FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF 

AMERICA,

Plaintiff-Appellee,

v.

DUSTIN RANDALL,

Defendant-Appellant.

No. 20-10339

D.C. Nos.

2:18-cr-00303-JCM-EJY-1

2:18-cr-00303-JCM-EJY

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted December 10, 2021

San Francisco, California

Filed May 20, 2022

Before: Kim McLane Wardlaw, Daniel A. Bress, and 

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bumatay;

Dissent by Judge Wardlaw
2 UNITED STATES V. RANDALL

SUMMARY*

Criminal Law

Answering two questions of first impression in this 

circuit, the panel affirmed a sentence imposed on Dustin 

Randall for distributing and receiving child pornography in 

violation of 18 U.S.C. § 2252A. 

The panel held that to be eligible for a five-level 

enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which 

applies to offenders who distribute child pornography “in 

exchange for any valuable consideration,” the defendant 

need not actually receive the “valuable consideration,” and 

that the district court therefore did not err in applying the 

enhancement. 

The panel held that the Justice for Victims of Trafficking 

Act, 18 U.S.C. § 3014(a), mandates a $5,000 assessment for 

each of a defendant’s counts of conviction—not a single 

assessment per defendant in the case. The panel explained 

that § 3014(a) works in conjunction with 18 U.S.C. § 3013, 

to which § 3014 is closely related in terms of text, purpose, 

and statutory structure; and observed that every circuit court 

has interpreted § 3013’s assessment on a person “convicted 

of an offense” to apply separately to each count of conviction 

rather than to each offender. The panel wrote that the 

ordinary meaning of § 3014’s “convicted of an offense” also 

supports a separate assessment per conviction. The panel 

concluded that the district court therefore did not err in 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RANDALL 3

assessing a fine of $5,000 for each of Randall’s two counts 

of conviction.

Judge Wardlaw dissented from the portion of the 

majority opinion concerning the § 3014(a) assessment. She 

wrote that the majority’s conclusion that § 3014(a) imposes 

a per-count assessment is based on a flawed reading of 

§ 3013, an earlier enacted statute that differs markedly from 

§ 3014 in both text and structure. She wrote that whether the 

court should impose the § 3014 assessment turns on the 

nature of the offense—not the number of offenses of 

conviction. 

The panel rejected Randall’s remaining objections to his 

sentence in a concurrently filed memorandum disposition.

COUNSEL

Amy B. Cleary (argued), Assistant Federal Public Defender; 

Rene L. Valladares, Federal Public Defender; Office of the 

Federal Public Defender, Las Vegas, Nevada; for 

Defendant-Appellant.

Elham Roohani (argued), Assistant United States Attorney; 

Elizabeth O. White, Appellate Chief; Christopher Chiou, 

Acting United States Attorney; United States Attorney’s 

Office, Las Vegas, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. RANDALL

OPINION

BUMATAY, Circuit Judge:

Dustin Randall was convicted of distributing and 

receiving child pornography in violation of 18 U.S.C. 

§ 2252A. He challenges the sentences imposed, raising two 

questions of first impression:

First, U.S. Sentencing Guideline § 2G2.2(b)(3)(B) 

provides for a five-level enhancement for offenders who 

distribute child pornography “in exchange for any valuable 

consideration.” While the enhancement requires that the 

offender share pornographic material, we have never 

answered whether the offender must also receive the 

“valuable consideration.” Our sister circuit courts are 

seemingly divided on this question. One circuit holds that 

the enhancement does not depend on the receipt of valuable 

consideration. See United States v. Oliver, 919 F.3d 393, 

403–04 (6th Cir. 2019). Another circuit appears to hold the 

opposite. See United States v. Halverson, 897 F.3d 645, 652 

(5th Cir. 2018).

Second, the Justice for Victims of Trafficking Act, 

18 U.S.C. § 3014(a), mandates a $5,000 special assessment 

for defendants convicted of certain sex crime offenses, 

including the distribution and receipt of child pornography. 

We must decide whether the $5,000 assessment attaches to 

each offense of conviction or whether the statute permits 

only a single assessment of $5,000 for each defendant per 

case. Once again, the circuit courts are split. One circuit 

holds that a $5,000 assessment must be imposed for each 

eligible conviction. See United States v. Johnman, 948 F.3d 

612, 617 (3d Cir. 2020). Another concludes that a defendant 

can only be assessed one time per case—no matter the 
UNITED STATES V. RANDALL 5

number of convictions. See United States v. Haverkamp, 

958 F.3d 145, 149 (2d Cir. 2020).

We answer both questions today. Based on the text of 

the Guideline and the statute, we hold (1) that 

§ 2G2.2(b)(3)(B) does not require the defendant to receive 

any “valuable consideration”; and (2) that § 3014(a) requires 

a $5,000 fine per offense. We thus affirm the district court’s 

sentence.1

I.

In 2017, Las Vegas Metropolitan Police Department 

detectives assigned to the Internet Crimes Against Children 

Task Force uncovered Randall’s criminal activity through 

the investigation of David Proctor—a suspected trader of 

child pornography. Detectives investigated Proctor’s use of 

Kik, a free instant messaging mobile application, for 

distribution of child pornography.

After securing a warrant for Proctor’s Kik account, 

detectives discovered a June 2017 conversation between 

Proctor and Randall. In relevant part, Proctor and Randall 

discussed the following:

Proctor: Can I join group? How young

Randall: Young and send to join

Proctor: [sends a Dropbox link containing 

child pornography]

1 In a concurrently filed memorandum disposition, we reject 

Randall’s remaining objections to his sentence.
6 UNITED STATES V. RANDALL

Can I get one or join group

?

