United States of America v. Robert Haggerty

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________________
No. 23-2084
_______________________
UNITED STATES OF AMERICA
v.
ROBERT HAGGERTY,
Appellant
_______________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-22-cr-00015-001
District Judge: Honorable J. Nicholas Ranjan
__________________________
Argued April 16, 2024
Before: HARDIMAN, SMITH, and FISHER,
Circuit Judges
(Filed: July 9, 2024)
Samantha Stern [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue

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1500 Liberty Center
Pittsburgh, PA 152220
Counsel for Appellant
Adam N. Hallowell [ARGUED]
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
____________________________
OPINION OF THE COURT
____________________________
SMITH, Circuit Judge.
I. I NTRODUCTION
In imposing a sentence on a defendant who has been
found guilty of a child pornography-related offense, a district
judge is required, under the United States Sentencing
Guidelines, to enhance the applicable Guideline Sentencing
range based on the number of “images” “involved” in the
offense. Specifically, under U.S.S.G. § 2G2.2(b)(7)’s
graduated sentencing enhancement scheme, that defendant’s

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Guideline Sentencing range may be enhanced by up to five
levels based on the number of images involved.
The calculus is a simple one where the pornographic
matter consists only of “still” images. But what about when a
moving image—that is, a video—is involved in an offense?
The Guideline itself does not answer that question. So may the
judge look to the Commentary to the Guideline, which
specifies that each video—no matter its length—constitutes 75
images for purposes of calculating the applicable sentencing
enhancement? Whether we should defer to this commentary is
the issue we now confront.
We hold that “image,” in the moving picture or video
context, unambiguously means “frame.” Deference to the
Commentary’s 75-images rule is therefore unwarranted under
Kisor v. Wilkie, 588 U.S. 558 (2019). Instead, the number of
frames comprising a moving picture or video will determine
the specific sentencing enhancement that a District Judge must
apply. Because the case before us involved videos with over
14,000 total frames, Haggerty probably possessed the requisite
number of images to warrant a five-level enhancement under
the Guideline. But because the District Court did not use the
frame-counting calculus we now hold is the correct one, we
will vacate the District Court’s sentencing order and remand
for resentencing in a manner consistent with our holding.
II. B ACKGROUND
This appeal is brought by Robert Haggerty, a 62-year-
old first-time offender. In February of 2022, a federal grand
jury indicted Haggerty on three counts of receiving a visual
depiction of a minor engaging in sexually explicit conduct, as

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well as one count of possessing such depictions (including
depictions of prepubescent minors and minors less than twelve
years of age). See 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), (b)(2).
Haggerty admitted at his plea hearing that he had
communicated with undercover detectives posing as underage
girls in Montgomery County, Pennsylvania, using the online
messaging platforms Skout and Kik Messenger.1 Acting on
information derived from the undercover operation, agents
obtained and executed a federal warrant to search Haggerty’s
house. There, they seized a Samsung tablet, which contained
five still files and one video file depicting child sexual abuse.
Agents arrested Haggerty and recovered a second Samsung
tablet from his truck. Haggerty, on his own, informed the
agents that the second tablet contained sexual abuse material
depicting minors. Examination of the device revealed 92 still
image files and 8 video files depicting child sexual abuse,
including sadistic and masochistic content involving
prepubescent children and even toddlers.
Haggerty entered an open guilty plea to the indictment.
The District Court applied multiple Guideline enhancements at
sentencing, including a five-level enhancement under U.S.S.G.
§ 2G2.2(b)(7).2
1 Skout is a mobile application that purports to facilitate online
social interaction. About, SKOUT , https://perma.cc/9SN7-
2QYT. Kik Messenger is an instant messaging mobile
application. Help, KIK , https://perma.cc/7AP8-5US3 .
2 The U.S. Sentencing Commission has explained that
“[e]ach type of crime is assigned a base offense level,

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U.S.S.G. § 2G2.2(b)(7) provides for a graduated
enhancement scheme, based on the number of “images”
involved in a child-exploitation offense. Under that scheme, a
defendant receives a two-level enhancement if the offense
involved 10 to 149 images and up to a five-level enhancement
for 600 or more images. U.S.S.G. §§ 2G2.2(b)(7)(A)-(D).
However, the text of the Guideline does not explain how courts
should determine the number of images contained in any given
video. Instead, that direction appears in the Commentary to §
2G2.2(b)(7), which states that: “[e]ach video, video-clip,
movie, or similar visual depiction shall be considered to have
75 images.” U.S.S.G. § 2G2.2 app. n.6(B)(ii).3
which is the starting point for determining the seriousness
of a particular offense.” U.S. SENT’ G COMM ’ N, How the
Sentencing Guidelines Work, AN OVERVIEW OF THE
FEDERAL SENTENCING GUIDELINES 1,
https://www.ussc.gov/sites/default/files/pdf/about/overvi
ew/Overview_Federal_
Sentencing_Guidelines.pdf. Under the Sentencing
Guidelines, there are “43 levels of offense seriousness —
the more serious the crime, the higher the offense level.”
Id. The Sentencing Guidelines provide enhancements,
which raise the base offense level based on various criteria
related to a given offense.
3 “If the length of the visual depiction is substantially more
than 5 minutes, an upward departure may be warranted.”
U.S.S.G. § 2G2.2 app. n.6(B)(ii).

