Filed: Mar. 05, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4066 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HARVEY L. COX, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:11-cr-00474-DCN-1) Argued: December 11, 2013 Decided: March 5, 2014 Before WILKINSON, DIAZ, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkin
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4066 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HARVEY L. COX, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:11-cr-00474-DCN-1) Argued: December 11, 2013 Decided: March 5, 2014 Before WILKINSON, DIAZ, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkins..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4066
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HARVEY L. COX,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:11-cr-00474-DCN-1)
Argued: December 11, 2013 Decided: March 5, 2014
Before WILKINSON, DIAZ, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wilkinson and Judge Thacker joined.
ARGUED: John Robert Haley, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, South Carolina, for Appellant. Peter
Thomas Phillips, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
DIAZ, Circuit Judge:
Harvey Cox pleaded guilty to possessing child pornography.
At sentencing, the district court determined that, as part of
the offense, Cox caused a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of that
conduct. Based on this determination, the court enhanced Cox’s
sentence under applicable provisions of the Sentencing
Guidelines. Cox appeals, arguing that the evidence was
insufficient to support the enhancement. Finding no error in
the district court’s sentencing calculations, we affirm.
I.
In early 2011, the Florence County, South Carolina,
Sherriff’s Office was investigating Cox regarding the sexual
assault of a minor. After authorities arranged a meeting with
him to discuss the investigation, Cox staged his own death. He
created the appearance that he had died while fishing off the
South Carolina coast--prompting the Coast Guard to conduct a
search--when in fact he had fled to Florida. After Cox’s
daughter, A.C., reported the ruse to authorities, the U.S.
Marshals Service arrested Cox in Florida and returned him to
South Carolina.
During the ensuing investigation, A.C. turned over to
authorities forty-six Polaroid photographs of a naked young
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girl, whom A.C. identified as Cox’s niece, M.G. A.C. informed
investigators that she discovered the photographs in Cox’s
bedroom and in his truck. On the back of each photograph was a
date, in Cox’s handwriting, ranging from June 2004 to December
2005. A.C. informed investigators that Cox had sexually abused
her when she was between the ages of ten and thirteen. The end
of this period coincided with the earliest dates on the
photographs of M.G. According to A.C., Cox would demand that
A.C. bring M.G. with her when A.C. came to stay with him, and
would require the girls to sleep in his bed.
Investigators interviewed M.G., who confirmed A.C.’s
account. M.G. acknowledged that she was the girl in the
photographs and reported that Cox took them beginning when she
was twelve years old. According to the PSR:
[M.G.] stated that Cox would give them (her and
[A.C.]) Crown Royal liquor and he would “put stuff in
their drinks to make them feel better.” She admitted
they had sexual intercourse, and he would masturbate
and ejaculate on her stomach after taking the
pictures. Cox also gave [M.G.] money and threatened
to “do it” to her little sister if she told anyone.
J.A. 136. The Florence County Sheriff’s Office executed search
warrants at Cox’s home and business, where they seized two
Polaroid cameras, as well as bedding observed in the
photographs.
A federal grand jury indicted Cox on three counts. Count I
charged that Cox “knowingly and willfully caused the Coast Guard
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to attempt to save a life and property when no help was needed,”
in violation of 14 U.S.C. § 88(c). J.A. 17. Count II charged
that Cox “knowingly did use, persuade, induce, and coerce a
person under the age of eighteen . . . to engage in sexually
explicit conduct . . . for the purpose of producing visual
depictions of such conduct,” in violation of 18 U.S.C. § 2251(a)
and (b). J.A. 18. Finally, Count III charged that Cox “did
knowingly possess material that contained images of child
pornography,” in violation of 18 U.S.C. § 2252A(a)(5)(b). J.A.
18.
While Cox was detained on these charges, his cellmate
turned over to authorities a letter Cox had given him to send to
A.C. In the letter, Cox instructed A.C. to “listen carefully
and practice what she has to say.” J.A. 136. The letter also
directed A.C. to testify at trial that she and M.G. took the
photographs themselves and that Cox knew nothing about them. In
return, Cox promised to support A.C. and M.G. financially. The
following week, Cox’s cellmate turned over another set of
letters intended for A.C., in which Cox stated that M.G.’s
uncle, “Jason,” took the photographs. These letters urged A.C.
and M.G. not to testify.