Do you trade back

Randall: I trade back and yeah the group is 

dead now it was going last night

[sends Dropbox link]

Proctor: Do you have babies

Or mega link

Have more. I sent two

Can you send from group

[sends three Dropbox links 

containing child pornography]

Have any more or younger

. . .

Proctor: Can you send more or different

CAn you send more [sic]

?

Send more
UNITED STATES V. RANDALL 7

Randall: I don’t trade with impatient 

mother fuckers

Proctor: Sorry I’ll wait

Send when you can no rush

I have baby to trade

Randall: [sends Dropbox link containing 

child pornography]

So Proctor began the conversation by requesting to join 

the Kik group Randall belonged to, and Randall responded 

that he had to “send” child pornography “to join” the group. 

Proctor then sent Randall a link to Dropbox, a cloud-based 

virtual storage provider, that contained 272 videos and 

34 images of child pornography. Later, Proctor asked 

Randall if he “trade[s] back”—inquiring if Randall wanted 

to send back pornography in return. Randall confirmed that 

he “trade[s] back” and then sent Proctor a Dropbox link, 

which the government asserted contained child 

pornography. Proctor later sent three more Dropbox links to 

Randall, presumably also containing child pornography. In 

return, Proctor repeatedly asked Randall to “[s]end more.” 

After some back and forth, Randall eventually sent Proctor 

another Dropbox link containing child pornography.

After identifying Randall in December 2017, detectives 

executed a search warrant on his home. Randall waived his 

Miranda rights and agreed to speak with the investigators. 

Randall admitted to trading child pornography on his Kik 

account. He expressed remorse and stated that he knew his 

actions were wrong.
8 UNITED STATES V. RANDALL

In January 2018, detectives received information from 

Randall’s Dropbox account. The account contained 

92 videos and 24 images of child pornography. Between 

Randall’s own Dropbox account and the link sent to him by 

Proctor, Randall had 364 videos of child pornography and 

75 images involving the sexual exploitation of children.

In August 2018, Las Vegas detectives arrested Randall 

on state charges. A federal criminal complaint was then filed 

against him in September 2018, and he was arraigned in 

federal court. Without a plea agreement, Randall pleaded 

guilty to one count of receipt of child pornography and one 

count of distribution of child pornography, both in violation 

of 18 U.S.C. § 2252A(a)(2), (b).

At sentencing, the district court determined that Randall 

had a total offense level of 37, with a Sentencing Guidelines 

range of 210 to 262 months. The statutory maximum term 

of imprisonment for each of Randall’s offenses was 

240 months. In calculating Randall’s offense level, the 

district court applied a five-level enhancement for the 

exchange of child pornography for valuable consideration. 

See U.S.S.G. § 2G2.2(b)(3)(B). The district court sentenced 

Randall to 96 months’ imprisonment and a lifetime term of 

supervised release. Under the Justice for Victims of 

Trafficking Act, the district court also imposed a $5,000 fine 

on each of Randall’s two offenses—for a total of $10,000.

Randall now appeals his sentence and fine. We review a 

district court’s interpretation of the Guidelines de novo, its 

application of the Guidelines to the facts of the case for abuse 

of discretion, and its factual findings for clear error. United 

States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019). We 

review a district court’s interpretation of a statute de novo. 

United States v. Harris, 983 F.3d 1125, 1126 (9th Cir. 2020).
UNITED STATES V. RANDALL 9

II.

We confront two important questions in this case: 

(1) whether a defendant must receive “valuable 

consideration” to be eligible for the five-level enhancement 

under U.S.S.G. § 2G2.2(b)(3)(B); and (2) whether 

assessments under the Justice for Victims of Trafficking Act, 

18 U.S.C. § 3014(a), should be imposed on a per-count or a 

per-defendant basis. We answer the first question in the 

negative—the defendant need not actually receive the 

“valuable consideration” to receive the § 2G2.2(b)(3)(B) 

enhancement. As to the second question, we conclude that 

§ 3014(a) mandates a $5,000 assessment for each of a 

defendant’s counts of conviction—not a single assessment 

per defendant in the case.

A The Valuable Consideration Enhancement

We first turn to the valuable consideration enhancement 

under § 2G2.2(b)(3)(B). Randall challenges two aspects of 

the district court’s application of the valuable consideration 

enhancement—first on legal and second on factual grounds. 

We disagree with Randall on both.

1.

As amended in 2016, § 2G2.2(b)(3)(B) provides for a 

five-level enhancement when a defendant exchanges child 

pornography for “valuable consideration.” U.S.S.G. 

§ 2G2.2(b)(3)(B). “Valuable consideration” refers to the 

exchange of “something of valu[e],” such as “other child 

pornographic material, preferential access to child 

pornographic material, or access to a child.” U.S.S.G. 

§ 2G2.2 cmt. n.1. As the Sentencing Commission explained, 

the enhancement accounts for the “higher level of 

culpability” when a defendant has a “specific purpose” to 
10 UNITED STATES V. RANDALL

distribute child pornographic material to another person in 

“exchange for valuable consideration.” U.S.S.G. Supp. to 

App. C at 136–37. Without the exchange for “valuable 

consideration,” unless another enumerated enhancement 

applies, offenses involving only distribution generally lead 

to a two-level increase. U.S.S.G. § 2G2.2(b)(3)(F).

