PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 12-4010

SEAN M. PRICE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Senior District Judge.

(5:11-cr-00029-FPS-JES-1)

Argued: February 1, 2013

Decided: March 29, 2013

Before GREGORY and KEENAN, Circuit Judges, and

Robert E. PAYNE, Senior United States District Judge for

the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Gregory wrote the

opinion, in which Judge Keenan and Senior Judge Payne

joined.

COUNSEL

ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia,
for Appellant. Robert Hugh McWilliams, Jr., OFFICE OF

THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF: Brendan S. Leary, Assistant

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for Appellant.

William J. Ihlenfeld, II, United States Attorney, Wheeling,

West Virginia, for Appellee.

OPINION

GREGORY, Circuit Judge:

Section 2G2.2 of the United States Sentencing Commission

Guidelines Manual (Guidelines) provides sentencing enhancements for crimes involving the possession, distribution, or

receipt of child pornography. Specifically at issue, Guidelines

Section 2G2.2(b)(7) allows for a sentencing enhancement

based on the number of images of child pornography involved

in an offense. In July 2011, Sean Price pled guilty to accessing the internet via computer with the intent to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and

(b)(2). At sentencing, the district court calculated Price’s

offense as involving more than 600 images of child pornography, and as a result, imposed a five-level sentencing enhancement pursuant to Section 2G2.2(b)(7)(D). Price now

challenges the five-level enhancement. Price argues that

duplicate images should not be counted when applying the

Section 2G2.2(b)(7) sentencing enhancement. He alternatively argues that what he did—sending the same image multiple times via email—does not constitute duplication. For the

reasons that follow, we reject Price’s arguments and affirm

his sentence.

I.

In late 2010, West Virginia State Police received a cyber

tip from photobucket.com (a picture sharing website) that a

2 UNITED STATES v. PRICE
user uploaded images of child pornography on the website.

State Police were able to trace the uploaded images to Price’s

email account. State Police then used this information to

acquire a warrant to search Price’s residence. The warrant was

executed by State Police and the FBI on April 28, 2011. During the search, officers seized three computer hard drives and

other computer storage media. Fifteen images of child pornography were found on the hard drives. While the search

was taking place, Price consented to an interview with law

enforcement officials, at which time he admitted to possessing

child pornography, to posting images of child pornography on

photobucket.com, and to posting a request for child pornography on an internet blog in 2008.

Less than two months after the search of Price’s residence,

on June 18, 2011, four separate emails with attachments of

images depicting child pornography were sent to a total of

ninety-three people. The emails were "spoofed" to make it

seem as if they were sent by a West Virginia Police Sergeant.

Email One contained twelve pornographic image attachments

and was sent to nineteen people. Email Two contained

twenty-three pornographic image attachments and was sent to

thirty-eight people. Email Three contained an attachment of a

single collage consisting of sixteen pornographic images and

was sent to five people. And Email Four contained seventeen

pornographic image attachments, one of which was a collage

consisting of sixteen pornographic images, and was sent to

thirty-seven people. In total, ninety-eight images of child pornography were emailed to ninety-three people.

In an attempt to get to the bottom of who was behind sending these emails, FBI agents went to Price’s residence to

request a consensual interview. Price agreed. During the interview, Price wrote out a statement of culpability admitting to

sending the emails.

On July 12, 2011, Price was named in a one-count indictment alleging he accessed the internet via computer with the

UNITED STATES v. PRICE 3
intent to view child pornography, in violation of 18 U.S.C.

§§ 2252A(a)(5)(B) and (b)(2). On August 25, 2011, Price

filed a Notice of Intent to Plead Guilty to the indictment, and

on August 29, 2011, Price entered his guilty plea. At the close

of the plea hearing, the district court ordered U.S. Probation

to prepare a Presentence Report (PSR). The PSR stated that

"emails were sent out by [Price] ninety-three (93) times with

a total of fifty-four (54) attachments." Using these figures, the

PSR calculated the total number of images of child pornography involved in the offense to be "approximately 2,696

images."1

As a result of this calculation, the PSR recommended a

five-level enhancement pursuant to Section 2G2.2(b)(7)(D)

given that the offense involved 600 or more images of child

pornography. Price filed several objections to the PSR. Relevant to this appeal, Price challenged the calculation of the

number of pornographic images. Price argued that duplicate

images cannot be counted when applying the Section

2G2.2(b)(7) enhancement. He alternatively argued that he did

not duplicate the images when he sent them to multiple people

via email. Price wanted the district court to only consider at

sentencing the number of unique images he possessed or

emailed, which in this case was 113. Resultantly, Price reasoned that since the number of unique images involved in the

offense was 113, a two-level sentencing enhancement should

have been applied under Section 2G2.2(b)(7)(A). The government filed a response agreeing with the PSR’s calculation.

