FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10242

Plaintiff-Appellee, D.C. No.

v.  1:08-cr-00172-

LJO-1 RYAN CHRISTOPHER LYNN,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

November 29, 2010—San Francisco, California

Filed February 23, 2011

Before: Mary M. Schroeder, Sidney R. Thomas, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

2829
COUNSEL

Geoffrey M. Jones, Esq., Law Office of Geoff Jones, San

Francisco, California, for the defendant-appellant.

Benjamin B. Wagner, United States Attorney, and David L.

Gappa (argued), Assistant United States Attorney, Fresno,

California, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Ryan Christopher Lynn appeals his conviction and sentence

for receiving or distributing visual depictions of a minor

engaging in sexually explicit conduct in violation of 18

U.S.C. § 2252(a)(2) (2006) and for possessing visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) (2006).1

Lynn’s principal argument is that his convictions should be

reversed because they were not supported by sufficient evidence that the visual depictions had been transported in interstate commerce, an element of the offenses. He contends in

the alternative that the simultaneous convictions for receiving

and possessing visual depictions of a minor engaging in sexually explicit conduct (hereinafter “child pornography”)2

 were

1Lynn was charged and convicted under a predecessor version of 18

U.S.C. § 2252, which was in effect from July 27, 2006 to October 7, 2008.

All citations to § 2252 in this opinion refer to this prior version. 

2Although the statutes at issue do not use the term “child pornography,”

we use it here for brevity. 

2834 UNITED STATES v. LYNN
based on the same underlying conduct and therefore violate

the Fifth Amendment’s prohibition on double jeopardy.

Finally, Lynn argues that, if his convictions are upheld, the

case should be remanded for resentencing because the district

court committed procedural error in calculating the Sentencing Guidelines offense level when it included a two-level

upward adjustment for a vulnerable victim under U.S.S.G.

§ 3A1.1(b)(1). 

We have jurisdiction under 28 U.S.C. § 1291. We conclude

that Lynn’s convictions were supported by sufficient evidence. But, determining that there was a double jeopardy violation, we vacate the sentence and remand to the district court

with instructions to vacate one of the convictions. We also

conclude that there was no procedural error in the district

court’s calculation of the applicable Sentencing Guidelines

range.

I

On May 23, 2008, federal agents executed a search warrant

at the home of Ryan Christopher Lynn, age 21, in Fresno,

California, where he lived with his father. The agents seized

Lynn’s Toshiba laptop computer and found about 184 video

files and 53 still images of child pornography stored on its

hard drive. Lynn had downloaded the videos and images from

the Internet through a peer-to-peer file sharing program called

Limewire, which is described in more detail below. In May

2008, Lynn was indicted for receipt or distribution of child

pornography in violation of § 2252(a)(2) and possession of

child pornography in violation of § 2252(a)(4)(B), as well as

a forfeiture count related to the laptop. 

Lynn went to trial, and a jury returned a verdict of guilty

on both substantive counts. During trial, the government presented an expert, Robert Leazenby, Special Agent with the

Wyoming Division of Criminal Investigation, to explain to

the jury the basics of computers, the Internet, and peer-to-peer

UNITED STATES v. LYNN 2835
networks. Among other things, Agent Leazenby explained the

nature of the Limewire program and the “Gnutella” network

it relies on, which together permit users to share files over the

Internet. Once individual users or “peers” download the

Limewire software to their computers, they can access

dynamic indexing servers within the network that store information about the files being offered for download, or shared,

by other peers in the network. A Limewire user can conduct

a search of those files, pull up a list of users that have a file

meeting the search criteria, and then download files that they

want directly from other peers. Upon downloading the program, a Limewire folder is created on the hard drive, with

sub-folders called “Incomplete,” “Shared,” and “Saved.”

