In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1279

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES OWENS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:08-cr-164—Larry J. McKinney, Judge.

ARGUED OCTOBER 7, 2009—DECIDED NOVEMBER 6, 2009

Before RIPPLE, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge. James Owens pled guilty to

transportation of child pornography in violation of

18 U.S.C. § 2252(a)(1) and (b)(1) and possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B)

and (b)(2). Owens’s plea agreement included a stipulation of the sentencing guidelines offense level calculation,

including all aggravating and mitigating sentencing

factors, except for one enhancement. The parties could
2 No. 09-1279

For purposes of continuity and readability, throughout 1

this opinion we will refer to “Erica” as if she were a real person.

not agree on the applicability of U.S.S.G. § 2G2.2(b)(3)(B),

which comes into play when a defendant expects to

receive a thing of value in exchange for his distribution

of child pornography. Owens maintains that he should

receive only a two-level enhancement because he did not

expect to receive anything of value, and even if he did

have an expectation, that expectation was of “role play”

and not of a sexual encounter. The government maintains that Owens did expect to receive a sexual encounter, and accordingly, the five-level enhancement

was appropriate. The district court agreed with the government and sentenced Owens to a term of 360 months’

imprisonment. Owens appealed the enhancement to

his sentence, and we now affirm.

I. Background

Owens frequented an internet chat site known as “Incest

Taboo Forum.com.” In July 2008, Owens began a discussion with “Erica,” a divorced mother of an eight-yearold girl and a twelve-year-old boy. Unbeknownst to

Owens, Erica was actually Detective Dan Claasen of

the Fishers, Indiana Police Department, who was investigating online offenses against children.

1

After Owens sent Erica an introductory message, he

did not contact her again until August 2008. During

this chat session, Erica disclosed that she had been mo-
No. 09-1279 3

lested by her stepfather as a child. Owens admitted to

having a sexual relationship with a close female

relative, beginning when the girl was twelve and continuing until she was seventeen. The two also discussed whether Erica was “active” with her children

and Owens’s preference for children between the ages

of eight and thirteen. Saving the graphic details, this

discussion culminated in Owens expressing his goal of

establishing a sexual relationship with Erica and her

children.

In a third chat session a few days later, Owens offered

to send Erica a child pornography video called

“littlegirlsmix” in an effort to stimulate role play between

him and Erica. Erica accepted the offer and Owens then

transferred the video, along with his graphic description

of its contents. After a brief role play discussion, Owens

and Erica agreed to meet in person the following

day at a coffee shop in Fishers, Indiana. In planning the

meeting, Owens asked Erica how her kids would react

to his introduction into the family. He explained, “we

you and I have lived it the kids haven’t yet.” (App. at 12.)

Erica replied, “that’s why I see it as more of a journey,

how a family lives instead of little individual times when

something may happen.” (Id.) Owens then said, “the

question is how are we gonna live do we start as

nudist at home to get them used to the idea or how do

we introduce them to it.” (Id.) Erica responded, “oh yes,

I am very open about my sexuality and am not embarrassed with nudity.” (Id.) The two then made final arrangements to meet the following day.
4 No. 09-1279

Police arrested Owens when he arrived the next day

at the coffee shop. He made a Mirandized statement

admitting to his illegal transfer of the video to Erica.

He also admitted to having molested his female relative

when she was a child, a fact later confirmed by investigating officers. When Owens consented to a search of

his vehicle, two more child pornography videos were

discovered. A subsequent search of Owens’s home led

to the recovery of additional child pornography videos.

The videos recovered in Owens’s car and home formed

the basis for the second count in the indictment, possession

of child pornography.

The sole question in this case is whether Owens

expected to receive a thing of value in exchange for his

transmission of child pornography. The answer to this

question determines whether Owens receives a fivelevel or a two-level sentencing enhancement, and consequently, whether the applicable guidelines range is reduced from between 360 months, and life imprisonment

to between 262 and 327 months’ imprisonment. 

II. Analysis

The starting point of our analysis is the statute itself,

U.S.S.G. § 2G2.2(b)(3), which provides:

(b) Specific Offense Characteristics . . .

(3) (Apply the greatest) If the offense involved: . . .

(B) Distribution for the receipt, or

expectation of receipt, of a thing of
No. 09-1279 5

value, but not for pecuniary gain,

increase by 5 levels. . . .