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Applying that commentary, the Presentence
Investigation Report (“PSR”) calculated that the 8 videos on
the tablet contained 600 images, bringing the total image count
on the second tablet alone to 692 images.4
Haggerty objected to the application of a five-level,
number-of-images enhancement. He asserted that the
Guideline is unambiguous and does not include videos. Thus,
Haggerty argued that the sentencing court should not defer to
the Commentary’s interpretation that a video contains 75
“images,” based on the standards set forth in Kisor v. Wilkie.
Based on that argument, he contended that only the 92 still
images found on his tablets should count toward the
enhancement, not the 8 videos. He also acknowledged that “if
‘image’ is genuinely ambiguous . . . the only acceptable
alternative interpretation would be to count a video as one
image.” Appx. 73. So, he asserted, his offense involved no
4 The Government points out in its brief:
Haggerty’s two tablets contained a total of 97
still images and 9 videos of child sexual
abuse material. For unclear reasons, the
[PSR’s] calculations included only the still
images and videos on the tablet from
Haggerty’s truck, and ignored the tablet from
Haggerty’s residence. Compare PSR ¶ 30
with PSR ¶¶ 12, 14. Haggerty’s brief repeats
this mistake. See Br. at 5, 16.
Response Br. at 7 n.2.

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more than 92 to 100 “images,” and he should receive no more
than a two-level enhancement under § 2G2.2(b)(7)(A).
In response, the Government asserted that the Guideline
itself is ambiguous and that, under the standards set forth in
Kisor, the Commentary was entitled to deference.
Accordingly, the Government contended, the five-level
enhancement should be applied in calculating Haggerty’s
Guideline Sentencing range. The Government also argued, in
the alternative, that the enhancement for 600 or more “images”
would apply, even without deference to the Commentary. In
other words, if “image” is synonymous with “frame,” the
Government was prepared to present evidence that Haggerty’s
videos had a total length of over 600 seconds. Using the
standard frames-per-second rate of a video derived from the
Motion Picture Association’s definition of video, the
Government argued that, at a standard rate of 24 frames per
second, the tablets contained over 14,000 frames, or “images,”
of offending content.5
5 The Government offered that
[it] . . . would present evidence that the eight
videos found on the second Samsung tablet
seized in the Defendant’s tractor trailer on
October 7, 2021, contain[ed] 313 seconds of
content depicting the sexual exploitation of
eight separate minors, ranging in age from
approximately three years old to
approximately eight years old. In addition,

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The District Court overruled Haggerty’s objection to the
five-level, number-of-images enhancement. It determined,
based on what it viewed as a persuasive majority opinion from
a panel of the Sixth Circuit, that “construing ‘image’ to equal
‘visual depiction’ is not a reasonable interpretation of the
Guideline.” Appx 1 (citing United States v. Phillips, 54 F.4th
374, 381 (6th Cir. 2022)). The District Court held that “the term
‘image’ is ambiguous,” and that the Commentary’s 75-image
rule was entitled to deference. Appx 1. Alternatively, the
District Court recognized that, even if it were to adopt a
definition in which “image” in the video context meant each
video frame, the enhancement for 600 or more images “would
still apply based on the government’s representations of the
duration of the videos that Mr. Haggerty possessed.” Appx 2
n.1. The District Court applied the five-level enhancement and
the Government would present evidence that
the first Samsung tablet seized from the
Defendant’s residence on that same date
contains a video that is 311 seconds in length
depicting the sexual exploitation of a minor
female who is approximately 12 years old. As
described above, because each second of
video contains 24 frames, the 624 seconds of
offending content in Defendant’s possession
could count as 14,976 separate images, well
over the 600 images needed to apply the five-
level enhancement under § 2G2.2(b)(7).
Appx 87.

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calculated a total offense level of 32. This offense level,
together with Haggerty’s criminal history category of I, yielded
an advisory Guideline range of 121 to 151 months in prison.
Haggerty argued for a downward variance to a prison
sentence of 60 months, while the Government requested a
sentence within the Guideline range. Based on Haggerty’s age,
health, lack of criminal history, and statement of remorse, the
District Court varied downward from the advisory Guideline
range to a prison sentence of 96 months, to be followed by five
years of supervised release.
The District Court also required Haggerty to pay $3,500
in restitution to one victim, ordering “that the first $1,000 of
that restitution be paid within the next six months” following
sentencing. Appx 171. Haggerty objected to the six-month
partial payment deadline, but the District Court was unmoved.
The Court noted that the PSR identified assets Haggerty and
his wife owned jointly. The judge also pointed out that
Haggerty had agreed to pay as much restitution as possible to
the victim “up front,” and concluded that it was “appropriate
for [the Court] to impose as much as [it] can that wouldn’t
otherwise . . . create [an] undue . . . hardship.” Appx 173.
This appeal followed.
III. J URISDICTION
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 (offenses against the laws of the United States).
Haggerty timely filed a notice of appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291 (final decisions of the District
Court) and 18 U.S.C. § 3742(a) (appeal of a final sentence).

