Wake Forest Law Review
14Oct

Fourth Circuit Affirms Sentencing Judgment

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by Katharine Yale

On October 10th in U.S. v. Stroud, the Fourth Circuit affirmed a judgment that revoked the defendant’s supervised release, ordered him to serve twenty-four months consecutively to any state sentence, and directed that he be given credit for the time that he was in federal detention prior to sentencing.

Under a plain error standard of review, the Fourth Circuit found no error in the district court’s sentencing decision.   The defendant did not meet his burden in proving that there was an error, that the error was clear, and that the error affected his substantial rights in that it affected the outcome of the district court proceedings.

The defendant argued that the district court compounded its error in ordering sentencing credit by selecting the wrong date to start calculating the credit.   The Fourth Circuit rejected this argument because the Attorney General (through the Bureau of Prisons, the “BOP”) is responsible for computing the sentencing credit for the time in detention prior to sentencing. The BOP will determine the amount of credit when it implements the defendant’s sentence. If the defendant does not agree with the credit, he can seek an administrative remedy, then file a petition if he is not happy with that result. Because the BOP would have the responsibility to calculate the amount of credit, the court found that there was no reason to vacate the district court’s judgment.

Further, the defendant argued that because his sentence was unreasonable, his counsel was ineffective. To bring this claim on direct appeal, the record must conclusively show that counsel was indeed ineffective. Here, the court held that the record did not make a conclusive showing on the issue and denied review.

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7Oct

Straight Up Guilty: Baltimore Officer’s Criminal Conspiracy Judgment Affirmed

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By Chad M. Zimlich

Today, in United States v. Manrich, the Fourth Circuit affirmed a judgment sentencing former Baltimore Police Department (“BPD”) Officer Kelvin Manrich to a forty-one-month prison sentence after previously vacating the original sentence and remanding the case back to the district court. United States v. Manrich, 529 F. App’x 322 (4th Cir. 2013) (No. 12-4624). Manrich returned to the Fourth Circuit questioning the calculation of loss (meaning the amount of monetary loss caused by his criminal conspiracy) used in his sentencing.

Manrich had entered a “straight up guilty plea” to a criminal conspiracy involving Hernan Moreno and Edwin Mejia, joint owners of the Majestic Auto Repair Shop, and seventeen additional BPD officers. When responding to the scene of a vehicular accident, Manrich would encourage the owner of the vehicle to have Majestic tow and/or repair the damaged vehicle. Moreno and Mejia would then pay Manrich, or one of the other BPD officers, a kickback of $250 to $300 for directing the victim to Majestic. Majestic would then repair the damage, and would also add damage in order to submit a higher insurance claim.

Manrich’s offense level, the numerical distinctions within the criminal sentencing guidelines, was eventually set at 24 due to the “foreseeable loss” amount costing between $70,000 and $120,000. Though Manrich questioned this determination on appeal, FBI Agent Robert Guynn had prepared data from witness testimony, plea agreements, and stipulated statements of facts by Manrich’s co-conspirators that substantiated the claim. The insurance companies had paid $63,971.95 in claims submitted into evidence, $48,966.96 of which was for fraudulent damage. Added to this were the kickbacks Manrich received (with his co-conspirators) totaling at least $37,000.

Though Manrich also questioned the reliability of the chart due to the co-conspirator’s testimony, this was resolved by the testimony of Agent Guynn. Additionally, the questions of foreseeability in this circumstance had already been answered in the previous appeal. As this was the only remaining issue, the Fourth Circuit affirmed.

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6Oct

Fourth Circuit Considers Motion to Withdraw Guilty Plea

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By Diana C. Castro

Today, in United States of America v. Gregory Lawrence Tropea, the Fourth Circuit Court of Appeals affirmed the decision of the District Court for the Eastern District of Virginia denying Defendant’s motion to withdraw his guilty plea.

Defendant Gregory Tropea pled guilty to three counts of receipt of child pornography, 18 U.S.C. § 2252A(a)(2) (2012), and one count of making a false statement to a probation officer, 18 U.S.C. § 1001 (2012). Consequently, Mr. Tropea was sentenced to 336 months in prison.

