USA v. Daniel Scott Crow

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14267
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL SCOTT CROW,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cr-14035-JEM-1
____________________
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2 Opinion of the Court 22-14267
Before R OSENBAUM , J ILL PRYOR , and B LACK , Circuit Judges.
PER CURIAM:
Daniel Crow appeals his sentence of 360 months’ imprison-
ment for enticement of a minor to engage in sexual activity and
production of child pornography. Crow asserts several issues on
appeal, which we address in turn. After review,1 we affirm in part,
and vacate and remand for resentencing in part.
I. DISCUSSION
A. Grouping of Counts
Crow contends the district court erred in failing to group his
counts together when calculating his guideline range, because his
counts involved substantially the same harm under U.S.S.G.
§ 3D1.2. The Government concedes error on this issue.
Offenses “shall be grouped” for guideline offense level calcu-
lation purposes when they “involve substantially the same harm.”
U.S.S.G. § 3D1.2. The Guidelines list four circumstances where
counts involve “substantially the same harm”:
1 When reviewing the district court’s findings with respect to Guidelines is-
sues, we consider legal issues de novo, factual findings for clear error, and the
court’s application of the Guidelines to the facts with due deference, which is
akin to clear error review. United States v. Rothenberg, 610 F.3d 621, 624 (11th
Cir. 2010). In order to be clearly erroneous, the finding of the district court
must leave us with a “definite and firm conviction that a mistake has been
committed.” Id. (quotation marks omitted).
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22-14267 Opinion of the Court 3
(a) When counts involve the same victim and the
same act or transaction.
(b) When counts involve the same victim and two or
more acts or transactions connected by a common
criminal objective or constituting part of a common
scheme or plan.
(c) When one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other
adjustment to, the guideline applicable to another of
the counts.
(d) When the offense level is determined largely on
the basis of the total amount of harm or loss, the
quantity of a substance involved, or some other meas-
ure of aggregate harm, or if the offense behavior is
ongoing or continuous in nature and the offense
guideline is written to cover such behavior.
Id. Subsection (d) specifically precludes the grouping of a “produc-
tion of child pornography” offense under that subsection. Id.
However, offenses need only meet the criteria of one subsection of
§ 3D1.2 to qualify for grouping as “substantially the same harm.”
See id. § 3D1.2(d) (“Exclusion of an offense from grouping under
this subsection does not necessarily preclude grouping under an-
other subsection”).
The district court erred in failing to group Crow’s counts.
See United States v. Nagel, 835 F.3d 1371, 1374 (11th Cir. 2016) (re-
viewing the district court’s decisions regarding grouping de novo).
The conduct embodying Crow’s enticement offense was used to
apply a specific offense characteristic enhancement to his
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4 Opinion of the Court 22-14267
production offense. Namely, Crow’s production of child pornog-
raphy “involved the use of a computer [to] persuade, induce, en-
tice, coerce, or facilitate the travel of, a minor to engage in sexually
explicit conduct, or to otherwise solicit participation by a minor in
such conduct.” This enhancement placed Crow’s counts squarely
within § 3D1.2(c), which requires grouping “[w]hen one of the
counts embodies conduct that is treated as a specific offense char-
acteristic in . . . another of the counts.” U.S.S.G. § 3D1.2(c). Thus,
the court erred in failing to group Crow’s offenses, and we vacate
and remand for resentencing as to this issue.
B. Pattern of Activity Enhancement
Crow asserts the court erred in applying a five-level enhance-
ment for a “pattern of activity involving prohibited sexual con-
duct” under U.S.S.G. § 4B1.5, because the court sustained the pat-
tern enhancement on facts that were not sufficiently proven at the
sentencing hearing.
Under § 4B1.5, the district court applies a five-level enhance-
ment when the defendant engaged in a “pattern of activity involv-
ing prohibited sexual conduct.” U.S.S.G. § 4B1.5(b)(1). For pur-
poses of § 4B1.5, “prohibited sexual conduct” includes, among
other things, “any offense described in 18 U.S.C. § 2426(b)(1)(A) or
(B)” and “the production of child pornography.” U.S.S.G. § 4B1.5,
comment. (n.4(A)).2 It does not include receipt or possession of
2Deferral to the Guidelines commentary is necessary only if the text of the
Guidelines is ambiguous. United States v. Dupree, 57 F.4th 1269, 1275-77 (11th
Cir. 2023) (en banc).
