2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-6-2004

USA v. Harrison

Precedential or Non-Precedential: Precedential

Docket No. 02-4030

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Harrison" (2004). 2004 Decisions. Paper 963.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/963
PRECEDENTIAL

THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT

___________

No. 02-4030

___________

UNITED STATES OF AMERICA

v.

MICHAEL HENRY HARRISON,

a/k/a Emmanuel Henry Harrison, III

 Michael Henry Harrison,

 Appellant

___________

APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

(D.C. No. 01-cr-00025-1E)

District Judge: 

The Honorable Maurice B. Cohill, Jr.

___________

ARGUED SEPTEMBER 3, 2003

BEFORE: SLOVITER, NYGAARD, and

ROTH, Circuit Judges.

(Filed February 6, 2004)

___________

Renee Pietropaolo, Esq. (Argued)

Karen S. Gerlach, Esq.

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Paul M. Thompson, Esq. (Argued)

Bonnie R. Schlueter, Esq.

Office of United States Attorney 

700 Grant Street

Suite 400 

Pittsburgh, PA 15219 

Counsel for Appellee

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

Michael Henry Harrison challenges

the sixty-three month sentence imposed by

the District Court for trafficking in child

pornography. The single issue on appeal is

whether the sentencing enhancement under

United States Sentencing Guideline

(“U.S.S.G.”) § 2G2.2(b)(5), for when “a

computer was used for the transmission of

the material or a notice or advertisement of

the material,” was properly applied. For

the reasons that follow, we will affirm the

application of the enhancement.

I.

Harrison was indicted as a result of

a sting operation aimed at traders and

collectors of child pornography. He

responded to the following advertisement

from an undercover government agent,
2

posted on a web site geared toward those

interested in child pornography:

Hi, I am a discreet collector of

ACTION VHS Vids on the topic of

pre-teens and very young teens and

I am looking for others who share

my TABOO interests especially if

you are from Pennsylvania.

Please e-mail me at the below

address but you must state that you

are NOT a cop, fbi, or postal or I

will NOT reply.

Also, please state that you saw this

post in YAHOO WILD AND

ACTIVE PRE-TEENS so I know

your reply is legit.

Please no flamers, trolls or fantasy

trippers.

At the bottom of this advertisement was

the email address used by the undercover

agent. Harrison responded with the

following message:

Hi, I am a 45 year old male living

in NW PA. I saw your post in

Active pre teens and want to write.

I am not a cop, fbi or postal angent

(sic.) and don’t much care for them.

I am very interested and turned on

by young teen and pre teens. Mike.

The undercover agent responded

the next day with a message indicating that

he possessed sexually explicit videotapes

featuring children as young as eight years

old. He offered to send a list of these

videotapes, and asked Harrison if he had

“anything in the way of pics/vids.”

Harrison responded:

Hi, I am interested in seeing your

list and I have a lot of pics on all

ages from 5 to 17 mostly hardcore.

I am from Pa. also.

Harrison and the undercover agent

exchanged numerous other emails, in

which the undercover agent described the

explicit contents of the videotapes, and

Harrison commented, among other things,

“Hope you’re not a cop LoL!” and

suggested that “Perhaps we could meet

someday with some little playmates.”

Eventually, the two men arranged a trade:

Harrison agreed to mail computer disks

with at least 150 pornographic pictures to

the undercover agent, and in return, the

agent agreed to mail Harrison three

videotapes entitled “Bath Time,”

“Doctor’s Appointment,” and “Incest

Family.” The undercover agent received

four computer disks from Harrison in the

mail, each containing explicit pictures of

underage boys and girls engaging in sexual

conduct. The three videotapes were

subsequently conveyed to Harrison in a

controlled delivery. 

 Government agents executed a search

warrant on Harrison’s house moments

after this delivery, seizing the videotapes

and Harrison’s computer, which contained

numerous pornographic pictures and video

images of children. While the search was

being executed, Harrison agreed to speak
3

to the agents. He told them he had been

collecting child pornography for about

seven months by downloading it onto his

computer from various Internet sites, but

that this was the first time he had traded

pornography. He admitted he had

downloaded the explicit pictures that he

later copied onto disks and mailed to the

undercover agent. He said he collected

child pornography because he was “just

curious,” and denied ever having sexual

involvement with a child.