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IV. STANDARD OF R EVIEW
We exercise plenary review of the District Court’s
interpretation of the Sentencing Guidelines. United States v.
Gray, 942 F.3d 627, 630-31 (3d Cir. 2019). And we review the
District Court’s restitution payment order for abuse of
discretion. United States v. Fallon, 61 F.4th 95, 125 (3d Cir.
2023).
V. ANALYSIS
A. SENTENCING ENHANCEMENT
On appeal, Haggerty argues that ordinary usage and plain
text require us to interpret “each image – whether still (a
photograph) or moving (a video)” – as one image for purposes
of § 2G2.2(b)(7). Opening Br. at 13. He further asserts that the
Guideline’s context, history, and purpose support this reading.
Id. Finally, he contends that we should give no deference to the
Commentary. Id. Because we conclude that the term “image”
unambiguously means “frame” when applied in the video
context, we reject Haggerty’s arguments.
Section 2G2.2(b)(7) of the Sentencing Guidelines applies
to child-exploitation crimes and sets forth the following
gradations for applying the enhancement:
(7) If the offense involved –
(A) at least 10 images, but fewer than 150,
increase [the offense level] by 2 levels;
(B) at least 150 images, but fewer than 300,
increase by 3 levels;

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(C) at least 300 images, but fewer than 600,
increase by 4 levels; and
(D) 600 or more images, increase by 5
levels.
Ordinarily, the United States Sentencing Commission,
“an independent commission in the judicial branch,” created
by the Sentencing Reform Act provisions of the
Comprehensive Crime Control Act of 1984, establishes the
Sentencing Guidelines. 28 U.S.C. § 991(a); U.S.S.C., AN
O VERVIEW OF THE U NITED STATES SENTENCING COMMISSION
1 (2011), https://perma.cc/Q949-QPB5; 28 U.S.C. § 994. To
update the Guidelines, the Commission “promulgate[s] and
submit[s] to Congress amendments.” Rule 4.1, U.S.
SENTENCING COMMISSION RULES OF PRACTICE AND
PROCEDURE (as amended Aug. 18, 2016). In doing so, it must
comply with standard agency rule-making procedures “relating
to publication in the Federal Register and public hearing
procedure,” provided by 5 U.S.C. § 553, though it may
promulgate commentary and policy statements, as well as
related amendments, without complying with those
procedures. 28 U.S.C. § 994(x); Rule 4.3, U.S. SENTENCING
COMMISSION RULES OF PRACTICE AND PROCEDURE . Congress
retains authority over the Guidelines, and it has, at times,
specifically directed the Commission to establish particular
Guidelines. U.S. SENTENCING G UIDELINES MANUAL ch. 1, Pt.
A (quoting Kimbrough v. United States, 552 U.S. 85, 103
(2007) (“Congress has shown that it knows how to direct
sentencing practices in express terms. For example, Congress
has specifically required the Sentencing Commission to set

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Guideline sentences for serious recidivist offenders ‘at or near’
the statutory maximum.”); 28 U.S.C. § 994(h).
It was through Congress’s direct exercise of its
legislative authority that § 2G2.2(b)(7), the provision at issue
here, became part of the Sentencing Guidelines. Congress
added this Guideline provision through the Prosecutorial
Remedies and Tools Against the Exploitation of Children
Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003)
(“PROTECT Act”). The Act amended the Sentencing
Guidelines to increase penalties “based on the amount of child
pornography involved in the offense.” H.R. Rep. No. 108-66,
at 59 (2003).6
None of the courts that have considered the issue before
us have concluded that a video is an image.7 That said, jurists
6 While the Sentencing Commission has renumbered the
number-of-images provision to its current position at §
2G2.2(b)(7), see U.S.S.G. App. C. amend. 664 (2004),
there have been no amendments to the text of the provision
since it took effect in 2003. See U.S. SENTENCING
COMM ’ N, FEDERAL SENTENCING OF CHILD PORNOGRAPHY:
NON-PRODUCTION OFFENSES 2-3 (June 2021),
https://perma.cc/QQR3-RCPP (“NON-PRODUCTION
OFFENSES”) (discussing that the Commission has put
forward statutory or guideline recommendations for §
2G2.2, but Congress has not implemented them).
7 United States v. Phillips, 54 F.4th 374, 384 (6th Cir.
2022); United States v. Vandyke, Nos. 23-11268, 23-

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have taken different approaches in determining whether the
term “image” is ambiguous when applied to the video context
for purposes of § 2G2.2(b)(7). Notably, when considering this
issue, a majority of a Sixth Circuit panel determined that
“image” is ambiguous in this context and that deference to the
Commentary is warranted. Phillips, 54 F.4th at 384. A third
member of that panel, Judge Larsen, concurred only in the
judgment. She persuasively expressed the view that “image”
unambiguously means “frame” in the video context. Id. at 391
(Larsen, J., concurring in the judgment). We agree, and hold
that based on the term’s ordinary meaning, and supported by
the Guideline’s structure, purpose, and history, “image”
unambiguously means “frame” when applied to a video in the
context of § 2G2.2(b)(7).
i. Post-Kisor Approach
The Supreme Court has declared that the United States
Sentencing Commission’s Guidelines are legislative rules,
while the Commentary interpreting the Guidelines consists of
11794, 2024 WL 505080, at *4 (11th Cir. Feb. 9, 2024)
(per curiam) (unpublished); see also United States v.
Carmody, Nos. 22-12539, 22-13542, 2023 WL 7014048,
at *2-3 (11th Cir. Oct. 25, 2023) (per curiam)
(unpublished); United States v. Pratt, No. 20-10328, 2021
WL 5918003, at *2 (9th Cir. Dec. 15, 2021) (unpublished)
(deferring to the Commentary under Stinson, but
alternatively concluding that § 2G2.2(b)(7) is genuinely
ambiguous).