(F) Distribution other than distribution described in subdivisions

(A) through (E), increase by 2 levels. 

Case law has resolved many of the questions raised by this

statutory language. For example, in United States v. Whited,

the Seventh Circuit held that sexual contact can

be considered a thing of value under the statute. 539

F.3d 693, 698-99 (7th Cir. 2008). The Whited court also

held that “expectation of receipt” does not require an

explicit agreement or precise bargain. Id. at 699. Rather,

reasonable anticipation or reasonable belief is enough

to trigger the enhancement. Id.

In light of Whited, the sole question in this case can

be answered by resolving whether Owens had a reasonable expectation of receipt of a thing of value, and, if

so, whether that reasonable expectation was of role play

or of a sexual encounter. The district court found that

Owens reasonably expected receipt of a sexual encounter,

and we review that sentencing decision de novo as to

questions of law and for clear error as to factual findings

and the application of the guidelines. United States

v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007).

In this case, Owens argues that he did not actually

expect a sexual encounter; rather, he merely “hoped” that

his conversations with Erica would lead to a sexual

relationship. But, as we noted in Whited, “ ‘expectation
6 No. 09-1279

of receipt’ under § 2G2.2(b)(3)(B) does not require an

explicit agreement or precise bargain. . . . Distribution of

child pornography in the reasonable anticipation or

reasonable belief of receiving a thing of value is enough

for the enhancement to apply.” 539 F.3d at 699. Although

Owens did not have an explicit agreement or precise

bargain with Erica, the content of his conversations lead

us to the conclusion that Owens reasonably anticipated

or believed that his exchange of child pornography

would result in a sexual encounter with Erica and her

children. This conclusion results from Owens’s own

statement about enjoying “moms with kids, dads with

kids and both together”; his confession of a past relationship with a minor; his desire to meet Erica; and his

proposals to introduce Erica’s children to sexual experiences. Owens clearly anticipated receipt of a sexual

encounter, and his transmittal of the pornography only

served to further his goal.

But Owens argues that even if we find that he expected

to receive something in exchange for his distribution,

that expectation was for role play only and, therefore, was

not in expectation of a thing of value. To lend credence

to his argument, Owens argues that his transmission of

pornography occurred during a conversation in which

the context was role play, and not an actual sexual encounter. This argument is unavailing for two reasons.

First, although Owens argues that he expected only role

play, his own conversations demonstrate otherwise.

During his discussions with Erica, Owens repeatedly

stated that he was uninterested in role play because he
No. 09-1279 7

“suck[ed] at it.” (See App. at 7, 9.) And even though

Owens engaged in some role play after Erica’s numerous

prompts, his involvement in the role play was brief

and fleeting. Owens’s post hoc argument that he was

expecting to receive role play in exchange for his transmission of pornography is unpersuasive.

Second, Owens argues that it was impossible for him

to expect receipt of a sexual encounter when he sent the

video during a conversation about role play and not

about sex. As we made clear in Whited, however, the

transfer of images need not be contemporaneous with

the sexual encounter for the defendant to harbor an

expectation of sex. In Whited, the defendant transmitted

“child pornography images to an e-mail correspondent

with whom he was trying to arrange a sexual encounter.”

539 F.3d at 695. Importantly, the proposed sexual encounter was not contemporaneous with the transmission

of the pornography. Instead, the defendant sent the

images to his correspondent to satisfy the latter until

the sexual encounter could take place. Id. at 696. This

case is no different. Here, Owens sent Erica images with

the end goal of obtaining a sexual relationship with her

and her children. Although he did not send the images

concurrent with an actual sexual encounter, Owens

did send the images with the expectation that this transmission would lead to a future sexual encounter. This is

all that is required. 

Further supporting our decision is the fact that the

statute itself contains no temporal component. There is no

requirement in § 2G2.2(b) that the defendant send the
8 No. 09-1279

images contemporaneously with receipt of the thing of

value. Therefore, the mere fact that Owens expected to

receive a thing of value in the future as opposed to immediately upon transmission is of no consequence.

III. Conclusion

Owens transmitted child pornography with the end goal

of receiving a thing of value, namely sex, from the recipient. Because Owens’s ultimate goal was a sexual encounter with Erica and her children, and because neither

the statute nor our precedent contain a temporal component in conjunction with the transfer, we AFFIRM

the sentence.

11-6-09