Here, the parties disagree about whether the 

§ 2G2.2(b)(3)(B) enhancement requires the completion of 

the exchange for “valuable consideration.” Randall asserts 

that a defendant must actually receive the “valuable 

consideration” for the enhancement to apply. But the 

government contends that a defendant must only complete 

his end of the bargain; it is unnecessary for the defendant to 

receive valuable consideration. As we note below, Randall 

could not prevail even if receipt of valuable consideration 

were required; Randall did, in fact, receive valuable 

consideration in the form of child pornography. But because 

the legal question is squarely presented here, and because 

there is value in providing clarity on the scope of criminal 

law and punishment, we proceed to address whether Randall 

must have received valuable consideration in order for the 

§ 2G2.2(b)(3)(B) enhancement to be imposed.

To resolve the parties’ competing interpretations, we 

turn to the Guideline’s text and any accompanying 

Application Notes. See United States v. Prien-Pinto, 

917 F.3d 1155, 1157 (9th Cir. 2019) (observing that 

Application Notes are the “authoritative” interpretation and 

explanation of the Guidelines, unless they are “inconsistent 

with, or a plainly erroneous reading of,” the Guidelines 

(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). 

Section 2G2.2(b)(3)(B) provides that “[i]f the defendant 

distributed [child pornography] in exchange for any valuable 

consideration, but not for pecuniary gain, increase 
UNITED STATES V. RANDALL 11

by 5 levels.” Application Note 1 to § 2G2.2 further explains 

that the phrase “‘[t]he defendant distributed in exchange for 

any valuable consideration’ means the defendant agreed to 

an exchange with another person under which the defendant 

knowingly distributed to that other person for the specific 

purpose of obtaining something of valuable consideration 

from that other person[.]” U.S.S.G. § 2G2.2 cmt. n.1.

Based on the text of the Guideline and commentary, 

§ 2G2.2(b)(3)(B) has three elements: (1) the defendant 

agreed to an exchange with another person; (2) the defendant 

knowingly distributed child pornography to the other person; 

and (3) the defendant’s distribution was for the specific 

purpose of obtaining something of valuable consideration 

from the other person.

But we can’t find a requirement that the defendant must 

also receive the valuable consideration from the other 

person. Look at the text. An “exchange” means the 

“action,” “act,” or “process” of “reciprocal giving and 

receiving.” Oxford English Dictionary Online. An 

“exchange” then involves two actions—giving and 

receiving—that can occur in either order. So a defendant can 

distribute pornographic material in “exchange” for valuable 

consideration by sending first or receiving first—the 

sequence doesn’t matter.

For example, a defendant can send pornography after 

receiving pornography from another person or can send the 

pornography in expectation of receiving pornography from 

the other person. In both cases, the defendant has acted as 

part of an exchange or trade for pornography. And nothing 

in the text of the Guideline or the Application Note requires 

the completion of the two-step process of giving and 

receiving. Indeed, the commentary focuses on the 

defendant’s agreement to the exchange and the defendant’s 
12 UNITED STATES V. RANDALL

completion of his part of the bargain (distributing the child 

pornography)—not the completion of the transaction. See 

U.S.S.G. § 2G2.2 cmt. n.1. So whether the defendant 

ultimately receives the valuable consideration in return is 

immaterial.

With that interpretation, we align ourselves with the 

Sixth Circuit. It too rejected a requirement that the 

“defendant actually receive the thing of value” for the 

§ 2G2.2(b)(3)(B) enhancement to apply. See Oliver, 

919 F.3d at 403–04. The Sixth Circuit looked to the 

Guideline’s text and held that “the plain language of the 

enhancement and application Note fail to support such an 

element.” Id. It also viewed such a requirement as 

hamstringing law enforcement because undercover officers

cannot comply with a defendant’s request to send child 

pornography. Id. Randall criticizes this rationale. In his 

view, cases involving undercover law enforcement officers 

should warrant a lesser enhancement. Contrary to Randall’s 

view, however, the Guideline’s commentary makes clear 

that the critical factors are the defendant’s state of mind and 

actions—not the other person’s state of mind, actions, or 

status as an undercover police officer.

To be sure, the Fifth Circuit has potentially adopted the 

position that Randall now takes. See Halverson, 897 F.3d at 

652. In describing the “test” for the valuable consideration 

enhancement, the Fifth Circuit held that a court must find 

that “the valuable consideration came from th[e] person” 

with whom the defendant agreed to an exchange. Id. The 

Fifth Circuit purportedly derived this element from the 

Application Note. Id. But for the reasons stated above, we 

think the better textual argument is that § 2G2.2(b)(3)(B) 

requires no such element.
UNITED STATES V. RANDALL 13

Randall lastly points to the pre-2016 Guidelines to show 

that § 2G2.2(b)(3)(B) requires a defendant to receive 

valuable consideration. Before 2016, § 2G2.2(b)(3)(B) 

stated, “Distribution for the receipt, or expectation of 

receipt, of a thing of value, but not for pecuniary gain, 

increase by 5 levels.” U.S.S.G. § 2G2.2(b)(3)(B) (2015) 

(emphasis added). Randall contends that, since the 

Guideline now excludes the phrase “expectation of receipt,” 

anticipation of receiving pornography and the like is not 

enough; the trade must be consummated. The Commission, 

however, stated that the amendment to § 2G2.2(b)(3)(B) was 

meant to clarify the “mental state required for distribution.” 

U.S.S.G. Supp. to App. C at 137. So according to the 

Commission, the amendment focused on the defendant’s 

state of mind, not whether the transaction was completed. 