When a user downloads a file using Limewire, the file begins

to download into the folder marked Incomplete. After the

download is complete, the file is placed in the Saved folder,

where by default it can be accessed by other members of the

network.3

The government also called Kevin Wiens, an expert in

computer forensics and the investigation of child exploitation

cases with the Fresno County Sheriff’s Department, to testify

regarding his forensic examination of Lynn’s laptop computer. He explained that Lynn’s laptop had a Limewire folder

with the standard sub-folders and that Wiens had located child

pornography videos within the Shared, Saved, and Incomplete

folders, and child pornography still images within the Saved

and Shared folders.

The government’s evidence on the interstate commerce element consisted of the testimony of two witnesses, Michael

Crozier, retired Chief Deputy for the Stephens County Sheriff’s Office in Georgia, and Roy Shepherd, of Richland,

Washington’s police department. A portion of one video

3For further discussion of Limewire, see United States v. Flyer, ___

F.3d ___, No. 08-10580, 2011 WL 383967, at *1 (9th Cir. Feb. 8, 2011)

and United States v. Lewis, 554 F.3d 208, 211 (1st Cir. 2009). 

2836 UNITED STATES v. LYNN
retrieved from the Limewire Saved folder on Lynn’s laptop

was played for the jury, and Crozier identified the subject of

the video as a minor victim of sexual abuse and exploitation

from Georgia. He also stated that a copy of the video was

found to have been mailed from an address in Georgia to London, England. Shepherd’s testimony took a similar course: a

portion of another video from Lynn’s laptop (found in the

Limewire Shared folder) was shown, and Shepherd identified

its subject as a minor victim of sexual abuse and exploitation

that took place in Washington. 

Lynn’s defense was that he downloaded the child pornography from Limewire inadvertently—that is, without knowledge

that the files he selected en masse for download contained

depictions of child pornography—and that he did not open or

view the files after downloading them (with the exception of

one image, which he immediately deleted). David Penrod, a

computer forensics expert who examined an exact duplicate

of Lynn’s hard drive, testified on behalf of Lynn. Among

other things,4 Penrod discussed the Gnutella network and said

that, in using the network, one could be downloading files

from users located in different states or countries, or right

next door. Lynn also testified in his own defense. 

The prosecutor’s closing argument on the element of interstate commerce consisted of the following:

And you could look at [the interstate commerce

element] as having been satisfied also with more

than enough evidence. Any one image would be sufficient to support a conviction if the other elements

are met. But just looking at that image element, it’s

clear that there were hundreds of images of minors

engaged in sexually explicit conduct. 

4Wiens and Penrod gave conflicting views on whether the evidence

demonstrated that Lynn had opened and viewed the various files containing child pornography. However, this conflict was resolved by the jury

and is not relevant to the questions presented on appeal. 

UNITED STATES v. LYNN 2837
And for two of those images, we had witnesses

come in from Washington [s]tate and the state of

Georgia to explain they were investigators on those

cases where those images were produced and they

were produced in the state in which the abuse took

place, in Washington or in Georgia. 

And in the case of witness from Georgia, he said

that he became aware of the need to investigate the

case because the particular video, which was four

hours in length, had surfaced in the United Kingdom.

So that image and those images had traveled not

only in interstate commerce, from Georgia to California, but also from Georgia to the United Kingdom. 

So, again, more than abundant evidence to find

that this element has been met and that the defendant

knew that the producing of the visual depiction

involved the use of a minor engaged in sexually

explicit conduct. 

Again, this is something where you will have to

use your common sense.

Following the government’s case-in-chief, Lynn moved for

judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government had produced insufficient evidence to meet its burden on the interstate commerce

element of the charged offenses. The district court denied the

motion at the close of evidence. After the jury returned a verdict of guilty on both counts, Lynn renewed his motion for

judgment of acquittal under Rule 29, again on the basis of the

interstate commerce element, and for a new trial under Rule

33. The district court denied these motions.

2838 UNITED STATES v. LYNN
At sentencing, the district court adopted the Sentencing

Guidelines range calculation in the Presentence Investigation

Report, which was offense level of 41, criminal history category I, for a range of 324 to 405 months. The offense level

included a two-level adjustment pursuant to U.S.S.G.

