PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 09-4271


        UNITED STATES OF AMERICA

                        v.

          LAWRENCE SCOTT WARD,

                                  Appellant.


  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
           (D.C. No. 2-08-cr-00148-001)
     District Judge: Hon. Petrese B. Tucker


    Submitted Under Third Circuit LAR 34.1(a)
                October 5, 2010

Before: SCIRICA, FUENTES and JORDAN, Circuit
                   Judges.

             (Filed: October 27, 2010)
Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003
       Counsel for Appellant

Zane David Memeger
Robert A. Zauzmer
Bea L. Witzleben
Office of United States Attorney
615 Chestnut Street - #1250
Philadelphia, PA 19106
       Counsel for Appellee


                 OPINION OF THE COURT


JORDAN, Circuit Judge.

       Lawrence Scott Ward appeals his sentence of twenty-five
years imprisonment and a $100,000 fine imposed by the United
States District Court for the Eastern District of Pennsylvania.
Because the District Court committed a procedural error, we
will vacate and remand for resentencing.

I.    Background

      Ward, a former professor at the University of
Pennsylvania’s Wharton School of Business, pled guilty to two
counts of inducing a minor to engage in sexually explicit
conduct for purposes of producing a visual depiction of that

                               2
conduct in violation of 18 U.S.C. § 2251(a) (counts one and
two); two counts of shipping visual depictions of a minor
engaged in sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(1) (counts three and four); and one count of making
false statements to the United States Department of State to
secure a visa in violation of 18 U.S.C. § 1001 (count five). The
charges related to Ward’s inducement of J.D., a male teenager
located in Brazil, to engage in sexual relations with him, Ward’s
memorialization of those relations in photographs and DVDs,
and Ward’s supplying false information to the State Department
in an attempt to secure a United States visa for J.D.

       Ward maintained a house in Fortaleza, Brazil, where he
permitted J.D., J.D.’s mother, and other boys to live. From
January 2006 through August 2006, using his Wharton email
account, Ward sent numerous emails to J.D., who was sixteen
years old at the time, encouraging him to engage in a “growth
program” that included engaging in sex with Ward and other
young men chosen by Ward. Among the young men with whom
Ward encouraged J.D. to have sexual relations was R.D.,
another Brazilian boy, who was seventeen years old; Ward also
asked R.D. to have sex with J.D.1 Ward promised J.D. that he
would “grow” and, in order to persuade J.D. to engage in this
program, provided J.D. with gifts, and offered to provide
financial support to J.D.’s impoverished mother.



  1
   J.D. and R.D. appear to have been Ward’s favorites among
the boys living at his house in Brazil. (Supp. App. at 344 (“I
only want to have sex with you [J.D.] and [R.D.], especially
with you because I love you.”).)
                               3
       Ward made two trips to Brazil, one in the spring of 2006
and one in the summer of 2006, during which he engaged in
sexual conduct with J.D. He took numerous photographs and
videos documenting those relations and mailed those depictions
to his Wharton office in the United States. Among the
photographs of Ward engaged in sexual contact with J.D. were
photographs of J.D. engaged in sexual contact with R.D.

        Additionally, in July of 2006, Ward took J.D. to a United
States Consulate Office in Brazil in attempt to secure a visa for
J.D. to visit the United States. A State Department employee
interviewed J.D. but denied his application, concluding that, if
J.D. were given a visa, he might attempt to remain in the United
States. Thereafter, Ward contacted the office and made several
misrepresentations in attempt to secure a visa for J.D., including
representing that J.D.’s family was “well off” financially, even
though he knew the boy to be impoverished, and submitting
fictitious financial documents that Ward created in J.D.’s
father’s name.

       When Ward returned to the United States in August
2006, a border search revealed that he was in possession of child
pornography. A subsequent investigation revealed that he had
previously mailed to his Wharton office a CD containing
pictures of himself and J.D. engaged in sexual contact, which
were taken in March and April of 2006, and DVDs of himself
engaged in sexual contact with J.D., which were taken during
June and July of 2006. The investigation also revealed the
above-mentioned emails that Ward sent to J.D. and the other
boys.



