PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4285

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRY DAVID MCVEY,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Parkersburg. Robert C. Chambers, 

Chief District Judge. (6:12-cr-00179-1)

Argued: January 30, 2014 Decided: April 23, 2014

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the 

opinion, in which Judge Wilkinson and Judge Duncan joined.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Charleston, West Virginia, for Appellant. Jennifer 

Lynn Rada, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, 

Federal Public Defender, George H. Lancaster, Jr., Assistant 

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Charleston, West Virginia, for Appellant. R. Booth Goodwin II, 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Charleston, West Virginia, for Appellee.
2

NIEMEYER, Circuit Judge:

Terry David McVey pleaded guilty to knowingly possessing 

300 to 600 images of child pornography, including images and 

videos of prepubescent minors, in violation of 18 U.S.C. §§

2252A(a)(5)(B) and 2252A(b)(2). After applying several 

enhancements, including a two-level enhancement under U.S.S.G. §

2G2.2(b)(3)(F) for distribution of child pornography, and 

crediting McVey for acceptance of responsibility and cooperation 

with authorities, the district court entered a downward variance 

sentence of 78 months’ imprisonment. McVey now challenges his 

distribution enhancement, arguing that his only documented

instance of distribution “occurred more than two years prior to 

his offense of conviction” and thus was not relevant conduct 

under U.S.S.G. § 1B1.3.

We reject McVey’s challenge, concluding that the district 

court did not clearly err in applying the enhancement, and 

affirm his sentence.

I

On December 12, 2010, McVey sent an email to an individual 

he believed to be the stepfather of three girls, ages 8, 11, and 

14. The email recipient was actually an undercover police 

officer assigned to the Internet Crimes Against Children Task 

Force in Birmingham, Alabama. McVey and the undercover officer 
3

communicated for several months about sexual acts that McVey 

wanted to perform with the daughters. At one point, the officer 

told McVey that the price for sexual intercourse with the two 

older daughters was $150 per hour per girl with a minimum twohour charge, and McVey stated that he thought that price would 

be well worth it.

On February 4, 2011, McVey asked the undercover officer if 

he had videos of the three girls and, if so, how McVey could 

obtain them. The officer offered to sell McVey a DVD for $10. 

On May 31, 2011, the officer received (in his undercover post 

office box) an envelope containing a $10 bill with a return 

address for McVey’s residence in Parkersburg, West Virginia. 

The officer prepared a DVD containing child pornography and 

mailed it to McVey at the address he gave. The DVD was 

delivered on July 28, 2011, and, later that day, police obtained 

and executed a federal search warrant for McVey’s residence, 

seizing McVey’s computer and several CDs. Soon afterward, McVey 

returned home and agreed to be interviewed. McVey admitted to 

purchasing the pornographic DVD from the undercover officer, 

explaining that he had been interested in having sex with the 

purported eight-year-old daughter, but that he could not afford 

the $1,000 fee.

McVey also admitted that he had possessed and distributed 

child pornography over the course of the previous ten years and 
4

that, during that time, he had uploaded child pornography to 

various Yahoo! Groups on “at least six occasions.”

The CDs seized from McVey’s residence contained 

approximately fourteen image files and two video files, and the 

computer contained approximately seventeen image files and four 

videos. The images and videos included known child victims and 

prepubescent minors.

During the course of the investigation, detectives also 

learned of a “CyberTipline Report” from the National Center for 

Missing and Exploited Children, which indicated that McVey had 

previously uploaded a video to a child pornography website. The 

upload took place on December 31, 2008. A detective viewed the 

video and confirmed that it contained child pornography. That

video, however, did not appear on the hard drive of McVey’s

computer. Although McVey did not specifically remember 

uploading the video, he explained that his hard drive had 

crashed in September 2010 and that he had lost all of its 

contents.

McVey was subsequently indicted on one count of knowingly 

possessing images and videos of child pornography on July 28, 

2011, that had been shipped and transported in and affected

interstate commerce, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) 

and 2252A(b)(2). McVey pleaded guilty to the charge under a 

plea agreement, in which he accepted sentencing enhancements for 
5

using a computer (U.S.S.G. § 2G2.2(b)(6)); for possessing images 

depicting prepubescent minors (U.S.S.G. § 2G2.2(b)(2)); and for 

possessing 300 to 600 images (U.S.S.G. § 2G2.2(b)(7)(C)). The 

agreement indicated a final offense level of 26 but noted that 

the sentencing court would not be bound by its terms.