§ 3A1.1(b)(1)5 for a vulnerable victim, to which Lynn

objected in writing. Although the probation officer recommended a below-Guidelines sentence of 182 months, the district court sentenced Lynn to 210 months’ imprisonment on

the receipt count, and 120 months’ imprisonment (the statutory maximum) on the possession count, to be served concurrently, with supervised release for a term of life.

II

Lynn raises three basic contentions in this appeal. First, he

contends that his convictions for receipt and possession of

child pornography under § 2252 should be reversed because

the government did not establish at trial that the visual depictions of child pornography that he downloaded had been

mailed, shipped, or transported in interstate commerce. Second, he contends his simultaneous convictions for receiving

and possessing child pornography were based on the same

underlying conduct and thus violate the prohibition on double

jeopardy. Third, Lynn contends that the district court committed a procedural error in sentencing by including an adjustment in offense level for a vulnerable victim.

A

[1] At the time of Lynn’s offense, § 2252(a)(2) punished

anyone who “knowingly receive[d], or distribute[d], any

5The Presentence Investigation Report and the briefs refer to U.S.S.G.

§ 3A1.1(b)(1)(B)(1). There is no such section in the applicable version of

the Guidelines, but we assume reference is made to § 3A1.1(b)(1) which

states: “If the defendant knew or should have known that a victim of the

offense was a vulnerable victim, increase by 2 levels.” 

UNITED STATES v. LYNN 2839
visual depiction [of child pornography] that has been mailed,

or has been shipped or transported in interstate or foreign

commerce, . . . by any means including by computer . . . .”

Section 2252(a)(4)(B) similarly punished those who “knowingly possesse[d] 1 or more books, magazines, periodicals,

films, video tapes, or other matter which contain any visual

depiction [of child pornography] that has been mailed, or has

been shipped or transported in interstate or foreign commerce,

. . . by any means including by computer . . . .” This part of

the case boils down to whether evidence that a video depicting child pornography was originally produced in another

state suffices for a rational trier of fact to find that the visual

depiction “has been mailed, or has been shipped or transported in interstate or foreign commerce.” § 2252(a)(2),

(a)(4)(B). 

We review a challenge to the sufficiency of the evidence de

novo. United States v. Green, 592 F.3d 1057, 1065 (9th Cir.

2010). “Evidence is sufficient to support a conviction unless,

viewing the evidence in the light most favorable to sustaining

the verdict, no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Overton, 573 F.3d 679, 685 (9th Cir. 2009).

[2] According to Lynn, the government’s evidence on the

out-of-state production of certain videos was insufficient

because it did not bear on whether the actual contraband—

which he contends are the digital video files found on Lynn’s

laptop—had crossed a state border. He contends that the

“original” child pornography videos, first produced in Washington and Georgia, respectively, are not the same visual

depiction as the digital video files received on Lynn’s laptop

via Limewire. Thus, Lynn’s position is that even if the video

was made in a different state, the interstate commerce element

is not satisfied because he might have downloaded the visual

depiction from an in-state Limewire user. Lynn further urges

us to reject the holding of several of our sister circuits that,

in the absence of other evidence, proof that a defendant used

2840 UNITED STATES v. LYNN
the Internet to acquire child pornography satisfies the interstate commerce element.

[3] The government responds that the uncontroverted evidence that some of the original videos were produced in other

states is sufficient to meet its burden. In its view, the jurisdictional elements of § 2252(a)(2) and (a)(4)(B) do not require

proof that the specific digital video file on Lynn’s laptop

moved interstate; it is enough that the video footage, fixed in

any medium, was mailed, shipped, or transported in interstate

or foreign commerce at any point before arriving on Lynn’s

laptop via Limewire. The government also argues that, even

accepting Lynn’s incorrect understanding of “visual depiction,” the prosecution showed that the digital video and image

files stored on Lynn’s laptop traveled interstate by presenting

evidence about the way files are acquired using Limewire. As

a final alternative, the government asks the panel to hold that

proof of use of the Internet to obtain child pornography, without more, satisfies the interstate commerce element given the

inherently interstate nature of the Internet. 