Id. Without further textual evidence, we will not read a new 

element into § 2G2.2(b)(3)(B) based on pre-2016 

considerations.

We thus join the Sixth Circuit in rejecting the 

requirement that a defendant receive valuable consideration 

in return for distributing child pornography for 

§ 2G2.2(b)(3)(B) to apply.

2.

Randall next argues, regardless of the legal 

interpretation, that § 2G2.2(b)(3)(B) doesn’t apply to the 

facts of his case. We disagree. That’s because the Kik 

thread between Randall and Proctor readily supports 

application of § 2G2.2(b)(3)(B). To recap, the elements of 

§ 2G2.2(b)(3)(B) are: (1) the defendant agreed to an 

exchange with another person; (2) the defendant knowingly 

distributed child pornography to the other person; and (3) the 

defendant’s distribution was for the specific purpose of 
14 UNITED STATES V. RANDALL

obtaining something of valuable consideration from the 

other person.

First, Randall and Proctor agreed to an exchange for

valuable consideration. Proctor initially asked to join the 

Kik group and Randall responded, “send to join”—meaning 

send child pornography to be added to the group. In 

response, Proctor sent a link containing child pornography. 

Proctor then asked, “Do you trade back[?]”—inviting 

Randall to trade pornographic material with him. Randall 

agreed to barter by replying, “I trade back,” and by sending 

a Dropbox link containing child pornography. Later on, 

Proctor asked Randall, “Have any more or younger[?]” 

Randall eventually responded by sending another link of 

child pornography. This conversation easily satisfies the 

first element of § 2G2.2(b)(3)(B).

Second, Randall distributed child pornography to 

Proctor. Two times during the Kik conversation, Randall

sent Proctor a Dropbox link, which the government 

contended contained child pornography. From the context 

of the conversation, Randall meant to send child 

pornography in the Dropbox links. Randall sent the first 

Dropbox link after Proctor sent him child pornography and 

agreed to “trade back.” Randall then sent the second 

Dropbox link after Proctor sent him three more links of child 

pornography and implored him to “[s]end when you can[.]”2 

On appeal, Randall doesn’t seriously contest that he sent 

2 Because Randall received pornographic material from Proctor in 

return for sending child pornography, the valuable consideration 

enhancement would apply even under the test articulated by the Fifth 

Circuit in Halverson.
UNITED STATES V. RANDALL 15

child pornography during the conversation; so the second 

element of § 2G2.2(b)(3)(B) is satisfied.

Finally, Randall acted with the specific purpose of 

obtaining valuable consideration in return for sending the 

child pornography to Proctor. As the conversation above 

establishes, Randall expected to (and did) receive 

pornographic material from Proctor in exchange for sending 

him child pornography. To the extent Randall argues that 

the district court failed to make sufficient findings to support 

this element, we disagree. The district court stated that 

Randall was “trading” images of child pornography. 

Moreover, at sentencing, the government explained that the 

Kik messages showed that “Randall was trading child 

pornography for child pornography.” The government also 

stated that the chat established that Randall was telling 

Proctor to “send child pornography to get in [the group]” and 

that they then “discussed trading child pornography.” The 

government contended that this was sufficient to show 

“intent there[.]” The district court agreed and overruled the 

defense’s objection to the enhancement. We thus see no 

abuse of discretion and affirm the district court’s application 

of the five-level enhancement under § 2G2.2(b)(3)(B).

B. The Justice for Victims of Trafficking Act

We next discuss whether the Justice for Victims of

Trafficking Act, 18 U.S.C. § 3014(a), mandates an 

assessment on a per-count or per-offender basis. The district 

court imposed a $5,000 special assessment under § 3014(a) 

for each of Randall’s two convictions—totaling $10,000. 

Randall argues that the Act permits only one $5,000 

assessment per defendant per case—no matter the number of 

qualifying convictions. The government instead argues that 

the statute authorizes a $5,000 assessment for each eligible 

conviction. As mentioned, our sister courts are divided on 
16 UNITED STATES V. RANDALL

the issue. The Third Circuit agrees with the government, see

United States v. Johnman, 948 F.3d 612, 616–20 (3d Cir. 

2020), while the Second Circuit concurs with Randall, see

United States v. Haverkamp, 958 F.3d 145, 149 (2d Cir. 

2020). Based on the text and the relevant statutory scheme, 

we hold that § 3014(a) requires an assessment of $5,000 for 

each qualifying conviction.

As always, we begin with the text. See United States v. 

Herrera, 974 F.3d 1040, 1047 (9th Cir. 2020). The Act 

provides:

(a) In General.—Beginning on the date of 

enactment of the Justice for Victims of 

Trafficking Act of 2015 and ending on 

September 11, 2022, in addition to the 

assessment imposed under section 3013, the 

court shall assess an amount of $5,000 on any 

non-indigent person or entity convicted of an 

offense under—

(1) chapter 77 (relating to peonage, 

slavery, and trafficking in persons);

(2) chapter 109A (relating to sexual 

abuse);

(3) chapter 110 (relating to sexual 

exploitation and other abuse of children);

(4) chapter 117 (relating to transportation 

for illegal sexual activity and related 

crimes); or
UNITED STATES V. RANDALL 17

(5) section 274 of the Immigration and 

Nationality Act (8 U.S.C. 1324) (relating 

to human smuggling) . . . .

18 U.S.C. § 3014(a). Put simply, § 3014(a) requires that 

courts: “(1) assess (2) an amount of $5,000 (3) on any nonexempt person or entity (4) convicted of an offense (5) under 

certain enumerated chapters of the criminal code.” 