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interpretive rules.8 Stinson v. United States, 508 U.S. 36, 44-
45 (1993); United States v. Adair, 38 F.4th 341, 347-48 (3d Cir.
2022).9 Within this paradigm, we must consider whether the
Commentary to § 2G2.2(b)(7) warrants so-called Auer
deference.
The Supreme Court has recognized that there are times
that agency regulations “may be genuinely ambiguous.” Kisor,
588 U.S. at 566. That is, “[t]hey may not directly or clearly
address every issue,” and “when applied to some fact patterns,
they may prove susceptible to more than one reasonable
reading.” Id. And when a court must “apply the rule to some
unanticipated or unresolved situation,” it “must make a
judgment call.” Id. at 568. Kisor provides lower courts with
8 We recently noted the difference between these two types
of rules: “The term ‘legislative rule’ generally refers to an
agency rule promulgated through formal or informal
(notice-and-comment) rulemaking, although certain
subject-matter exceptions exist,” and “[t]o qualify as an
interpretive rule, a rule must ‘derive a proposition from an
existing document whose meaning compels or logically
justifies the proposition.’” United States v. Adair, 38 F.4th
341, 347 nn.1-2 (3d Cir. 2022) (citation omitted).
9 As we noted in Adair, “[t]he paradigm applies only to the
Commission’s interpretive commentary, not its
commentary related to either background information or
circumstances that may warrant a departure from a
guideline.” Id. at 347-48.

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guidance regarding whether to defer to an agency’s own
interpretation of its regulations. Id.
Federal court deference to an administrative agency’s
interpretation of its own regulations is no recent jurisprudential
invention. The current namesake case for this type of
deference, Auer v. Robbins, 519 U.S. 452 (1997), was decided
in 1997. Kisor, 588 U.S. at 569. Before Auer, courts referred
to the doctrine as Seminole Rock deference, named after a 1945
case. Id. at 568 (citing Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945)). And the Supreme Court has
recognized that “[d]eference to administrative agencies traces
back to the late nineteenth century, and perhaps beyond.” Id. at
569 (citing United States v. Eaton, 169 U.S. 331, 343 (1898)).
The Supreme Court roots this deference in “a presumption that
Congress would generally want the agency to play the primary
role in resolving regulatory ambiguities.” Id. That presumption
rested upon assumptions that (1) “the agency that promulgated
a rule is in the ‘better position [to] reconstruct’ its original
meaning,” id. at 570 (internal citation omitted); (2) resolving
such ambiguities “entails the exercise of judgment grounded in
policy concerns,” id. (cleaned up); and (3) such a presumption
promotes “consistency in federal regulatory law,” id. at 573.
Kisor changed the jurisprudential landscape by
providing instructions for when Auer deference should be
applied. Before Kisor, Auer deference permitted courts to
afford controlling weight to an agency’s interpretation of its
own regulation (or Guideline) unless its interpretation was
“plainly erroneous or inconsistent with the regulation” or
Guideline. Stinson, 508 U.S. at 45 (quoting Seminole Rock, 325
U.S. at 414). Since Kisor, Auer deference applies only if a court

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determines that a regulation is “genuinely ambiguous” after
“exhaust[ing] all the ‘traditional tools’ of construction.” Kisor,
588 U.S. at 575 (quoting Chevron U.S.A. Inc. v. Nat. Res. Def.
Council Inc., 467 U.S. 837, 843 n.9 (1984)).
In determining whether a regulation or Guideline is
“genuinely ambiguous,” we must “consider the text, structure,
history, and purpose of a regulation, in all the ways [we] would
if [we] had no agency to fall back on.” Id. at 575 (cleaned up).
That means exhausting the contents of our “legal toolkit”
before concluding that there is “no single right answer” to the
interpretive question and that the question “is ‘more [one] of
policy than of law.’” Id. (internal citation omitted). And if we
determine that a regulation or Guideline is “genuinely
ambiguous”—and before deferring to the agency’s
interpretation—we then look to the “character and context” of
the agency’s interpretation. Id. at 576. That inquiry requires us
to determine whether the interpretation: (1) is “the agency’s
‘authoritative’ or ‘official position,’” (2) “implicate[s] its
substantive expertise,” and (3) reflects its “fair and considered
judgment.” Id. at 577-79 (internal citations omitted).
Here, however, we need not undertake an “independent
inquiry into whether the character and context” of the
Commentary “entitles it to controlling weight.” Id. at 576.
After fully engaging in the process mandated by Kisor, we
conclude that “image” unambiguously means “frame” in the
video context.