Arguing that he was unaware that by pleading guilty he was waiving his right to appeal the District Court’s denial of his motion to suppress evidence, Mr. Tropea appealed to the Fourth Circuit claiming that the District Court erroneously denied his motion to withdraw his guilty plea.

However, the Fourth Circuit Court determined that the District Court had complied with Fed. R. Crim. P. 11, Pleas. The Court noted that Mr. Tropea acknowledged he had read the plea agreement, understood it, and had reviewed it with his attorney. In the plea agreement, Mr. Tropea waived his right to appeal his conviction and sentence, and did not reserve the right to appeal the ruling on the motion to suppress. Moreover, at the Rule 11 hearing, defense counsel and the Assistant United States Attorney both stated that Mr. Tropea had not reserved the right to appeal the suppression ruling. Mr. Tropea, then having the opportunity to disagree, did not object.

Under United States v. Nicholson, a defendant does not have an “absolute right to withdraw a guilty plea.” 676 F.3d 376, 383-84 (4th Cir. 2012). Instead, the defendant must demonstrate a “fair and just reason” for withdrawal. Fed. R. Crim. P. 11(d)(2)(B); United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

Accordingly, the Fourth Circuit reviewed and held that the District Court had not abused its discretion because the District Court had properly conducted Mr. Tropea’s Rule 11 proceeding, and it had correctly applied the factors set forth in United States v. Moore. See United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003). The United States v. Moore factors applied include “(1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources.” 931 F.2d 245,
248 (4th Cir. 1991).

Noting that Mr. Tropea failed to offer any credible evidence that he pled unknowingly or involuntarily, the Fourth Circuit affirmed the District Court ruling denying Mr. Tropea’s motion to withdraw his guilty plea.

 

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4Oct

Affirms Felony Firearm Sentencing

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 By: Kaitlin Price

The Fourth Circuit, in United States of America v. Moody, affirmed the District Court’s 110-month sentence imposed in accordance with Defendant’s guilty plea to possession of a firearm by a convicted felon. The Fourth Circuit held that the District Court properly applied the U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B)(2013).

The Court explained that the Sentencing Guidelines allow a court to enhance a sentence under USSG § 2K2.1(b)(6)(B) when the possession of a firearm has the potential of facilitating another felony offense. This requirement for enhancement is satisfied “‘if the firearm had some purpose or effect with respect to the other offense,’” even if that purpose is protection. The commentary to the Sentencing Guidelines specifically explain that if a firearm is found within the proximity of drugs, then the enhancement requirement is satisfied because a firearm would have the potential to facilitate a drug-trafficking felony offense.

The record in United State of America v. Moody indicates that the firearm found satisfies the enhancement requirement and thus the 110-month sentence is affirmed. There was sufficient evidence of temporal proximity of possession of the firearms and the illegal activity because the evidence showed that the Defendant had purchased the gun a few days prior to when the police obtained it and the Defendant had conducted a drug sale the day before the police found the fire arm. Further, the argument that the Defendant possessed the gun for protection is not a valid defense in light of the fact the Defendant was a drug trafficker. The firearm and marijuana were located in the same closet in the Defendant’s residence. The Court concluded this fact further strengthened the nexus between the Defendant’s firearm possession and drug activity because the presence of the firearm empowered the Defendant to use his residence for drug trafficking by offering him protection.

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1Oct

Fourth Circuit Affirms Reasonableness of Revocation Sentence

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By: Patrick Southern

Today, in United States v. Jeter, the Fourth Circuit affirmed a twenty-four month sentence imposed by the United States District Court for the District of South Carolina pursuant to the revocation of the appellant’s supervised release. On appeal, Jeter argued his sentence was procedurally unreasonable and that the district court’s explanation of the sentence was insufficient. In an unpublished per curiam opinion, the Fourth Circuit rejected both arguments.

Citing its 2006 decision in United States v. Crudup, 461 F.3d 433, the Fourth Circuit indicated it will affirm a revocation sentence that falls within the statutory maximum unless it finds the sentence to be “plainly unreasonable.” The analysis of whether a revocation sentence is reasonable is the same as that employed to review original sentences. Thus, a sentence must be procedurally or substantively unreasonable to qualify as “plainly” unreasonable.