Johnman, 948 F.3d at 617.

The key issue here is how to interpret “convicted of an 

offense.” Does it mean a $5,000 assessment for each time 

the person is “convicted of [a discrete enumerated] offense”? 

If that’s the case, then Randall’s assessment of $10,000 was 

proper since he was twice “convicted of an offense.” Or 

does it mean a single $5,000 assessment when a person is 

“convicted of [any one of the enumerated] offense[s]?” If 

so, then Randall could be fined only $5,000 for his two child 

pornography convictions.

Lucikly, we do not operate on a blank slate in unpacking 

this tricky textual question. That’s because Congress 

enacted the Justice for Victims of Trafficking Act against the 

backdrop of the phrase’s settled meaning. As expressly 

mentioned in the statute, § 3014(a) works in conjunction 

with 18 U.S.C. § 3013. See 18 U.S.C. § 3014(a) (imposing 

the special assessment “in addition to the assessment 

imposed under [18 U.S.C.] section 3013”). Section 3013, in 

turn, provides:

(a) The court shall assess on any person 

convicted of an offense against the United 

States—

(1) in the case of an infraction or a

misdemeanor—
18 UNITED STATES V. RANDALL

(A) if the defendant is an individual—

[an amount ranging from $5 to $25]

. . .

(2) in the case of a felony—

(A) the amount of $100 if the 

defendant is an individual[.]

18 U.S.C. § 3013(a).

As you can see, the special assessments in both § 3013(a) 

and § 3014(a) apply to any person “convicted of an offense.” 

And that wasn’t accidental. By way of background, 

Congress enacted § 3013 in 1984 to fund the Crime Victims 

Fund. See Victims of Crime Act of 1984, Pub. L. No. 98-

473, §§ 1402, 1405(a) (1984). The Crime Victims Fund 

provides, among other things, funding resources to programs 

supporting crime victims. 34 U.S.C. § 20101. In 2015, 

Congress established a similar Domestic Trafficking 

Victims’ Fund to provide financial support to victims of 

human trafficking and child exploitation. Justice for Victims 

of Trafficking Act of 2015, Pub. L. No. 114-22, § 101 

(2015). Congress simultaneously enacted the special 

assessment in § 3014(a) to fund the Domestic Trafficking 

Victims’ Fund. 18 U.S.C. § 3014(c), (e), (h). In sum, § 3014 

is closely related to § 3013 in terms of text, purpose, and 

statutory structure.

How courts have interpreted the phrase “convicted of an 

offense” under § 3013 provides important guidance. That’s 

because when a phrase is “obviously transplanted from 

another legal source,” such as other legislation, “it brings the 

old soil with it.” Sekhar v. United States, 570 U.S. 729, 733 
UNITED STATES V. RANDALL 19

(2013) (quoting Felix Frankfurter, Some Reflections on the 

Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). In 

other words, when Congress adopts a phrase with a settled 

judicial interpretation, absent some indication to the 

contrary, we presume that Congress chose to give the phrase 

its established meaning. Shirk v. U.S. ex rel. Dep’t of 

Interior, 773 F.3d 999, 1004 (9th Cir. 2014); see also United 

States v. Prasad, 18 F.4th 313, 322–23 (9th Cir. 2021) 

(observing that the “prior construction canon” applies “to 

interpretations of the same wording in related statutes”).

In this case, we have buckets of “soil” to help us give 

meaning to the phrase “convicted of an offense.” Every 

circuit court has interpreted § 3013’s assessment on a person 

“convicted of an offense” to apply separately to each count 

of conviction rather than to each offender. See United States 

v. Pagan, 785 F.2d 378, 381 (2d Cir. 1986); United States v. 

Donaldson, 797 F.2d 125, 128 (3d Cir. 1986); United States 

v. Dobbins, 807 F.2d 130, 132 (8th Cir. 1986); United States 

v. Smith, 857 F.2d 682, 686 (10th Cir. 1988); United States 

v. Nguyen, 916 F.2d 1016, 1020 (5th Cir. 1990); United 

States v. McGuire, 909 F.2d 440, 441–42 (11th Cir. 1990) 

(per curiam); United States v. Luongo, 11 F.3d 7, 10 (1st Cir. 

1993).

Most significantly, the Supreme Court formally settled 

the question in Rutledge v. United States, 517 U.S. 292 

(1996). In that case, the Court held that “[Section] 3013 

requires a federal district court to impose a [then-]$50 

special assessment for every conviction.” Id. at 301 

(emphasis added). The Court further blessed an assessment 

on “both convictions” in the case and held that § 3013 

“required” it. Id. at 301–02. So under § 3013, the Court 

said, “a second conviction will amount to a second 

punishment.” Id.
20 UNITED STATES V. RANDALL

We think the fact that the meaning of § 3013’s text is 

settled is not just persuasive, it’s all but conclusive. 

Congress sought to accomplish similar goals in enacting 

§ 3013 and § 3014; it created a statutory framework where 

the two provisions work together and employed nearly 

identical language for the two. By doing so, Congress 

endorsed the long-settled interpretation of § 3013’s 

“convicted of an offense” phrase.

Even without the prior construction canon, the ordinary 

meaning of § 3014’s “convicted of an offense” supports a 

separate assessment per conviction. In another federal 

statute, we’ve accepted that “offense” means a “discrete 

criminal violation.” Miranda v. Anchondo, 684 F.3d 844, 

851 (9th Cir. 2012); see also Johnman, 948 F.3d at 617 

(reaching a similar meaning for “offense” through dictionary 

definitions).