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ii. The Text Conveys an Unambiguous
Meaning
When interpreting a Guideline issued by the U.S.
Sentencing Commission, “[w]e start with the plain text and
presume that words carry their ordinary meaning.” United
States v. Caraballo, 88 F.4th 239, 246 (3d Cir. 2023) (internal
citations omitted). Haggerty contends that a moving image
should be quantitatively treated as if it were a still image. But
such an interpretation is oxymoronic. If “image” needs the
modifier “moving” to accurately describe what is depicted or
displayed, then the term “image” can hardly be equated with
the term “video.”
Having rejected Haggerty’s plain text argument, we
attempt “[t]o discern if [the] Guideline is ‘genuinely
ambiguous.’” United States v. Mercado, 81 F.4th 352, 356 (3d
Cir. 2023) (internal citations omitted). And in furtherance of
that inquiry, we examine “contemporary ‘dictionary
definitions while keeping in mind the whole statutory text, the
purpose, and context of the statute, and relevant precedent.’”
Id. (internal citations omitted). For example, the Oxford
English Dictionary defines image as “[a] physical or digital
representation of something, originally captured using a
camera from visible light, and typically reproduced on paper,
displayed on a screen, or stored as a computer file” or as “any
picture or graphic . . . in printed form.”10 And though other
10 Image, O XFORD E NGLISH D ICTIONARY (2009),
https://perma.cc/4V2P-GZP5 (last accessed May 2024).

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definitions vary somewhat, they are to similar effect.11 In short,
none of the definitions we have found support interpreting
“image” to naturally include videos.12
11 The Cambridge Dictionary defines “image” as “any
picture, especially one formed by a mirror or a lens [or] .
. . through a camera . . . [or on a] computer or television
screen.” Image, CAMBRIDGE D ICTIONARY (2013),
https://perma.cc/3JHT-54WR (last accessed May 2024).
Merriam-Webster defines “image” as
1 a: a visual representation of something:
such as (1): a likeness of an object produced
on a photographic material[;] (2): a picture
produced on an electronic display (such as a
television or computer screen)
b: the optical counterpart of an object
produced by an optical device (such as a lens
or mirror) or an electronic device
Image, MERRIAM -WEBSTER, https://perma.cc/6TBN-
HQWB (last accessed May 2024). Per the American
Heritage Dictionary of the English Language, an
“image” is “[a] representation of the form of a person or
object, such as a painting or photograph,” and Webster’s
New World College Dictionary provides that an “image”
is “[a] representation or likeness of a person or thing, as
in a drawing, painting, photograph, or sculpture.” Image,
T HE AMERICAN H ERITAGE D ICTIONARY OF THE E NGLISH

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Further, as the Government points out, what we now
hold to be the meaning of “image” in the video context accords
with how dictionaries defined “image” at the time that
§ 2G2.2(b)(7) was drafted in 2003.13 Notably, we have recently
relied on the Oxford English Dictionary definition of “video,”
i.e., “images for display on a television screen or other
L ANGUAGE (2022), https://perma.cc/6QSA-8VUX (last
accessed May 2024); Image Definition, WEBSTER’ S N EW
WORLD COLLEGE D ICTIONARY (2014),
https://perma.cc/E973-NKAV (last accessed May 2024).
12 The Merriam-Webster definition, set forth in n.11 supra,
might possibly be stretched to include a video, but
nowhere does it specifically make space for “moving”
images within the definition.
13 See Image, MERRIAM -WEBSTER’ S COLLEGIATE
DICTIONARY (11th ed. 2003) (“a reproduction or imitation
of the form of a person or thing”; “a visual representation
of something” such as “a likeness of an object produced
on a photographic material” or “a picture produced on an
electronic display”); Image, AMERICAN HERITAGE
DICTIONARY (4th ed. 2000) (“A reproduction of the form
of a person or object”). Later definitions are also in accord.
See, e.g., Image, NEW OXFORD AMERICAN DICTIONARY
(3d ed. 2010) (“a visible impression obtained by a camera,
telescope, microscope, or other device, or displayed on a
computer or video screen”).

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electronic device.” United States v. Heatherly, 985 F.3d 254,
272 (3d Cir. 2021) (quoting Video (def. 1a), O XFORD E NGLISH
D ICTIONARY (3d ed. 2016)). In doing so, we recognized that a
video inherently contains multiple “images.”
Ordinary usage makes plain that an “image” is a fixed
visual representation. True, “the human eye cannot perceive
any individual frame” when viewing a video or motion picture.
Phillips, 54 F.4th at 382. Nonetheless, in a video or motion
picture, a fixed visual representation of something is a frame,
based on the term’s ordinary usage. See id. at 391 (Larsen, J.,
concurring in the judgment). In her concurring opinion, Judge
Larsen hits the nail on the head when she explains: “‘Images’
means exactly what you’ll find in every dictionary—a ‘still
representation’; and vis-à-vis a video, an ‘image’ is a ‘frame.’”
Id. at 398 (Larsen, J., concurring in the judgment).
Multiple dictionary definitions of “frame” support this
interpretation. The Oxford English Dictionary defines “frame”
as “one of the individual images on a strip of film; (later also)
a single complete image in a series forming a television picture,
film, or video sequence.” Id. at 391(Larsen, J., concurring in
the judgment) (quoting Frame, Oxford English Dictionary
(2022)). Other definitions are similarly worded.14 Based on
14 Merriam-Webster defines “frame” as “one picture of the
series on a length of film” or “a complete image for
display.” Frame, MERRIAM -WEBSTER,
https://perma.cc/37KU-CB89 (last accessed May 2024).
The American Heritage Dictionary defines “frame” as
“[o]ne of the set of still images that constitute a film or