A sentence is procedurally reasonable so long as the district court considers applicable factors under 18 U.S.C. § 3553(a) and policy statements contained in chapter seven of the United States Sentencing Guidelines Manual. The pertinent portion of the Sentencing Guidelines provides that “the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.”

The court noted the underlying policy goal behind such sentences is not to punish new criminal conduct, but instead to penalize a defendant’s failure to comply with court-ordered terms of supervision. A district court “may not impose a revocation sentence based predominately on the seriousness of the releasee’s violation or the need for the sentence to promote respect for the law and provide just punishment.”

However, the Fourth Circuit held that the fact the district court made reference to those considerations in its explanation of Jeter’s revocation sentence did not render that sentence “procedurally unreasonable” when such discussion was relevant to its § 3553(a) analysis. Importantly, a district court has broad discretion to impose a sentence up to the statutory maximum. The Fourth Circuit found the aforementioned requirements had been met, and thus held that the sentence imposed on Jeter by the district court was procedurally reasonable.

Regarding Jeter’s argument that the district court’s explanation of his sentence was insufficient, the court noted that while the explanation was brief and conclusory, it was nonetheless sufficient because the court recognized Jeter’s failure to comply with the conditions of his supervised release and Jeter was sentenced at the bottom of the range provided for in the Sentencing Guidelines. While the district court is required to provide an explanation for its chosen revocation sentence, the explanation does not have to be as detailed or specific as that which would accompany an original sentence. Thus, Jeter’s twenty-four month sentence was affirmed.

 

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26Sep

Right to Appeal Validly Waived in Exchange for Forbearance from Enhanced Sentencing

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By Lauren D. Emery

Today in United States v. Eades, the Fourth Circuit considered Kevin Eades’s appeal from the district court’s judgment sentencing him to 120 months in prison after pleading guilty to possession of a firearm by a convicted felon.  The court also ruled on the Government’s motion to dismiss which claimed that Eades had agreed to waive his appellate rights during his sentencing.  In a per curiam opinion, the court dismissed the appeal in part–to the extent that Eades contested his sentence–and affirmed in part–because Eades’s ineffective assistance of counsel claim was beyond the scope of the waiver.

First, Eades contended that his waiver of the right to appeal, agreed to at his sentencing, was voidable for lack of consideration. The court rejected this argument saying that, “Eades received valuable consideration when the Government, in good faith, forbore its pursuit of the Armed Career Criminal sentencing enhancement.”  Furthermore, the court declared that the Government’s refusal to pursue such enhanced sentencing does not render the waiver void for illegal consideration.  In contrast to United States v. Williams, 488 F.3d 1004, 1011 (D.C. Cir. 2007), which held that the Government couldn’t agree to plea bargains that circumvented mandatory minimum sentences, the government may lawfully forbear from pursuing enhanced sentencing.

Second, Eades argued that he did not knowingly and intelligently waive his right to appeal.  After examining the totality of the circumstances, the court rejected this argument as well.  The court cited the district court’s explanation of the implications of  waiver at Eades’s sentencing and the fact that Eades confirmed two times that the understood the implications of the waiver. Therefore, the court dismissed Eades’s appeal to the extent that it challenged his sentence and the validity of his plea because it was barred by waiver.

Finally, Eades claimed that his trial court counsel was ineffective for advising him to agree to the appeal waiver.   The court found that this claim was not barred by waiver and therefore need not  be dismissed. Instead, it declared that these claims must be brought under 28 U.S.C. § 2255 to allow for the development of the record as to that issue.

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26Sep

Under the ACCA, Predicate Convictions Add Up Through Consolidated Judgments

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By: Steven Franklin

Today, in United States v. Carr, the Fourth Circuit held that a defendant can receive the requisite number of Armed Career Criminal Act (“ACCA”) predicate convictions through a consolidated criminal judgment.

A jury found Antoine Charles Carr guilty of possession of a firearm and ammunition by a convicted felon, and possession of cocaine base.  Mr. Carr received a 210-month sentence due to a sentencing enhancement under the ACCA. On appeal, Mr. Carr argued that, because he had multiple convictions that fell under one sentence, he did not have the three predicate convictions necessary for the ACCA to apply.

