USA v. Jacob Dominic Vandyke

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11268
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOB DOMINIC VANDYKE,
a.k.a. Quicksmoke024,
a.k.a. Trey Penny,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 23-11268
D.C. Docket No. 9:22-cr-80127-DMM-2
____________________
____________________
No. 23-11794
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOB DOMINIC VANDYKE,
a.k.a. Quicksmoke024,
a.k.a. Trey Penny,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cr-80127-DMM-2
____________________
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23-11268 Opinion of the Court 3
Before W ILLIAM P RYOR , Chief Judge, and N EWSOM and A NDERSON ,
Circuit Judges.
PER CURIAM:
Jacob Vandyke appeals his sentence of 160 months of impris-
onment and a term of 15 years of supervised release imposed after
he pleaded guilty to conspiring to distribute and to distributing
child pornography. 18 U.S.C. § 2252A(a)(2), (b)(1). Vandyke argues
that the district court erred by relying on commentary to the Sen-
tencing Guidelines to calculate the number of images attributable
to him and failed to adhere to Kisor v. Wilkie, 139 S. Ct. 2400 (2019),
and United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc).
United States Sentencing Guidelines Manual § 2G2.2(b)(7), cmt.
n.6(B)(ii) (Nov. 2021). He also argues that his sentence is unreason-
able. We affirm.
I. BACKGROUND
Vandyke agreed to plead guilty to one count of conspiring
to distribute and four counts of distributing child pornography. 18
U.S.C. § 2252A(a)(2), (b)(1). In his factual proffer, Vandyke admit-
ted that between September 21 and October 10, 2021, an under-
cover Homeland Security Investigations task force officer entered
and monitored a chatroom in which users shared photographs and
videos of and facilitated access to child pornography. The cha-
troom administrator invited new users and posted the chatroom
rules each time a new user entered. The rules stated that the cha-
troom “is extreme and 13 down,” referring to the age of the chil-
dren being sexually abused, and required each user to post at least
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4 Opinion of the Court 23-11268
three videos containing child pornography or they would be re-
moved for inactivity. Users posted images and videos depicting the
sexual abuse of young children on a daily basis.
Vandyke admitted that on September 26, 2021, he entered
the chatroom as “Quicksmoke024” using the name “Trey Penny.”
“Quicksmoke024” immediately posted three videos in the cha-
troom. Over the next 11 days, “Quicksmoke024” posted several
videos and photographs depicting the sexual abuse of children as
young as three years old. After law enforcement determined that
“Quicksmoke024” used an e-mail address and internet protocol ad-
dresses assigned to Vandyke in Michigan, Vandyke was arrested at
his residence in Florida. Vandyke admitted in a recorded post-arrest
interview that he posted the videos and photographs in the cha-
troom under the username “Quicksmoke024.” An examination of
his phone revealed 12 videos depicting the sexual abuse of real chil-
dren between approximately four years old to young teens. His
phone also contained four computer-generated videos and over
450 images of cartoon child sexual abuse material, including bond-
age, bestiality, and incest of children ranging from infants to young
teens.
Vandyke’s presentence investigation report provided a base
offense level of 22, U.S.S.G. § 2G2.2(a)(2), added two levels because
the material involved prepubescent minors, id. § 2G2.2(b)(2),
added five levels because the material was distributed in exchange
for valuable consideration, id. § 2G2.2(b)(3)(B), added four levels
because the material portrayed violent conduct or sexual abuse of
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23-11268 Opinion of the Court 5
an infant, id. § 2G2.2(b)(4), added two levels for using a computer
to distribute the material, id. § 2G2.2(b)(6), added five levels be-
cause the offense involved 600 or more images, id. § 2G2.2(b)(7),
and subtracted three levels for acceptance of responsibility, id.
§ 3E1.1. With a total offense level of 37 and a criminal history cat-
egory of I, Vandyke’s advisory guideline range was 210 to 262
months of imprisonment.
Vandyke objected to the number of images. He argued that
because “image” in section 2G2.2 unambiguously meant that one
video equaled one image, the district court could not defer to the
commentary that instructs that one video equals 75 images, id.
§ 2G2.2, cmt. n.6(B)(ii). The government responded that the dis-
trict court owed deference to the ratio because “image” was genu-
inely ambiguous when determining how many images were con-
tained within a video, and the ratio was not arbitrary but reflected
the fair and considered judgment of the Sentencing Commission.