The phrasing “an offense” is also significant. Its singular 

construction tells us that each “offense” requires a separate 

assessment. See Luongo, 11 F.3d at 10 (“[B]ecause the 

statute is phrased in the singular, its terms imply that each 

offense . . . calls for a separate special assessment, even 

when a single defendant is simultaneously convicted of 

multiple charges.”); see also Villavicencio-Rojas v. Lynch, 

811 F.3d 1216, 1220 (9th Cir. 2016) (Berzon, J., concurring) 

(interpreting “an offense” in the context of another statute to 

refer to “each offense of the kind covered”).

We also agree that “convicted” is “normally understood 

[a]s an offense-specific term.” Johnman, 948 F.3d at 617 

(explaining that “convicted” is the past participle of 

“convict,” which means “to find or declare guilty of an 

offense or crime” or “to find (a person) guilty of a criminal 

offense” under dictionary definitions).
UNITED STATES V. RANDALL 21

So taken together, “convicted of an offense” is best read 

as applying to each separate conviction for a statutory 

violation. We are also persuaded by the Third Circuit’s 

reasoning that “it is illogical to read § 3014’s application to 

depend not upon the number of offenses of which [the 

defendant] was convicted, but on the happenstance of 

whether she was tried for those offenses in one or more 

proceedings.” Id. at 619 (simplified).

We acknowledge that the Second Circuit reached the 

opposite conclusion. That circuit held that “[a]s a matter of 

grammar and common understanding, ‘an amount’ on any 

person convicted means the amount is assessed one time.” 

Haverkamp, 958 F.3d at 149. While we agree that the 

$5,000 amount is “assessed one time,” that doesn’t answer 

whether it is one time per defendant or per count.

The Second Circuit also relied on post-enactment 

legislative history—specifically, a single statement from the 

lead House sponsor of the Justice for Victims of Trafficking 

Act on the two-year anniversary of its passage. Id. at 150 

(quoting 163 Cong. Rec. H4564 (daily ed. May 24, 2017) 

(statement of Rep. Poe)). But we side with most judges that 

find “[p]ost-enactment legislative history (a contradiction in 

terms)” a questionable tool of statutory interpretation. 

Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011).

Finally, the Second Circuit focused on differences 

between § 3013 and § 3014 to conclude that the two 

provisions should be interpreted differently:

• § 3013 imposes a varying assessment 

amount based on the severity of the 

offense (e.g., infraction, misdemeanor, or 

felony), while § 3014 requires only a 
22 UNITED STATES V. RANDALL

“single assessment” of $5,000 for 

conviction of an eligible offense;

• § 3013 provides for a “nominal” amount 

(ranging from $5 to $100), while 

§ 3014’s assessment is $5,000; and

• § 3013 does not include an indigency 

exception, while § 3014 does.

Haverkamp, 958 F.3d at 149–50 & n.3. The Second Circuit 

considered these differences “too pronounced” to interpret 

the two statutes in “lockstep.” Id. at 150 n.3. But none of 

these distinctions are significant enough to overcome the 

plain and settled meaning of “convicted of an offense.” That 

Congress sought to create an assessment program for all 

victims of federal crimes with more “nominal” amounts is 

not inconsistent with Congress also seeking to create a 

similar scheme focused on victims of trafficking and child 

exploitation with a heftier amount.3

3 We therefore respectfully disagree with our dissenting colleague, 

who finds the Second Circuit’s approach more persuasive. The dissent 

makes one additional point that the Second Circuit does not appear to 

have advanced: that the durational provision in § 3014(g) refers to “an 

assessment” and “the assessment” in the singular, whereas the durational 

provision in § 3013(c) refers to “all assessments” in the plural. Dissent 

at 29. The dissent reasons that “[i]f Congress intended multiple 

assessments for multiple counts, it would have used the plural 

‘assessments’” in § 3014. Dissent at 29. But § 3014(a) itself refers to 

“the assessment imposed under section 3013,” using the singular to the 

describe “the assessment” that we know is imposed per count of 

conviction. Rutledge, 517 U.S. at 301. And § 3013(c) earlier refers to 

“an assessment.” The dissent thus reads too much into Congress’s use

of the words “assessment” and “assessments.”
UNITED STATES V. RANDALL 23

So, considering the text and relevant statutory scheme, 

we conclude that Congress intended that assessments under 

§ 3014 be imposed on a per-count basis. Section 3014 

requires a $5,000 assessment for each of a defendant’s 

eligible convictions. The district court thus properly 

imposed a $10,000 assessment for Randall’s two counts of 

conviction.

4

III.

The district court did not err in applying the five-level 

sentence enhancement under U.S.S.G. § 2G2.2(b)(3)(B) or 

in assessing a fine of $5,000 for each of Randall’s two counts 

of conviction under 18 U.S.C. § 3014(a).

AFFIRMED.