At sentencing, the district court heard arguments from both

sides on Price’s objections to the PSR. The court then concluded that when Price sent the same image to multiple recipients via email, Price duplicated the image, and each instance

of duplication can be counted separately under Section

1The PSR erroneously calculated the number of attachments as 54

instead of 53. Price concedes that this miscalculation does not impact the

resolution of this appeal. 

4 UNITED STATES v. PRICE
2G2.2(b)(7)2

. Thus, the district court concluded that the PSR

calculation was essentially correct. Accordingly, the court

imposed a five-level enhancement under Section

2G2.2(b)(7)(D), leaving Price with an offense level of thirty

and a category III criminal history. The corresponding Guidelines range was 121 to 150 months. Price was sentenced to

120 months’ imprisonment followed by ten years of supervised release. Price timely appealed, raising the same arguments before us as he did below.

II.

The central question before us is whether the district court

erred in counting each iteration of child pornography separately when applying Section 2G2.2(b)(7). Because this question involves Guidelines interpretation, we review the district

court decision de novo. See United States v. Daughtrey, 874

F.2d 213, 217 (4th Cir. 1989); United States v. Hudson, 272

F.3d 260, 263 (4th Cir. 2001).

A.

Section 2G2.2(b)(7) provides for a sentencing enhancement

based on the number of images of child pornography involved

in the underlying offense. Relevant here, if a crime involves

more than 600 images, a five-level enhancement applies.

U.S.S.G. § 2G2.2(b)(7)(D). Application Note 4 to Section

2G2.2(b)(7) reads: "For the purpose of determining the number of images under subsection (b)(7): Each photograph, picture, computer or computer-generated image, or any similar

visual depiction shall be considered to be one image." The

2The images that Price distributed via email implicated the Section

2G2.2(b)(7) sentencing enhancement because the PSR concluded, and the

district court agreed, that those images were relevant conduct to his conviction under Section 1B1.3(a)(1) of the Guidelines. Price does not argue

on appeal that the district court erred in considering the distribution of

these images as relevant conduct under Section 1B1.3(a)(1). 

UNITED STATES v. PRICE 5
Application Note goes on to define an "image" as "any visual

depiction . . . that constitutes child pornography."

Application Note 4 expressly states that each and any

image of child pornography shall be counted when applying

the Section 2G2.2(b)(7) enhancement, and the Application

Note binds our interpretation of Section 2G2.2(b)(7). See

Hudson, 272 F.3d at 263 (citing United States v. Banks, 130

F.3d 621, 624-24 (4th Cir. 1997)). There is nothing further in

the Guidelines that limits this broad pronouncement. Price

would have us read Section 2G2.2(b)(7) as only allowing

unique images to be counted when applying this enhancement. This argument has no basis in the language of Section

2G2.2(b)(7). Quite contrary to Price’s assertion, Application

Note 4 suggests that when applying the number of images

enhancement, each and every depiction of child pornography

without regard to originality must be counted. We reject any

uniqueness requirement that Price tries to read into Section

2G2.2(b)(7) and hold that any image without regard to its

originality should be counted when applying this enhancement so long as that image depicts child pornography and is

relevant to the underlying conviction.3

This conclusion is bolstered by the legislative history of

Section 2G2.2(b)(7). Section 2G2.2(b)(7) was enacted under

the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003. Pub L. No.

108-21, 117 Stat. 650 (codified in scattered sections of 18

U.S.C.). The PROTECT Act was spurred by Congress’s finding that "[c]hild pornography stimulates the sexual appetites

3Our holding brings us in accord with both the Sixth and Eighth Circuits. See United States v. McNerney, 636 F.3d 772, 777 (6th Cir. 2011)

(holding "duplicate digital images, like duplicate hard copy images, should

be counted separately for the purposes of calculating a sentence enhancement pursuant to § 2G2.2(b)(7)"); United States v. Sampson, 606 F.3d

505, 510 (8th Cir. 2010) ("The distribution of duplicate images increases

the supply and availability of child pornography just as the distribution of

unique images does."). 

