2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

2-6-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/963PRECE DENTI AL

THE UN ITED STATES CO URT OF AP PEA LS F OR TH E TH IRD CIR CU IT

___________ No. 02-4030

___________ UNITED S TATES OF AMERI CA

v.
MICHAE L HENRY HAR RIS ON, a/k/a Em manu el Hen ry Harrison, III
Michael Henry Harrison,
Appellant

___________ APPEAL FROM THE U NITED STATES DI STRI CT COURT FOR THE WESTE RN DI STRI CT OF

PEN NS YL VA NIA
(D. C. No. 01- cr- 00025 -1E) Distric t Judg e: The H onorab le Ma urice B. C ohill, Jr.

___________ ARG UED SEPTEM BER 3, 2003

BEFO RE: SLOV ITER, NYG AAR D, and RO TH , Circu it Judges

. (Fil ed February6, 2004)

___________ Renee Pietr opaolo, Esq. (Argued) Karen S. Gerlac h, Esq. Office of FederalPublic Defender 1001 Liberty Avenue 1450 Liberty Cente r Pitt sburgh, PA 15222 Counsel for Appell ant

Paul M. Thompson, Esq. ( Argued) Bonnie R. Schlueter, Esq. O ff ice of U ni ted St ate s A tto rn ey 700 Grant Str eet Suite 400 Pitt sburgh, PA 15219 Counsel for Appell ee

___________ OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge

. Mich ael Henry Harri son chall enges the sixty- three month sentenc e imposed by the Distric t C our t for traf fickin g in ch ild po rn og ra ph y. The single is sue o n app eal is whether the sentencing e nhancement under United States Sen tencin g G uideli ne (“U.S.S. G.”) § 2G 2. 2( b) (5 ), fo r wh e n “a computerwas used for the trans missi on of the materi al or a noti ce or advertis ement of the materi al, ” was pr oper ly applie d. For the reasons t

hat fol low, we will affirm the applic ation o f the e nhan cem ent.

I.

Harrisonwas indicted as a result of
a sti ng op e rati on aimed at t raders and collectors of chil d p orn og ra ph y. He responded to the f ollow ing ad verti se ment fr om an un derco ver g over nm ent ag ent,2

posted on a web site g eared toward those in ter es ted in ch ild po rn og ra ph y:
Hi, I am a discreet co lle ctor of ACTI ON VHS V ids on the topi c of pre-teens and ve ry young teens and I am look ing for othe rs who share my T AB OO interests espe cially if you are from Pennsy lvania

.
P leas e e-mail me at the bel ow address but you must state that y ou are NOT a cop , fbi, or postal or I
w ill N O T r ep ly.
Also, please state tha t you saw this p ost in YAHOO WIL D AN D ACTI VE PR E-TEENS so I know your rep ly is legit.

Please no fl amers, troll s or fantasy trippers.

At th e bo tt om of

th is adv er ti se me n t was the email add ress used by the underc over agen t. Ha rris o n responded wit h the following mess age:
Hi, I am a 45 ye ar old male livi ng in NW PA . I saw your pos t in Active pre tee ns and w ant to write. I am not a cop, fbi or posta l angent (sic.) and do n’t much care fo r them. I am ve ry i nter ested and t urned on by young teen and pre t eens. Mike.

The undercover a gent res ponded the next d ay with a message indi cati ng that he possessed se x ually

explic it vi deotapes featuring children as y oung as eight years old. He o ffer ed to send a list of these

videotapes , and asked Harri son if he had “anyt hing in the w ay o f pic s/vid s.” Harrison responded:
Hi, I am inte rest ed in seei ng y our list a nd I have a lot of pics o n all ages from 5 to 17 mostl y har dcore. I am from Pa. al so.
Harrisonand the u ndercov er a ge nt exchanged numer ous other e mails, in which the undercover a gent descri bed the explic it content s of the v ide otapes, and Harrisoncommented, among otherthings, “Hope you’ re not a cop LoL!” and suggeste d t ha t “Perhaps we could meet
s omeday with some li ttl e play mates