Cox subsequently pleaded guilty to Counts I and III of the
indictment pursuant to a plea agreement. Prior to sentencing, a
probation officer prepared the PSR. In calculating Cox’s
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Guidelines sentencing range, the probation officer applied
U.S.S.G. § 2G2.2, the section of the Sentencing Guidelines that
pertains to offenses that involve the possession of material
depicting the sexual exploitation of a minor. Section 2G2.2
includes a cross-reference, § 2G2.2(c)(1), which is triggered
“[i]f the offense involved causing . . . a minor to engage in
sexually explicit conduct for the purpose of producing a visual
depiction of such conduct.” In applicable cases, the cross-
reference instructs the court to apply § 2G2.1--which ordinarily
pertains to offenses involving the production of sexually
explicit material--if application of that section would result
in a higher adjusted offense level than would § 2G2.2. Finding
these conditions satisfied, the probation officer applied the
cross-reference.
Application of § 2G2.1 resulted in an adjusted offense
level of 40 for Count III, a thirteen level increase over what
would have resulted from applying § 2G2.2. Based in part on
this computation, the probation officer calculated Cox’s overall
offense level as 41, which, coupled with a criminal history
category of III, yielded an advisory Guidelines range of 360
months’ to life imprisonment.
Cox objected to the application of the cross-reference,
contending that there was insufficient evidence to support a
finding that he acted “for the purpose of producing a visual
5
depiction” of sexually explicit conduct. J.A. 128. The
district court overruled Cox’s objection. It found that the
photographs themselves and the information in the PSR confirmed
that Cox had the requisite purpose. The district court thus
applied the cross-reference, but recalculated Cox’s Guidelines
range based on other, unrelated objections Cox had raised. This
calculation produced a range of 262 to 327 months’ imprisonment,
capped at 300 months by an applicable statutory maximum. The
court sentenced Cox to concurrent prison terms of 60 months on
Count I and 240 months on Count III.
II.
A.
On appeal, Cox challenges the procedural reasonableness of
his sentence. Specifically, he argues that the district court
miscalculated his advisory Guidelines range by improperly
applying the U.S.S.G. § 2G2.2(c)(1) cross-reference.
We review the reasonableness of a sentence under a
deferential abuse-of-discretion standard, “first ensur[ing] that
the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). In assessing the district court’s calculation of the
Guidelines range, we review its legal conclusions de novo and
6
its factual findings for clear error. United States v. Medina-
Campo, 714 F.3d 232, 234 (4th Cir.), cert. denied,
134 S. Ct.
280 (2013). “Clear error occurs when . . . the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v.
Harvey,
532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation
marks omitted). “Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence . . . .” United States v. Benkahla,
530 F.3d 300, 312
(4th Cir. 2008). “[T]he traditional rules of evidence are not
applicable to sentencing proceedings,” and the “court may give
weight to any relevant information before it, including
uncorroborated hearsay, provided that the information has
sufficient indicia of reliability to support its accuracy.”
United States v. Wilkinson,
590 F.3d 259, 269 (4th Cir. 2010).
B.
Cox pleaded guilty to violating 18 U.S.C. § 2252A(a)(5)(b),
an offense governed by § 2G2.2 of the Sentencing Guidelines. As
previously noted, § 2G2.2 includes a cross-reference, which
provides as follows:
If the offense involved causing, transporting,
permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit
conduct for the purpose of producing a visual
depiction of such conduct[,] . . . apply § 2G2.1 . . .
if the resulting offense level is greater than that
determined [under § 2G2.2].
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U.S.S.G. § 2G2.2(c)(1) (emphasis added).
Cox contends that there was “no evidence presented” to
support a finding that he acted for the purpose of producing a
visual depiction of sexually explicit conduct. Appellant’s Br.
at 6. He argues that the district court instead based its
application of the cross-reference solely on the “existence of
photographs,” which he believes is impermissible. Id. at 8.
Although Cox does not dispute that he caused M.G. to engage in
sexually explicit conduct, or that he photographed that conduct,
he contends that production of the photographs was not a
“central component of the sexual encounters.”
Id. at 9.
1.