A grand jury indicted Harrison on

three counts. Count one charged him with

transporting child pornography in violation

of 18 U.S.C. § 2252(a)(1), while counts

two and three, respectively, charged him

with receiving child pornography in

violation of 18 U.S.C. § 2252(a)(2) and

possessing child pornography in violation

of 18 U.S.C. § 2252(a)(4)(B). Harrison

agreed to plead guilty to count one under a

plea agreement which dismissed counts

two and three. The plea agreement further

stipulated that Harrison “acknowledges his

responsibility for the conduct charged in

Counts Two and Three of the Indictment”

and “that the conduct charged in those

counts may be considered by the Probation

Office or by the District Court in imposing

sentence.”

 In the plea colloquy, the District

Court asked Harrison if he was admitting

to the transportation of child pornography

that had been “obtained through the use of

a computer and shipped by way of the

United States mail.” Harrison indicated

that he admitted this charge, and also

verbally accepted the portion of the plea

agreement under which he acknowledged

responsibility for the conduct charged in

counts two and three.

 The maximum sentence under 18

U.S.C. § 2252(a)(2) is fifteen years, and

the base offense level is seventeen. The

District Court used an offense level of

twenty-five, which included eleven levels

of enhancement and a three-levelreduction

for acceptance of responsibility. Together

with a criminal history category of II, this

yielded a a guideline range of sixty-three

to seventy-eight months imprisonment.

The Court sentenced Harrison at the

bottom of this range: sixty-three months in

prison, to be followed by three years of

supervision.

 The only issue is the District Court’s

application of § 2G2.2(b)(5), which

provides for a two-level enhancement if “a

computer was used for the transmission of

the material or a notice or advertisement of

the material.” Before the District Court’s

decision to apply the enhancement, both

parties presented briefs and oral argument

on the issue. 

II.

 Under 18 U.S.C. §§ 3742(a)(1) and

(a)(2), this Court has jurisdiction to review

sentences imposed in violation of the law

or as the result of an incorrect application

of the sentencing guidelines. This Court

reviews a district court’s interpretation of

the sentencing guidelines de novo, and a

district court’s findings of fact supporting
4

application of the guidelines for clear

error. See United States v. Butch, 256 F.3d

171, 177 (3d Cir. 2001). This Court also

reviews for plain error a district court’s

determination of what constitutes relevant

conduct for the purposes of sentencing.

See United States v. Perez, 280 F.3d 318,

352-54 (3d Cir. 2002).

It is important to note at the outset

of this analysis that the language of §

2G2.2(b)(5) is phrased in the passive

voice. It does not say, as does a similar

enhanc ement unde r U.S .S .G . §

2G2.4(b)(3), that the sentence shall be

enhanced because of “the defendant’s use

of a computer.” (emphasis added). Instead,

§ 2G2.2(b)(5) applies if “a computer was

used for the transmission of the material”

(emphasis added). The enhancement

therefore applies whether the defendant

uses a computer to transmit “the material”

to someone else, or someone else uses a

computer to transmit “the material” to the

defendant. In other words, in the language

of § 2G2.2(b)(5), “transmission” covers

both the sending and the receiving of

pornographic material, so if the defendant

received child pornography by means of a

computer, the enhancement is applicable.

This interpretation is consistent with the

intent evident throughout the sentencing

guidelines for offenses involving child

pornography, which apply the same

penalties for receiving pornography as for

sending it – for example, all of the

enhancements under § 2G2.2 apply equally

to defendants guilty of “receiving,

transporting or shipping” child

pornography.

 The Seventh Circuit Court of Appeals

took a simila r approach to the

interpretation of § 2G2.2(b)(5) in United

States v. Richardson, 238 F.3d 837 (7th

Cir. 2001). In Richardson, the defendant

pleaded guilty to receiving and possessing

child pornography in violation of 18

U.S.C. §§ 2252 (a)(2) and (a)(4), admitting

that he had downloaded more than 70,000

pornographic images from the Internet. In

holding that the enhancement under §

2G2.2(b)(5) should apply, the court

examined the structure of the sentencing

guidelines in regard to the child

pornography statutes, and observed that

they seemed intended to impose the same

punishment for receiving and sending

pornography:

Use of the Internet enhances the

dangers that child pornography

poses, because it is a more discreet

and effic i e nt method of

distribution; but if this makes the

sender more dangerous, it likewise

makesthe receiver more dangerous.

A market has two sides, supply and

demand; without both, the market

collapses. The senders of child

pornography supp ly it; the

demanders receive it. The guideline

is acknowledged to treat both sides

of the market symmetrically when

any method of transmission other

than the Internet is used; it would

make no sense to treat them

differently when the more ominous

method is used.

