pornographic images . . .

. . . inflames the desires of child molesters,

pedophiles, and child pornographers, thereby

increasing the creation and distribution of child-11- pornography and the sexual abuse and exploitation

of actual ch ildren who are victimized as a result

of the existence and use of these materials[.]

1996 Act, sec. 121, 110 Stat. at 3009-27. Plainly, Congress has

described a chicken-and-egg scenario in which it would be

impossible to determine whether child pornographers or consumers of

child pornography were initially responsible for the creation of

the child pornography industry. The underlying point, however, is

that there is no sense in distinguishing, as Norris has done,

between the producers and the consumers of child pornography.

Neither could exist without the other. The consumers of child

pornography therefore vic timize the children depicted in child

pornography by enabling and supporting the continued production of

child pornography, which entails continuous direct abuse and

victimization of child subjects.

Any of these e ffects, stemming directly from a consumer’s

receipt of or willingness to receive child pornography, would amply

justify the conclusion that a c hild depicted in the pornographic

images wa s a “victim” of that crime. We therefore disagree with

Norris’s suggestion the nature of the offense he committed requires

that his counts of receiving child pornography be grouped as a

matter of law. We reject the suggestion that the commentary’s

references to victimless crimes and “indirect or secondary victims”

compels the conclusion that the crimes of a “passive” child

pornography recipient must be grouped because the resulting harm is

somehow attenuated as compared to a person who actually produces or4 We note in passing the unique posture of the receipt offense

in the sentencing scheme as compared to other child pornography

offenses. Norris was convicted and sentenced for receiving child

pornography, which is grouped with the offense s of trafficking,

shipping, advertising, or possessing with intent to traffic. See

U.S.S.G. § 2G2.2. Sentencing under this provision results in a

greater base offense level than does conviction and sentencing for

the offense of possessing child pornography. C ompare id

. (base

offense level of 17 for receiving child pornography), with U.S.S.G.

§ 2G2.4 (base offense level of 15 for possessing child

pornography). Arguably, there is no meaningful distinction between

the offenses of receiving and possessing child pornography, and the

different base offense levels for those offenses are, t herefore,

difficult to reconcile. This problem has not escaped the notice of

the Sentencing Commission. See U.S. Sentencing Comm’n, R eport to

Congress: Sex Offenses Against Children: Findings and

Recommendations Regarding Federal Penalties 41-42 (1996), available

in U.S. Sentencing Comm’n, R eport to Congress

- Sex Offenses

Against Children (visited Oct. 26, 1998)

<http://www.ussc.gov/scac.pdf>. Congress, however, has insisted on

maintaining the current scheme. See Treasury, Postal Service and

General Government A ppropriations Act of 1992, Pub. L. 102-141,

§ 632, 105 Stat. 834, 876. A prosecutor can therefore manipulate

the severity of a sentence by deciding whether to charge the

defendant with receiving or possessing child pornography

-- a

result at apparent odds with the policy goals of the sentencing

guidelines.

-12- distributes child pornography. As we have explained, the

victimization of a child depicted in pornographic materials flows

just as dir ectly from the crime of knowingly receiving child

pornography as it does from the arguably more culpable offenses of

producing or distributing child pornography. 4

2.

Our conclusion that a child depicted in child pornography may

be the victim of the crime of receiving child pornography is

supported by the titles of the legislative acts which created 185 The same theme is also reflected in the titles and legislative

findings of later statutes amending 18 U.S.C. § 2252, such as the

Child Abuse Victims’ Rights Act of 1986, Pub. L. 99-500, sec.

704(b) , 100 Stat. 1783-74, 1783-75, the Child Protection and

Obscenity Enforcement Act of 1988, Pub. L. 100-690, sec. 7511(b),

102 Stat. 4485, 4485, and the Child Protection Restoration and

Penalties Enhancement Act of 1990, Pub. L. 101-647, sec. 323, 104

Stat. 4816, 4818-19.

6 Significantly, we cannot place our whole reliance on the

original enactment of 18 U.S.C. § 2252, as did our sister circuits

in Boos and Ketcham

. The prohibition against the receipt of child

pornography contained in 18 U.S.C. § 2252(a)(2) began as a

prohibition of “knowingly receiv[ing] f or the purpose of sale or

distribution

. . . any obscene visual or print medium” depicting

child pornograph y. Protection of Children Against Sexual

Exploitation Act of 1977, Pub. L. 95-225, § 2(a), 92 Stat. 7, 7-8

(emphasis supplied). The Child Protection Act of 1984 amended this

provision in two s ignificant respects, eliminating both the

“purpose of sale or distribution” and obscenity restrictions. S ee

Child Protection Act of 1984, Pub. L. 98-292, sec. 4, 98 Stat. 204,

204-05. The crime committed by Norris, receiving child

pornography, was not a crime under the 1977 legislation because the

-13- g:\opin\98-40148.opn U.S.C. § 2252 and which amended that statute to criminalize the

mere receipt of child pornography, the Protection of Children

Against Sexual Exploitation Act of 1977, Pub. L. 95-225, § 2(a), 92

Stat. 7, 7-8, and the Child Protection Act of 1984, Pub. L. 98-292,

sec. 4, 98 Stat. 204, 204-05. 5 “‘[T]he title of a statute and the

heading of a section’ are ‘tools available for the resolution of a

d oubt’ about the meaning of a statute.” A lmendarez-Torres v.

United States , 118 S. Ct. 1219, 1226 (quoting Brotherhood of R.R.

Trainmen v. Baltimore & Ohio R. Co

. , 331 U.S. 519, 528-29, 67 S.

Ct. 1387, 1391-92 (1947)). These titles leave no doubt whatsoever

about the intentions of Congress in criminalizing the recei pt of

child pornography. 6 The titles of the acts show that the focus ofrecord does not suggest that he had a “purpose of sale or

distribution.” It is, therefore, important that we also take into

consideration the 1984 amendment which eliminated that element of

the offense. The defendants in both B oos and Ketcham were

convicted, inter alia, on counts of distributing child pornography,

which was covered by the original 1977 legislation.

-14- g:\opin\98-40148.opn Congress was on protecting children, not, as Norris would have it,

a general concern for society as a whole. We would stand the

statute on its head to conclude otherwise. See Boos , 127 F.3d at

1213; Ketcham , 80 F.3d at 793.

C.

We have concluded that the sente ncing guidelines do not

preclude, as a matter of law, children depicted in child

pornography from being characterized as victims of the crime of

receiving child pornography for the purposes of the grouping

provision. We now turn to the task of reviewing the district

court’s determination that th e children depicted in the images

received by Norris were the victims of his crime. Norris

identifies no facts which would indicate that the children depicted

were not victims of Norris’s crime, and our independent review of

the record reveals no clear error.

III.

For the foregoing reasons, we AFFIRM the judgment of the

district court.