                                4
       After Ward pled guilty to the charges against him, a
Presentence Investigation Report (“PSR”)2 was prepared, which
calculated an offense level of 38, a criminal history category of
I, and a resulting sentencing range of 235-293 months
imprisonment.3 The PSR acknowledged that counts one and two
carried a maximum of 30 years imprisonment, per count, with
a mandatory minimum of 15 years imprisonment, 18 U.S.C.
§ 2251; counts three and four carried a maximum of 20 years
imprisonment, per count, with a mandatory minimum of 5 years
imprisonment, 18 U.S.C. § 2252; and count five carried a
maximum 5 year term of imprisonment, 18 U.S.C. § 1001. The
PSR also indicated that Ward had the financial capacity to pay
a fine within the Guidelines range of $25,000 to $250,000.

      The District Court held a sentencing hearing on
September 29, 2009. Ward had no objections to the PSR, but
the government raised several. One of those objections
concerned the lack of a sentencing enhancement to reflect that


      2
    The initial PSR was revised, and that revised PSR is the
operative sentencing document in this case. References to the
“PSR” are to the revised PSR.
  3
    The PSR grouped all of the counts together under U.S.S.G.
§ 3D1.2(b) because they involved the same victim and a
common plan or scheme. Thus, the most serious offenses –
counts one and two, both violations of 18 U.S.C. § 2251(a) –
were used to calculate the offense level, which, after application
of certain enhancements and adjustments, resulted in an offense
level of 38. Whether the counts were properly grouped is not at
issue on appeal.
                                5
some of the offenses involved a second victim, R.D. In support
of its objection, the government presented testimony from
Richard Stingle, the case agent who investigated the case against
Ward. Stingle testified that Ward, in his emails, had instructed
R.D. to “help[] J.D. with his growth program.” (App. at 82).
Stingle also testified that Ward had taken pictures of R.D.
involved in “sexual contact” with J.D., (App. at 83), that those
pictures were interspersed with pictures he had mailed to his
office of himself engaged in sexual contact with J.D., and that
the pictures were taken close in time to the pictures of Ward
with J.D. Although there were no images of R.D. with Ward,
some of Ward’s emails had expressed his intentions to have sex
with R.D.

       The District Court sustained the government’s objection
to the PSR and added two levels to reflect that Ward’s offense
involved a second victim. See U.S.S.G. § 2G2.1(d) (“If the
offense involved the exploitation of more than one minor,
Chapter Three, Part D (Multiple Counts) shall be applied as if
the exploitation of each minor had been contained in a separate
count of conviction.”); id § 3D1.4(a). That enhancement
increased the sentencing range to 292 to 365 months.

       The Court imposed a sentence of 300 months (25 years)
imprisonment, lifetime supervised release, and $500 in special
assessments, but did not specify a particular sentence on each
count.4 In explaining its sentence, the Court stated:

 4
   The Court indicated that the sentence would be “a concurrent
sentence,” (App. at 6), which appears to reflect the Court’s
intention for Ward’s sentence to run concurrently with a
                               6
       Clearly Mr. Ward is a danger to the community
       and protection from his actions is needed.
       Clearly, because of the nature of these horrific
       crimes, ... punishment is appropriate and ... any
       sentence that the court imposes is a sentence that
       must prevent him individually from committing
       further crimes in the future.
       ...

       The sentence that this Court will impose is a
       sentence that I think takes into consideration all of
       the factors, takes into consideration the history
       and the character of the defendant, and takes into
       consideration all of the arguments that counsel
       has made.

The Court also focused on the fact that the boys Ward targeted
were “perfect victims” because they were poor and vulnerable.
Since Ward was 67 years old at sentencing, his projected release
will not occur until he is 88 years old.