Richardson, 238 F.3d at 842.
5

Based on this reasoning, the

Richardson court concluded that

“‘computer . . . used for the transmission’

in section 2G2.2(b)(5) of the sentencing

guidelines does not mean, as the defendant

argues, ‘computer . . . used by the

defendant for the transmission’.” Id. at

841. On the contrary, the court found it

clear that the language of the guideline

was intended to cover receiving as well as

sending, and affirmed the application of

the enhancement to Richardson, who

pleaded guilty to receiving pornographic

images.

Each of the other circuits that has

addressed this issue has followed the lead

of the Seventh Circuit, in finding that §

2G2.2(b)(5) applies to receiving as well as

sending. In United States v. Dotson, 324

F.3d 256 (4th Cir. 2003), the Fourth

Circuit Court of Appeals held that the

computer enhancement was applicable to

a defendant who responded to an

advertisement for child pornography

posted on the Internet. The court found the

guideline’s use of the passive voice

significant: 

Had the Sentencing Commission

intended to limit the scope of the

enhancement to defendants who

f o rwarde d notices o r

advertisements, it could have easily

done so by referring to the

defendant in the text of the

guideline. . . . In wording the

guideline as it did, the Commission

addressed not only the solicitor, but

also the recipient of such

solicitation. . . . Under the

guideline, those who seek out and

respond to notice an d

advertisement of such materials are

as culpable as those who initially

send out the notic e and

advertisement. 

Id. at 259-60.

The Eighth Circuit Court of

Appeals made a similar finding in United

States v. Stulock, 308 F.3d 922 (8th Cir.

2002), in which the court affirmed the

application of the § 2G2.2(b)(5)

enhancement to a defendant who had seen

an advertisement for a pornographic

videotape on the Internet, and then ordered

and received the tape by mail. The Stulock

court reviewed with approval the

reasoning employed in Richardson,

finding that the intent of the guidelines

was fulfilled by punishing receivers with

the same severity as senders. Id. at 925.

The Sixth Circuit Court of Appeals

likewise condoned the conclusions of the

Richardson court in United States v. Boyd,

312 F.3d 213 (6th Cir. 2002), in which it

approved the imposition of the

enhancement on a defendant convicted of

receiving child pornography through his

computer.

The facts in this case are not in

dispute. Harrison pleaded guilty to

transporting through the mail visual

depictions of minors engaging in sexually

explicit conduct, “such visual depictions

having been obtained through the use of a

computer.” Harrison told a federal agent

that he had downloaded some of the
6

specific pictures which he later sent to the

undercoverfederal investigator. During the

sentencing hearing, Harrison’s attorney

admitted that Harrison downloaded

pornographic images onto his computer,

copied them onto disks, and later mailed

them to the federal agent.1 Based on these

facts, we find it clear that “a computer was

used for the transmission of the material”

and that the District Court properly applied

§ 2G2.2(b)(5). 

 Harrison attempts to sidestep the direct

application of the guidelines by defining

“the material” as the computer disks sent

to the undercover agent, rather than the

pornographic material contained on those

computer disks. By this reasoning, a

computer had not been used to transmit

“the material,” because “the material”

encompasses only the computer disks

themselves, which were unquestionably

sent through the mail and not via a

computer.2 Therefore, Harrison argues, the

source of the pornographic pictures can

only be considered if it qualifies as

“relevant conduct” under U.S.S.G. §

1B1.3.

This interpretation of the guidelines

is absurd. There is nothing illegal about

sending computer disks through the mail –

Harrison’s crime was the transmission of

the pornographic images contained on

those disks, not the disks themselves. The

heading of § 2G2.2(b)(5) reinforces this

obvious reading, since it applies to

trafficking “in material involving the

sexual exploitation of a minor.” The words

“the material” found later in the guideline

refer back to this heading, and thus “the

material” means “the material involving

sexual exploitation of a minor.” 

 In Harrison’s case, “the material”

means the pornographic images contained

on the computer disks, and he does not

dispute that these images were transmitted

to him using a computer. In fact, the count

1. Harrison’s attorney does not

dispute that the images Harrison sent

through the mail had, at some point, been

downloaded using his computer. During

argument before the District Court,

Harrison’s attorney conceded that:

“[E]veryone agrees that he obtained

some of these images from downloading

them from the Internet, that he put those

on disks, mailed them to the undercover

agent, and in return had the three video

tapes mailed to him.” Harrison’s attorney

made a similar concession in oral

argument before this Court.