. ” Ev en tu all y, the two men arr anged a trade: Harrisonagreed t o mail compute r disks with at least 1 50 p orno grap hic pic tures to the undercover a gent, and in ret urn, t he agentag re ed to mai l Harris on three videota pes entit led “B ath Time, ” “Do ctor’s Appointment, ” and “Inces t Fam ily.” T he u ndercover a gent rec eived four computer di sks from Harri son in the mail, each c o ntaini ng explic it pi ctures of underage boys and girls en gagin g in sexual cond uct. Th e three video tapes w ere subs eque ntly conveye d to H arri son in a
con trolle d de liver y. Government agents exe cuted a search warranton H arrison ’s hou se m om ents after this de li very , sei zing thevideotapes and Harrison’s c omp uter, which contai ned
numerous pornograp hic pictures and video images of chil dren. Whil e the search was being exec uted, H arrison agree d to sp eak3

to the a gen ts. He tol d them he had been colle cting child pornogr ap hy for about
sev en months by downloading it onto h i s compu te r from various Internet si tes, but that this was the fir st time he had tr aded po rn og ra ph y. He ad mi t ted he ha d downloaded the expl icit pictures that

he late r copied onto disks a nd mailed t o the undercoveragent. He sai d h e coll ected child pornographybeca use he was “just curious, ” and denied ever having sexual involvement

with a chi ld.

A grand jury i ndicted Harriso n on three counts. Count one chargedhim w ith trans porti ng child pornographyin viol at io n of 18 U.S.C. § 2252(a )(1), while co unt s two and three , res pecti vely , charge d h i m w i th receiv ing ch ild porn ogra phy in violat ion of 18 U.S.C. § 2252 (a )(2) and possessi ng child pornographyin viol ation of 18 U.S.C. § 2252(a )(4)( B). Harri son agreed to plea d gu ilty to count oneunder a pleaagree men t wh ich dism issed c oun ts two and three . The plea agr eement furt her sti pulat ed that Harr ison “ ackn ow ledge s his
r espo nsibility for the c onduct char ged i n Co unts Tw o and Thre e of th e Ind ictme nt” and “that the conduct charged in those
coun ts may be consi dered by the Probation Office or by the Dist

rict Court in i mposing
sen tenc e.”
In the pl ea coll oquy, the Dist rict Cou rt asked Harri son if he was admit ting to the tr ansport ationof ch ild pornography that had been “obtai ned through t he use of
a co m pu ter an d s hi pp ed by w ay o f the United States mail. ” Harris on indicated that he admitted this ch arge , and also v erbally acce pted th e por tion of the ple a agreementunder wh ich he acknowledge d respo nsib ili ty for the cond uct ch arged in counts two and three.

The maximum sentence unde r 1 8 U.S .C. § 2252(a)( 2) is f ifte e n year s, and the base offense l evel i s sevent ee n . The Distri ct Court used an offense le vel of twenty -five, which incl uded eleven levels of enhancement and a three- level red uction for accept ance of

responsibili ty . Together with a crim inal histo ry catego ry of II, this yi elded a a gu ideline rang e of s ix t y- three to seve nty-eight m onth s imp risonm ent. Th e Court sentenced Harri son at t he bottom of this range: s ixty -thr ee mo nths in prison, to be f oll o wed by three ye ars of supervi sion.
The only issue i s t he D istrict Court’s
a pplication of § 2G2.2(b)( 5), which provides for a two-levelenhancement i f “a computerwas used for the trans missi on of the materi al or a not

ice or adverti sementof the material. ” Before the Dis tri ct Cou rt’s decisi on to apply

the enha ncem ent, bo th parti es presented brief

s and oralargument on t he is sue
.
II.

Und er 1 8 U .S .C. §§ 3742(a )(1) and (a)(2), this Court has juri sdiction to review sentence s imposed in vi olati on of the l aw or as the resul t of an i ncorrect applic ation of the sen t encing g uidelines. This C ourt
re vi ews a dist

rict court’ s int erpret ation o f the sentencing guidelines de novo , and a dist rict court’ s findi ngs of fact supporti ng4

applic ationof t he guidel ines for clear
error. See United

Statesv. Butch , 256 F.3d 171 , 177 (3d Cir. 2001). Thi s Court al s o review s for plain error a district court’s determi nationof what consti tutes relevant conductfor the pur

poses of sentencing. See United Stat

es v. Perez , 280 F.3d 318, 352-54 (3d Cir. 2002 ).