WARDLAW, Circuit Judge, dissenting in part:

The Justice for Victims of Trafficking Act of 2015 

(JVTA) provides that “the court shall assess an amount of 

$5,000 on any non-indigent person or entity” convicted of 

certain federal sexual offenses. 18 U.S.C. § 3014(a) 

(emphasis added). The majority interprets this fine to apply 

4 Randall asks us to apply the rule of lenity in rendering our 

interpretations of U.S.S.G. § 2G2.2(b)(3)(B) and 18 U.S.C. § 3014. But 

the rule of lenity is a tool of last resort—“only [to be] applie[d] where 

there is grievous ambiguity or uncertainty[.]” United States v. D.M., 

869 F.3d 1133, 1144 (9th Cir. 2017). Such an ambiguity does not exist 

“merely because there is a division of judicial authority over [a statute’s] 

proper construction.” Reno v. Koray, 515 U.S. 50, 64–65 (1995) 

(simplified). As the above shows, after consulting the traditional tools 

of interpretation, we see no grievous ambiguity and so the rule of lenity 

has no place here.
24 UNITED STATES V. RANDALL

on a per-count basis, based on its reading of an earlier 

enacted, entirely different, statute that plainly assesses fines 

for each count of conviction, 18 U.S.C. § 3013. But § 3014 

was written to impose an additional amount of $5,000 on top 

of the fines assessed under § 3013 for offenders convicted of 

sexual exploitation and trafficking, particularly of children, 

and differs markedly from § 3013 in both text and structure; 

differences we can’t ignore when interpreting the meaning 

of § 3014. Recognizing the existing circuit split on this 

question, the majority chooses to follow the Third Circuit’s 

approach in United States v. Johnman, 948 F.3d 612 (3d Cir. 

2020), and holds that § 3014 applies on a per-count basis like 

§ 3013. However, the Second Circuit in United States v. 

Haverkamp, 958 F.3d 145 (2d Cir. 2020), explains how 

thoroughly flawed that reading is and concludes that § 3014 

applies on a per-offender basis. I think the Second Circuit 

has the better side of this split, so I respectfully dissent from 

that portion of the majority opinion.

We begin with the text of § 3014. See Flo & Eddie, Inc. 

v. Sirius XM Radio, Inc., 9 F.4th 1167, 1172 (9th Cir. 2021). 

“We interpret statutory terms in accordance with their 

ordinary meaning, unless the statute clearly expresses an 

intention to the contrary.” United States v. Neal, 776 F.3d 

645, 652 (9th Cir. 2015) (citation omitted). And we 

“interpret the statute as a whole, giving effect to each word 

and making every effort not to interpret a provision in a 

manner that renders other provisions of the same statute 

inconsistent, meaningless or superfluous.” Id. (international 

quotations and citation omitted). Section 3014 provides:

(a) In general. – Beginning on the date of 

enactment of the Justice for Victims of 

Trafficking Act of 2015 and ending on 

September 11, 2022, in addition to the 
UNITED STATES V. RANDALL 25

assessment imposed under section 3013, 

the court shall assess an amount of $5,000 

on any non-indigent person or entity 

convicted of an offense under—

(1) chapter 77 (relating to peonage, 

slavery, and trafficking in persons);

(2) chapter 109A (relating to sexual 

abuse);

(3) chapter 110 (relating to sexual 

exploitation and other abuse of 

children);

(4) chapter 117 (relating to transportation 

for illegal sexual activity and related 

crimes); or

(5) section 274 of the Immigration and 

Nationality Act (8 U.S.C. § 1324) 

(relating to human smuggling), unless 

the person induced, assisted, abetted, 

or aided only an individual who at the 

time of such action was the alien’s 

spouse, parent, son, or daughter (and 

no other individual) to enter the 

United States in violation of law.

18 U.S.C. § 3014(a).

The plain text of the statute directs the district court to 

“assess an amount of $5,000 on any non-indigent person or 

entity convicted of [a qualifying] offense . . . .” As the 

Second Circuit explained, “[a]s a matter of grammar and 
26 UNITED STATES V. RANDALL

common understanding ‘an amount’ on any person 

convicted means the amount is assessed one time.” 

Haverkamp, 958 F.3d at 149. When, as here, “amount” is 

followed by “of” and a numerical value, that numerical 

value, in this case $5,000, represents a “precise sum, total, 

or quantity amounting to the specified figure.” Amount, 

Oxford English Dictionary Online, 

https://tinyurl.com/3jjhrkd9 (last visited May 10, 2022). 

Congress could have included language that assessed an 

amount of $5,000 for each qualifying count of conviction, 

but it chose not to do so. In other words, “the text of § 3014, 

taken as a whole and in its context, is straightforwardly 

meant to be applied on a per-offender, not a per-count, 

basis.” Haverkamp, 958 F.3d at 149. This should be the end 

of the matter.

In holding that § 3014 applies on a per-count basis, the 

majority adopts the Third Circuit’s analysis in Johnman, 

948 F.3d 612. Maj. Op. at 15–23. The Third Circuit in 

Johnman locked on to the phrase “convicted of an offense,” 

Johnman, 948 F.3d at 616–20, and determined that, “how 

many assessments a court must impose turns on the meaning 

of the phrase ‘convicted of an offense.’” Id. at 617. But both 

the Third Circuit and the majority go astray by laserfocusing on a phrase that is not determinative of the key 

issue: whether the district court should impose the additional 

assessment. Rather, whether the court should impose the 

assessment turns on the nature of the offense—not the 

number of offenses of conviction. If one offense is a 

qualifying offense under the statute, the defendant is subject 

to the $5,000 assessment. Therefore, delving into the 

meaning of the phrase “convicted of an offense” sheds no 

light on whether Congress intended the assessment to apply 

on a per-count or per-offender basis. See United States v. 

Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995) (“Particular 
UNITED STATES V. RANDALL 27

phrases must be construed in light of the overall purpose and 

structure of the whole statutory scheme.”) (citation omitted).

