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Decided: March 5, 2014

The Fourth Circuit held that the United States District Court for the District of South Carolina did not commit error by applying a cross-reference to Harvey Cox’s (Cox) sentence pursuant to § 2G2.2(c)(1) of the Sentencing Guidelines (U.S.S.G.).  The Fourth Circuit therefore found Cox’s sentence to be procedurally reasonable and affirmed the judgment of the district court.

In 2011, Cox was arrested during the course of an investigation concerning the sexual assault of a minor.  After Cox’s arrest, A.C.—Cox’s daughter—turned over forty-six Polaroid photographs of a naked young girl to authorities.  A.C. identified the girl in the pictures as M.G.—Cox’s niece—and told investigators that she found the photos in Cox’s truck and bedroom.  Each photograph was marked with a date, written in Cox’s handwriting; the dates ranged from June 2004 to December 2005.  When investigators interviewed M.G., she verified that she was the girl in the photos.  The PSR reiterated evidence that, inter alia, Cox photographed M.G. after having sexual intercourse with her; that Cox gave M.G. alcohol and money; that Cox threatened to “do it” to M.G.’s little sister if M.G. disclosed the sexual abuse; and that Cox kept the photos of M.G. “for as many as seven years.”  While Cox was in jail prior to the adjudication of his case, he wrote letters to A.C.; in one letter, Cox instructed A.C. to lie about the origins of the photos.

Cox pleaded guilty to, inter alia, knowingly possessing material containing images of child pornography, a violation under 18 U.S.C. § 2252A(a)(5)(B).  When preparing the PSR, a probation officer applied U.S.S.G. § 2G2.2 in the calculation of Cox’s sentencing range.  A cross-reference to this section, § 2G2.2(c)(1), applies “[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.”  When the cross-reference is applicable, it advises the court to apply a different section, § 2G2.1, if this section would result in the imposition of an adjusted offense level greater than the relevant adjusted offense level under § 2G2.2.  The probation officer found the cross-reference applicable to Cox’s case; the application of § 2G2.1 instead of § 2G2.2 resulted in an increase of thirteen offense levels.  Cox objected, arguing that there was not sufficient evidence to support a finding of acting “for the purpose of producing a visual depiction of [sexually explicit conduct].”  The district court overruled the objection and applied the cross-reference.  Cox appealed, challenging his sentence’s procedural reasonableness.  On appeal, Cox argued that, while he “caus[ed] . . . a minor to engage in sexually explicit conduct” and took photographs of the sexually explicit conduct, production of his photos was not a “central component of the sexual encounters.”  Cox also asserted that the district court’s only basis for applying the cross-reference was the “existence of the photographs”—and argued that this basis is impermissible.

The Fourth Circuit first noted that the “purpose” requirement in the relevant cross-reference “is to be construed broadly,” U.S.S.G. § 2G2.2 cmt. n.5, and found that the purpose requirement “is satisfied anytime one of the defendant’s purposes was to produce a visual depiction of the sexually explicit conduct.”  The Fourth Circuit then found that the district court did not use the existence of the photos as the sole basis for applying the cross-reference: rather, the district court relied on evidence recounted in the PSR, as well the instructions Cox sent to A.C. from jail.  The Fourth Circuit also found that the evidence reiterated in the PSR corroborated Cox’s purpose—to produce visual depictions of sexually explicit conduct.  The Fourth Circuit therefore did not reach the question of whether the mere production of sexually explicit photos involving minors can, without more, support the application of the relevant cross-reference.

Full Opinion

– Stephen Sutherland