*

The Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0070p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JACK GROENENDAL,

Defendant-Appellant.

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No. 07-2430

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 07-00093-001—Paul Lewis Maloney, Chief District Judge.

Argued: January 22, 2009

Decided and Filed: February 26, 2009 

Before: GIBBONS and McKEAGUE, Circuit Judges; SHADUR, District Judge.*

_________________

COUNSEL

ARGUED: Jeffery S. Crampton, KOERNKE & CRAMPTON, Grand Rapids,

Michigan, for Appellant. B. Rene Shekmer, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jeffery S.

Crampton, KOERNKE & CRAMPTON, Grand Rapids, Michigan, for Appellant.

Andrew Byerly Birge, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Defendant Jack Groenendal appeals

his forty-two month sentence for one count of possession of child pornography. The

1
No. 07-2430 United States v. Groenendal Page 2

United States District Court for the Western District of Michigan calculated

Groenendal’s base offense level pursuant to a cross-reference under the United States

Sentencing Guidelines (“Guidelines”) for trafficking. The district court imposed

enhancements for the distribution of prohibited materials in exchange for the receipt of

a thing of value and the sadistic or masochistic nature of the materials. The district court

also declined to reduce his sentence on account of his “minimal” or “minor”

participation. Groenendal claims that the district court erred in calculating his sentence

pursuant to the cross-reference to trafficking, applying these enhancements, and denying

him a reduction for his minimal role.

For the reasons set forth below, we vacate Groenendal’s sentence and remand for

resentencing.

I.

The facts of this case are not disputed. Groenendal visited an online Yahoo site,

IngasPlace, which contained images of minors engaged in sexually explicit conduct.

The site required potential members to submit photographs in order to gain membership,

ordering interested individuals to “[p]ost 2 or more photos for invite.” Once a potential

member posted photographs, the electronic files were automatically emailed out to all

of the members. When a person gained membership, he received automatic emails of

photographs submitted by other potential members. Groenendal uploaded photographs

on May 3, 2003 in order to join IngasPlace. Within a few weeks, Groenendal voluntarily

deleted his Yahoo identification for IngasPlace, all of the emails in his IngasPlace inbox,

and his IngasPlace account. On May 26, 2003, the Norwegian National Criminal

Investigation Service (“KRIPOS”) submitted photographs in order to gain membership

to IngasPlace. KRIPOS conducted an investigation into the identity of the members of

the group and handed over information about twenty-six individuals, including

Groenendal, to the United States Immigration and Customs Enforcement (“ICE”) Cyber

Crimes Center. 

ICE deduced Groenendal’s identity and contacted Groenendal on January 19,

2005, almost two years after he had deleted his IngasPlace account. Groenendal
No. 07-2430 United States v. Groenendal Page 3

1

The governing statute was amended to increase the maximum sentence for possession of child

pornography from five to ten years, effective April 30, 2003. See 18 U.S.C. § 2252(b)(2). Although

KRIPOS detected the photographs that Groenendal uploaded to IngasPlace on May 3, 2003, Groenendal

was charged with possession of photographs in April of 2003, permitting him to benefit from the preamendment statutory maximum of five years in exchange for his plea of guilty. 

confirmed that he had accessed pornography through several Yahoo accounts and

admitted that he possessed images depicting minors. He specifically acknowledged

possession of four photographs: Image13.jpg, Yc8.jpg, 063BJ.jpg, and

10breakingin.jpg. Groenendal admitted that he had a pornography addiction and had

sought professional help. He estimated that he had viewed thousands of adult

pornography images over many years and belonged to between eighty and one hundred

Yahoo pornography groups. He claimed, however, that he possessed only a handful of

images involving children, which he used to gain access to pornography sites. 

After being interviewed by ICE but before any charges were brought, Groenendal

voluntarily sought help for his pornography addiction, confessing to his wife, his pastor,

and his boss. Groenendal joined a support group for pornography addicts and attended

weekly meetings for both individual and group counseling. Groenendal continued his

weekly counseling sessions for two years, spending more than seven thousand dollars

on therapy and becoming a mentor for other pornography addicts. 