Under 18 U.S.C. § 924(e)(1), a defendant is considered an armed career criminal if he has “three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Similarly, under the U.S. Sentencing Guidelines Manual  § 4B1.1(a), a defendant will not be considered a career offender unless two of the convictions have sentences that are counted separately.

However, there is no such language under the ACCA. It simply requires three predicate “convictions.” Mr. Carr attempted to argue that “conviction” and “sentence” are materially indistinguishable, but the Court found this unpersuasive and affirmed the trial court’s decision.

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25Sep

Bank Robber’s Mental Health Diagnosis Not Enough for a Reduced Sentence

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By Evelyn Norton

Today, in United States v. Seburn,  the Fourth Circuit affirmed the decision of the United States District Court for the Eastern District of North Carolina that found Dellonte Rashaun Seburn guilty of bank robbery.

Despite Seburn’s request for a reduced sentence, the district court sentenced Seburn to 132 months’ imprisonment. On appeal, Seburn filed a pro se supplemental brief arguing that the district court erred in failing to adequately consider his request for a reduced sentence based on his recent mental health diagnosis.

In reviewing the district court’s decision for reasonableness, the Fourth Circuit found no procedural or substantive sentencing error.  First, the district court correctly calculated Seburn’s advisory sentencing range as fifty-seven to seventy-one months’ imprisonment.  Second, the district court properly imposed an upward departure sentence of 132 months because of the inadequacy of Seburn’s criminal history category. The district court’s  calculations were in accordance with U.S. Sentencing Guidelines Manual §4A1.3(a).

Furthermore, the Fourth Circuit concluded that the district court did properly acknowledge Seburn’s mental health issues. However, the district court determined that a 132 months’ imprisonment was appropriate considering the seriousness of the offense, Seburn’s history and characteristics, and the need to protect the public.  Thus, the Fourth Circuit held that the district court did not err and affirmed Seburn’s conviction and sentence.

The Fourth Circuit required that counsel for Seburn inform him of the right to petition the Supreme Court of the United States for further review.

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23Sep

Reasonable Sentence for Drug Dealer

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By Chad M. Zimlich

Today, in the case of United States v. Mitchell, the Fourth Circuit ruled on the reasonableness of a sentence handed down by the Eastern District of North Carolina. Mr. Jeromey Keith Mitchell pleaded guilty to “conspiracy to distribute and to possess with intent to distribute 280 grams or more of cocaine base, six counts of distributing cocaine base, and one count of possession with intent to distribute cocaine base.” The court sentenced him to 22 years in prison.

Mitchell filed an appeal, arguing that the sentence was “substantively unreasonable.”

In reviewing whether a criminal sentence is reasonable or not, the court uses an “abuse of discretion” standard. First the court must examine any glaring procedural errors, and second the court examines the “totality of the circumstances” viewed in the light most favorable to the district court and its decision.

In examining the district court’s calculation of the defendant’s Guidelines range, the Fourth Circuit determined that the actual Guidelines range for Mitchell was 292 to 365 months. The district court’s sentence of 22 years, or 264 months, was 28 months below the low-end of the spectrum, and well within their authority in the realm of reasonableness.

Furthermore, the Fourth Circuit felt the district court’s use of the factors under 18 U.S.C. § 3553(a) in assessing an appropriate sentence based on the “totality of the circumstances” was founded on a thorough, individualized assessment of Mitchell’s case. The district court did not abuse its discretion, and the Fourth Circuit therefore affirmed Mitchell’s sentence.

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4Apr

4th Circuit Denies Plainly Unreasonable Prison Sentence

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By Kim Sokolich

This week, in an unpublished opinion, the Fourth Circuit Court of appeals rejected  appellant’s argument that that a twenty-four sentence prison term was “plainly unreasonable” when exchanged for supervised release.

James Thomas Lynwood Johnson was supposed to receive a supervised release sentence, when the District Court of Eastern North Carolina revoked this sentence in exchange for a twenty-four month prison term. Johnson challenged this sentence, arguing that it was plainly unreasonable. Normally, a district court has broad discretion to revoke supervised release in exchange for a prison sentence. Under the precedent set by United States v. Crudup, this sentence will be affirmed if the sentence is within the statutory mandatory minimum and not “plainly unreasonable.”