[4] We start with a look at the particular jurisdictional language Congress used in the statutes at issue. Both

§ 2252(a)(2) and (a)(4)(B) require the government to prove

that a visual depiction “has been” mailed, shipped, or transported “in interstate or foreign commerce.” § 2252(a)(2),

(a)(4)(B). The Supreme Court has explained that Congress’s

decision to use the present perfect tense (“has been”) in a

jurisdictional element of a statute “denot[es] an act that has

been completed.” Barrett v. United States, 423 U.S. 212,

216-17 (1976) (holding that a firearm “has been” shipped in

interstate commerce where the defendant purchased the

weapon from a vendor within his state of Kentucky, but the

weapon was manufactured in Massachusetts, shipped to North

Carolina, and then received by the vendor in Kentucky). Thus,

the interstate commerce element of both § 2252(a)(2) and

(a)(4)(B) is met where the visual depiction “already has completed its interstate journey” before it is downloaded and

UNITED STATES v. LYNN 2841
received by the defendant. Id. at 217. In other words, the government’s position is that to convict for receipt and possession

of child pornography, the government did not have to show

that the specific transfer of a visual depiction of child pornography from one Limewire user to Lynn’s laptop involved the

crossing of a state border. The evidence must show only that

the visual depiction has, at some time, crossed a state or international boundary.6

[5] Lynn nevertheless asserts that the government must

prove he received the child pornography videos by way of an

interstate Limewire transaction, because the “original” videos,

created in other states, and the digitized copies of those videos

he eventually downloaded are separate visual depictions.

Notably, Lynn does not argue that each and every digital copy

of a pornographic video constitutes a completely distinct

visual depiction for purposes of tracking interstate movement.

Indeed, such a position would make it impossible to prove the

interstate movement of any digital image or video by computer, even though § 2252 explicitly punishes the receipt or

possession of child pornography “by any means including by

computer.” § 2252(a)(2). Lynn concedes that the government

could establish the jurisdictional element by showing that

Lynn had downloaded a digital video file from the computer

of a Limewire user located in another state, even though

Lynn’s laptop would have to “create” a digital copy of the file

in the process.7 Lynn’s attempt to separate the original video

6By contrast, statutes punishing those who mail, transport, or ship child

pornography in interstate commerce require proof that the defendant himself moved the image across state lines, as the interstate element modifies

the act of mailing, transporting, or shipping, rather than attaching to the

visual depiction. See Flyer, 2011 WL 383967, at *5; United States v.

Wright, 625 F.3d 583, 594 (9th Cir. 2010). For this reason our recent decisions in Flyer and Wright do not apply. 

7Given the nature of his argument, Lynn’s reliance on our decisions in

United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) and United States

v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) (per curiam), is mis2842 UNITED STATES v. LYNN
and his digital copy into two distinct visual depictions relies

not on the digital copying or reproduction of the videos, but

on his premise that when an image or video is placed into a

different medium (from a VHS tape to an MPEG file, for

example), it becomes a distinct “visual depiction” for purposes of tracking its interstate movement. To evaluate and

resolve his claim thus requires us to examine the term “visual

depiction” and its function in the statutes, with an aim to

determine whether a visual depiction is fixed in, rather than

independent from, its medium. 

[6] At the time of Lynn’s conviction, 18 U.S.C. § 2256(5)

stated that a “ ‘visual depiction’ includes undeveloped film

and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual

image.” 18 U.S.C. § 2256(5). Because it uses the word “includes” rather than “means,” § 2256(5) does not so much

define “visual depiction” as provide a non-exhaustive list of

examples of visual depictions. See United States v. Hockings,

129 F.3d 1069, 1071 (9th Cir. 1997) (explaining that

§ 2256(5) “is not drafted as an exhaustive list of all items that

constitute a ‘visual depiction’ ”). Section 2256(5) does not

placed. In those cases, we held that digital copying of a pornographic

image “produced” a visual depiction for purposes of establishing that the

visual depiction was produced using materials (a computer or disk) that

had moved in interstate commerce. Lacy explains that jurisdiction under

§ 2252(a)(4)(B) can be established by proving either “that the visual

depictions were transported in interstate commerce or that they were produced using materials which have been mailed or so shipped or transported, by any means including by computer.” 119 F.3d at 750 (citations