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ordinary usage and dictionary definitions of the terms, “image”
is synonymous with “frame” in the video context.
iii. Structure, History, and Purpose
Support that “Image” Means “Frame”
in the Video Context
Consistent with the analysis called for by Kisor, we now
consider the structure, history, and purpose of the Guideline.
Bolstering our interpretation of the plain text, our examination
of the structure, history, and purpose of § 2G2.2(b)(7) confirms
that a video contains multiple images, thereby supporting our
conclusion that an “image” constitutes a “frame” in the video
context.
We have described § 2G2.2(b)(7) as setting forth
“gradations.” In other words, it establishes increased
enhancement of a defendant’s sentence based on a numerical
range of “images” involved in his offense. A defendant
possessing at least 10 images but fewer than 150 is to receive
a two-level enhancement; one possessing at least 150 but fewer
than 300 would receive a three-level enhancement; and a
defendant possessing at least 300 but fewer than 600 faces a
video.” Frame, T HE A MERICAN H ERITAGE D ICTIONARY
(2022), https://perma.cc/WUZ9-BVTU (last accessed
May 2024). Webster’s New World provides the definition
“the rectangular image on a film screen, or the particular
objects or activity focused on by the camera.” Frame,
WEBSTER’ S N EW WORLD (2014), https://perma.cc/4M9B-
8E7A (last accessed May 2024).

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four-level enhancement.15 The maximum enhancement is
reserved for possession of at least 600 images and calls for
enhancing the sentence by five levels.
Section 2G2.2(b)(7) does not define the term “image,”
nor does it clarify how the term “image” applies to videos.
Consequently, after Congress passed the PROTECT Act, the
Sentencing Commission sought public comment concerning
proposed amendments to the Guideline commentary,
acknowledging the lack of definition for “what constitutes an
‘image’ for purposes of applying” the Guideline. Sentencing
Guidelines for United States Courts, 68 Fed. Reg. 75340,
75353 (Dec. 30, 2003). The Commission explicitly asked for
comments or instructions on “how to count images” and
“[h]ow [] videos, films, or AVI files [should] be considered.”
Id. It also inquired as to whether, in a video with multiple
“scenes” depicting “the same minor engaging in sexually
15 U.S.S.G. § 2G2.2’s graduated enhancement scheme
applies in the same manner based on number of images
involved in possessing, trafficking, receiving,
transporting, shipping, soliciting, or advertising material
involving the sexual exploitation of a minor. The case
before us concerns charges of possession and receipt of
visual depictions involving the sexual exploitation of
minors. As a form of shorthand, we use the term “possess”
throughout this opinion when discussing the graduated
enhancement scheme. .

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explicit conduct with a different adult,[] each scene with a
different adult” should “be considered a separate image.” Id.16
The Commission received a plethora of comments. The
Federal Sentencing Guidelines Committee of the Federal
Public and Community Defenders proposed defining “image”
as “a single item such as one photograph, or video” instead of
“each frame in a video or each person depicted.”17 In
addressing what it described as the “complex” question of
“how many ‘images’ are in a video/movie clip,” the
Department of Justice (the “DOJ” or “the Department”)
asserted that it “would be arbitrary” to treat “a video/movie and
a still image as both being one image.”18 It also explained that
16 Video possession in this context has become more
common over time. The Sentencing Commission noted in
2021 that “the prevalence of videos in an offender’s
collection is higher today than in the data provided in the
2012 Child Pornography Report.” N ON-PRODUCTION
O FFENSES at 30.
17 U.S. Sentencing Commission, The History of the Child
Pornography Guidelines 43 (2009), available at
https://perma.cc/4J8F-ALHP (“Sentencing Commission,
History”).
18 Letter from Deborah J. Rhodes, Counselor to the
Assistant Attorney General, to the U.S. Sentencing

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“[a] video/movie that contains even one second of sexually
explicit conduct is a more serious item than a still image.”
Rhodes Letter at 5.
The Department of Justice further supported its position
by citing the Motion Picture Association of America’s
definition of “video as 24 frames per second,” where “[e]ach
frame is equivalent to one still image.” Id. That translates into
“a one minute video [being] equivalent to 1440 still images.”
Id. The DOJ contended that “counting each minute of video as
1440 images would be inappropriate.” Id. Instead, the
Department proposed that, “considering the increased harm
caused by moving videos,” the Commission should apply “a
two or three level enhancement for offenses that involve video
clips (defined as any type of moving images).” Id. The
Sentencing Commission has described this as “a more modest
enhancement” than that which a frame-counting approach
would prompt. Sentencing Commission, History at 43 n.201.
After the public comment period, “[t]he Commission
ultimately determined that because each video contained
multiple images it should be counted as more than one image.”
Id. at 43. The resulting commentary “instructs that each
photograph, picture, computer or computer-generated image,
or any similar visual depiction shall be considered one image”
and “each video, video-clip, movie, or similar recording shall
Commission, at 5 (Mar 1, 2004), available at
https://perma.cc/NCF7-ADKH (“Rhodes Letter”).