It is import an t to note at the outset of this a naly sis t

hat thelanguage of § 2G2 .2(b)( 5) i s phrased i n the pass ive voice. It does not say , as does a simil ar enhanc ement und e r U. S . S . G . § 2G2 .4(b)(3), th at thesentence shallbe enhanced because of “the defendant’s use of a com puter.” (emp hasis added). I nstead, § 2G2 .2(b)(5) applies if “a c omp uter w a s used for the transm ission o f the m aterial” (emph as is added). The enhancement therefore applie s whether the defendant
uses a com puter to transm it “the m aterial” to someone else, or som eone else uses a computerto transm it “the m aterial” to the defe ndan t. In other words, in the l anguage of § 2G 2.2(b)(5), “ transmission” c overs both the s ending and the recei ving of porn ogra phic mate rial, so ifthe defendant recei ved child pornography by means of a comp uter, the en hancement is applic able. This interpre tatio n i s consis tent wit h the intent evident throughout

the sentencing guideli nes for o f fens es inv olving child po rn og ra ph y, wh ic h ap pl y th e s ame penalties for recei ving pornogr aphy as for sending it

– fo r e xamp le, all of the
en hanc eme nts under § 2G2.2 app ly equa ll y to defe ndan ts guil ty of “recei ving, trans porti ng or shippi ng” ch il d po rn og ra ph y. The Seventh Circui t Court of Appeal s took a simila r appro ach to th e inter pret a tion of § 2G2.2(b)( 5) in United Sta tes v. Richar

dson, 238 F.3d 837 (7th Cir. 2001). I n Ric ha rdson , the defendant pleaded guilty to recei ving and posse ssing child pornographyin viol ationof 18 U.S .C. §§ 2252 (a)( 2) and (a) (4), admitting that he had dow nloaded more than 70, 000 porn ogra phic imag es fro m the Intern et. In ho ld ing that the enhan cemen t under § 2G2.2(b)(5) sho uld apply, the court examined the st

ruc t ure of the sentenci ng guideli ne s in reg ard to th e chil d pornographystat

utes, and observed t

hat theyse emedin te nde d t o i mpos e the s ame punishmentfor recei ving and sendi ng po rn og ra ph y:

Use of the Internet e nhances the dange rs that c hild pornography poses, beca use it is a more di screet and effic i e nt method o f d ist ribution; but if t

his makes th e sender more dangerous, it likewise makes the rec eiver more dangerous. A marke t h as two sides, supplyand demand; wit hou t bo th, t he market
c ol lapses. The send ers of child porn ography supp ly it; t h e dema nders recei ve it. The guideli ne is acknowledged to t

reat bot h sides of the mark et symmetri ca lly when any meth od o f trans mis si on other than the Inte rnet is u sed; it w ould
m ake no sense t o treat them diffe rently when the more ominous method is us ed.

Richardson , 238 F.3d at 842.5

Based on this r easoning, the Richardson court conc luded tha t “‘computer

. . . used for the tr ansmissi on’ in secti o n 2G2.2(b)(5) of the sentencing guideli nes does not mean, as the defendant argues, ‘comp uter .

. . used by the defendant

for the transm ission’. ” Id

. at 84 1. On the co ntrary, the co urt fou nd it clear th at th e language of t he guidel ine
was intende d to cover receivi ng as well as sending, and affirmed t he appli cati on of the enhan cemen t to Richard so n, who p leaded guilty to rec eiving porn ogra phic images.