and internal quotation marks omitted) (emphasis added). Lacy and Guagliardo addressed the production of the visual depictions, not their transportation in interstate commerce, which is at issue here, and do not establish

that a new visual depiction is created for purposes of tracking interstate

movement each time an image is copied. Because the issues posed in this

case, on the one hand, and in Lacy and Guagliardo, on the other hand, are

different, we are not persuaded by Lynn’s position, asserted at oral argument, that the government “can’t have it both ways.” 

UNITED STATES v. LYNN 2843
list, for instance, a photograph, which is indisputably a visual

depiction. Section 2256 is designed to ensure that new technologies come within the scope of the child pornography statutes, particularly those that capture images and videos in

condensed forms that do not superficially look like traditional

“visual depictions.”

8

 The few cases in this circuit interpreting

§ 2256(5) have involved questions of whether “visual depiction” reaches an image or video captured in an unusual format

and have reinforced the inclusive nature of the term. See, e.g.,

United States v. Romm, 455 F.3d 990, 998-99 (9th Cir. 2006)

(holding that files in an Internet cache are visual depictions);

Hockings, 129 F.3d at 1072 (holding that graphic interchange

format (GIF) files are visual depictions). 

[7] But nowhere in § 2256 did Congress specify that a “visual depiction,” in contravention of its ordinary meaning,

should be tied or fixed to a particular medium. There are indications to the contrary elsewhere in the statutory text. For

example, § 2252(a)(4)(B) criminalizes the possession of

“books, magazines, periodicals, films, video tapes, or other

matter which contain any visual depiction” of child pornography, suggesting a visual depiction is something that may be

captured within or on a particular matter or medium, but also

exists independently of its format. § 2252(a)(4)(B) (emphasis

added); see also Lacy, 119 F.3d at 748 (explaining that “[t]he

statute indicates that at a minimum, a ‘matter’ must be capable of containing a visual depiction” and noting that both

disks and GIF files could be viewed as “containing” a visual

depiction); United States v. Schales, 546 F.3d 965, 979 (9th

Cir. 2008) (noting in the double jeopardy context that “a ‘mat8Section 2256(5) was amended to keep up with the changing technologies, and now states that a visual depiction “includes undeveloped film

and videotape, data stored on computer disk or by electronic means which

is capable of conversion into a visual image, and data which is capable of

conversion into a visual image that has been transmitted by any means,

whether or not stored in a permanent format.” 18 U.S.C.A. § 2256(5)

(West 2011). 

2844 UNITED STATES v. LYNN
ter,’ is the physical medium that contains the visual depiction,” and that images can be stored in “separate mediums”).

[8] We are persuaded that when Congress enacted

§ 2252(a)(2) and (a)(4)(B), it criminalized the receipt, distribution, and possession of images and videos of child pornography, regardless of the format or media in which such images

were captured when the offender was caught. As we

explained in a different context: “The visual image transported in binary form starts and ends pornographically and

that is what Congress seeks to prohibit.” Hockings, 129 F.3d

at 1072. 

[9] We hold that the government met its burden on the

interstate commerce element because a rational trier of fact

could reasonably conclude that the visual depictions Lynn

downloaded from Limewire—the images depicting the sexual

exploitation of minors—had previously moved in interstate

commerce. The evidence established that two videos in

Lynn’s possession were first produced in states other than California.9

 Viewing the evidence in the light most favorable to

sustaining the verdict, a rational trier of fact could have found

beyond a reasonable doubt that the visual depictions crossed

9Lynn’s reliance on the Tenth Circuit cases United States v. Schaefer,

501 F.3d 1197 (10th Cir. 2007), and United States v. Wilson, 182 F.3d 737

(10th Cir. 1999), for the proposition that evidence of out-of-state production cannot establish the interstate commerce element is off the mark. Wilson is distinguishable because it dealt with a method of proving interstate