Approximately two and one half years after being contacted by ICE, and four and

one half years after Groenendal deleted his IngasPlace account, Groenendal was charged

with possession of child pornography. On May 17, 2007, the United States District

Court for the Western District of Michigan accepted Groenendal’s guilty plea for one

count of possession of images involving minors engaging in sexually explicit conduct

in violation of 18 U.S.C. § 2252(a)(4)(B). He pled guilty to possession of three images

in his email account in April1

 of 2003: 0143.jpg, 13.jpg, and sissy(19).jpg. 

The district court sentenced Groenendal to a total of forty-two months

imprisonment followed by three years of supervised release, a fine of $2,580, and a

special assessment fee of $100. Pursuant to a cross-reference in the former provision

U.S.S.G. § 2G2.4, the district court applied a base offense level of seventeen. The district
No. 07-2430 United States v. Groenendal Page 4

court added five levels pursuant to U.S.S.G. § 2G2.2(b)(2)(B) because the offense

involved distribution for the receipt of a thing of value, but not for pecuniary gain; four

levels pursuant to U.S.S.G. § 2G2.2(b)(3) because the image 10breakingin.jpg portrayed

sadistic or masochistic conduct; two levels pursuant to U.S.S.G. § 2G2.2(b)(1) because

the material involved a prepubescent minor or a minor under the age of twelve; and two

levels pursuant to U.S.S.G. § 2G2.2(b)(5) because a computer was used for the

transmission of the material. The district court declined to adjust the sentence downward

pursuant to U.S.S.G. § 3B1.2 on account of Groenendal’s minimal or minor role. The

district court subtracted three levels for acceptance of responsibility and scored the case

at a total offense level of twenty-seven and a criminal history category of I. The

recommended Guidelines range was seventy to eighty-seven months, but the statutory

maximum, and thus the maximum under United States v. Booker, 543 U.S. 220 (2005),

for possession of child pornography is sixty months. 18 U.S.C.A. § 2252(b)(2)

(effective Oct. 30, 1998 to Apr. 29, 2003). In light of the small number of photographs

depicting minors that Groenendal possessed, the fact that he “took significant steps to

distance himself from child pornography [and] . . . did cancel himself out of those Yahoo

accounts, again, before the existence of the investigation was revealed to him,” the

evidence that Groenendal has rehabilitated himself, the voluminous affidavits stating that

Groenendal is a changed man and “a positive force in the counseling group,” and the

absence of a significant risk of re-offending, the district court departed downward from

sixty months to impose a forty-two month sentence. Sentencing Tr. at 66-69. 

Groenendal timely appealed his sentence to this court. Pursuant to an order from

this court on December 19, 2008, both Groenendal and the government stipulated that

the image 10breakingin.jpg is not part of the record before this court.

II.

We review a district court’s sentencing determination for reasonableness. Gall

v. United States, __ U.S. __, 128 S. Ct. 586, 594 (2007). A review for reasonableness

includes considering both procedural and substantive reasonableness. United States v.

Sedore, 512 F.3d 819, 822 (6th Cir. 2008) (citing United States v. Liou, 491 F.3d 334,
No. 07-2430 United States v. Groenendal Page 5

2

The trafficking and possession provisions have since been consolidated. See U.S.S.G. § 2G2.2

(2008). Because the offense occurred in early 2003, the district court applied the 2002 version of the

Sentencing Guidelines, which contained separate provisions for trafficking and possession. 

337 (6th Cir. 2007)). Procedural error includes “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S. Ct.

at 597. In reviewing a sentencing calculation for procedural reasonableness, findings of

fact made by the district court for sentencing are reviewed for clear error. United States

v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006). Generally, the adjustments of sentences

by enhancements or reductions are mixed questions of law and fact and are reviewed de

novo by appellate courts. United States v. Georgia, 279 F.3d 384, 386-87 (6th Cir.