It is no real surprise that the meaning of “convicted of an 

offense” in § 3013 is well-settled. See Rutledge v. United 

States, 517 U.S. 292, 301 (1996). After all, § 3013 was 

enacted some twenty-five years before Congress enacted the 

JVTA and § 3014. But the majority’s determination that the 

settled interpretation of § 3013 is “all but conclusive” as to 

§ 3014’s application is incorrect. Maj. Op. at 20. 

Congress’s choice to enact separate statutes with significant 

structural differences demonstrates that, in fact, the exact 

opposite is true. Section 3013 reads:

(a) The court shall assess on any person 

convicted of an offense against the 

United States—

(1) in the case of an infraction or a 

misdemeanor—

(A)if the defendant is an individual—

(i) the amount of $5 in the 

case of an infraction or a 

class C misdemeanor;

(ii) the amount of $10 in the 

case of a class B 

misdemeanor; and

(iii) the amount of $25 in the 

case of a class A 

misdemeanor; and
28 UNITED STATES V. RANDALL

(B) if the defendant is a person other 

than an individual—

(i) the amount of $25 in the 

case of an infraction or a 

class C misdemeanor;

(ii) the amount of $50 in the 

case of a class B 

misdemeanor; and

(iii) the amount of $125 in the 

case of a class A 

misdemeanor;

(2) in the case of a felony—

(A)the amount of $100 if the 

defendant is an individual; and

(B) the amount of $400 if the 

defendant is a person other than 

an individual.

18 U.S.C. § 3013. “Comparing § 3014 to § 3013 reinforces 

our conclusion that when Congress intended multiple 

amounts to be assessed rather than ‘an amount’ it knew how 

to do so.” Haverkamp, 958 F.3d at 149. By contrast to 

§ 3014, Congress directed the courts in applying § 3013 to 

impose varying amounts of assessments dependent on the 

grade or classification of the specific offenses of which the 

defendant is convicted. As the Second Circuit explained, 

“Section 3013 specifically ties the amount of the special 

assessment to the classification of the offense of conviction, 

and therefore plainly authorizes multiple assessments where 
UNITED STATES V. RANDALL 29

there are multiple counts of conviction.” Id. at 150. 

Moreover, the special assessments in § 3013 range from $5

to $400 based on the classification of the offense as an 

infraction, specific class of misdemeanor, or felony. By 

contrast, § 3014 “authorizes a single assessment: $5,000 if a 

defendant is convicted of an eligible offense. The 

classification of the offense and the number of offenses is 

not relevant to the assessment.” Id. Had Congress intended 

the additional $5,000 assessment to apply on a per-count 

basis, it could have simply amended § 3013 to include the 

assessment there. Congress’s choice not to do so, and to 

instead enact § 3014, setting forth a distinct textual structure, 

is telling. See Univ. of Texas Sw. Med. Ctr. V. Nassar, 

570 U.S. 338, 353 (2013) (“Just as Congress’ choice of 

words is presumed to be deliberate, so too are its structural 

choices.”) (citation omitted).

Comparing the duration sections of the two statutes

further supports a per-offender reading of § 3014. Section 

3013(c) explains that “[t]he obligation to pay an assessment 

ceases five years after the date of the judgment. This 

subsection shall apply to all assessments irrespective of the 

date of imposition.” (emphasis added). Congress used the 

plural “all assessments” in § 3013, signaling its intent that 

courts impose the assessments for each qualifying offense. 

By contrast, Section 3014(g) provides that “the obligation to 

pay an assessment imposed on or after the date of enactment 

of the Justice for Victims of Trafficking Act of 2015 shall 

not cease until the assessment is paid in full.” (emphasis 

added). If Congress intended multiple assessments for 

multiple counts, it would have used the plural “assessments” 

here as well. That it did not do so further supports the 

conclusion that the $5,000 assessment in § 3014 is applied 

per-offender.
30 UNITED STATES V. RANDALL

This reading is also supported by the statement of 

Representative Poe, the lead House sponsor of the JVTA, on 

the two-year anniversary of the JVTA’s passage. He 

confirmed that the Act “allows a federal judge to impose an 

additional assessment of up to $5,000.” 163 Cong. Rec. 

H4564 (daily ed. May 24, 2017) (statement of Rep. Poe). As 

the Second Circuit explained, “[w]hile not conclusive in 

itself, this remark lends further support to our conclusion that 

the special assessment in § 3014 applies on a per-offender 

basis.” Haverkamp, 958 F.3d at 150.

I agree with the Second Circuit’s criticism of the Third 

Circuit’s conclusion in Johnman that § 3014 should be read 

“lockstep” with § 3013 and interpreted the same way. The 

two statutes are significantly different in both text and 

structure. As the Second Circuit reasoned,

Section 3013 is a reticulated provision that 

calibrates assessments according to the 

severity of the offense(s)—from infractions 

to felonies and then sub-classifies them 

according to the class of misdemeanors. The 

assessment of § 3014 is far larger (one 

hundred to one thousand times greater) than 

the assessments provided for in § 3013. 

Section 3013 does not contain an indigency 

exception, whereas § 3014 does. Most 

importantly, the provision, “an amount,” that 

underpins § 3014 differs sharply from 

§ 3013, which specifies “the amount” for 

each discrete category of offense. We believe 

that these differences are too pronounced to 

justify Johnman’s “lockstep’” approach.” 

Id. at 150 n.3.
UNITED STATES V. RANDALL 31

For these reasons, I would reverse the district court on 

the JVTA assessment, vacate the $10,000 assessment, and 

remand with instructions to impose a $5,000 assessment.