United States v. Haggerty

107 F.4th 175

UNITED STATES of America v. Robert HAGGERTY, Appellant

No. 23-2084

United States Court of Appeals, Third Circuit

Argued April 16, 2024

Filed: July 9, 2024

On Appeal from the United States District Court for the Western District of Pennsylvania, District Court No. 2-22-cr-00015-001, District Judge: Honorable J. Nicholas Ranjan

Samantha Stern [ARGUED], Office of Federal Public Defender, 1001 Liberty Avenue, 1500 Liberty Center, Pittsburgh, PA 152220, Counsel for Appellant

Adam N. Hallowell [ARGUED], Laura S. Irwin, Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee

Before: HARDIMAN, SMITH, and FISHER, Circuit Judges

OPINION OF THE COURT

SMITH, Circuit Judge.

I. INTRODUCTION

In imposing a sentence on a defendant who has been found guilty of a child pornography-related offense, a district judge is required, under the United States Sentencing Guidelines, to enhance the applicable Guideline Sentencing range based on the number of "images" "involved" in the offense. Specifically, under U.S.S.G. § 2G2.2(b)(7)'s graduated sentencing enhancement scheme, that defendant's Guideline Sentencing range may be enhanced by up to five levels based on the number of images involved.

The calculus is a simple one where the pornographic matter consists only of "still" images. But what about when a moving image—that is, a video—is involved in an offense? The Guideline itself does not answer that question. So may the judge look to the Commentary to the Guideline, which specifies that each video—no matter its length—constitutes 75 images for purposes of calculating the applicable sentencing enhancement? Whether we should defer to this commentary is the issue we now confront.

We hold that "image," in the moving picture or video context, unambiguously means "frame." Deference to the Commentary's 75-images rule is therefore unwarranted under Kisor v. Wilkie, 588 U.S. 558, 139 S.Ct. 2400, 204 L.Ed.2d 841 (2019). Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply. Because the case before us involved videos with over 14,000 total frames, Haggerty probably possessed the requisite number of images to warrant a five-level enhancement under the Guideline. But because the District Court did not use the frame-counting calculus we now hold is the correct one, we will vacate the District Court's sentencing order and remand for resentencing in a manner consistent with our holding.

II. BACKGROUND

This appeal is brought by Robert Haggerty, a 62-year-old first-time offender. In February of 2022, a federal grand jury indicted Haggerty on three counts of receiving a visual depiction of a minor engaging in sexually explicit conduct, as well as one count of possessing such depictions (including depictions of prepubescent minors and minors less than twelve years of age). See 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), (b)(2).

Haggerty admitted at his plea hearing that he had communicated with undercover detectives posing as underage girls in Montgomery County, Pennsylvania, using the online messaging platforms Skout and Kik Messenger.¹ Acting on information derived from the undercover operation, agents obtained and executed a federal warrant to search Haggerty's house. There, they seized a Samsung tablet, which contained five still files and one video file depicting child sexual abuse. Agents arrested Haggerty and recovered a second Samsung tablet from his truck. Haggerty, on his own, informed the agents that the second tablet contained sexual abuse material depicting minors. Examination of the device revealed 92 still image files and 8 video files depicting child sexual abuse, including sadistic and masochistic content involving prepubescent children and even toddlers.

Haggerty entered an open guilty plea to the indictment. The District Court applied multiple Guideline enhancements at sentencing, including a five-level enhancement under U.S.S.G. § 2G2.2(b)(7).²

U.S.S.G. § 2G2.2(b)(7) provides for a graduated enhancement scheme, based on the number of "images" involved in a child-exploitation offense. Under that scheme, a defendant receives a two-level enhancement if the offense involved 10 to 149 images and up to a five-level enhancement for 600 or more images. U.S.S.G. §§ 2G2.2(b)(7)(A)-(D). However, the text of the Guideline does not explain how courts should determine the number of images contained in any given video. Instead, that direction appears in the Commentary to § 2G2.2(b)(7), which states that: "[e]ach video, video-clip, movie, or similar visual depiction shall be considered to have 75 images." U.S.S.G. § 2G2.2 app. n.6(B)(ii).³

Applying that commentary, the Presentence Investigation Report ("PSR") calculated that the 8 videos on the tablet contained 600 images, bringing the total image count on the second tablet alone to 692 images.⁴