2002). However, whether a defendant is entitled to a sentence reduction pursuant to

U.S.S.G. § 3B1.2 “depends heavily on factual determinations, which we review only for

clear error.” United States v. Harris, 397 F.3d 404, 409 (6th Cir. 2005) (quoting United

States v. Solorio, 337 F.3d 580, 601 (6th Cir. 2003)). If the sentence is procedurally

sound, we then review the sentence for substantive reasonableness under an abuse of

discretion standard. Gall, 128 S. Ct. at 597.

A.

Groenendal claims that the district court erred in using the trafficking provision

instead of the possession provision of the Guidelines to determine the applicable base

level for his sentence.2

 Section 2G2.2 was formerly entitled “Trafficking in Material

Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or

Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material

Involving the Sexual Exploitation of a Minor with Intent to Traffic” and provided a base

offense level of seventeen. § 2G2.2 (amended 2004) (“Trafficking Provision”). By

contrast, § 2G2.4 was entitled “Possession of Materials Depicting a Minor Engaged in

Sexually Explicit Conduct” and provided a base offense level of fifteen. § 2G2.4

(repealed 2004) (“Possession Provision”). However, the Possession Provision contained

a cross-reference to the Trafficking Provision, directing courts to apply the Trafficking
No. 07-2430 United States v. Groenendal Page 6

3

Farrelly analyzes the differences between the Trafficking Provision and the Possession

Provision as they existed before being merged in 2004 and is thus relevant for this analysis. 

4

Groenendal relies on Sromalski because it reversed the application of the Trafficking Provision

to a defendant convicted only of possession. This case is readily distinguishable because the government

in Sromalski agreed that the defendant’s uploading and downloading of the material should not be relevant

conduct for sentencing purposes. The Seventh Circuit noted in dicta that had the uploading and

Provision “[i]f the offense involved trafficking in material involving the sexual

exploitation of a minor (including receiving, transporting, shipping, advertising, or

possessing material involving the sexual exploitation of a minor with intent to traffic).”

§ 2G2.4(c)(2) (repealed 2004). Through this cross-reference, the district court applied

the Trafficking Provision’s base offense level of seventeen, even though Groenendal was

charged with and pled guilty to a violation of the Possession Provision, which has a base

offense level of fifteen. 

Whether conduct amounts to “trafficking” is a legal question, which this court

reviews de novo. The Guidelines themselves offer no guidance as to what constitutes

“trafficking.” Indeed there is very little case law on point, particularly since the offenses

of trafficking and possession have since been merged. See § 2G2.2 (2008). Groenendal

urges this court to rely on United States v. Farrelly, 389 F.3d 649 (6th Cir. 2004), which

reversed the district court’s application of the pre-amendment Trafficking Provision

because the defendant had only been an “end user” of child pornography and had no

intent to traffic.3

 389 F.3d at 657. Farrelly found that an expansive reading of the

Trafficking Provision was “illogical” because it would include all possession offenses:

“Only a sterile formalism could require us to apply the guideline for ‘receiving,’ clearly

ensconced as it is in the context of trafficking, when there is no evidence of trafficking

beyond the receipt that is inherent every time there is evidence of less culpable

‘possession.’” 389 F.3d at 657.

 In this case, however, there is evidence of trafficking beyond mere receipt.

Groenendal both intended to traffic and engaged in trafficking. See United States v.

Sromalski, 318 F.3d 748, 751 (7th Cir. 2003) (“There is no doubt that the use of a

‘trading’ server . . . coupled with actions of both uploading and downloading files, is the

kind of trafficking activity to which the cross-reference found in § 2G2.4(c)(2) refers.”).4
No. 07-2430 United States v. Groenendal Page 7

downloading of the images “been part of Sromalski’s relevant conduct, we have no doubt that our prior

cases would have required the application of the cross-reference [to the Trafficking Provision].” 318 F.3d

at 751.