6 UNITED STATES v. PRICE
and encourages the activities of child molesters and

pedophiles, who use it to feed their sexual fantasies . . . [and]

to convince potential victims that the depicted sexual activity

is normal." S. Rep. No. 108-2, at 3 (2003) (quoting S. Rep.

No. 104-358, at 12-13). Therefore, Congress felt an "obligation to prevent the resurgence of the child pornography market," 149 Cong. Rec. H3059-02 (Apr. 10, 2003) (statement of

Rep. Sensenbrenner), which required "stamping out the vice

of child pornography at all levels in the distribution chain."

149 Cong. Rec. H2950-01 (Apr. 9, 2003) (statement of Rep.

Sensenbrenner). Put simply, Congress has shown its clear

intent to stop the proliferation of child pornography by enacting the PROTECT Act and the concomitant sentencing

enhancements.

There is nothing before us that remotely indicates Congress

was concerned with the unique characteristics of an image

when it sought to punish child pornographers. In fact, Congress recognized that images of child pornography are rarely

a "first-generation product," but still felt the need to impose

a number of images sentencing enhancement. 149 Cong. Rec.

S2573-02 (Feb. 24, 2003). Accordingly, when viewing the

plain language of Section 2G2.2(b)(7) in conjunction with its

legislative history, we find that the district court did not err by

counting each image in each email separately when applying

the Section 2G2.2(b)(7) enhancement.

B.

Price attempts to draw a distinction between digital and

hard copy images, arguing that if the same image is emailed

multiple times, each email should not be counted separately

under the Guidelines as that does not fit within the definition

of duplication. While Price’s concept of what constitutes

duplication is dubious at best, his argument is inconsequential

to our resolution of this case.

Price reproduced images of child pornography when he

emailed a limited number of images of child pornography to

UNITED STATES v. PRICE 7
a large number of people. That Price reproduced the pornographic images with the click of a "send" button as opposed

to the use of a photocopier does not sway the outcome; his

conduct still had the effect of increasing the number of images

of child pornography. See generally United States v. Sullivan,

451 F.3d 884, 890 (D.C. Cir. 2006) ("the prohibition against

possessing child pornography transported . . . by computer is

one important aspect of a comprehensive legislative scheme

aimed at eliminating traffic of child pornography."). Each

time Price sent an email with images of child pornography

attached he gave fodder to potential abusers who may now

have access to the images. Price’s mass proliferation of child

pornography via email makes it almost impossible to know

who will come into possession of the images and that much

harder for law enforcement to eradicate the images’ existence.

Under Price’s interpretation of Section 2G2.2(b)(7), Price

could email the same image to one million people, and only

the one image would be attributable to him when applying the

number of images sentencing enhancement. Given the absurd

results that could abound, we refuse to accept Price’s argument, as his conduct had the effect of exponentially multiplying both the real and projected evils encapsulated within the

distribution of child pornography. As such, the district court

was true to both the spirit and letter of Section 2G2.2(b)(7) in

counting every image sent by Price to every person when

applying the number of images enhancement.

III.

At bottom, Price cannot point to a single authority that has

adopted his interpretation of Guidelines Section 2G2.2(b)(7).4

4We note that the Third and Seventh Circuits have affirmed decisions

in which the district court judge did not count duplicates when applying

the number of images enhancement. See United States v. Lacey, 569 F.3d

319 n.1 (7th Cir. 2009); United States v. Long, 425 F.3d 482, 486-87 (7th

Cir. 2005); United States v. Goff, 501 F.3d 250, 255 n.9 (3d Cir. 2009).

These cases did not interpret Section 2G2.2(b)(7) and did not hold that

duplicates cannot be counted under Section 2G2.2(b)(7). The courts only

assumed, without deciding, that the district court did not err as a matter

of law by not counting duplicates. 

8 UNITED STATES v. PRICE
And for good reason — his interpretation flies in the face of

both the language of Section 2G2.2(b)(7) and the history

behind its enactment. For these reasons, we find that the district court did not err as a matter of law when it counted each

image in each email separately without regard to the uniqueness of the image when applying the Section 2G2.2(b)(7)

enhancement. As such, we affirm the five-level enhancement

applied pursuant to 2G2.2(b)(7)(D), and therefore affirm

Price’s sentence.

AFFIRMED

UNITED STATES v. PRICE 9