A supervised release revocation must be both procedurally and substantively reasonable to meet the plainly reasonable standard. Supervised release revocation is procedurally reasonable if it meets the sentencing guidelines set forth by 18 U.S.C. §3553(a). However, unlike the standard for simple prison sentencing, revocation does not have to explain the reasons for imposing a revocation sentence in detail. The court however, must still provide a simple statement of the reasons for the sentence imposed. A revocation sentence is substantially reasonable if the district court has stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory minimum. Only one of the these standards must fail for a sentence to be found plainly unreasonable.

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15Mar

Substantive and Constitutional Challenge to Use of NCIC Report for Enhanced Sentencing

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By Karon Fowler

In 2010, Drug Enforcement Agency (DEA) agents sent an undercover informant to buy fifteen bundles of heroin from a distributor associated with defendant Ernest James McDowell, Jr.  McDowell was eventually busted for dealing and the cops discovered a firearm while searching his apartment. In March 2011, McDowell pled guilty without a plea agreement to one count of possession of heroin with intent to distribute and one count of being a felon in possession of a firearm.

McDowell’s probation officer prepared a presentence report (PSR) with an increased recommended sentence on the ground McDowell as an “armed career criminal” pursuant to the Sentencing Guidelines and defined by the Armed Career Criminal Act (ACCA). Under the ACCA, a felony convicted of unlawfully possessing a firearm after committing three “violent felon[ies]” or “serious drug offense[s]” must be sentenced to a term of fifteen years to life imprisonment.

The probation officer concluded that three of McDowell’s prior convictions qualified as “violent felonies” under the ACCA. The first two convictions were evidenced by formal court judgments, but for the third conviction, the Government relied on a criminal record check obtained from the National Crime Information Center (NCIC) database. The database listed a 1971 conviction in the Bronx for second degree assault.

At McDowell’s sentencing hearing, he objected to the probation officer’s reliance on the NCIC report to establish the existence of the 1971 assault conviction. The Government conceded that a certified court record of the conviction was “no longer available,” but insisted that NCIC reports are sufficiently reliable to evidence McDowell’s commission of the crime.

McDowell’s first argument on appeal was that the NCIC report cannot establish the fact of the 1971 conviction. His specific concerns pertained to the reliability of the NCIC reports in general and his report in particular. However, the Circuit explained that every court of appeals to address a similar argument in a published opinion has rejected it and instead concluded that a district court may use the NCIC report to establish the fact of a prior conviction.

The Circuit stated that McDowell failed to provide any evidence to suggest that the NCIC database is inaccurate with significant frequency. McDowell was only able to provide “anecdotal evidence of a 99.5% accuracy rate,” which obviously failed to establish firm unreliability. In fact, it cuts against his argument and tends to prove the database significantly more reliable than not. Moreover, the NCIC reports are used extensively throughout the criminal justice system. Courts use the system to make bail and pretrial release decisions, while prosecutors rely on the reports at trial to impeach the witnesses.

Even if the reports are generally reliable, McDowell alternatively contends that the specific report at issue in his case is such a blatantly unreliable document that the district court clearly erred it allowing its use. The inaccuracies of his report include his incorrect name and birthday. He also points to the passage of 40 years since the alleged assault conviction, which he suggests increases the unreliability of the information. Nevertheless, the Government provided sufficient explanation of each supposed defect in the report.

The NCIC report includes any names and birthdays provided by the defendant upon arrest, including alias and falsely provided information. More specifically, the Government illustrated that McDowell had been convicted of other crimes in the Bronx under the alias “Michael” within the same time frame of the supposed assault conviction. The Government also stated that if the 1971 conviction were false as McDowell now alleges, he would have sought to challenge it during his 1983 federal crime conviction which would have included a criminal background check.

Although these explanations do not fully resolve the possible unreliability of the NCIC report, they sufficiently substantiated the report’s information for the district court to conclude by a preponderance of the evidence that McDowell committed the 1971 crime. The Circuit refused to hold that a contested NCIC report standing alone would always suffice to establish the fact of a prior conviction. The court, in limited fashion, only held that the district court did not clearly err in finding that McDowell’s NCIC report in conjunction with the corroborative evidence supplied by the Government, established the existence of the 1971 assault by a preponderance of the evidence.