At sentencing, the district court overruled Vandyke’s objec-
tion and adopted the presentence report. The district court ruled
that the 75:1 ratio was not arbitrary and that the Sentencing Com-
mission adequately explained its reasoning and acted within its ca-
pacity. Vandyke requested a sentence of 120 months based on the
statutory sentencing factors, 18 U.S.C. § 3553(a), and argued that
his personal characteristics favored a lower sentence, including his
age of 25 years, having repaired several familial relationships, hav-
ing an infant daughter to raise with his ex-fiancée, and having a
codefendant, Johnathan Fleak, who was sentenced to 180 months
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6 Opinion of the Court 23-11268
for more extensive criminal conduct. Vandyke allocuted and ex-
pressed remorse for his conduct.
The district court sentenced Vandyke to 160 months of im-
prisonment followed by 15 years of supervised release. The district
court stated that it had considered the statutory sentencing factors,
the most important of which were the seriousness of the crime and
the need to provide adequate deterrence for a harmful crime. The
district court also stated that it considered Vandyke’s personal char-
acteristics and psychological report and the disparity between his
and Fleak’s conduct. Vandyke objected to the procedural and sub-
stantive reasonableness of his sentence.
II. STANDARDS OF REVIEW
We review the interpretation and application of the Sentenc-
ing Guidelines de novo. Dupree, 57 F.4th at 1272. We review the rea-
sonableness of a sentence and weighing of the sentencing factors,
18 U.S.C. § 3553(a), for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007). The district court must “commit[] no significant
procedural error, such as failing to calculate (or improperly calcu-
lating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the cho-
sen sentence . . . .” Id. We will disturb “the sentence if, but only if,
we are left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United
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23-11268 Opinion of the Court 7
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal
quotation marks omitted).
III. DISCUSSION
Vandyke challenges his sentence on two grounds. First, he
argues that the term “images” in the guideline, U.S.S.G.
§ 2G2.2(b)(7), unambiguously means that one video equals one im-
age, so the district court erred by relying on the 75:1 ratio in the
commentary, id. § 2G2.2(b)(7), cmt. n.6(B)(ii), to hold him respon-
sible for over 600 images instead of 71 images, based on the 63 vid-
eos and eight still images that were distributed during his participa-
tion in the chatroom. Second, Vandyke argues that his sentence is
substantively unreasonable. We address both arguments in turn.
A. The District Court Did Not Err by Relying on Commentary to Hold
Vandyke Responsible for Over 600 Images of Child Pornography.
In 2003, Congress amended the guidelines to include an im-
age table that applies to child pornography offenses, id.
§ 2G2.2(b)(7). Prosecutorial Remedies and Tools Against the Ex-
ploitation of Children Today (PROTECT) Act of 2003, Pub. L. No.
108-21, 117 Stat. 650. The image table provides a two-level en-
hancement for 10 to 149 images; a three-level enhancement for 150
to 299 images; a four-level enhancement for 300 to 599 images; and
a five-level enhancement for 600 or more images. U.S.S.G.
§ 2G2.2(b)(7). Congress did not define “images” or instruct how
media formats other than still photographs should be tallied under
the table.
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8 Opinion of the Court 23-11268
As a result, the Sentencing Commission sought public com-
ment and conducted studies regarding these and other changes to
the guidelines. After receiving a range of suggestions—such as that
one video should equal one image and that each moving image
should result in an enhancement of two or three levels—the Com-
mission “determined that because each video contained multiple
images it should be counted as more than one image.” United
States Sentencing Commission, History of the Child Pornography
Guidelines, Oct. 2009, at 41–44, https://www.ussc.gov/sites/de-
fault/files/pdf/research-and-publications/research-projects-and-
surveys/sex-offenses/20091030_History_Child_Pornogra-
phy_Guidelines.pdf [https://perma.cc/23F6-4585]. Because of the
disproportionate results that would occur by counting each video
as a single image or by counting each frame of a video as a single
image, the Commission selected a ratio of 75 images to one video
to respect the penalty scale that Congress established. See id. The
adopted commentary instructs that each “photograph, picture,
computer or computer-generated image, or any similar visual de-
piction” shall count as one image, and each “video, video-clip,
movie, or similar visual depiction shall be considered to have
75 images” unless the recording is “substantially more than
5 minutes,” which may warrant an upward departure. U.S.S.G.
§ 2G2.2(b)(7), cmt. n.6.
