In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2879

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCIS BAREVICH,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04-CR-301—J.P. Stadtmueller, Judge.

____________

ARGUED JANUARY 10, 2006—DECIDED APRIL 26, 2006

____________

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

BAUER, Circuit Judge. Francis Barevich pleaded guilty to

transporting a visual depiction of a minor engaged in

sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(1). On June 14, 2005, the district court sentenced

Barevich to 76 months’ imprisonment and two years of

supervised release. Barevich challenges sentencing enhancements applied by the district court.
2 No. 05-2879

I. Background

In 2003, the New York City Police Department (“NYPD”)

took control of a file transfer protocol server (“server”) that

had been used to distribute child pornography. A server

acts as an online information clearinghouse that allows

Internet users to upload or download files to and from the

server. When the NYPD took over the server, they modified

it so that the server would accept uploads only. The NYPD

then advertised the server’s availability in pre-teen Internet

chat rooms; such chat rooms are frequented by pedophiles.

The NYPD discovered that on October 2, 2003, a sixsecond video had been uploaded to the server from

Barevich’s Internet Protocol Address (“IPA”). The video,

entitled “PEDO-MOM.MPEG,” depicted an adult male

vaginally penetrating a four to six-year-old female with the

assistance of an adult female. Under the statute, uploading

such images from a computer to the server constitutes

transporting child pornography. See 18 U.S.C. § 2252(a)(1).

Once investigation confirmed that the video had been

uploaded from Barevich’s IPA, a federal search warrant was

secured and executed at his home in Waukesha, Wisconsin,

on May 22, 2004. A forensic examination of Barevich’s

computers revealed 8,178 picture files of what appeared to

be children in various stages of undress or engaged in

sexually explicit activity. Some of the images depicted

sadomasochistic conduct, with children tied up, restrained,

or bound, while sexual acts were being performed on them.

The children in these pictures appeared to range from

under eight years of age to mid-teens. Additionally,

Barevich’s computers contained 3,083 text files that

recounted stories of incest and children engaged in sexual

acts with other children and adults. Finally, 80 video files

were found depicting children either in various stages of

undress or in assorted acts of graphic sexual activity with

other children and adults.
No. 05-2879 3

In the district court, Barevich pleaded guilty to transporting a visual depiction of a minor engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(1).

Based on the Pre-Sentence Investigation Report, Barevich

was given an offense level of 27, which included a four-level

increase pursuant to U.S.S.G. § 2G2.2(b)(3). The district

court applied this enhancement based on sadomasochistic

images found in Barevich’s possession when he was arrested for transporting child pornography. This yielded an

advisory Guidelines range of 87 to 108 months; without the

enhancement the range would have been 57 to 71 months.

The district court sentenced Barevich to 76 months’ imprisonment and two years of supervised release. He filed a

timely notice of appeal.

II. Discussion

Barevich objects to the four-level enhancement applied

under U.S.S.G. § 2G2.2(b)(3). The increase to Barevich’s

sentence was based on images in his possession, but not

on the images he transported. The defendant raises the

issue because if he had been convicted of possession only,

the enhancement would not have been available.

We review a district court’s decision to apply specific

sentencing Guidelines de novo and its factual findings for

clear error. United States v. Bothun, 424 F.3d 582, 586 (7th

Cir. 2005); see also United States v. Ellison, 113 F.3d 77, 79

(7th Cir. 1997). While the government urges that the

material Barevich transported was sadomasochistic as a

matter of law, Judge Stadtmueller made no factual finding regarding the sadomasochistic nature of the transported

material. In fact, the video was never introduced into

evidence, as the government conceded in briefing and in

argument. So we only address the district court’s application of the sentencing enhancement based on Barevich’s

relevant conduct.
4 No. 05-2879

Barevich was convicted of the greater crime of transporting child pornography, under 18 U.S.C. § 2252(a)(1). He

argues that if he were convicted of the lesser crime, possession of child pornography, he would not be subject to the

four-level enhancement for possession of sadomasochistic

child pornography and his base level would have been

lower. While Barevich points out this interesting discrepancy, it is a discrepancy that was contemplated by the

Guidelines. See United States v. Grosenheider, 200 F.3d 321,

332-33 (5th Cir. 2000) (delineating the differences between

the various offenses and sentences involving child pornography). Possession of sadomasochistic child pornography by a

defendant who has committed the greater offense of

transporting child pornography in interstate commerce

informs the severity of the crime. Those who traffic in child

pornography, either by receiving or transporting the

material, “increase the market for child pornography and

hence the demand for children to pose as models for

pornographic photographs . . . .” United States v. Richardson, 238 F.3d 837, 839 (7th Cir. 2001). The Guidelines

demonstrate a concern for the welfare of the children who

are exploited in order to create the pornography. This

makes the trafficker a “greater malefactor than the possessor.” Id.

Barevich’s claims in this Court are limited by his concessions in the district court. At his sentencing hearing and in

his briefs to this Court, Barevich conceded that his possession of sadomasochistic child pornography constituted

relevant conduct for his offense of transporting

child pornography. Under U.S.S.G. § 1B1.3, his concession

is significant since the Guidelines call for all acts committed

by the defendant “during the commission of the offense” to

be considered for relevant conduct. Id.

This Circuit has held that possession of sadomasochistic

images and magazines constitutes relevant conduct for

crimes similar to Barevich’s offense. In United States v.
No. 05-2879 5

Ellison, we decided, with facts comparable to the case

at hand, that this same four-level enhancement can be

applied when the relevant conduct evinces sadomasochistic

images but the actual image under which the defendant

is charged does not. 113 F.3d at 78-79, 82. Barevich’s

argument mirrors the issue in Ellison, where the defendant

claimed that the enhancement was inapplicable because the

child pornography video for which he was convicted did not

contain depictions of sadomasochism; only the magazines in

his possession contained such images. Id. at 82. We rejected

Ellison’s argument because his possession of the

sadomasochistic images constituted relevant conduct to his

receipt of the child pornography video. Id. As we explained

in Ellison, a greater purpose is served when we include

“uncharged but relevant conduct . . . and take into account

all conduct indicating the seriousness of the charged offense

. . . .” Id. at 83. Similarly here, Barevich’s possession of

sadomasochistic child pornography is properly included as

uncharged but relevant conduct for the charged offense of

transporting child pornography.

The overarching goal of the sentencing guideline enhancements is to weaken the market for child pornography that

“keeps the producers and distributors of this filth

in business.” Id. at 81. See also Richardson, 238 F.3d at

839; United States v. Turchen, 187 F.3d 735, 737 n.2 (7th

Cir. 1999). Transporting and receiving child pornography

increases market demand. The greater concern under the

Guidelines is for the welfare of these exploited children. The

avenue Congress has chosen to weaken the child pornography industry is to punish those who traffic in it. See United

States v. Johnson, 221 F.3d 83, 98 (2d Cir. 2000) (explaining

that the Guidelines expressly contemplate more severe

punishment by application of § 2G2.2 if the conduct involved something more than “simple possession”). As

a result, given our decision in Ellison and the guidance that

U.S.S.G. § 1B1.3 provides, we hold that the district court
6 No. 05-2879

did not clearly err in applying U.S.S.G. § 2G2.2(b)(3) to

increase Barevich’s sentence.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-26-06