movement that is not invoked in this case, namely that the materials used

to produce the images of child pornography moved in interstate commerce. And contrary to Lynn’s argument that Schaefer forecloses the outof-state production theory of proof in the Tenth Circuit, that circuit has

applied that theory. See United States v. Espinoza, No. 09-8102, 2010 WL

4739519 at *3 (10th Cir. Nov. 23, 2010); United States v. Swenson, 335

F. App’x 751, 753 (10th Cir. 2009). Tenth Circuit Rule 32.1 provides that

unpublished decisions from that circuit may be cited for their persuasive

value. 10th Cir. R. 32.1. If interpreted otherwise, we would not consider

Schaefer persuasive on the interstate commerce issue. 

UNITED STATES v. LYNN 2845
state lines before they were downloaded onto Lynn’s laptop.10

If child pornography is produced in one state and the visual

depictions—the images—end up on a defendant’s computer

in another state, regardless of changes of medium, the jurisdictional provisions requiring that visual depictions of child

pornography have been shipped, mailed, or transported in

interstate or foreign commerce are satisfied. Stated another

way, such evidence is sufficient to sustain a jury determination that the interstate commerce element was met. We reject

Lynn’s claim that his convictions were not supported by sufficient evidence.

B

[10] Lynn contends that his convictions for receipt and

possession of child pornography, based on essentially the

same evidence, violate the Double Jeopardy Clause of the

Fifth Amendment. Where, as here, a claim of a double jeopardy violation was not properly raised before the district

court, we review for plain error. United States v. Davenport,

519 F.3d 940, 943 (9th Cir. 2008). Under the plain error standard, we will affirm the sentence unless: “(1) there has been

an error in the proceedings below; (2) that error was plain; (3)

it affected substantial rights; and (4) it seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Id. 

The Fifth Amendment’s prohibition on double jeopardy

protects criminal defendants against being punished twice for

a single criminal offense. U.S. Const. amend. V. “When a

defendant has violated two different criminal statutes, the

double jeopardy prohibition is implicated when both statutes

10Because we conclude that the government’s evidence of out-of-state

production was sufficient to meet its burden on the interstate commerce

element, we need not address the government’s alternative theories related

to Lynn’s use of the Limewire program and the Internet generally, or the

effect of Wright on the viability of those theories. 

2846 UNITED STATES v. LYNN
prohibit the same offense or when one offense is a lesser

included offense of the other.” Davenport, 519 F.3d at 943.

“[W]here the same act or transaction constitutes a violation of

two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the

other does not.” Blockburger v. United States, 284 U.S. 299,

304 (1932). 

[11] We have previously had occasion to apply the Blockburger test to the very statutes at issue here. In United States

v. Schales, we concluded that possession of child pornography

under § 2252(a)(4)(B) is a lesser-included offense of receipt

under § 2252(a)(2), and, “while the government can indict a

defendant for both receipt and possession of sexually explicit

material, entering judgment against him is multiplicitous and

a double jeopardy violation when it is based on the same conduct.” 546 F.3d at 978. We have granted relief for double

jeopardy violations in several cases where a defendant was

convicted and punished for both receipt and possession of

child pornography under § 2252 or § 2252A. See, e.g., United

States v. Brobst, 558 F.3d 982, 1000 (9th Cir. 2009); Davenport, 519 F.3d at 947; United States v. Giberson, 527 F.3d

882, 891 (9th Cir. 2008). But see Overton, 573 F.3d at 696-98

(rejecting a double jeopardy claim in part because the district

court explicitly found that the receipt conviction was based on

images downloaded from the Internet, and the possession conviction was based on pictures the defendant took of his minor

step-daughter). However, we have also suggested that convictions for receipt and possession of child pornography images

may, with properly formed allegations, be premised upon the

same images. See Overton, 573 F.3d at 697-98. 