Each of t he other c ircui ts that has addresse d this issue ha s foll owed the lead of the S eve nth Cir cuit, in findi ng t ha t § 2G2.2(b)(5) applie s to receiv ing as we ll as sending. In United

St ates v. Dotson , 324 F.3d 256 (4th Cir . 2003 ), the Fo urth Circ uit C ourt of Appeal s held t hat the computerenha ncem ent w as ap plicab le to
a d efen dant who responded to an adverti sement for chil d pornography posted on the Internet. The court found t he guideline’s use of the pa s s ive voic e signif icant:

H ad the Sente ncing Commission intende d to li mit the scope of the enhancementto defendant s who f o rwarde d notices o r advertisements, it could have easily done so by referri ng t o the defendant in the te xt of the guideli ne.
. . . In wording the guideli ne as it did, t

he Commission addresse d not only the solicitor, but also the rec ipi ent o f suc h soli citation.

. . . Under the gu i deline , those who seek out and respond to notice an d adverti sement of such mate rials are a s culpabl e as thos e who initi al l y send out the notic e an d adv ertise me nt. Id. at 259-60.

The Eighth Cir cui t C ourt of A p peals made a simil ar findi ng in United Statesv. St ulock , 308 F.3d 922 (8th C ir. 2002), in which the court af firmed th e applic at i on of the § 2 G2.2(b )(5 ) enhancementto a defendant who had seen
a n adve rtiseme nt for a porn ogra phic videotape on the Internet, and then ordered and recei ved the tape b y mail. The Stulock court rev iewed with appr ov al th e reasoni ng employe d in Ric hardson , finding that t

he int ent of the guidel ines
was fulfi lled by

puni shin g rece ivers w ith the same severi ty as sende rs. Id. at 925. The Sixth Circuit Cou rt of A ppea ls likewise condoned the conclusions of t he Richardson court i n United Stat es v. Boyd, 312 F .3d 213 (6th C ir. 2002 ), in w hich it approved the impo sitio n of th e enhancementon a defendant convi cted of recei ving child po rnog raph y throug h his comp uter.

The fa cts in this ca se are n ot in disput e. Ha rrison p leade d gu il ty to trans porti ng t hrough the mai l vis ual depictions of

minors enga ging in sex ually explic it condu ct, “such vis ual depi ctions having been obtai ned through the use of a com put er.” Harrison told a fe deral a gent that he had downloaded some of the6

spec ific pictures which he lat er sent to the undercover federal investigator. During the sentenci ng hearing, Harrison’ s att orney ad m itt ed that Harrison downloade d porn ogra phic imag es on to his co mpu ter, copied them onto di sks , and late r maile d them to the fede ral age nt. 1 Based on these facts, we find it cl ear that “acomputer was used for the transm ission o f the m aterial” and that t he District

Court properly applie d § 2G 2.2( b)(5 ).

Harrison attempt s to si destep the direct applic ationof

t he guidel ines bydefini ng “the material” as the computer di sks sent to the underc over agen t, rather than the porn ogra phic materi al cont aine d o n those computerdisk s. B y this re aso nin g, a computerhad not been use d to tr an sm it “the mater i al,” bec ause “the m aterial” encompasses onl y the computer di sks themselves, wh ich w ere un ques ti o nably sentthrou gh th e ma il a nd not via a comp uter. 2 Therefore, Harrison argues, the
source of the pornog ra phic pic tures can only be considered if i t quali fi e s as “rele v an t con duc t” un der U.S .S.G . § 1B1.3.

This inter

pretat ion of the g uidel ines is absu rd. Th ere is n othing illegal abo ut sending computer di sks thr ough the mail – Harrison’s crime wa s the tran smiss io n o f the por nographic i mages contai ned on those disks, not the disks themselves. The heading of § 2G 2.2(b )(5) rein force s this obvious readin g, since it applies to traffi cking “in material i nv olv ing the sexual exploit ation of

a minor. ” The words “the materi al” found l ater i n the guide line referback to this headi ng, and thus “the mate rial” mean s “the material i nvolving sexual expl oitat

ion of a minor .”