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22-14267 Opinion of the Court 5
child pornography. Id. Section 2426(b)(1)(A) cross-references to
offenses contained in chapter 117, which includes enticement of a
minor under 18 U.S.C. § 2422(b). 18 U.S.C. § 2426(b)(1)(A).
A defendant engaged in a “pattern” under § 4B1.5 if he en-
gaged in such conduct “on at least two separate occasions.” Id.
§ 4B1.5, comment. (n.4(B)(i)). “[R]epeated prohibited sexual con-
duct with a single victim may qualify as a ‘pattern of activity’ for
purposes of § 4B1.5(b)(1).” United States v. Fox, 926 F.3d 1275, 1279
(11th Cir. 2019). But “separate occasions” requires events that are
“independent and distinguishable” from one another. Id. at 1280.
Noncontinuous instances of prohibited sexual conduct that occur
on different days constitute “separate occasions.” United States v.
Isaac, 987 F.3d 980, 994 (11th Cir. 2021).
The Government did not put forth “sufficient and reliable”
evidence at the sentencing hearing in support of any facts sustain-
ing the pattern enhancement. See United States v. Washington, 714
F.3d 1358, 1361 (11th Cir. 2013) (“When the government seeks to
apply an enhancement under the Sentencing Guidelines over a de-
fendant’s factual objection, it has the burden of introducing ‘suffi-
cient and reliable’ evidence to prove the necessary facts by a pre-
ponderance of the evidence.”). Because Crow made a factual ob-
jection to the enhancement, the record to be considered was lim-
ited to Crow’s factual proffer, which admitted to only a single sex-
ual encounter involving oral sex with Victim 1 on May 22, 2020.
The Government’s assertion of facts at the sentencing hearing be-
yond those contained in the factual proffer, absent additional
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6 Opinion of the Court 22-14267
supporting evidence, could not be relied upon by the district court.
See id. (“[A]bsent a stipulation or agreement between the parties,
an attorney’s factual assertions at a sentencing hearing do not con-
stitute evidence that a district court can rely on.”). The district
court stated the support for the enhancement was provided “based
on what [Victim 1] said,” suggesting that it relied upon every state-
ment by or about Victim 1 contained in the PSI when imposing the
enhancement, despite Crow’s factual objections. The court relied
upon insufficiently proven evidence when it sustained Crow’s pat-
tern enhancement based upon the “separation in time of the vari-
ous relationships with Victim 1.”
However, the facts contained in Crow’s factual proffer are
sufficient to sustain his pattern enhancement. See United States v.
Gill, 864 F.3d 1279, 1280 (11th Cir. 2017) (explaining we may affirm
on any ground supported by the record, regardless of whether the
district court considered or relied upon that ground below). Crow
concedes in his factual proffer that he engaged in oral sex with Vic-
tim 1 on May 22, 2020, and that he produced child pornography
when he filmed that sexual encounter. He further concedes that at
unidentified points prior to his May 22 meeting with Victim 1,
Crow requested naked photos and videos from Victim 1 and made
plans with Victim 1 to meet and engage in sexual acts. Between his
requests for illicit images from Victim 1 and his formulation of
plans to meet up with Victim 1 for sex, Crow engaged in entice-
ment prohibited by 18 U.S.C. § 2422(b), which qualifies as “prohib-
ited sexual conduct” under the commentary to § 4B1.5. This con-
duct occurred on a different day than his production of child
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22-14267 Opinion of the Court 7
pornography on May 22, constituting distinct, “separate occasions”
sufficient to establish a pattern under § 4B1.5. See Fox, 926 F.3d at
1279; Isaac, 987 F.3d at 994. Thus, while the district court sustained
Crow’s enhancement on insufficiently proven factual allegations,
the existing and undisputed record supports the enhancement on
alternative grounds. Thus, we affirm as to this issue.
C. Distribution Enhancement
Crow also argues the court erred in applying a two-level en-
hancement for “distribution” of child pornography under U.S.S.G.
§ 2G2.1(b)(3), because his sending of a video from his phone to
Victim 1’s phone did not constitute “distribution.”