It is undisputed that Groenendal uploaded three pictures, each three times, in order to

join a pornography site. Although this entire conduct took place within a time span of

less than five minutes, Groenendal did “ship” pornographic materials by sending these

three pictures over the internet, engaging in conduct beyond mere possession. Indeed

Farrelly supports this finding because the court reversed Farrelly’s conviction under the

Trafficking Provision only because there was “no indication that he ever trafficked,

transported, shipped, or advertised such material.” 389 F.3d at 657; see also United

States v. Holm, 326 F.3d 872, 876 (7th Cir. 2003) (same). Groenendal did traffic,

transport, or ship materials by posting them to a pornographic website. We therefore

affirm the district court’s application of the Trafficking Provision and the corresponding

base offense level of seventeen.

B.

Groenendal challenges his enhancement pursuant to § 2G2.2(b)(2)(B) for

receiving a thing of value because this enhancement does not apply to possession

offenses. Groenendal concedes that if we determine that the Trafficking Provision

applies, this argument is moot. Because the Trafficking Provision does apply as a crossreference from the Possession Provision, the district court did not err in enhancing

Groenendal’s sentence under the Trafficking Provision for receipt of a thing of value.

C.

The district court increased Groenendal’s offense level by four because it found

that 10breakingin.jpg involved sadistic or masochistic conduct. Both parties stipulated

that the image was not part of the record before the district court or on appeal because

the charges against Groenendal never included the image 10breakingin.jpg. Without the

image before us, we must determine whether the record contains enough information
No. 07-2430 United States v. Groenendal Page 8

about the content of the image in question to support the enhancement for sadistic or

masochistic conduct.

As a threshold matter, there is a no factual dispute as to whether Groenendal

possessed 10breakingin.jpg. Groenendal identified 10breakingin.jpg as an image

associated with his pornographic activity years earlier when he was initially interviewed

by ICE on January 21, 2005. Although Groenendal did not plead guilty to possession

of 10breakingin.jpg, “sentencing courts may still find facts using the preponderance-ofthe-evidence standard.” See United States v. White, 551 F.3d 381, 383 (6th Cir. 2008)

(en banc) (quoting United States v. Mendez, 498 F.3d 423, 426-27) (6th Cir. 2007) (per

curiam)). The district court found that the content of the image was relevant conduct for

sentencing purposes because the image was located on Groenendal’s computer. 

Significantly, the parties also do not dispute that the image portrays vaginal

intercourse between an adult male and a prepubescent child. The presentence

investigation report describes the image as depicting “no dominance, bondage, or other

level of torture,” but “portray[ing] an adult male sexually penetrating a prepubescent

female child vaginally.” Presentence Investigation Report Addendum at 2. Although

Groenendal challenged his sentence enhancement for sadistic conduct before both the

district and appellate courts, he never disputed the characterization of the content and

indeed conceded in oral argument on appeal that the child in the image was

prepubescent. We must therefore determine whether a court can apply an enhancement

for sadistic or masochistic conduct when there is no material evidence of the image in

question before the court, but both parties stipulate as to the conduct portrayed by the

image.

Because the Guidelines do not define what is meant by “sadistic or masochistic

conduct,” “courts must look to the common meaning of those terms to determine their

application.” United States v. Quinn, 257 F. App’x 864, 866-67 (6th Cir. 2007).

Looking to Webster’s Third New International Dictionary, the Fifth Circuit described

“sadism” as “the infliction of pain upon a love object as a means of obtaining sexual

release.” United States v. Lyckman, 235 F.3d 234, 238 n.19 (5th Cir. 2000). Other
No. 07-2430 United States v. Groenendal Page 9

courts have held that “the application of 2G2.2(b)(3) is warranted when the offense

involves the depiction of a sexual act that is ‘likely to cause pain in one so young.’”

Lyckman, 235 F.3d at 238-39 (footnote omitted). 