In H arrison ’s case , “the m aterial”
means the pornogr aphic i mages contai ned
on t he computer di sks, and he does not dispu te that

these images were transmitted to him using a com puter. In fact , the count 1. Harrison’ s att orney does not disput e that

the images Harrison s ent through t he mail had, at some point , been downloaded using hi s computer. During argu men t befo re the D istrict Co urt, Ha rrison’s attorne y conce ded th at: “[E]very one agrees t

hat he obt ained some of these i mages from downloading them from the Internet, that he put those on disks, mailed t

hem to the undercover agent, and in ret

urn had the t

hree vide o tapes mai led to hi m.” Harri son’s at torney made a simil ar concess ion in or al argu men t befo re this C ourt. 2. Harrison’ s att orney conceded during ora l argume nt before this C ourt that § 2G2. 2(b)(5) would applyif he had been conv icted o f po ssessio n of child pornography , but argued that it di d not applybecause that char ge had been dropped. Si nce possess ion of pornographyis an i ntegralpart of t he abili ty to tr affic i n pornography , and thus incorporated as part of H arrison’s offe nse o f con viction , we d o no t find th is distincti on compelli ng.7

to which Harris on plea ded g uilt y spec ifically alle ged that the images he sent to the underc over agen t ha d been downloaded from the Internet. Further , the language o f § 2G 2.2(b )(5) is sp ecifica lly targeted tow ard “th e ma terial” and not “the off ens e,” as are ot

her portions of § 2G2.2. The applic ation of

the enhan c eme nt, theref or e, does not hi nge on whether the defendantused a com puter to commit “the offense” for which he w as conv icte d. Inste ad, the enhancement hinges on “t

he mate rial” impli cated i n the offense , and wh et her this materi al had at some point been transm itt ed using a co mpu ter. There is no disput e that

“the mat erial” in th is
case h ad been so transmitted, and as a resul t, § 2G2.2(b)(5) i s appli cable.

The Distri ct Court e ncourages Harrison’s foray into the rea lm of rele vant conductby ap pea ring t o base it s decis ion to grant t he § 2G2.2(b)(5) enhancement on the conduct det aile d in counts two and three, which were drop pe d by the prosecution, but for w hi ch Harris on acceptedr esponsibi lit y i n the ple a agree men t. The C ourt need not have t aken this extra step, since the co nduct ne cessary for the enhancement

had been specifi ed in the te xtof

th e c oun t to wh ic h Ha rr ison pleaded guilty, and th u s made an int egral part of the offense of con viction. The e xtra step taken bythe District Cou rt, howev er, take s us to th e sa me plac e.
Firstof all , it

was en t irely appr opriate for the Distric t Cou rt to
cons id er the conduct alle ged in the dism i ssed coun ts. Ha rrison e xplicitly acceptedresponsibili ty for thi s conduct , and we have recognized t hat a sentencing enhancemen t, and even a depart ure from the gu ideli nes, can beapplie d based on conductalle ged in count s tha t w ere di smis sed as resu lt of a p lea ag reem ent. See United States v. Baird , 1 0 9 F.3d 856, 864 (3d Cir. 199 7). Although thi s conduct
mu st be in some way “ related” to th e offense conduct, it nee d not fit into t he guidelines’ defin iti on of rele vant conduct fou nd i n § 1 B1 .3. Id. at 865.

In order t o be “rel ated” t o the offense, “the act s in quest ion mu st exh ibit
comm on alit

ies of fa ctors su fficien t to allow for a reas on able grouping of t he separate, indivi dual ac ts into a larger, descri ptive wh ole. . . . [T]he si milari ties of the acts must

aris e from the char acter or ty pe of th e ac ts.” Id. Certai nly , the conduct involvedin re ce iv in g c hi ld po rn og ra ph y, as charged i n count two, is cl oselyrelated in charact er to t

he charge t o which Harrison pl eaded guilty – esp ecially since recei ving pornographic images o ver the comput er w as an essen tial precu rsor to late r tr adi ng thos e i ma ges for pornog ra phic videotapes. The Distri ct Court was therefore correc t in i ts find ing tha t this related conduct j usti fied the applic ationof the § 2G2.2(b)(5) enhancement, and no discuss ion of rele vant con duct und er § 1B 1.3 is n ec es sa ry.
Harrison c ontends t

hat downloadi ng the pornographyis not

related condu ct , because he downloaded the pi ctu res w ell before he made an agreem e nt to t rade8

th em. 3 In an y case, th e tempo ra l relation ship between the two actions i s not decisi ve. If Harri son had not download e d the images, he could not have tra fficked in th em, and the t wo ac tio ns are therefo re clos ely tied

