United States v. Phillips

54 F.4th 374

UNITED STATES of America, Plaintiff-Appellee,

v.Trinity PHILLIPS, Defendant-Appellant.

No. 21-5762

United States Court of Appeals, Sixth Circuit.

Argued: July 20, 2022

Decided and Filed: November 28, 2022

ARGUED: Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Joshua K. Handell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael C. Holley, Ronald C. Small, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. John M. Pellettieri, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., S. Carran Daughtrey, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: BOGGS, LARSEN, and DAVIS Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which DAVIS, J., joined. LARSEN, J. (pp. –––– – ––––), delivered a separate opinion concurring in the judgment only.

BOGGS, Circuit Judge.

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved. The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.¹ Addressing what it perceived to be an ambiguity in Congress's command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this "75:1 Rule" when sentencing defendants convicted of possessing videos containing child pornography. Recent Supreme Court precedent, however, has clarified when courts can defer to an agency's interpretation of its regulations (by applying so-called Auer deference). Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence. We disagree and affirm that sentence as imposed by the district court.

I. BACKGROUND

Defendant-Appellant Trinity Phillips was convicted of possessing child pornography. Law enforcement became aware of Phillips during the fallout of his romantic relationship with Samantha Melford. The pair had met online and conducted a long-distance affair—both were married. Their relationship was characterized by violence, sexual objectification, and a "master/slave" dynamic requiring Melford to submit to Phillips's will. During the course of the relationship, Melford filmed herself performing sexual and pseudo-sexual acts on or near her 5-year-old half-sister. She then sent those videos to Phillips.

Melford eventually moved in with Phillips and his wife and children, but left following an argument in 2018. She then informed police about Phillips's interest in and possession of child pornography. Investigators obtained a warrant and searched his residence in Tennessee. The search revealed multiple laptops and other electronic devices. One of those laptops contained backup files from Phillips's cell phone, including a file entitled "Note 5." That folder contained two subfolders: "Sister 2" and "Kik." "Sister 2" contained 82 videos and 3 still images of child pornography, all of which had been produced by Melford. "Kik" contained 9 other videos that also depicted child pornography. And forensic investigators found 169 thumbnail images that were indicative of previously viewed or deleted child pornography. In total, therefore, law enforcement obtained 172 still images and 91 videos.

Phillips was charged with one count of knowingly receiving child pornography, in violation of 18 U.S.C. §§ 2552A(a)(2)(A) and 2552A(b), and one count of knowingly possessing child pornography, in violation of 18 U.S.C. § 2552A(5)(B) and 2552A(b). He pleaded guilty as charged.

The Guidelines recommend applying different sentence enhancements depending on the number of "images" involved in the offense. Specifically, the Guidelines include an "image table," which lays out different enhancement levels for different numbers of images:

If the offense involved—

"(A) at least 10 images, but fewer than 150, increase by 2 levels;

"(B) at least 150 images, but fewer than 300, increase by 3 levels;

"(C) at least 300 images, but fewer than 600, increase by 4 levels; and "(D) 600 or more images, increase by 5 levels."

U.S.S.G. § 2G2.2(b)(7).

An application note in the commentary to Guideline § 2G2.2 instructs how to determine the number of images involved in the offense. U.S.S.G. § 2G2.2(b)(7) n.6(B). According to that note, each video counts as 75 images, and if the length of the video is substantially more than five minutes, an upward departure may be warranted. Ibid. This conversion ratio is referred to as the "75:1 Rule."

In calculating the appropriate sentence range for Phillips pursuant to the image table, the probation office calculated that, pursuant to the commentary to application note 6, his offense involved 6,997 images—172 still images and 75 images for each of the 91 videos. That number of images led to a five-level enhancement. Phillips objected to that calculation, arguing that each video should count as one image, not 75, and that, consequently, he should only be responsible for 263 images and thus only a corresponding three-level enhancement.