2. Harrison’s attorney conceded

during oral argument before this Court

that § 2G2.2(b)(5) would apply if he had

been convicted of possession of child

pornography, but argued that it did not

apply because that charge had been

dropped. Since possession of

pornography is an integral part of the

ability to traffic in pornography, and thus

incorporated as part of Harrison’s

offense of conviction, we do not find this

distinction compelling.
7

to which Harrison pleaded guilty

specifically alleged that the images he sent

to the undercover agent had been

downloaded from the Internet. Further, the

language of § 2G2.2(b)(5) is specifically

targeted toward “the material” and not “the

offense,” as are other portions of § 2G2.2.

The application of the enhancement,

therefore, does not hinge on whether the

defendant used a computer to commit “the

offense” for which he was convicted.

Instead, the enhancement hinges on “the

material” implicated in the offense, and

whether this material had at some point

been transmitted using a computer. There

is no dispute that “the material” in this

case had been so transmitted, and as a

result, § 2G2.2(b)(5) is applicable.

 The District Court encourages

Harrison’s foray into the realm of relevant

conduct by appearing to base its decision

to grant the § 2G2.2(b)(5) enhancement on

the conduct detailed in counts two and

three, which were dropped by the

prosecution, but for which Harrison

accepted responsibility in the plea

agreement. The Court need not have taken

this extra step, since the conduct necessary

for the enhancement had been specified in

the text of the count to which Harrison

pleaded guilty, and thus made an integral

part of the offense of conviction. The extra

step taken by the District Court, however,

takes us to the same place. 

First of all, it was entirely

appropriate for the District Court to

consider the conduct alleged in the

dismissed counts. Harrison explicitly

accepted responsibility for this conduct,

and we have recognized that a sentencing

enhancement, and even a departure from

the guidelines, can be applied based on

conduct alleged in counts that were

dismissed as result of a plea agreement.

See United States v. Baird, 109 F.3d 856,

864 (3d Cir. 1997). Although this conduct

must be in some way “related” to the

offense conduct, it need not fit into the

guidelines’ definition of relevant conduct

found in § 1B1.3. Id. at 865.

In order to be “related” to the

offense, “the acts in question must exhibit

commonalities of factors sufficient to

allow for a reasonable grouping of the

separate, individual acts into a larger,

descriptive whole. . . . [T]he similarities of

the acts must arise from the character or

type of the acts.” Id. Certainly, the conduct

involved in receiving child pornography,

as charged in count two, is closely related

in character to the charge to which

Harrison pleaded guilty – especially since

receiving pornographic images over the

computer was an essential precursor to

later trading those imagesfor pornographic

videotapes. The District Court was

therefore correct in its finding that this

related conduct justified the application of

the § 2G2.2(b)(5) enhancement, and no

discussion of relevant conduct under §

1B1.3 is necessary.

 Harrison contends that downloading the

pornography is not related conduct,

because he downloaded the pictures well

before he made an agreement to trade
8

them.3 In any case, the temporal

relationship between the two actions is not

decisive. If Harrison had not downloaded

the images, he could not have trafficked in

them, and the two actions are therefore

closely tied. 

Harrison further contends that to

apply the guideline in his case would be to

cause it to lose all its meaning, and turn it

into an enhancement that applies whenever

the defendant used a computer in some

way related to the pornography, a role

already filled by U.S.S.G. § 2G2.4(b)(3).

This argument ignores the fact that under

our interpretation, the requirement that a

computer be used for “transmission” of the

pornography still plays an important role

in the application of § 2G2.2(b)(5). The

guideline applies no matter who used the

computer for transmission – the defendant

or another party – but it does not apply if a

computer was used in a way which is not

“transmission,” for example to help create,

alter, or copy pornography.

 Harrison also contends that the

application of the “transmission”

enhancement to his case would obliterate

the distinction between “transmission” and

“distribution,” the word used in §

2G2.2(2)(A-E). The enhancements for

distribution are not limited by any

particular method of distribution, however,

while “transmission” is specifically

qualified by the requirement that it be by a

computer. The sections therefore serve

distinct purposes: § 2G2.2(b)(5) punishes

a specific method of transmission – by

computer – while § 2G2.2 (2)(A-E)

addresses other forms of distribution.

Under these guidelines, handing out

pornographic lea fl et s would be

“distribution,” but cle arly not a

“transmission” by computer.

III.

 The enhancement under § 2G2.2(b)(5)

is also applicable to Harrison’s conduct

because he used his computer to transmit

a “notice” of child pornography. The

transportation of child pornography to

which Harrison pleaded guilty would not

have been possible without the extensive

email correspondence that took place

between Harrison and the undercover

federal agent. The communications began

3. Since Harrison told police he

had only been downloading child

pornography for about seven months

before his arrest, the time lapse between

his downloading of the material and his

use of it to barter can not have been that

great – especially because it was nearly

three months from the time Harrison first

made contact with the undercover agent

to the time of his interview with police.