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be considered to have 75 images for purposes of the specific
offense characteristic.” U.S.S.G. App. C amend. 664 (2004).
“Given that the image table enacted by Congress
assigned a 2-level increase for between ten images and 150
images, and a 3-level increase for 150 to 300 images, the
Commission adopted a definition of video that considered each
video to contain 75 images, squarely in the middle of the 2-
level increase range.” Sentencing Commission, History at 43-
44. The foregoing recital of the Commission’s decision-
making process reflects its desire to achieve a compromise. In
the legislative process, compromise is often essential to
reaching a result. Yet no matter how salutary this compromise
may have been in reaching a consensus, it was not an exercise
in interpretation.
The stage was set, then, for the controversy that
confronts us. Before the PROTECT Act, the Sentencing
Guidelines contained a provision that increased the defendant’s
offense level by two points if the offense involved “ten or
more . . . video tapes . . . containing a visual depiction
involving the sexual exploitation of a minor.” U.S.S.G. §
2G2.4(b)(2) (2003). Through § 2G2.2(b)(7), which effectively
superseded that provision, Congress made clear that the
number of videos would no longer be the focus. Instead, to
further the PROTECT Act’s goal of increasing punishment
“based on the amount of child pornography involved in the
offense,” the severity of an enhancement would be tied to the
number of images involved. H.R. Rep. No. 108-66, at 59. And
a video, of any length, almost always includes more content
than a single still image. Thus, as the Government now argues,
the purpose and history of the Guideline, as amended by the

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PROTECT Act, “suggest[s] that videos should be treated as
containing more than one ‘image’ to serve the Guideline’s
purpose of punishing more culpable offenders more harshly.”
Response Br. at 25.
The Government’s primary position, however, is that
the structure of § 2G2.2(b)(7) “weighs against treating every
frame of a video as an ‘image.’” Response Br. at 24. Its
argument that the Guideline’s structure indicates the term
“image” is ambiguous stems from an apparent concern over the
practical result of equating “frame” with “image.” Applying
the frame interpretation to § 2G2.2(b)(7), it argues, will skew
many sentences in the direction of the maximum number of
images, 600 or more. Citing the Phillips majority, the
Government argues that if “‘images’ meant ‘frames,’ then
possessing any video would nearly automatically vault the
offender to the top of the range, thereby obviating the purpose
of prescribing different levels.” Response Br. at 23 (quoting
Phillips, 54 F.4th at 383). But it is not our role as a court to
subordinate an inquiry into the plain meaning of a
congressionally imposed Guideline to subjective concerns
about the severity of a sentence that results from application of
that Guideline. See, e.g., Lamie v. U.S. Trustee, 540 U.S. 526,
536 (2004) (“We should prefer the plain meaning since that
approach respects the words of Congress.”). Severe though
resulting sentences may appear, § 2G2.2(b)(7) reflects a policy
decision made by Congress—and the making of policy is
solely within the province of the legislative branch. The
judiciary’s role is to heed the text that Congress has provided
and to interpret that text, faithfully, in a manner that is
consistent with the words themselves and the purpose behind a
particular congressional action.

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Similarly, it is not our role to question Congress’s
choice of language because we believe that such language
would produce unreasonable sentence variations between
defendants. The Government argues that “[t]he image table’s
precision indicates that Congress sought to vary the penalty
based on proportionate quantities of images, not quarter-
second differences.” Response Br. at 24 (quoting Phillips, 54
F.4th at 383). Still, notwithstanding the image table’s
precision, enhancements prompting longer prison sentences
for more pornographic content—i.e., more frames of content—
align with the Guideline’s history and purpose, discussed
further infra. And where applying the Guideline would be
overly harsh or unreasonable, sentencing judges maintain the
discretion to vary downward from the Guideline.
The Sentencing Guidelines are not mandatory. United
States v. Booker, 543 U.S. 220, 245 (2005); Gall v. United
States, 552 U.S. 38, 46 (2007). After a sentencing judge
accurately calculates the applicable Guidelines’ range, and
having given both parties the opportunity to argue for the
sentence they believe to be appropriate, that judge “must make
an individualized assessment based on the facts presented,” to
determine whether justification exists for an outside-the-
Guidelines sentence. Gall, 552 U.S. at 50. She “must
adequately explain the chosen sentence,” which “allow[s] for
meaningful appellate review and [] promote[s] the perception
of fair sentencing.” Id. Thus, if a sentencing judge determines
that applying the § 2G2.2(b)(7) enhancement would be overly
harsh or unreasonable based on the facts of a given case, she
has the discretion to vary downward from the Guideline range
and impose what she considers to be a reasonable sentence.

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Judges retain discretion to consider factors that can ameliorate
a sentence that is overly harsh or unreasonable.
And such variances have become common. The U.S.
Sentencing Commission reported in 2021 that “[i]n fiscal year
2019, less than one-third (30.0%) of non-production child
pornography offenders received a sentence within the
guideline range,” and “[t]he majority (59.0%) of non-
production child pornography offenders received a variance
below the guideline range.” Child Pornography Report.” NON -
PRODUCTION O FFENSES at 5.
Finally, we reject the argument that reading “image” to
mean “frame” in the video context is unreasonable because it
would create a burdensome process for a court in calculating a
Guideline Sentencing range. The Phillips majority expressed
just such a concern. It claimed that “a frame-by-frame analysis
of each video to ascertain the number of frames that include
illegal images” would be “an onerous and unrealistic task given
the multitude of frames in any one video and the many cases
that involve multiple videos.” Phillips, 54 F.4th at 382. But the
Government has conceded here that it is prepared to present
evidence showing the number of frames containing explicit
content in Haggerty’s videos, based on the standard frames-
per-second rate. We fail to understand how parties could not
do the same in other cases. If the Government is confident that
it can meet such an evidentiary burden in this case, we are
equally confident that the Article III judiciary—often tasked
with making findings in far more complicated settings—is
equally up to meeting its responsibility in sentencing child
pornography offenders. The court would merely need to
determine how many seconds within each video contain child