.
Harrisonfurther

con t ends that to apply the guideline in his case wo uld be to cause it to los e all its meaning, and turn it into an enhancement that appl ies wheneve r the defen d ant

use d a c ompu te r i n so me way related to thepornogr aph y, a role alrea dy fill ed b y U.S.S.G. § 2 G2.4(b )(3). This argument i gnores the fact t hat under
our interpre tation, the requ ir emen t that a computerbe used for “t

ransmiss ion” of the pornographystill plays an im portan t role in the applic ation of § 2G2.2(b)(5) . The guideli ne a pplies no matter who used the computerfor tr ansmissi on – the defendant
or another party– but it

does not ap ply if

a computerwas u sed in a way whic h is not “tran sm issio n,” for example t o help cre ate, alt er , or co py p or no gr ap hy.

Ha rrison a lso co ntend s that t h e appl icat ion of the “t ransmiss ion ”
en ha ncement to his ca se w ould oblitera te the distincti on betwee n “t ransm i ssion” and “distrib utio n,” the word used i n § 2G2 .2(2)(A-E ). The enhancements for dist ribution a re n ot li mited byany parti cul ar method of dist ribution , however , wh ile “tra nsm i ssion” is spec ificall y qualif ied by the requirement that it be by a comput er. The secti ons ther efore serve distinct pur p oses: § 2G2. 2(b)(5) punishes
a specifi c method of tr ansmissi on – by comp uter– whil e § 2G2. 2 (2 )( A-E) addresse s other forms of dist ribution. Under these gu ideli nes, handi ng out pornogr aphic le a f l e t s wo uld b e “d istr ibu tion ,” but cle arly not a “transmission” by compu ter.

III.

The enhancement under § 2G2.2(b)(5) is also ap pli cable t o Harrison’ s conduct because he used hi s com puter to transm it
a “notic e” of chil d pornograph y . The trans portation of ch ild porn ogra phy to which Harrison pl eaded guil ty would not have been pos sibl e without t he extensi ve em a il corres pondence that took plac e between Harrison and the underc over federalagent. The communications began 3. Since Harri son tol d police he had o nly been dow nload ing ch ild pornographyfor about s even months before hi s arre st, the ti me lapse between his do wn loadin g of the m aterial an d his use of it to barter can not

have been that great – espe cially beca use it w as ne arly three months from the time Harrison first made contact

with the unde rcover age nt to the t ime of his i ntervi ew with polic e. Harrison’ s att orney asserted at oral argument that

the holdi ng we make todaywould mean that t he § 2G2.2(b)( 5) enhancement would appl y t o a defendant convict ed of tra fficki ng in pornogr aphy that hehad downloaded from the computer manyyear s beforehand. Although we do not speci fical ly decide this issue , neither are w e partic ularly troub led by the prosp ect.9

when Harriso n resp ond ed to a n adverti sement on th e Intern et ann ouncing the avail abili ty of videot apes containing child pornog raphy. Harrison’s respo nse to the government agent ’s advertis ement was to indi cat e his interes t in the videotapes, and to t ell hi m in the proc ess of barteri ng that he had “a lot

of pics on al l ages from 5 to 17 mo stly har dco re.” The government argues this res pon se is suf ficien t to const itute “notic e . . . of themateri al ” under § 2G2.2(b) (5). We agree.

It i s not di sputed t

hat Harri son trans mitt ed a descri pt ion of hi s pornog ra phy colle ction using hi s comp uter, and th is trans missi on is part and parcel of the re sulting tr ansport ationof the specifi ed pornographi c materi als t hrough the mail. The o nly question is wh ether a
m essage to one person const itutes “no tice,” or whether th e term comprehends information poste d to a wider audi ence, as Harrisoncontends. The guidelines off er little direct h elp o n this questi on, as t hey do not d efine w hat c ons titute s a “ not ice.”