Haggerty objected to the application of a five-level, number-of-images enhancement. He asserted that the Guideline is unambiguous and does not include videos. Thus, Haggerty argued that the sentencing court should not defer to the Commentary's interpretation that a video contains 75 "images," based on the standards set forth in Kisor v. Wilkie. Based on that argument, he contended that only the 92 still images found on his tablets should count toward the enhancement, not the 8 videos. He also acknowledged that "if 'image' is genuinely ambiguous . . . the only acceptable alternative interpretation would be to count a video as one image." Appx. 73. So, he asserted, his offense involved no more than 92 to 100 "images," and he should receive no more than a two-level enhancement under § 2G2.2(b)(7)(A).

In response, the Government asserted that the Guideline itself is ambiguous and that, under the standards set forth in Kisor, the Commentary was entitled to deference. Accordingly, the Government contended, the five-level enhancement should be applied in calculating Haggerty's Guideline Sentencing range. The Government also argued, in the alternative, that the enhancement for 600 or more "images" would apply, even without deference to the Commentary. In other words, if "image" is synonymous with "frame," the Government was prepared to present evidence that Haggerty's videos had a total length of over 600 seconds. Using the standard frames-per-second rate of a video derived from the Motion Picture Association's definition of video, the Government argued that, at a standard rate of 24 frames per second, the tablets contained over 14,000 frames, or "images," of offending content.⁵

The District Court overruled Haggerty's objection to the five-level, number-of-images enhancement. It determined, based on what it viewed as a persuasive majority opinion from a panel of the Sixth Circuit, that "construing 'image' to equal 'visual depiction' is not a reasonable interpretation of the Guideline." Appx 1 (citing United States v. Phillips, 54 F.4th 374, 381 (6th Cir. 2022)). The District Court held that "the term 'image' is ambiguous," and that the Commentary's 75-image rule was entitled to deference. Appx 1. Alternatively, the District Court recognized that, even if it were to adopt a definition in which "image" in the video context meant each video frame, the enhancement for 600 or more images "would still apply based on the government's representations of the duration of the videos that Mr. Haggerty possessed." Appx 2 n.1. The District Court applied the five-level enhancement and calculated a total offense level of 32. This offense level, together with Haggerty's criminal history category of I, yielded an advisory Guideline range of 121 to 151 months in prison.

Haggerty argued for a downward variance to a prison sentence of 60 months, while the Government requested a sentence within the Guideline range. Based on Haggerty's age, health, lack of criminal history, and statement of remorse, the District Court varied downward from the advisory Guideline range to a prison sentence of 96 months, to be followed by five years of supervised release.

The District Court also required Haggerty to pay $3,500 in restitution to one victim, ordering "that the first $1,000 of that restitution be paid within the next six months" following sentencing. Appx 171. Haggerty objected to the six-month partial payment deadline, but the District Court was unmoved. The Court noted that the PSR identified assets Haggerty and his wife owned jointly. The judge also pointed out that Haggerty had agreed to pay as much restitution as possible to the victim "up front," and concluded that it was "appropriate for [the Court] to impose as much as [it] can that wouldn't otherwise . . . create [an] undue . . . hardship." Appx 173.

This appeal followed.

III. JURISDICTION

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 (offenses against the laws of the United States). Haggerty timely filed a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 (final decisions of the District Court) and 18 U.S.C. § 3742(a) (appeal of a final sentence).

IV. STANDARD OF REVIEW

We exercise plenary review of the District Court's interpretation of the Sentencing Guidelines. United States v. Gray, 942 F.3d 627, 630-31 (3d Cir. 2019). And we review the District Court's restitution payment order for abuse of discretion. United States v. Fallon, 61 F.4th 95, 125 (3d Cir. 2023).

V. ANALYSIS

A. SENTENCING ENHANCEMENT

On appeal, Haggerty argues that ordinary usage and plain text require us to interpret "each image - whether still (a photograph) or moving (a video)" - as one image for purposes of § 2G2.2(b)(7). Opening Br. at 13. He further asserts that the Guideline's context, history, and purpose support this reading. Id. Finally, he contends that we should give no deference to the Commentary. Id. Because we conclude that the term "image" unambiguously means "frame" when applied in the video context, we reject...