The government argues that this case is distinguishable

from Schales, Giberson, and Brobst because the possession

count alleged conduct that was factually distinct from the conduct alleged in the receipt count. The government points to

two factors to demonstrate that it charged and proved separate

UNITED STATES v. LYNN 2847
conduct for each offense: (1) the indictment alleges that the

files were received from January 10, 2008, through April 28,

2008, and possessed on May 23, 2008, the date Lynn’s laptop

computer was seized; and (2) Lynn received the files by

downloading them from Limewire, but he later possessed the

“depictions that he decided to retain” by moving them from

one file folder on the hard drive to another (from the Saved

folder to the Shared folder). 

[12] The allegation of different dates of commission for

each offense, by itself, is insufficient to carve out separate

conduct. Once a person receives something, he also necessarily possesses it as of that moment, based upon a single action

(like downloading a file). See Davenport, 519 F.3d at 943.

Thus, merely citing different dates or date ranges for the

receipt and possession charges alone does not suffice to separate the conduct for double jeopardy purposes. Cf. Schales,

546 F.3d at 979-80 (noting that the indictment charged

Schales with possession during a period that was a month longer than the period charged for the receipt offense, but nevertheless concluding the indictment was multiplicitous). Rather,

the government must allege and prove distinct conduct underlying each charge, whether the conduct underlying each

charge occurred on the same or different dates. 

Our inquiry considers whether Lynn’s transfer of digital

image or video files of child pornography from one folder to

another on his laptop’s hard drive constitutes separate conduct

so as to avoid double jeopardy. “If the government wishes to

charge a defendant with both receipt and possession of material involving the sexual exploitation of minors based on separate conduct, it must distinctly set forth each medium forming

the basis of the separate counts.” Schales, 546 F.3d at 980. In

other words, the indictment must allege in what form the

defendant received the image and in what form he possessed

it. In Schales, the indictment did not specifically allege different media, nor did the instructions or verdict reflect separate

2848 UNITED STATES v. LYNN
conduct; therefore, the dual convictions violated double jeopardy. Id.

[13] This case is materially indistinguishable from Schales

in that Lynn was charged “with receipt of the material by way

of downloading it from the [I]nternet onto his computer and

possession of this material in the same medium.” Schales, 546

F.3d at 980. As an initial matter, the movement between folders is not alleged in the indictment.11 Furthermore, movement

between folders cannot reasonably be viewed as placing

images onto a different medium so as to possess them separately.12 There is no dispute that the files remained on the hard

drive of the laptop at all times in the same digital format. 

[14] As in Schales, Giberson, and Brobst, the entry of

judgment convicting Lynn of both receipt and possession of

child pornography in this case was plain error affecting

Lynn’s substantial rights,13 and this error threatens the fairness, integrity, and public reputation of judicial proceedings.

See Davenport, 519 F.3d at 947-48. We hold that the district

court, to avoid the double jeopardy violation, must vacate one

of the convictions and then resentence based on the remaining

conviction.

11Count 1 alleged in part that Lynn, “using a computer and modem,

received or distributed via the [I]nternet and interstate commerce, at least

one visual depiction.” Count 2 alleged in part that Lynn “possessed on an

internal hard disc drive of a laptop computer at least one image file which

contained a visual depiction.” Thus, the indictment did not “distinctly set

forth each medium forming the basis of the separate counts,” as “computer” in Count 1 and “internal hard disc drive of a laptop computer” in

Count 2 are not distinct media. 

12As the experts in this trial testified, moving a file from one folder to

another does not transfer or move the data in any real sense; it only

changes the location of the “pointer” or file listing that, when clicked by

a user, will retrieve the data from its stable location on the hard drive. 

13Though Lynn’s sentences of 210 and 120 months were ordered to be

served concurrently, the error affects substantial rights due to the potential

collateral consequences that may attach to an additional conviction. See

Davenport, 519 F.3d at 947. 

UNITED STATES v. LYNN 2849
C

[15] Finally, Lynn argues that the district court committed

procedural error in calculating his Sentencing Guidelines

range by including a two-level adjustment for an offense

involving a “vulnerable victim.” For reasons of judicial economy, we conclude that this issue remains for disposition

despite our prior decision vacating the district court’s sentence because of a double jeopardy violation. If not resolved

now, there may be another appeal on the district court’s calculation of the Guidelines range. 

