United States v. Ross

948 F.3d 243

UNITED STATES of America, Plaintiff - Appellee

v.Joe Cephus ROSS, Defendant - Appellant

No. 18-20496

United States Court of Appeals, Fifth Circuit.

FILED January 10, 2020

Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Joshua Bradley Lake, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue are Joe Cephus Ross’ constitutional challenges to the district court’s denying: Ross’ motion to dismiss his being charged, in count one of his two-count indictment, with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) (count two charged possession of child pornography on a separate, subsequent date, in violation of 18 U.S.C. § 2252A(a)(5)(B) ); and his similar objection to being sentenced, pursuant to Sentencing Guideline § 2G2.2, for receipt, as opposed to possession, of child pornography (higher base offense level for the former). AFFIRMED.

I.

In March 2016, an undercover Homeland Security special agent identified an internet-protocol (IP) address was sharing, via a peer-to-peer-internet network, computer files with hash values (alphanumeric string of characters that identifies computer file’s contents, see United States v. Reddick , 900 F.3d 636, 637 (5th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 1617, 203 L.Ed.2d 902 (2019) ) known to belong to child-pornography videos and images. Further investigation revealed the IP address: was associated with the residence of Ross and his mother; and, from February to July 2016, shared child-pornography files with other internet users.

That August, members of a Houston, Texas, police taskforce executed a search warrant at the residence, seizing several computers and other devices. A subsequent forensic examination revealed these contained more than 17,000 images and 500 videos depicting child pornography, including victims appearing to be as young as four, as well as file-sharing programs. Ross admitted he collected child-pornography images and videos; explained how the file-sharing programs worked; and acknowledged he used them to distribute child pornography.

In a two-count indictment, Ross was charged, in count one, with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and based on his operating the peer-to-peer-file-sharing program between February and July 2016; and, in count two, with possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and pertaining to the images and videos discovered on the devices seized during the August 2016 search. Ross moved to dismiss the receipt count, claiming: because there is no meaningful distinction between a person’s receiving child pornography and possessing it, § 2252A was unconstitutionally vague, in violation of the Fifth Amendment’s Due-Process Clause, in allowing arbitrary prosecutorial charging decisions.

The motion was denied from the bench at the conclusion of an April 2018 hearing. Although the district judge doubted the constitutionality of the receipt statute, he reasoned the controlling law was "decidedly the contrary" to Ross’ claim. Later that month, Ross pleaded guilty, unconditionally and without a plea agreement, to both charges.

For sentencing, and incorporating the same constitutional grounds as in his motion to dismiss, Ross objected to the presentence investigation report’s (PSR) calculating his advisory Guidelines sentencing range pursuant to the above-described Guideline § 2G2.2. The objection was denied.

Regarding the PSR’s recommending an advisory Guidelines sentencing range of 151–188 months’ imprisonment, the court varied downward, however, sentencing Ross to, inter alia , 110 months’ imprisonment on each count, concurrently, and deducting a further 23 months for time held in state custody. The sentence was to run concurrently with any imposed in a pending state criminal case charging Ross with possession of child pornography.

II.

Except for the stated constitutional challenges, Ross does not challenge either his guilty-plea convictions or the sentence imposed, including not claiming a double-jeopardy violation. Ross preserved in district court his constitutional challenges (to the child-pornography statute, 18 U.S.C. § 2252A, and Guideline § 2G2.2); accordingly, our review is de novo . E.g. , United States v. Jones , 854 F.3d 737, 738 (5th Cir. 2017) (citation omitted) (constitutional challenge to statute as vague); United States v. Preciado-Delacruz , 801 F.3d 508, 511 (5th Cir. 2015) (citations omitted) (constitutional challenge to Guidelines’ application). (Ross’ unconditional guilty plea does not waive his being able on appeal to assert these constitutional challenges. E.g. , Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 803, 200 L.Ed.2d 37 (2018).)

A.

Regarding the challenged statute, it is a federal crime to "knowingly receive[ ] or distribute[ ]" material containing child pornography. 18 U.S.C. § 2252A(a)(2)(B). This offense carries, as relevant in this instance, a term of imprisonment between five and 20 years. Id. § 2252A(b)(1). It is also a federal crime to "knowingly possess[ ]" child pornography. Id. § 2252A(a)(5)(B). This offense carries, by contrast and as relevant in this instance, a maximum sentence of ten years. Id. § 2252A(b)(2). (Possession carries stiffer sentences in certain circumstances, see id. , but these were not charged in this instance.)

Ross does not contend § 2252A fails to provide fair notice of the proscribed conduct. He instead claims § 2252A is unconstitutionally vague, in violation of the Fifth Amendment’s Due-Process Clause, because: possession and receipt of child pornography are logically inseparable; both § 2252A ’s legislative history and Sentencing Commission materials recognize their inseparability; prosecutors may arbitrarily decide to charge defendants, for indistinguishable conduct, under the more-severely-punished receipt offense instead of the less-severely-punished possession offense; and such prosecutorial control over the ultimate sentence violates the separation of powers. Each claim fails.

"The prohibition of vagueness in criminal statutes ... is an essential of [Fifth Amendment] due process ...". Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1212, 200 L.Ed.2d 549 (2018) (internal quotation marks and citation omitted). Along that line, the vagueness doctrine requires statutes "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited [—as noted, Ross does not challenge the statute in this regard—] and in a manner that does not encourage arbitrary and discriminatory enforcement". Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citations omitted). "[T]he doctrine focuses both on actual notice to citizens and arbitrary enforcement"; its "more important aspect ... is not actual notice", however, but "the requirement that a legislature establish minimal guidelines to govern law enforcement". Id. at 357–58, 103 S.Ct. 1855 (internal quotation marks and citation omitted). It "guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges". Dimaya , 138 S. Ct. at 1212 (citing Kolender , 461 U.S. at 357–58, 103 S.Ct. 1855 ). And, it applies "not only to statutes defining elements of crimes, but also to statutes fixing sentences". Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) (citation omitted). (Ross’ asserted separation-of-powers violation is not separate from his vagueness challenge because the vagueness doctrine "is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and what is not". Dimaya , 138 S. Ct. at 1212 (citation omitted).)

Ross’ claim that possession and receipt are logically inseparable conduct, and that, as a result, § 2252A ’s criminalizing both invites unconstitutionally arbitrary enforcement, is incorrect. As the other circuits to consider the issue have concluded, the offenses are different in at least one regard: "a person who produces child pornography has not received it". United States v. Dunning , 857 F.3d 342, 349 (6th Cir. 2017) ; accord United States v. Burrows , 905 F.3d 1061, 1065 (7th Cir. 2018).

Conviction of receipt, moreover, requires proof of an element—defendant knowingly received child pornography—that conviction of possession does not. See 18 U.S.C. § 2252A(a). This distinction reveals another way in which the offenses differ. As Ross conceded at oral argument in our court: a person could receive computer files without contemporaneously knowing they contained child pornography; and, if that person subsequently discovered they contained such material, he would knowingly possess child pornography, without having knowingly received it. (In the light of these distinctions, to the extent Ross contends § 2252A violates the Fifth Amendment’s Due-Process Clause because of a claimed lack of a rational basis for its distinguishing between possession and receipt offenses, that contention also fails. See United States v. Olander , 572 F.3d 764, 769–70 (9th Cir. 2009) (discussing how Congress could have decided to proscribe and punish receipt separately from possession in order "to deter those who receive child pornography from others and who thereby create demand and drive the market for child pornography").)

Along those lines, it goes without saying that prosecutors routinely decide to charge defendants with certain offenses, instead of...