In the presentence investigation report, the probation 

officer recommended applying the enhancements accepted by McVey

in the plea agreement, as well as two additional enhancements --

one for possessing images portraying sadistic or masochistic 

conduct (U.S.S.G. § 2G2.2(b)(4)) and one for distribution of 

child pornography (U.S.S.G. § 2G2.2(b)(3)(F)). The probation 

officer also recommended reductions for acceptance of 

responsibility and cooperation with authorities.

At the sentencing hearing, McVey contested the enhancement 

for distribution of child pornography under U.S.S.G. §

2G2.2(b)(3)(F), arguing that his distribution activities were 

too remote in time and did not amount to “relevant conduct” to 

his possession offense. He argued that the only documented 

instance of his distribution was on December 31, 2008, which was 

23 months before McVey first contacted the undercover police 

officer and over two years before the offense of conviction for 

possession. The government, however, noted that McVey had also 

admitted to uploading child pornography on at least six 

different occasions.
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The district court overruled McVey’s objection. While the 

court acknowledged that there had been “a significant passage of 

time” between the documented December 2008 distribution activity 

and the July 2011 offense of conviction for possession, it 

nonetheless saw the distribution and the possession as “the same 

crime, the same sort of activity, the same sort of conduct 

continuing over the entire period.” Ultimately, the court 

applied five enhancements -- the three that McVey had accepted 

in his plea agreement and the two additional ones recommended by 

the probation officer. It also credited McVey with acceptance 

of responsibility and cooperation with authorities, thus 

reaching an overall offense level of 29. Together with McVey’s 

criminal history category of I, the resulting recommended 

Guidelines sentencing range was 87 to 108 months’ imprisonment. 

For various reasons not related to this appeal, the court 

entered a downward variance sentence of 78 months’ imprisonment, 

followed by 15 years of supervised release.

McVey noticed this appeal, challenging only the two-level 

enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for the distribution 

of child pornography.

II

As an initial matter, McVey contends that we should review 

the district court’s application of the distribution enhancement 
7

de novo. The government responds that the court’s ruling that 

the prior distribution activity was relevant conduct was a 

factual finding that we review for clear error.

The resolution of the parties’ difference on the standard 

of review depends on whether the issue “turns primarily on a 

factual determination,” in which case we should review the 

district court’s findings for clear error or whether it “turns 

primarily on the legal interpretation of a guideline term,” in 

which case our review “moves closer to de novo review.” United 

States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (quoting 

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989)). 

Consequently, we must focus more closely on the nature of the 

district court’s decision.

Sentencing under the Sentencing Guidelines involves 

consideration of the actual conduct in which a defendant 

engaged, “regardless of the charges for which he was indicted or 

convicted.” U.S.S.G. § 1A1.4(a); see also id. § 1B1.3(a). 

Thus, despite the limited scope of conduct for which the 

defendant was convicted, he may nonetheless be sentenced more 

broadly for relevant conduct -- i.e., the conduct of other 

offenses insofar as they were “part of the same course of 

conduct . . . as the offense of conviction.” Id. § 1B1.3(a)(2). 

The Application Notes to § 1B1.3 instruct that the “[f]actors 

that are appropriate to the determination of whether offenses 
8

are sufficiently connected or related to each other to be 

considered as part of the same course of conduct include the 

degree of similarity of the offenses, the regularity

(repetitions) of the offenses, and the time interval between the 

offenses.” Id. § 1B1.3 cmt. n.9(B) (emphasis added); see also

United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir. 1992) 

(identifying “similarity, regularity, and temporal proximity” as 

the “significant elements” in the course-of-conduct inquiry). 

“When one of the above factors is absent, a stronger presence of 

at least one of the other factors is required.” U.S.S.G. § 

1B1.3 cmt. n.9(B); see also Mullins, 971 F.2d at 1144.

When a district court interprets the meaning and legal 

components of the term “relevant conduct,” it makes a legal

determination that we review de novo. See, e.g., United States 

v. Fullilove, 388 F.3d 104, 106 (4th Cir. 2004). But the 

application of the relevant conduct standard typically involves 

consideration of factual circumstances, such as whether acts or 

omissions are sufficiently similar; whether they are 

sufficiently regular; whether they are sufficiently close in 

time; and whether, when one factor is particularly weak or even 

lacking, another factor compensates to satisfy the factual 

requirements of relevant conduct. Such analysis constitutes 

factfinding that we review for clear error.
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In this case, McVey does not contend that the district 

court applied the incorrect legal rule. Rather, his challenge 

centers on the factual analysis the district court conducted in 

applying the relevant conduct Guideline. The court’s 

application of U.S.S.G. § 1B1.3 depended on an evaluation and 

weighing of the factual details, even though the details 

themselves may have been undisputed. As such, we review the 

court’s decision for clear error.

