In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-1311

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID J. GUNDERSON, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00-CR-70—John C. Shabaz, Judge.

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ARGUED FEBRUARY 11, 2003—DECIDED SEPTEMBER 26, 2003

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Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit

Judges.

ROVNER, Circuit Judge. While investigating child pornography on the internet, German police downloaded illegal images of children from a computer owned by David

Gunderson in Ortfordville, Wisconsin. German authorities

alerted Ortfordville police, who obtained a warrant and

searched Gunderson’s computer on which they found additional illegal images of children. Gunderson pleaded guilty

to possessing child pornography and was sentenced to 120

months’ imprisonment. He appeals his sentence, but we

affirm.
2 No. 01-1311

German police downloaded the images from Gunderson’s

computer in October 1999 after visiting an internet chat

room devoted to child pornography. While inside the chat

room, police obtained the password needed to access the

files on Gunderson’s computer over the internet. Using

this password, German police downloaded several sexually

explicit images of children from Gunderson’s computer.

Gunderson admitted that the images were his and alerted

officers to additional child pornography that he had transferred from his computer’s hard drive onto two compact

discs. He was indicted for possessing child pornography on a

computer hard drive, 18 U.S.C. § 2252A(a)(5)(B) (Count I);

shipping child pornography in interstate commerce, id.

§ 2252A(a)(1) (Count II); and criminal forfeiture, id. § 2253

(Count III).

Gunderson pleaded guilty to Count I, the possession

charge, and agreed to the forfeiture sought in Count III.

In exchange for his guilty plea, the government dropped

Count II. Prior to sentencing, the probation office submitted

a presentence report, which calculated a recommended

sentence under the Sentencing Guidelines. The report recounted Gunderson’s misdemeanor conviction in 1994 for

having “sex with a child age 16 or older”; when Gunderson

was 22, he had sex at least twice with his 17-year-old

girlfriend. As a result of that conviction, the report recommended that Gunderson’s base offense level be increased by

five levels for engaging in a “pattern of activity involving

the sexual abuse or exploitation of a minor.” See U.S.S.G.

§ 2G2.2(b)(4). It also recommended that his base offense

level be increased by another five levels for distributing,

in addition to possessing, child pornography. See id.

§ 2G2.2(b)(2).

Gunderson objected to both enhancements. He argued

that the five-level enhancement for engaging in a pattern of

sexually exploiting children was inappropriate because

consensual sexual activity with someone over 16 is not a
No. 01-1311 3

crime under federal law. He also argued that the distribution enhancement was inappropriate because his computer

automatically swapped files with other computers and

because he never received money from the people accessing

his illegal images. The district court rejected Gunderson’s

objections and sua sponte denied him the three-level reduction for acceptance of responsibility recommended

in the presentence report. The court held that Gunderson

was ineligible for the acceptance-of-responsibility reduction because by objecting to the distribution enhancement,

he had denied relevant conduct. The sentence the court

imposed—120 months—was the maximum permitted by

statute. See 18 U.S.C. § 2252A(b)(2).

We review the district court’s decision to apply a sentencing enhancement under the Guidelines de novo, United

States v. Mabrook, 301 F.3d 503, 510 (7th Cir. 2002), and its

decision to deny a reduction for acceptance of responsibility

for clear error, United States v. Boos, 329 F.3d 907, 911 (7th

Cir. 2003).

Gunderson first argues that the district court misapplied

the Guidelines by assessing a five-level increase to his base

offense level for being involved in a “pattern of sexual abuse

or exploitation of a minor.” See U.S.S.G. § 2G2.2(b)(4).

Gunderson contends that under federal law consensual sex

is criminal only if it involves a minor under 16, see 18

U.S.C. § 2243(a), and therefore his state conviction for

having sex with his then 17-year-old girlfriend was not a

federal crime and does not fall under the Guideline’s definition of sexual abuse of a minor. But § 2G2.2 itself provides

the relevant definition of the word “minor,” which, “[f]or

purposes of this guideline[,] . . . means an individual who

had not attained the age of 18 years.” U.S.S.G. § 2G2.2,

comment (n.1). Furthermore, the Guideline reaches not only

conduct that constitutes a violation of federal law, but also

“similar offense[s] under state law.” Id. Gunderson’s
4 No. 01-1311

conviction for having sex with his 17-year-old girlfriend is

a state law offense sufficiently similar to the federal crime

of sexual abuse of a minor, and therefore the district court

did not err when it increased Gunderson’s base offense level

by five levels under § 2G2.2.

Next, Gunderson argues that the district court should not

have assessed a five-level increase in his base offense level

for distribution under § 2G2.2(b)(2) because he received no

money from the people who downloaded his child pornography, and because he set up his computer to automatically

trade files even when he was not using the computer at

the time. Although Gunderson did not require other computer users to pay to access his files, he did require them to

first upload files to his computer: for each megabyte of files

other users uploaded, Gunderson’s computer allowed them

to download three megabytes of files. These types of swaps,

barters, and in-kind transactions are covered under

§ 2G2.2(b)(2). United States v. Black, 116 F.3d 198, 202-03

(7th Cir. 1997). In Black, we concluded that the defendant

had not distributed child pornography based in part upon

the government’s stipulation that he did not require the

people who downloaded pornography from his computer

to give him anything in return. Id. at 200. In contrast,

Gunderson received valuable consideration from each of the

persons who downloaded his illegal images because they

could access his files only after they uploaded images to his

hard drive. As for his argument that he did not engage in

distribution because his computer automatically distributed

files, the fact that his computer traded files automatically

is irrelevant: Gunderson is the person who programmed his

computer to trade files in this manner.

Finally, Gunderson disputes the district court’s determination that he failed to accept responsibility for his conduct

and therefore was not entitled to a three-level reduction in

his base offense level. See U.S.S.G. § 3E1.1. The court con-
No. 01-1311 5

cluded that Gunderson did not accept responsibility for his

conduct when he challenged the presentence report’s recommendation that he be assessed a five-level increase for

distribution. See U.S.S.G. § 3E1.1. Gunderson contends that

he challenged only whether his conduct fell under the

Guideline definition of distribution, not the fact that he

programmed his computer to automatically exchange child

pornography. But his contention is not supported by the

record. In written objections to the presentence report,

Gunderson’s attorney maintained that Gunderson was

guilty only of downloading and possessing child pornography, not of sharing it with others:

Beyond simple possession, there is no factual basis for

this [distribution] assertion. . . . [H]e possessed/downloaded images of child pornography—

period. He was not involved in any scheme or plan

which served to place these or other images back into

the global canals of e-commerce. His possession did not

involve distribution at any conceivable level. The single

transfer from his computer’s hard drive to his own

floppy disc or CD was the single and final destination of

these images.

Counsel’s objection went well beyond arguing that

programming a computer to automatically share files falls

outside the Guideline’s definition of distribution; it denies

that Gunderson shared files at all. Gunderson adopted his

counsel’s written objections at his sentencing hearing when

he told the court that he had read the objections and agreed

with them. By adopting the objections, Gunderson denied

relevant conduct—sharing his illegal images with others—and therefore the court’s decision to deny him a threelevel reduction for acceptance of responsibility was not clear

error. See United States v. Tankersley, 296 F.3d 620, 622

(7th Cir. 2002) (defendant must admit both the conduct

comprising the offense as well as other conduct related to

the offense).
6 No. 01-1311

Accordingly, we AFFIRM the judgment of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-26-03