The Sentencing Guidelines provide for a two-level enhance-
ment when a defendant “knowingly engaged in distribution” of
child pornography. U.S.S.G. § 2G2.1(b)(3). The commentary to the
Guidelines provides that:
“Distribution” means any act, including possession
with intent to distribute, production, transmission,
advertisement, and transportation, related to the
transfer of material involving the sexual exploitation
of a minor. Accordingly, distribution includes posting
material involving the sexual exploitation of a minor
on a website for public viewing but does not include
the mere solicitation of such material by a defendant.
Id. § 2G2.1, comment. (n.1(A)). We have stated “distribute” ordi-
narily means “to deliver, give out, dispense, or disperse to others.”
United States v. Grzybowicz, 747 F.3d 1296, 1307 (11th Cir. 2014)
(holding a defendant did not engage in a “distribution” of child
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8 Opinion of the Court 22-14267
pornography under 18 U.S.C. § 2252A(a) when he sent four images
of child pornography from his cellphone to his personal email ac-
count, because the images were not transferred “to others”). More-
over, distribution impliedly involves “deliver[y] to someone other
than the person who does the delivering.” Id. at 1307-08.
The district court did not clearly err in imposing the distri-
bution enhancement under § 2G2.1. By airdropping a video from
his cell phone to Victim 1’s cell phone, Crow delivered, gave out,
dispersed, or dispensed that video to another. See id. at 1307. While
Crow asserts Victim 1, presumably by virtue of her inclusion in the
video, does not constitute another person to whom Crow could
“distribute” the video, Crow provides no argument or legal author-
ity as to why Victim 1 should not constitute an “other” for purposes
of determining whether he engaged in a distribution. Thus, be-
cause airdropping a video to another’s cell phone is a “deliver[y]”
to another, the court did not clearly err in applying a two-level en-
hancement for Crow’s distribution. Accordingly, we affirm as to
this issue.
D. Use of Computer Enhancement
Crow asserts the court erred in applying a two-level en-
hancement for “use of a computer” pursuant to U.S.S.G.
§ 2G2.1(b)(6)(B), because an iPhone is not a “computer” as in-
tended in the Guidelines.
Section 2G2.1 provides for a two-level enhancement when,
as part of a defendant’s production of child pornography, the of-
fense involved:
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22-14267 Opinion of the Court 9
the use of a computer or an interactive computer ser-
vice to (i) persuade, induce, entice, coerce, or facili-
tate the travel of, a minor to engage in sexually ex-
plicit conduct, or to otherwise solicit participation by
a minor in such conduct; or (ii) solicit participation
with a minor in sexually explicit conduct . . . .
U.S.S.G. § 2G2.1(b)(6). The Guidelines Commentary cross-refer-
ences to 18 U.S.C. § 1030(e)(1), which defines “computer” as “an
electronic, magnetic, optical, electrochemical, or other high speed
data processing device performing logical, arithmetic, or storage
functions.” 18 U.S.C. § 1030(e)(1) (cited in U.S.S.G. § 2G2.1, com-
ment. (n.1)). We have previously held a defendant’s use of a cell
phone constitutes the use of a computer as defined by 18 U.S.C.
§ 1030(e)(1). United States v. Mathis, 767 F.3d 1264, 1283 (11th Cir.
2014), abrogated on other grounds by Lockhart v. United States, 577 U.S.
347 (2016)).
The court did not clearly err in applying a two-level enhance-
ment for “use of a computer.” Crow’s iPhone possessed much of
the functionality of a typical computer, and he used it as such: send-
ing and receiving messages over the internet, booking a hotel
room, and filming and distributing a video. Thus, Crow’s use of an
iPhone falls within the unambiguous, plain reading of “use of a
computer” as it appears in § 2G2.1(b)(6). Accordingly, we affirm as
to this issue.
E. Downward variance
Crow lastly argues the court abused its discretion in denying
a downward variance, because the facts and circumstances of his
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case place it outside the heartland of cases for which the Sentencing
Guidelines were intended to apply. Because our vacatur and re-
mand of Crow’s sentence under Issue I will result in a new sentenc-
ing hearing under a new Guidelines range, we do not address the
merits of the district court’s denial of a downward variance.
II. CONCLUSION
We affirm the district court’s imposition of enhancements
for pattern of activity, distribution, and use of a computer. We va-
cate and remand for resentencing because the district court erred
in failing to group Crow’s counts, and decline to address the denial
of a downward variance.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
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