This conclusion is consistent with our decision in United 

States v. Pauley, 289 F.3d 254 (4th Cir. 2002), as well as the 

decisions of other courts. In Pauley, the district court found 

that a series of four thefts were sufficiently connected to 

constitute relevant conduct for purposes of a sentencing 

enhancement, and we reviewed the court’s decision for clear 

error because the inquiry was primarily factual, turning on the 

purpose, timing, and modus operandi of the thefts, and the 

weight that should be attached to those facts in the relevant 

conduct analysis. See id. at 259-60; see also United States v. 

Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (“We review an 

application of [the relevant conduct] test . . . for clear 

error”). Other courts have reached similar conclusions. See

United States v. Pica, 692 F.3d 79, 88 (2d Cir. 2012) (“Findings 

of relevant conduct are reviewed for clear error”); United 

States v. Boroughf, 649 F.3d 887, 890 (8th Cir. 2011) (“We 
10

review a district court’s relevant-conduct determination for 

clear error, remembering that such a determination is factintensive and ‘well within the district court’s sentencing 

expertise and greater familiarity with the factual record’” 

(quoting United States v. Stone, 325 F.3d 1030, 1031 (8th Cir. 

2003))); United States v. West, 643 F.3d 102, 105 (3d Cir. 2011) 

(“We also review for clear error the District Court’s 

determination of what constitutes ‘relevant conduct’ for the 

purposes of sentencing”); United States v. Salem, 597 F.3d 877, 

884 (7th Cir. 2010) (“[W]e review the district court’s relevant 

conduct determinations for clear error”); United States v. Mann, 

493 F.3d 484, 497 (5th Cir. 2007) (“A district court’s 

determination of what constitutes relevant conduct is reviewed 

for clear error”). But see United States v. Smith, 705 F.3d 

1268, 1274 (10th Cir. 2013) (“We review the factual findings 

supporting this determination for clear error, but review the 

ultimate determination of relevant conduct de novo”); United 

States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004) 

(“Although findings as to the amount of loss from a money 

laundering offense are reviewed for clear error, whether the 

district court misapplied U.S.S.G. § 1B1.3 is a purely legal 

question that we review de novo”).
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III

On the merits, McVey contends that the district court 

erred -- or, necessarily, that the court clearly erred -- by 

applying the enhancement for distribution of child pornography. 

He argues that his “uploading of child pornography years before 

his offense of conviction is not relevant conduct for that 

offense,” reasoning that “[t]hat prior conduct is temporally 

distant, was not engaged in with any regularity, and is not 

sufficiently similar to the offense of conviction.”

The government argues in response that the “substantial 

similarity between the distribution and the possession” and the 

“number of times [McVey] engaged in distribution” support the 

district court’s finding that McVey’s “prior distribution was 

relevant conduct for purposes of determining his advisory 

Guideline range.” Alternatively, the government argues that any 

error on the part of the district court was harmless.

McVey pleaded guilty to possession of child pornography 

under 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), and the base 

offense level for his sentence was therefore governed by 

U.S.S.G. § 2G2.2(a)(1). Because the base offense level was 

subject to an enhancement for distribution, as stated in §

2G2.2(b)(3)(F), we must determine whether the district court 

clearly erred in finding that McVey’s distribution conduct was 
12

part of the same “course of conduct . . . as the offense of 

conviction.” U.S.S.G. § 1B1.3(a)(2).

The concept of “same course of conduct” does not require 

that acts be connected together by common participants or by a

singular overall scheme. Rather, it requires only “that the 

defendant [be] engaged in an identifiable pattern of certain 

criminal activity.” Hodge, 354 F.3d at 312. To determine if 

McVey’s distribution activities were sufficiently connected or 

related to his possession offense to be part of the same course 

of conduct, we evaluate, as noted above, the similarity of the 

offenses, their regularity, and the time interval between them. 

See U.S.S.G. § 1B1.3 cmt. n.9(B); Mullins, 971 F.2d at 1144. 

And when one of those factors is absent, a stronger presence of 

another must exist. Id.