        Although the Court initially imposed $100,000 in
restitution, the prosecutor expressed concern about an order of
restitution in this case:

       [T]here is a little wrinkle in the sense that the
       government does not know the whereabouts of
       [J.D.] and normally we would have to proffer


sentence imposed in the Eastern District of Virginia based on
conduct related to the present case.
                                7
          expenses for that victim for counseling and that
          kind of thing. I don’t know that he [J.D.] is
          receiving any counseling. We have not been able
          to locate him so I don’t know if there is a legal
          impediment to the restitution order as opposed to
          a fine, your honor.

The Court responded, “so the $100,000 will be a fine and not
restitution.” (App. at 8.)

       The Court later entered a judgment of conviction and
sentence reflecting the sentence imposed at the hearing. As in
the sentencing hearing, the Court did not identify a sentence for
each count, but instead mandated a general sentence on all
counts. Ward timely appealed.

II.       Discussion5

        On appeal, Ward alleges that his sentence is procedurally
and substantively unreasonable in several respects. We follow
a two-step procedure when reviewing such a challenge. United
States v. Tomko, 

, 567 (3d Cir. 2009) (en banc).
First, we address alleged procedural errors, including any error
in calculating the Guidelines range or failing to “adequately
explain the chosen sentence.” 

v. United States,

, 50 (2007)). In doing so, we review factual findings
for clear error and exercise de novo review over legal rulings.

      5
   The District Court possessed jurisdiction under 18 U.S.C.
§3231. We have appellate jurisdiction pursuant to 18 U.S.C.
§3742 and 28 U.S.C. § 1291.
                                 8
United States v. Brown, 

, 526 (3d Cir. 2010).
Second, we address any challenges to the substantive
reasonableness of the sentence under an abuse of discretion
standard, 

“totality of the circumstances” into
consideration. 

. Errors that were not
raised before the District Court are subject to plain error review,
meaning that, in order to prevail on appeal, a defendant must
establish an error that is plain, which affected his substantial
rights, and which, if not rectified, would seriously affect the
fairness, integrity or public reputation of judicial proceedings.
See United States v. Russell, 

, 203-04 (3d Cir.
2009) (“Our standard of review differs based on whether the
alleged sentencing error was raised below. If so, we review for
abuse of discretion; if not, we review for plain error.”).

        Ward argues that the District Court committed a
procedural error by concluding that his offenses involved a
second victim, thereby increasing his Guidelines range. Section
2G2.1(d)(1) indicates that, “[i]f [an] offense involve[s] the
exploitation of more than one minor,” the Guidelines treat the
exploitation of each minor as a separate count. The
enhancement applies when “relevant conduct of an offense of
conviction includes more than one minor being exploited,
whether specifically cited in the count of conviction or not ... .”
U.S.S.G. § 2G2.1 app. note. 5; see also United States v.
Reinhart, 

, 525 (5th Cir. 2004). Relevant conduct
refers to “acts ... that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the




                                9
course of attempting to avoid detection or responsibility for that
offense.” U.S.S.G. § 1B1.3(a)(1).6

       We find no error in the District Court’s conclusion that
Ward’s offenses involved a second victim, R.D. It is clear from
Ward’s emails that the “growth program” he prepared for J.D.,
for purposes of inducing him to engage in sexual relations,
included having sex with other boys, including R.D. (whom
Ward instructed to have sex with J.D.), and that Ward also
planned to have sex with R.D. The images of the two boys
together – taken in close proximity to the images of Ward with
J.D. – provide further evidence that the abuses against both of
them were sufficiently interrelated to support a finding that the
abuse of R.D. occurred in connection with Ward’s abuse of J.D.7


  6
    The government argues that we need not consider § 1B1.3
because the Guidelines define “offense” as including “all
relevant conduct” and Ward’s exploitation of R.D. is relevant to
his exploitation of J.D. But, the application note upon which the
government relies, U.S.S.G. 1B1.1 appl. note 1(H), specifically
refers to § 1B1.3 in defining relevant conduct. If the
government is making the point that Ward’s offense against
R.D. need not have been charged in order to be included –
which is already clear from § 2G2.1(d) – that does not save us
from having to determine whether that offense is relevant to
Ward’s offenses against J.D. under § 1B1.3.
  7
   Ward focuses on the fact that the images are not before our
Court and asserts, for the first time on appeal, that we cannot
conclude that those images reflect sexually explicit conduct
sufficient to establish a violation of 18 U.S.C. § 2251(a). See 18
                               10
Accordingly, the District Court correctly applied the
enhancement based on the conclusion that Ward’s conduct
involved multiple victims. See United States v. Brown, 