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29
pornography—as defined under 18 U.S.C. § 2256(8)—and
then apply the standard rate of 24 frames per second.
The Government argues further that “[t]he purpose and
history of § 2G2.2(b)(7) also do not resolve the ambiguity –
although they do confirm that a video contains multiple
images.” Id. It contends that “Congress’s goal of increasing
punishments based on the amount of child pornography
involved in the offense, would be served more precisely if each
frame were not considered an ‘image.’” Id. (cleaned up).
However, the Government fails to explain its rationale behind
that assertion. The history surrounding § 2G2.2(b)(7), outlined
above, shows that Congress’s purpose in passing the
PROTECT Act was to ensure that defendants who possess
greater amounts of child pornography would face sentences of
greater length. That alone does not resolve the ambiguity
surrounding what “image” means in the video context. But the
plain meanings of “image” and “frame” resolve that ambiguity,
and the history and purpose reinforce our conclusion that
“image” and “frame” are synonymous for purposes of §
2G2.2(b)(7). After all, as the Government acknowledged, “it is
reasonable to conclude ‘that videos and movies cause more
harm and so should be weighed much more heavily than photos
or pictures.’” Id. (quoting United States v. Lynde, 926 F.3d
275, 280 (6th Cir. 2019)). Possessing more frames of explicit
content necessarily means possessing more pornographic
material. Accordingly, concluding that an “image” is a “frame”
in the video context aligns well with the PROTECT Act’s
history and purpose.

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iv. The Traditional Tools of Construction
Yield a Definitive Meaning of the
Term “Image”
To summarize, we hold that, based on the ordinary
meaning of both terms, an “image”—in the video context—is
a “frame.” With that understanding, “[t]he [Guideline] then
just means what it means—and the court must give it effect, as
the court would any law.” Kisor, 588 U.S. at 575. As discussed
above, the Guideline’s structure, history, and purpose further
support that conclusion. We should not defer to the
Commentary where there is “only one reasonable
construction” of the Guideline. Id. And that is the case here.
We will, therefore, vacate the sentencing order and remand for
sentencing in accordance with this opinion.
Haggerty further argues that the rule of lenity supports
his interpretation of the Guideline. However, “[t]hat rule
applies only when a [provision] contains a ‘grievous ambiguity
or uncertainty,’ and ‘only if, after seizing everything from
which aid can be derived,’ the Court ‘can make no more than
a guess as to what Congress intended.’” Ocasio v. United
States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v.
United States, 524 U.S. 125, 138-39 (1998)). That is not our
case. Because the term “image” is not ambiguous when applied
to videos, resort to the rule of lenity is not appropriate here.
While we concede that application of this Guideline by
quantifying pornographic matter contained in a video or
motion picture on the basis of the number of frames contained
within it may yield sentences that seem unusually harsh, we
cannot engage in an exercise of semantic selection with an

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over-riding concern for results. We must give effect to the
words Congress has chosen, and we must do so through the
faithful use of the tools that Kisor reminds us are available.
And where harshness suggests injustice, a sentencing judge
should thoughtfully consider a downward variance.
B. R ESTITUTION
Haggerty also challenges the District Court’s imposition
of a requirement that he make a $1,000 partial payment within
six months of the $3,500 restitution ordered. Haggerty argues
that “the record was clear that no substantial payment toward
restitution would be feasible until after [he] finished serving
his term of incarceration.” Opening Br. at 14. Because the
payment schedule was both procedurally and substantively
proper, the District Court did not abuse its discretion in
imposing the $1,000 payment requirement.
“The issuance of a restitution order” for child-
exploitation offenses like Haggerty’s “is mandatory.” 18
U.S.C. § 2259(b)(4)(A). The Probation Office is required by
18 U.S.C. § 3664 to include “to the extent practicable . . .
information relating to the economic circumstances of each
defendant” in the Presentence Report. 18 U.S.C. § 3664(a).
The District Court must then resolve at sentencing “[a]ny
dispute as to the proper amount or type of restitution” “by the
preponderance of the evidence,” and “[t]he burden of
demonstrating the financial resources of the defendant . . . shall
be on the defendant.” Id. at § 3664(e). Further, the court must
specify “the manner in which, and the schedule according to
which, the restitution is to be paid.” Id. at § 3664(f)(2). The
sentencing judge is to consider, among other things, “the

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financial resources and other assets of the defendant, including
whether any of these assets are jointly controlled.” Id. Payment
schedules may include “partial payments at specified
intervals.” Id. at § 3664(f)(3)(A).
Because the District Court considered Haggerty’s jointly
owned assets and his agreement to pay a victim as much
restitution as possible, up front, it committed no abuse of
discretion. See Fallon, 61 F.4th at 125-26.
VI. CONCLUSION
Because “image” unambiguously means frame in the
context of § 2G2.2(b)(7), and Haggerty possessed well over
600 images, the District Court did not err in imposing a five-
level sentencing enhancement based on § 2G2.2(b)(7). Nor did
it err in imposing the restitution order as it did.
We will vacate the District Court’s judgment and
remand so that the District Court may resolve any factual
disputes related to a frame-based sentencing analysis.

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