Focusing on his December 31, 2008 upload of child 

pornography, McVey argues that his prior distribution conduct 

“did not occur close in time with his offense” -- i.e., his July 

28, 2011 possession of child pornography. Taking that 

proposition alone, we acknowledge that the roughly two-and-onehalf-year interval between the two offenses does exceed the sixmonth interval that we found too long in Mullins. See 971 F.2d 

at 1144. And indeed, the district court acknowledged that the 

gap between those offenses was “significant.” But the court had 

other evidence to support its conclusion that McVey’s
13

distribution of child pornography was part of the same course of 

conduct as his July 2011 possession of child pornography.

First, McVey admitted on the day of his arrest that he had 

possessed and distributed child pornography during the last ten 

years. This admission alone strongly suggests a single course 

of conduct. McVey further admitted to distributing child 

pornography to various Yahoo! Groups on at least six occasions, 

and the CyberTipline Report documents him uploading child 

pornography to yet a different website on an additional 

occasion. Moreover, during conversations from late 2010 to 

early 2011, McVey actively solicited images of prepubescent 

children with whom he wished to have sex, constituting a further 

extension of his course of conduct. Relying on all of these 

facts, the district court found that McVey’s distribution and 

possession of child pornography were closely related. Indeed,

the court found that they were “the same crime, the same sort of 

activity, the same sort of conduct continuing over the entire 

period.” We conclude that the court’s factual finding was

supported by the record and therefore was not clearly erroneous.

Bolstering the district court’s factual conclusion, we note 

that, as a matter of logic, possession and distribution of child 

pornography are tightly connected. Possession is a necessary 

prerequisite for distribution, which means that every time McVey 

uploaded pornographic material, he also possessed that 
14

pornographic material. This perfect overlap suggests a 

substantial similarity between McVey’s distribution activities 

and his possession of child pornography. Moreover, the Third 

Circuit has observed that possession and distribution of child 

pornography share many characteristics, as the activities have a 

“commonality of purpose in the [defendant’s] prurient 

interest[s].” United States v. Sullivan, 414 F. App’x 477, 480 

(3d Cir. 2011). They also share a common offender (McVey) and a 

common modus operandi (use of a computer), reinforcing the 

conclusion that possession and distribution are highly similar. 

See United States v Cote, 482 F. App’x 373, 375 (11th Cir. 2011) 

(per curiam) (“Here, Cote’s possession of over 2,700 images of 

child pornography on his computer and his sharing of almost 700 

of these images . . . using the same peer-to-peer file sharing 

program are relevant conduct . . . . These acts are similar in 

degree to the charged offense and are substantially connected to 

the charged offense given that one must first possess child 

pornography before one can transport it”); Sullivan, 414 F. 

App’x at 480-81 (finding that possession of pornographic images 

was related to the offense of distribution of such images in 

part because of the similarity of the two activities); United 

States v. Gerow, 349 F. App’x 625, 627 (2d Cir. 2009) (per 

curiam) (“[T]here was sufficient evidence from which the 

District Court could conclude that defendant’s possession of 
15

child pornography was part of a common scheme or plan, or part 

of the same course of conduct, as his distribution of the 

same”). McVey’s admission that he had possessed and distributed 

child pornography for the previous 10 years appears to confirm 

these courts’ conclusions.

McVey nonetheless relies on United States v. Sykes, 7 F.3d 

1331 (7th Cir. 1993), to argue that his distribution was not 

sufficiently regular to support a finding that it was connected 

to his ongoing possession. In Sykes, the court held that a 

defendant who had committed credit card fraud four times over 

the course of three years had not acted with regularity. Id. at 

1337. But the circumstances in Sykes were substantially 

different from those presented in this case. The Sykes court 

concluded that the credit card fraud consisted of four distinct

offenses that did not occur at any fixed or certain intervals or 

in accordance with any consistent or periodical rule or practice

and therefore were not connected. In this case, however, all of 

McVey’s distribution activities were connected by his ongoing 

possession of child pornography.

In sum, where an individual continually possesses child 

pornography over a period of ten years and admits that he 

distributed that pornography over the same period, it is 

reasonable for a district court to conclude that seven specific 

distributions during that period are closely connected with the 
16

ongoing offense of possession. Accordingly, we conclude that 

the district court in this case did not clearly err in finding 

that McVey’s distribution activity was part of the same course 

of conduct as his offense of conviction.

The judgment of the district court is 

AFFIRMED.