Using these and similar definitions, the First, Second, Fifth, Seventh, Eighth,

Ninth, Tenth, and Eleventh Circuits have found that images involving penetrative sex

between a prepubescent child and an adult male are per se sadistic. See, e.g., United

States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007) (“We agree with the many circuits

which have found that images depicting the sexual penetration of young and

prepubescent children by adult males represent conduct sufficiently likely to involve

pain such as to support a finding that it is inherently ‘sadistic’ or similarly

‘violent’. . . . ); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (“[S]ubjection

of a young child to a sexual act that would have to be painful is excessively cruel and

hence is sadistic. . . .”); Lyckman, 235 F.3d at 240 (“We are comfortable in following the

lead of the Second, Seventh, and Eleventh Circuits by holding that the application of

§ 2G2.2(b)(3) is warranted when the sexual act depicted is the physical penetration of

a young child by an adult male.”); United States v. Myers, 355 F.3d 1040, 1043 (7th Cir.

2004) (finding vaginal intercourse between a prepubescent girl and an adult male

sadistic); United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (“[I]mages

involving the sexual penetration of a minor girl by an adult male and images of an adult

male performing anal sex on a minor girl or boy are per se sadistic or violent within the

meaning of U.S.S.G. § 2G2.2(b)(3).”); United States v. Rearden, 349 F.3d 608, 616 (9th

Cir. 2003) (“We join these circuits, and hold that the district court did not improperly

apply § 2G2.2(b)(3) after finding that the images depicted subjection of a child to a

sexual act that would have to be painful, and thus sadistic.”); United States v. Kimler,

335 F.3d 1132, 1143 (10th Cir. 2003) (finding no expert testimony necessary for a

sentence enhancement when the images depicted penetration of prepubescent children

by adults); United States v. Hall, 312 F.3d 1250, 1262-63 (11th Cir. 2002) (holding that

images of an adult male vaginally or anally penetrating a young child are per se sadistic

and do not require expert testimony “because such penetration would necessarily be

painful”). In our own court, we have twice adopted this reasoning in unpublished
No. 07-2430 United States v. Groenendal Page 10

5

We note that the other courts to consider this question had the images before them and

emphasize that our holding today is permitted only by the stipulation of both parties as to the content of

the image. If Groenendal had disputed whether the image depicted penetration or whether the minor was

prepubescent, such a determination could not have been reached. 

dispositions. United States v. Quinn, 257 F. App’x 864, 867 (6th Cir. 2007) (relying on

Lyckman to conclude that “penetrative sex between adults and prepubescent children is

inherently sadistic”); United States v. Fuller, 77 F. App’x 371, 383 (6th Cir. 2003)

(same). 

Groenendal challenges his sentencing enhancement, claiming that a photograph

of a minor engaged in sexual intercourse with an adult male may be revolting, but it is

not per se sadistic or masochistic for purposes of U.S.S.G. § 2G2.2(b)(3). Based on

this court’s precedent and that of our sister circuits, we find overwhelming support for

the district court’s determination that the image depicted a sexual act that is likely to

have been painful, and we hold today that penetration of a prepubescent child by an adult

male constitutes inherently sadistic conduct that justifies the application of

§ 2G2.2(b)(3). Because the image 10breakingin.jpg depicted vaginal intercourse

between a prepubescent girl and an adult male, we find that the enhancement for sadistic

conduct was properly applied.5

D.

Groenendal argues that the district court improperly denied his request for a

downward adjustment pursuant to U.S.S.G. § 3B1.2. Section 3B1.2 allows for

adjustment of a defendant’s sentence by four levels if he can show by a preponderance

of the evidence that he was a “minimal” participant and by two levels if he can show that

he was a “minor” participant in the criminal activity. See United States v. Bailey, 488

F.3d 363, 369 (6th Cir. 2007). 