Ha rrison c ites to dic ti onaries for the proposit ion that a notice i s a n anno unce men t, and an an nou ncem ent is a “pub lic statement or n otice.” App ellant’s Rep ly B rief at 7 (ci ting to B LACK ’ S L AW D ICT IONARY (7th ed. 1999) an d W EBSTER ’ S I I N EW R IVERS I D E U NIVERS ITY D ICTIONARY (1984)). On its face, these def

initions ar e counterintui tive, since if the meaning o f “noti ce ” compreh en ded that it w as “p ublic,” it
wo uld not be neces saryto modifythe d efini tion of “ announcement” b y desig natin g it as a “publi c” noti ce. Other de fi niti ons of notic e indic ate that it may mean merely “infor mation” o r “[I]nt elli gence by wh ate ver m ean s com m u nica ted.” B LACK ’ S L A W D ICTIONARY 1061 (6th ed. 1990)

. As a result, all that

these defini tions make clear is that t he issue c an not be decided through
a battl e of

th e di ct io narie s, andwe mu s t l ook to the pur

pose and structure of th e sen tenc ing gui delin es f or a id.

The purp ose b ehind the ch ild pornography sente n cing guide line s support s a b road def inition of the term “no tice.” The gui deli nes recogni ze the enhanced threat pose d by the In ternet, which greatl y i ncreases the eas e w ith which child pornography may be traded. This ease is heighte ned by an off e n der’s ability to find a suit able p artner in a child pornography“ch at ro om ,” with whom the offendermay the n trade an onym ous e mails in order t o establ ish t er ms for the sal e or barter of explicit materi als. This method of traffi cking elimi nates the need for tradi tiona l forms of “noti ce a n d adve rtiseme nt” dir e cted t oward large
num ber s of peo ple a t ran dom

. Commenting on this method of communicati on, the Fourt h Circuit Cour t of Appeals found that “thevery nature of the Internet provides an ‘ominous method’ fo r an on ym ous predat ory crimina l
c ond uct.” See Dotson , 324 F.3d at 260 (quoti ng Richardson , 238 F.3d at 8 42). B ecause the sentencing guidelines ar e cl early aime d at targ eting th is sort o f

“ ominous” conduct wit h e nhance d10

punish m ent, it makes s ense to def ine “notic e” in a way t

hat willencompass the savvy and d iscreet tra der in c hild po rn og ra ph y, who is able to avoid the
more dangerous rou te of p ubli c adverti sement tha t wo uld ex pose his sch em e to a n un sele ct au dien ce.

In fact, the language of § 2G2.2(b)( 5) contemplates this broader defi niti on of “no tice,” by contra sting it wit h an “ad ver tisem ent.” If “noti ce” is inter preted to mea n an a nno unce men t to t he general public, it leaves ve ry lit tle us eful work for the wo rd “ad vertisem ent,” w hich is itse lf defined as “ a pu blic n otice .” See W EBSTER ’ S N INTH N EW C OLL EGIATE D ICTIONARY 59 (1988). We as sum e that by includ ing both terms, the dr after s meant there to be a diffe rence betw e en t hem –

“ adver tiseme nt” impli cates announcement to a wide r a u dience, while “notice” may simp ly mean the communication of info rma tion to ano ther pa rty. As a re sult,
we hold that b y s ending an emailtell ing the undercover a gent that he posse ssed a variety of pornographic “pics, ” Harrison used his computer

to tr ansmit a “ notice ” of child pornography , as contemplated under § 2G 2.2( b)(5 ).

IV.

For the rea sons set

forth above , we find that the Dist rict Court properly applie d the two -le v el sentenci ng enhancement under U. S. S. G. § 2G2.2(b)(5) , beca us e “a computerwas used for the trans missi on of the materi al” that Harrison l ater maile d to the undercover a gent, an d b ecause Harrisonalso use d a computerto trans mit “n ot ice or a dve rtisem ent o f the ma teria l.”

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