, 684-85 (6th Cir. 2009) (upholding application of
enhancement when defendant took photographs of twin girls,
and the photographs suggested that the defendant was “actively
photographing both girls”).

       Ward also alleges, for the first time on appeal, that the
District Court committed procedural error by entering a “general
sentence” on all counts – which exceeded the mandatory
maximum on some of the counts – instead of specifying
individual sentences for each offense. Ward contends that such
a sentence is illegal and contrary to the Sentencing Guidelines.

       Section 5G1.2 of the Sentencing Guidelines indicates that
sentencing courts must impose a sentence on each count. See
U.S.S.G. § 5G1.2(b) (explaining that, except as otherwise
required by law, “the sentence imposed on each other count


U.S.C. § 2256(2)(A) (defining sexually explicit conduct to refer
to “(i) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same
or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals or
pubic area of any person.”). Although the images are not before
the Court, it is clear from testimony at the hearing that the
photographs depicted sexual contact between the boys – two
minors – and that the images were taken within moments of the
images of Ward with J.D. Based on those facts and, in
conjunction with Ward’s emails, we reject Ward’s argument.
                                 11
shall be the total punishment” (emphasis added)); 

(“If the sentence imposed on the count carrying the highest
statutory maximum is adequate to achieve the total punishment,
then the sentences on all counts shall run concurrently, except
to the extent otherwise required by law.” (emphasis added)).
Application Note 1 further clarifies that, in general, “the total
punishment is to be imposed on each count and the sentences on
all counts are to be imposed to run concurrently to the extent
allowed by the statutory maximum sentence of imprisonment for
each count of conviction.” Accordingly, the District Court erred
by failing to impose a sentence on each count, and that error is
plain.

       Furthermore, the Court’s error affected Ward’s
substantial rights and resulted in manifest injustice because, as
a result of the general nature of the sentence, neither we nor
Ward can determine whether it was legal as to particular counts.
Cf. United States v. Pungitore, 

, 1135 (3d Cir.
1990) (explaining that a “general verdict of guilty does not
disclose whether the jury found the defendant guilty of one
crime or of both. Conceivably, this could prejudice the
defendant in sentencing and in obtaining appellate review.”
(quotations omitted)). We do not know whether the Court
intended to impose a 25 year sentence on each count to run
concurrently – which would clearly be illegal considering the
statutory maximums on certain counts – or whether the Court
had some other sentence in mind, and, accordingly, we cannot
adequately review the sentence. We will therefore remand for




                               12
resentencing.8 See United States v. Moriarty, 

,
1025 (11th Cir. 2005) (“[T]he district court erred by imposing
a general sentence. We therefore vacate the sentence and
remand the case for clarification of the sentence, including the
term of supervised release, applicable to each count to which
[defendant] pled.”); see also United States v. Hall, 

,
745 (D.C. Cir. 2010) (directing the district court, on remand, to
specify sentences on individual counts instead of imposing one
sentence for all counts of conviction).9


  8
    The cases upon which the government relies, United States
v. Xavier, 

, 1292 (3d Cir. 1993), United States v.
Corson, 

, 551 (3d Cir. 1971) (en banc), and Jones
v. Hill, 

(3d Cir. 1934) did not concern the
Sentencing Guidelines and are inapposite here. To the extent
those cases can be read as permitting a general sentence on
multiple convictions to cure a Double Jeopardy problem, the
Supreme Court has since rejected such an approach. See
Rutledge v. United States, 