In Kisor, the Supreme Court held that a district court should
defer to an agency’s interpretation of a regulation “only if a regula-
tion is genuinely ambiguous. . . . even after a court has resorted to
all the standard tools of interpretation.” 139 S. Ct. at 2414. We held
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23-11268 Opinion of the Court 9
in Dupree that Kisor’s clarification applies to the Sentencing Guide-
lines and that the commentary cannot deviate from an unambigu-
ous guideline. 57 F.4th at 1275, 1277.
The district court did not err by relying on this commentary
because the term “images” in the guideline is genuinely ambigu-
ous. See Kisor, 139 S. Ct. at 2414. The guideline does not define “im-
ages,” nor does it resolve how a video containing a sequence of
images should be tallied under the image table. See United States v.
Phillips, 54 F.4th 374, 383–84 (6th Cir. 2022). Nevertheless, Vandyke
argues that videos and photographs must be treated equally under
the guidelines because they are treated equally in the statutory def-
initions of “visual depiction” and “child pornography.” See 18
U.S.C. § 2256(5) (defining “visual depiction” as “includ[ing] unde-
veloped film and videotape, data stored on computer disk or by
electronic means which is capable of conversion into a visual im-
age . . . .”); id. § 2256(8) (defining “child pornography” as “any vis-
ual depiction, including any photograph, film, video, [or] pic-
ture . . . .”). But merely listing the types of qualifying visual depic-
tions provides no guidance about what Congress meant when it
said “images,” much less how it intended district courts to quantify
videos containing child pornography for sentencing purposes.
Vandyke insists that the guideline unambiguously means
that one video equals one image because the guideline does not
distinguish between “whether the visual image was still or mov-
ing.” This argument is contradicted by common sense and plain
meaning. By definition, a moving image or video contains more
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10 Opinion of the Court 23-11268
than one image. See Video, Oxford English Dictionary (2022)
(“video” means “a recording of moving visual images . . . in a digital
format”); Video, American Heritage at 1930 (5th ed. 2016) (“video”
means “[a] sequence of images processed electronically into an an-
alog or digital format and displayed on a screen with sufficient ra-
pidity as to create the illusion of motion and continuity”). Because
a video comprising multiple images plainly is not a single image,
Vandyke fails to establish that the guideline is unambiguous.
Vandyke alternatively argues that even if the guideline is
ambiguous, the commentary is not entitled to deference. See Kisor,
139 S. Ct. at 241–17. We need not address this argument. Van-
dyke’s only proposed interpretation—that we count each video as
one image—is plainly unreasonable. And Vandyke fails to explain
how any other method of counting all the images contained within
the 63 videos he is responsible for would not result in the applica-
tion of the same five-level enhancement for the involvement of at
least 600 images. See Fed. R. Crim. P. 52(a); United States v. Olano,
507 U.S. 725, 735 (1993) (explaining that for an error to have been
prejudicial, “[i]t must have affected the outcome of the district
court proceedings.”).
B. Vandyke’s Sentence is Substantively Reasonable.
The district court did not abuse its discretion by sentencing
Vandyke to 160 months of imprisonment. The district court rea-
sonably determined that the sentence was necessary to punish Van-
dyke for his participation in a “13 down” chatroom and for his dis-
tribution of images that “were worse than the average” and
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“unusually graphic,” as well as to afford deterrence. See 18 U.S.C.
§ 3553(a). Although the district court declined to impose Vandyke’s
requested sentence of 120 months, the district court still varied be-
low the guideline sentencing range of 210 to 260 months of impris-
onment by 50 months after considering his personal characteristics,
low-risk psychological assessment, and the disparity that would re-
sult if he received a longer sentence than Fleak, who was sentenced
to 180 months for more extensive criminal conduct. See id. Because
the district court did not fail to consider relevant factors that were
due significant weight, give significant weight to an improper or
irrelevant factor, or make a clear error of judgment, Vandyke failed
to establish that his sentence is substantively unreasonable. See Irey,
612 F.3d at 1189. Insofar as Vandyke argues that his sentence vio-
lates the Sixth Amendment because the district court enhanced his
sentence based on factual findings not made by a jury, he correctly
acknowledges that his argument is foreclosed by our precedent. See
United States v. Chau, 426 F.3d 1318, 1323–24 (11th Cir. 2005).
IV. CONCLUSION
We AFFIRM Vandyke’s convictions and sentence.
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