In addressing Cox’s argument, we begin by analyzing the
meaning of the cross-reference’s “purpose” requirement. The
application note accompanying § 2G2.2 emphasizes that the cross-
reference “is to be construed broadly.” U.S.S.G. § 2G2.2 cmt.
n.5. Consistent with this guidance, two circuits that have
considered the meaning of virtually identical cross-references
in other sections of the Sentencing Guidelines have held that
“purpose” does not mean “primary purpose.” In United States v.
Hughes, the Ninth Circuit explained that, “[i]n ordinary usage,
doing X ‘for the purpose of’ Y does not imply that Y is the
exclusive purpose.” 282 F.3d 1228, 1231 (9th Cir. 2002).
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Partly for this reason, the court held that a defendant “cannot
immunize himself from the operation of [the cross-reference]
merely by demonstrating that he had an additional reason other
than the creation of . . . photographs for causing [the victim]
to engage in sexually explicit conduct.” Id. Relying on
Hughes, the Seventh Circuit similarly concluded in United States
v. Veazey that “the cross-reference applies when one of the
defendant’s purposes was to create a visual depiction,”
regardless of “whether that purpose was the primary motivation
for the defendant’s conduct.”
491 F.3d 700, 707 (7th Cir.
2007).
We agree with our sister circuits that the cross-
reference’s purpose requirement is satisfied anytime one of the
defendant’s purposes was to produce a visual depiction of the
sexually explicit conduct. In other words, producing the
depiction need not be the defendant’s sole, or primary, purpose.
This construction is fully consistent with the cross-reference’s
text, and any other reading would violate the application note’s
instruction that the cross-reference be “construed broadly.”
Accordingly, we reject Cox’s contention that the cross-reference
applies only when creation of a visual depiction is the “central
component of the sexual encounter[].” See Appellant’s Br. at 9.
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2.
On these facts, we have little trouble concluding that the
district court’s application of the cross-reference was proper.
Contrary to Cox’s assertions, the district court did not base
its application of the cross-reference solely on the existence
of the photographs. Rather, to support its finding that the
cross-reference’s purpose requirement was satisfied, the
district court specifically referred to paragraphs 11, 12, and
13 of the PSR. Those paragraphs recounted evidence that Cox
took the photographs of M.G. after having sex with her; provided
her with alcohol and money and threatened to abuse her younger
sister; and both dated the photographs and retained them for as
many as seven years. Additionally, the district court noted
Cox’s attempts to convince A.C. to lie about the photographs’
origins.
We agree with the district court that the evidence
presented in the PSR “corroborate[s]” that Cox’s purpose was to
produce a visual depiction of the sexually explicit conduct.
See J.A. 101. The production of the photographs--all of which
are sexually explicit--was part and parcel of Cox’s sexual
exploitation of M.G., lending strong support to the conclusion
that producing the images was at least one of his purposes in
abusing her. Given that Cox also took the photographs over a
series of encounters, dated them, and retained them after the
10
encounters, the evidence was plainly sufficient to support
application of the cross-reference.
The cases Cox cites do not help him. Cox principally
relies on the Third Circuit’s decision in Crandon v. United
States, 173 F.3d 122 (3d Cir. 1999). In Crandon, however, the
court held only that a district court must make “some inquiry”
into the defendant’s purpose before applying the cross-
reference.
Id. at 130 (emphasis added). Here, the district
court expressly found that Cox’s purpose was to produce a visual
depiction of sexually explicit conduct, and it based that
conclusion on a number of facts reported in the PSR. See J.A.
102 (“I think the evidence shows he persuaded, he enticed, he
induced, perhaps coerced, if you believe the threats. And
permitted [M.G. to engage in sexually explicit conduct]. . . .
for the purpose of producing a visual depiction of th[at]
conduct . . . .”). While some of the other cases Cox cites
arguably involved more evidence of such a purpose than was
present here, none purport to establish a minimum evidentiary
threshold. *
*
Nor do we do so here. Specifically, we need not determine
whether the mere fact that a defendant produced sexually
explicit photographs of a minor, without more, may support
application of the cross-reference.
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In sum, we discern no error in the district court’s
application of the cross-reference and conclude that Cox’s
sentence is procedurally reasonable.
III.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED
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