The threshold issue is whether § 3B1.2 can apply to a conviction involving only

one participant charged with criminal conduct. Section 3B1.2 states that it “is not

applicable unless more than one participant was involved in the offense.” § 3B1.2, cmt.

n.2. However, § 3B1.2 does not require that the other “participants” be charged with the
No. 07-2430 United States v. Groenendal Page 11

crime. United States v. Allen, Nos. 06-1318 /1496, 2007 WL 2446013, at *7 (6th Cir.

Aug. 29, 2007); see United States v. Sanchez, 85 F. App’x 463, 467 (6th Cir. 2003) (“[A]

defendant’s eligibility for a reduction under this section is not determined solely on the

basic elements and acts cited in the count of the conviction.”) (internal quotation marks

and citation omitted). The district court must look beyond the defendant’s conviction

to all relevant conduct in making its determination. Allen, 2007 WL 2446013, at *7.

Even a sole defendant charged with criminal conduct is entitled to a reduction under

§ 3B1.2 if his conduct is less culpable than others involved in relevant conduct. Id.

(holding that “the district court did not err in determining that the [§ 3B1.2] guideline

was applicable . . . even though the defendant was the sole participant of the offense”

when it also found another individual more culpable in the offense than the defendant);

United States v. Snoddy, 139 F.3d 1224, 1233 (8th Cir. 1998) (“[T]he sentencing judge’s

conclusion that U.S.S.G. § 3B1.2 did not permit a ‘minor participant’ reduction to a

defendant pleading guilty to a ‘sole participant’ offense is inconsistent with current law

and must be reversed.”); United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir.

1991) (“[W]e see no barrier to a trial court’s conclusion that a defendant convicted of

[possession] can be a ‘minor’ participant.”).

The district court in this case denied the application of § 3B1.2, stating its ruling

as follows: “There is, in the Court’s judgment, only one participant in this case, and

that’s Mr. Groenendal, and Note 2 [of § 3B1.2] clearly requires, in the Court’s judgment,

that more than one participant be involved in a particular crime in order to allow the

application of minimal role.” Sentencing Tr. at 18. The district court’s statement is

ambiguous and susceptible to multiple interpretations. As a statement of law, the district

court, in finding “one participant in this case,” erred by precluding application of

§ 3B1.2 to Groenendal’s possession offense due to his status as sole participant. Section

3B1.2 can apply, as explained above, even when only one participant is charged in the

offense. See, e.g., United States v. Bowen, 437 F.3d 1009, 1020 (10th Cir. 2006)

(considering whether “the district court based its ruling on an erroneous conclusion that

it was without authority to grant a [§ 3B1.2] mitigating role adjustment” when defendant

was the only one charged with the criminal conduct); United States v. Yater, 328 F.3d
No. 07-2430 United States v. Groenendal Page 12

1008, 1009 (8th Cir. 2003) (reversing and remanding for resentencing on the following

grounds: “The Court seems to have thought that a minor-role adjustment was ruled out

as a matter of law because defendant was the only participant in the crime charged as it

was alleged in the indictment. We do not believe that the law imposes such an absolute

limitation.”). 

Under a separate permissible reading, the district court’s statement could have

been a finding of fact that Groenendal was the sole participant in not only the charged

offense, but also in all relevant conduct, prohibiting application of § 3B1.2. See United

States v. Anderson, 526 F.3d 319, 328 (6th Cir. 2008) (reversing the application of

§ 3B1.2 when the defendant was solely responsible for the criminal activity). Such a

factual conclusion, however, is inconsistent with the district court’s other findings:

Groenendal cannot both be guilty of trafficking and also be the only participant in all

relevant conduct. In other words, he cannot be guilty of trafficking for purposes of

sentencing enhancements and guilty of only possession for purposes of sentencing

reductions. Even under the deferential standing of clear error, Bailey, 488 F.3d at 369,

we find such a conclusion erroneous. The offense of trafficking, statutorily described

as “including receiving, transporting, shipping, advertising, or possessing material

involving the sexual exploitation of a minor with intent to traffic,” § 2G2.4(c)(2),

necessarily involves more than one person. As conceded by the government at oral

argument on appeal, Groenendal’s criminal conduct included both uploading images and

downloading images. Such activity cannot happen in isolation; the images must be sent

to someone and received from someone. Once the district court found that Groenendal

participated in trafficking, it erred by not considering a reduction under § 3B1.2.