, 307 (1996) (requiring
vacatur of conviction on one of two counts held to constitute
“same” offense). Furthermore, in Corson we recognized that we
had previously “expressed a dissatisfaction with general
sentences and ... declared it ‘highly desirable that the trial judge
in imposing sentence on an indictment containing more than one
count deal separately with each 

(quoting United States v. Rose, 

, 630 (3d Cir.
1954)).
   9
    Because of the general nature of the Court’s sentence, we
cannot adequately review Ward’s remaining arguments – that
the Court failed to adequately explain its reasons for “imposing
                                13
        Finally, Ward argues that the Court erred by imposing a
fine, instead of restitution, in response to the prosecutor’s
remarks. Since Ward challenges the imposition of the fine for
the first time on appeal, his challenge is subject to plain error
review. See United States v. Pfaff, — F.3d. —, 

, at *1 (2d Cir. Aug. 27, 2010) (“Where a defendant
fails to object to a fine below, we review the fine for plain
error.”). Ward does not contest that he possesses the ability to
pay the $100,000 fine. Rather, he contends that the government
should not be entitled to money intended for restitution simply
because it was unable to calculate the amount owed to the
victim, and he requests that we vacate the fine and require the
sum to be paid to J.D. or J.D.’s mother.10




a sentence at a particular point within the [Guidelines] range[,]”
as required by 18 U.S.C. § 3553(c)(1), and that his sentence is
substantively unreasonable because it exceeds his life
expectancy even though Ward was not eligible for a life
sentence. We note, however, that simply because the term of
imprisonment imposed by the District Court exceeds Ward’s life
expectancy does not render the sentence unreasonable. See
United States v. Watson, 

, 273 (3d Cir. 2007)
(“[T]he mere fact that a defendant may not survive beyond his
sentence does not provide a basis for a shorter sentence.”).
     10
       Ward also suggests that imposition of a fine would
impermissibly hinder his ability to pay any restitution, which is
a curious argument, considering that no restitution was ordered
by the Court.
                               14
        Certainly, the Court could have imposed a fine at the
outset, as the Guidelines authorized a fine and Ward possessed
the ability to pay. What the Court did, however, was indicate a
willingness to grant restitution when, by the prosecutor’s own
admission, the government lacked evidence of the amount of
loss sustained by J.D. See United States v. Vitillo, 

,
330 (3d Cir. 2007) (explaining that restitution is limited to a
victim’s actual losses, which must be proven by the government
by a preponderance of the evidence); see also 18 U.S.C.
§ 3664(e). Upon learning that fact, the Court simply translated
the intended restitution into a fine owed to the government,
without engaging in any analysis as to why a fine was
appropriate and despite it having appeared, a moment earlier,
that no fine would be imposed. See 18 U.S.C. § 3572(a) (listing
factors to be considered by sentencing court in determining
whether to impose a fine and in crafting the amount of fine,
including those factors listed in § 3553(a)); see also United
States v. Orlando, 

, 1239 (9th Cir. 2009) (“The
district court must consult the Guidelines’ recommendation, the
§ 3553(a) factors, and the 18 U.S.C. § 3572(a) factors to
determine the appropriateness of the imposition of a fine and its
amount.”); U.S.S.G. § 5E1.2. Imposition of a fine in this
manner was error.11

    11
       It is certainly feasible that the District Court initially
declined to impose a fine out of concern for the effect on Ward’s
ability to pay restitution and, upon learning that the government
could not account for the amounts owed to J.D., was more
comfortable imposing a fine once restitution was no longer an
issue. However, the Court did not explain the reasons for its
actions.
                               15
       We cannot say, however, that the Court’s error results in
manifest injustice. Ward does not contest that he has the ability
to pay the fine, which was within the Guidelines range, and the
PSR establishes that he possesses that ability. Indeed, Ward’s
only complaint on appeal is that he would rather pay the money
to J.D. as opposed to the government. That is not a sufficient
basis upon which to predicate a finding of plain error.

III.   Conclusion

      For the above reasons, we will vacate the Court’s
sentence and remand for resentencing.




                               16