We review the district court’s interpretation of the Sentencing Guidelines de novo and its factual findings during sentencing for clear error, and its application of the Sentencing

Guidelines to the facts for abuse of discretion. United States

v. Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008). If the district

court commits a significant procedural error such as a material error in the Sentencing Guidelines calculation, we must

remand for resentencing. Id.

Lynn does not dispute that the images and videos he downloaded portrayed the sexual abuse of very young children and

that those children are properly considered victims of his conduct. See, e.g., United States v. Boos, 127 F.3d 1207, 1210-13

(9th Cir. 1997) (holding that the children depicted in child

pornography are victims of distribution of child pornography).

Rather, he contends that the offense level adjustment for a

vulnerable victim should not apply because “there was no evidence that the vulnerability of these young victims in any

manner facilitated the commission or concealment of that

criminal conduct.” 

Section 3A1.1(b)(1) of the Sentencing Guidelines provides:

“If the defendant knew or should have known that a victim of

the offense was a vulnerable victim, increase by 2 levels.”

U.S.S.G. § 3A1.1(b)(1). The commentary explains that a “vulnerable victim” means a person “who is unusually vulnerable

2850 UNITED STATES v. LYNN
due to age, physical or mental condition, or who is otherwise

particularly susceptible to criminal conduct.” U.S.S.G.

§ 3A1.1 cmt. n.2. 

[16] In United States v. Holt, we addressed a challenge to

a sentence for possession of child pornography based on

impermissible double counting. 510 F.3d 1007, 1011 (9th Cir.

2007). The district court applied the vulnerable victim

enhancement, as well as an enhancement for the sadistic or

masochistic conduct portrayed in the images pursuant to

U.S.S.G. § 2G2.2(b)(4). Because the enhancements accounted

for distinct wrongs, the calculation did not reflect double

counting. Holt, 510 F.3d at 1012. We explained that, for a

possession offense, a “district court can apply the vulnerable

victim enhancement where a child is so young and small that

he or she is less able to resist than other child victims of pornography.” Id. at 1011.

[17] Holt supports the application of the vulnerable victim

enhancement in this case. Lynn concedes that the toddlers and

children portrayed in the videos were victims of his offense

conduct and that their age and size made them vulnerable and

particularly susceptible to exploitation. Under the plain meaning of § 3A1.1, no more is required. Lynn’s argument regarding a lack of “nexus” between the offense of possession and

the abuse is not grounded in the Sentencing Guidelines or any

case law.14 We conclude the district court did not commit pro14Lynn’s separate but related contention that the children depicted in the

images might have obtained the age of majority since their abuse was captured on film, and were therefore no longer vulnerable by the time Lynn

acquired the images in 2008, is without merit. Boos established that the

children depicted in pornographic material are the victims of offenses

under § 2252 without regard to the date of the offense conduct or the age

of the children at the time the offense was committed. 127 F.3d at

1210-13; cf. United States v. Butler, 92 F.3d 960, 963-64 (9th Cir. 1996)

(holding that fictitious children, invented for purposes of a sting operation,

were victims of the offense of travel with the intent to engage in a sexual

act with a minor). 

UNITED STATES v. LYNN 2851
cedural error in its calculation of the Sentencing Guidelines

range.

III

[18] We affirm the district court’s denial of Lynn’s motion

for judgment of acquittal on the basis of insufficient evidence

of the interstate commerce element, and we also affirm the

district court’s calculation of the Sentencing Guidelines with

the vulnerable victim adjustment. But we conclude that the

imposition of sentences for both receipt and possession of

child pornography violated the Double Jeopardy Clause. We

therefore vacate Lynn’s sentence and remand to the district

court with instructions to vacate one of Lynn’s convictions,

allowing for it to be reinstated without prejudice if his other

conviction should be overturned on direct or collateral review,

and to resentence Lynn based on the remaining conviction.

CONVICTION AFFIRMED IN PART; SENTENCE

VACATED; and REMANDED. 

2852 UNITED STATES v. LYNN