On remand, the district court must determine whether Groenendal has shown by

a preponderance of the evidence that he was a “minimal” or “minor” participant in

trafficking child pornography. “A minimal participant is one who is ‘plainly among the

least culpable of those involved in the conduct of a group,’ and a minor participant is one

who ‘is less culpable than most other participants, but whose role could not be described

as minimal.’” United States v. Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002) (quoting
No. 07-2430 United States v. Groenendal Page 13

6

Commentary to § 3B1.2 states that “[i]f a defendant has received a lower offense level by virtue

of being convicted of an offense significantly less serious than warranted by his actual criminal conduct,

a reduction for a mitigating role . . . ordinarily is not warranted.” § 3B1.2 cmt. n.3(B). On appeal, the

government relied on this language to argue that § 3B1.2 was inapplicable because Groenendal was

charged with a less serious offense than warranted by his criminal conduct. The government argued that

because Groenendal was sentenced under the comparatively more lenient 2002 Guidelines, he was

convicted of a less serious offense. Groenendal’s conviction was made neither more nor less serious by

the application of the 2002 Guidelines. That the government agreed to backdate the charge in exchange

for a plea of guilty is an aspect of the plea bargain that we will not review. See United States v. Bradley, 400 F.3d 459, 464-65 (6th Cir. 2005) (discussing the risks of courts disturbing plea agreements). 

Any argument that Groenendal’s conviction for possession qualifies as a less serious offense

similarly fails because Groenendal was sentenced under the trafficking provision. The government cannot

have it both ways and view Groenendal’s conviction as trafficking for the applicability of sentencing

enhancements but as possession for the applicability of reductions. 

§ 3B1.2, cmt. nn.1, 3 (1998)); see also United States v. Allen, 516 F.3d 364, 374 (6th Cir.

2008). The statutory commentary clarifies that § 3B1.2 is applicable for a defendant

who is “substantially less culpable than the average participant.” § 3B1.2, cmt. n.3(A).

Groenendal was charged with uploading three images, three times, in a span of less than

five minutes. He swiftly abandoned his criminal conduct, deleting his account at

IngasPlace two years before any knowledge of a criminal investigation into his activities.

At sentencing, the government agreed that if the district court found that the trafficking

cross-reference applied, Groenendal’s position that he was “substantially less culpable

than the average participant,” who may upload or download far more images, had “some

logic”:

Your Honor, it is the opinion of the agent and myself that the number of

images involved here is less than a norm – than the normal is a case of

this type. And it is true that the defendant is caught – was caught and is

before the Court here basically because he sent three images to a

Norwegian undercover officer who referred the matter through channels

to the United States. So if we do expand it to the idea of trafficking,

there is some logic to the defendant’s position. 

Sentencing Tr. at 17. Of importance is also Groenendal’s undisputed and remarkable

repentance; unlike most pornography addicts, he sought professional help on his own

initiative and has reformed his behavior.6

 See United States v. Jackson, 55 F.3d 1219,

1225 (6th Cir. 1995) (“[Defendant’s] actions must be compared with those of the

average participant in a similar scheme.”). A determination of whether to apply § 3B1.2

“is heavily dependent upon the facts of the particular case.” § 3B1.2 cmt. n.3(C).
No. 07-2430 United States v. Groenendal Page 14

Accordingly, we remand the inquiry to the district court to decide the matter in the first

instance. 

III.

For the foregoing reasons, we vacate Groenendal’s sentence because the district

court erred in failing to consider whether a reduction under § 3B1.2 is appropriate and

remand the case for resentencing consistent with this opinion.