 Harrison’s attorney asserted at

oral argument that the holding we make

today would mean that the § 2G2.2(b)(5)

enhancement would apply to a defendant

convicted of trafficking in pornography

that he had downloaded from the

computer many years beforehand.

Although we do not specifically decide

this issue, neither are we particularly

troubled by the prospect.
9

when Harrison responded to an

advertisement on the Internet announcing

the availability of videotapes containing

child pornography. Harrison’s response to

the government agent’s advertisement was

to indicate his interest in the videotapes,

and to tell him in the process of bartering

that he had “a lot of pics on all ages from

5 to 17 mostly hardcore.” The government

argues this response is sufficient to

constitute “notice . . . of the material”

under § 2G2.2(b)(5). We agree.

 It is not disputed that Harrison

transmitted a description of his

pornog raphy collection using his

computer, and this transmission is part and

parcel of the resulting transportation of the

specified pornographic materials through

the mail. The only question is whether a

message to one person constitutes

“notice,” or whether the term comprehends

information posted to a wider audience, as

Harrison contends. The guidelines offer

little direct help on this question, as they

do not define what constitutes a “notice.”

 Harrison cites to dictionaries for the

proposition that a notice is an

announcement, and an announcement is a

“public statement or notice.” Appellant’s

Reply Brief at 7 (citing to BLACK’S LAW

DICTIONARY (7th ed. 1999) and

W EBSTER’ S I I N EW R IVERS I D E

UNIVERSITY DICTIONARY (1984)). On its

face, these definitions are counterintuitive,

since if the meaning of “notice”

comprehended that it was “public,” it

would not be necessary to modify the

definition of “announcement” by

designating it as a “public” notice. Other

definitions of notice indicate that it may

mean merely “information” o r

“[I]ntelligence by whatever means

com m u nica ted.” B LACK ’ S L A W

DICTIONARY 1061 (6th ed. 1990). As a

result, all that these definitions make clear

is that the issue can not be decided through

a battle of the dictionaries, and we must

look to the purpose and structure of the

sentencing guidelines for aid. 

 The purpose behind the child

pornography sentencing guidelines

supports a broad definition of the term

“notice.” The guidelines recognize the

enhanced threat posed by the Internet,

which greatly increases the ease with

which child pornography may be traded.

This ease is heightened by an offender’s

ability to find a suitable partner in a child

pornography “chat room,” with whom the

offender may then trade anonymous emails

in order to establish terms for the sale or

barter of explicit materials. This method of

trafficking eliminates the need for

traditional forms of “notice and

advertisement” directed toward large

numbers of people at random. 

Commenting on this method of

communication, the Fourth Circuit Court

of Appeals found that “the very nature of

the Internet provides an ‘ominous method’

for anonymous predatory criminal

conduct.” See Dotson, 324 F.3d at 260

(quoting Richardson, 238 F.3d at 842).

Because the sentencing guidelines are

clearly aimed at targeting this sort of

“ominous” conduct with enhanced
10

punishment, it makes sense to define

“notice” in a way that will encompass the

savvy and discreet trader in child

pornography, who is able to avoid the

more dangerous route of public

advertisement that would expose his

scheme to an unselect audience. 

 In fact, the language of § 2G2.2(b)(5)

contemplates this broader definition of

“notice,” by contrasting it with an

“advertisement.” If “notice” is interpreted

to mean an announcement to the general

public, it leaves very little useful work for

the word “advertisement,” which is itself

defined as “a public notice.” See

WEBSTER’S NINTH NEW COLLEGIATE

DICTIONARY59 (1988). We assume that by

including both terms, the drafters meant

there to be a difference between them –

“advertisement” implicates announcement

to a wider audience, while “notice” may

simply mean the communication of

information to another party. As a result,

we hold that by sending an email telling

the undercover agent that he possessed a

variety of pornographic “pics,” Harrison

used his computer to transmit a “notice” of

child pornography, as contemplated under

§ 2G2.2(b)(5). 

IV.

 For the reasons set forth above, we find

that the District Court properly applied the

two-level sentencing enhancement under

U.S.S.G. § 2G2.2(b)(5), because “a

computer was used for the transmission of

the material” that Harrison later mailed to

the undercover agent, and because

Harrison also used a computer to transmit

“notice or advertisement of the material.”

_____________________