McDowell also challenged the use of the NCIC report on constitutional grounds. He argued that the district court violated his Sixth Amendment right to a jury decision on each element of his offense beyond a reasonable doubt. Under the Sixth Amendment, it is usually required that any fact raising the statutory penalty for a crime “be submitted to a jury, and proved beyond a reasonable doubt.” However, there is an exception to the general rule whereby a jury need not find the “fact of a prior conviction” beyond a reasonable doubt. Instead, a judge may find the fact of a prior conviction by the lower preponderance of the evidence standard, even if it raises the statutory maximum or minimum penalty for the offense. This exception was articulated in the U.S. Supreme Court’s Almendarez-Torres decision. The Fourth Circuit explains that although some recent U.S. Supreme Court jurisprudence has cast doubt on the strength of the Almendarez-Torres exception, it remains good law that the Fourth Circuit will follow.

However, the Circuit acknowledged the distinctions between McDowell’s claim and the defendant’s claim in Almendarez-Torres. Unlike Almendarez-Torres, McDowell did not concede that his prior conviction in fact occurred. Moreover, there was no assurance that the alleged 1971 conviction arose pursuant to proceedings with substantial procedural safeguards of their own that would mitigate McDowell’s constitutional concerns. Thus, McDowell’s claim “untethers the exception from its justifications and lays bare the exception’s incompatibility with constitutional principles that are by now well settled.”

Nevertheless, the court explains that the law as it currently stands provides that the district court may find the fact of a prior conviction by a preponderance of the evidence. Under that standard, the district court did not clearly err in its conclusion that McDowell committed the 1971 crime for purposes of the PSR recommendation.

The NCIC database may be found at http://www.fbi.gov/about-us/cjis/ncic/ncic.

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6Mar

Purpose v. Primary Purpose- 4th Circuit Analyzes Federal Sentencing Guideline §2G2.2

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 By Kim Sokolich

Today, in United States v. Cox, the 4th Circuit rejected the argument that United States Sentencing Guideline §2G2.2, governing possession of material depicting sexual exploitation of a minor, requires some sort of heightened evidence that the possession was for the “primary purpose” of producing a visual depiction of such conduct.

According to the South Carolina, Florance County Sheriff’s office, Harvey Cox had long been molesting his minor niece, M.G. When M.G. was twelve years old, Cox began to sexually abuse her and photograph the events. Cox would give M.G. money and would threaten her not to tell anyone. Authorities obtained forty-six Polaroid sexually explicit photographs of M.G. with Cox.  On the back of each photograph was a date written in Cox’s handwriting, ranging from June 2004 to December 2005.  In 2011, after getting caught faking his own death, Cox pled guilty to a violation of 18 U.S.C. 2251(a) for knowingly possessing material that contained images of child pornography.

In calculating Cox’s Guidelines sentencing range, Cox’s probation officer applied §2G2.2, which is only triggered if “the offense causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.The application of this section would result in a higher adjusted offense. Over Cox’s objection, the district court sentenced Cox to 300 concurrent months in prison. Cox appealed.

On appeal, Cox argues that the district court miscalculated his sentencing guidelines range by applying §2G2.2. Specifically, Cox argues that there was no evidence to support a finding that he acted for the purpose of producing pictures of sexually explicit conduct. Cox argues that the photographs taken were not sufficient evidence under §2G2.2, because he did not intent to produce photographs as a “central component of the sexual encounters.” The 4th Circuit was not impressed by this argument.

The Court first addressed the “purpose” requirement under §2G2.2. Following the standard set by the Ninth Circuit in the 2002 case, U.S. v. Hughes, purpose is to be construed broadly and does not mean primary purpose. “In ordinary usage, doing X ‘for the purpose of’ Y does not imply that Y is the exclusive purpose.” Thus Cox cannot immunize himself by stating that he had another reason to sexually abuse his niece. Therefore, the Court found that the “purpose requirement under the Federal Sentencing Guidelines is satisfied as long as at least one of the defendant’s purposes was to produce the visual depiction of sexually explicit conduct.

With that reasoning, the Court had no trouble concluding that the evidence of the photographs with the handwritten dates on them was enough evidence to support the purpose requirement. Judgement affirmed.

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