The district court held an evidentiary hearing to address this and other issues. At the end of that hearing, the district court found that the five-level enhancement was appropriate in light of the 75:1 Rule.²

At sentencing, the district court applied the five-level enhancement. With that enhancement, Phillips's Guidelines range was 121 to 151 months of imprisonment. If the district court had instead applied the three-level enhancement requested by Phillips, his range would have been 97 to 121 months of imprisonment. He was ultimately sentenced to 151 months of imprisonment. This appeal followed.

II. ANALYSIS

Phillips argues that the district court was wrong to rely on the 75:1 Rule. He suggests that recent Supreme Court precedent has rendered reliance on that application note impermissible. The Government disagrees and argues, in the alternative, that Phillips's sentence should be affirmed even if reference to the 75:1 Rule is discarded. We hold that the district court did not err in relying on the 75:1 Rule.

A. History of the 75:1 Rule

The Guidelines originated with the Sentencing Reform Act of 1984, when Congress tasked the Commission with creating sentencing ranges for various offenses. Stinson v. United States , 508 U.S. 36, 40–41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). While the Commission is authorized to amend the Guidelines on its own, it must allow Congress six months to review any amendments, and also to allow any amendments to go through a period of notice and comment. 28 U.S.C. § 994(p), (x). While sentencing courts have discretion to deviate from the Guidelines recommendation, that discretion is somewhat limited. United States v. Havis , 927 F.3d 382, 385 (6th Cir. 2019) (en banc) (per curiam) (citing Peugh v. United States , 569 U.S. 530, 543, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ). A sentencing judge "cannot stray from a defendant's Guidelines range, for example, without first giving an adequate explanation." Ibid.

In addition to the Guidelines themselves, the Commission has included "application notes" in "commentary" intended to interpret, explain, or otherwise aid the sentencing court in choosing a sentence. See United States v. Riccardi , 989 F.3d 476, 484 (6th Cir. 2021) (citing U.S.S.G. § 2B1.1 cmt. nn.1–8). This "commentary," however, is not subject to the same procedural safeguards as the Guidelines themselves. The Commission may amend the commentary unilaterally, without notice and comment or congressional review. Havis , 927 F.3d at 386. While some courts initially doubted whether sentencing courts were bound by the commentary's interpretation of the Guidelines, the Supreme Court ultimately held that sentencing courts owe the commentary the same kind of deference owed to an agency's interpretation of its own regulations in other contexts. Stinson , 508 U.S. at 45, 113 S.Ct. 1913.

The commentary at issue here came about in response to the PROTECT Act of 2003, Pub. L. No. 108-21, 117 Stat. 650. Within that statute, Congress took the unusual step of amending the Guidelines directly. See United States v. McNerney , 636 F.3d 772, 777 (6th Cir. 2011). It required the Commission to adopt the image table. The purpose of the image table was to increase penalties "based on the amount of child pornography involved in the offense." H.R. Rep. No. 108-66 at 59. The Commission duly implemented the image table as decreed by Congress, and it is included verbatim in Guideline § 2G2.2(b)(7).

Congress did not, however, define "image." Nor did it explain how to determine the number of images in a video. To combat this uncertainty, the Commission sought public comment on whether it was necessary to include instructions on "counting images" and, if so, how to determine the number of images in a video. 68 Fed. Reg. 75340, 75353 (Dec. 30, 2003). The Commission posed a hypothetical example: "if a video includes numerous scenes, each of which portrays the same minor engaging in sexually explicit conduct with a different adult, is each scene with a different adult to be considered a separate image?" Ibid .

Following this solicitation of public input, the Commission adopted the 75:1 Rule and other application notes. According to the Commission, it

ultimately determined that because each video contained multiple images [a video] should be counted as more than one image. Given that the image table enacted by Congress assigned a 2-level increase for between ten images and 150 images, and a 3-level increase for 150 to 300 images, the Commission adopted a definition of video that considered each video to contain 75 images, squarely in the middle

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