The full case caption appears at the
end of this opinion. BALDOCK, Circuit Judge. On May 7, 1997, a grand jury returned a two-count indictment in the District ofNew Mexico charging Defendant Dawson Johnson with one count of coercion andenticement of a minor, in violation of 18 U.S.C. � 2422(b), and interstate travel for thepurpose of engaging in sexual acts with a minor, in violation of 18 U.S.C. � 2423(b). OnOctober 16, 1997, a two-count criminal information was filed in the District ofMassachusetts charging Defendant with one count of possession of child pornographyand one count of criminal forfeiture, in respective violation of 18 U.S.C. � �2252(a)(4)(B) and 2253. Pursuant to Fed. R. Crim. P. 20, Defendant agreed to transferthe Massachusetts charges to the District of New Mexico. Defendant subsequently pled guilty to all four charges. The district court imposedtwo concurrent 27-month sentences of imprisonment, three years of supervised releaseand $2,875.87 in restitution. Having failed to raise the issues below, Defendant argueson appeal that the district court committed plain error by: (1) increasing his offense levelunder U.S.S.G. � 2G2.4(b)(3); (2) ordering him to pay restitution without considering hisability to pay; and (3) ordering him to pay restitution for the victim’s mental healthtreatment where the victim suffered no bodily injury. Our jurisdiction arises under 28U.S.C. � 1291 and 18 U.S.C. � 3742. We affirm. I. Defendant met the victim in this case in an Internet chat room. Defendant is fromBoston, Massachusetts. The victim is from Clovis, New Mexico. For a period of severalmonths, Defendant and the victim corresponded over the Internet. Defendant sent thevictim items in the mail and also talked with him on the telephone. Eventually, the twomade plans to meet. Defendant flew from Boston to Lubbock, Texas, where he rented a car. He thendrove to the victim’s home town of Clovis, New Mexico. Over the course of a week,Defendant and the victim engaged in numerous sexual acts. Defendant returned toBoston, where he continued to correspond with the victim via the Internet and telephone. After Defendant left, the victim became depressed and confused. He contactedanother person he knew from the Internet and arranged a trip to Boston. While inBoston, the victim unsuccessfully attempted to contact Defendant. Upon returning toLubbock, Texas, authorities detained the victim as a runaway. The victim wassubsequently released to his mother, who encouraged him to cooperate with lawenforcement officials. The victim subsequently placed phone calls, monitored by lawenforcement officials, to Defendant. On March 14, 1997, the FBI searched Defendant’sresidence. After examining his computer files and 283 floppy disks, agents found 13images of children 16 years of age or under engaging in explicit sexual conduct. II. A. Defendant first argues that the district court incorrectly increased his offense levelunder U.S.S.G. � 2G2.4(b)(3) because he possessed child pornography obtained throughuse of a computer. Defendant contends that in drafting the statute which provides for��2G2.4(b)(3), Congress intended to punish only those who “trafficked in and/ordistributed child pornography through the computer, not those like [Defendant] whomerely used the computer to obtain pornographic material.” Thus, Defendant asserts thathis sentence is illegal and must be vacated. 1. Before reaching the merits of Defendant’s position, we must address whether thisissue is properly before us. Defendant entered one plea agreement which disposed oftwo cases with two separate numbers. The first case, 97-282, contained the ��2422and��2423(b) offenses. The second case, 97-630, contained the ��2252and ��2253 offenses. The government moves to strike the issue of whether the district court improperlyincreased Defendant’s offense level under U.S.S.G. � 2G2.4(b)(3) from the presentappeal. The government argues that Defendant could only raise this issue in a timelyappeal from 97-630 and that because Defendant failed to do so, we have no jurisdiction. We deny the motion to strike. On March 20, 1998, Defendant timely filed a notice of appeal in 97-282. On June10, 1998, more than forty days after judgment had been entered, Defendant filed a noticeof appeal in 97-630. Because the notice in 97-630 was filed well beyond the statutoryperiod for filing, a motion panel of this court dismissed the appeal. Therefore, to theextent Defendant seeks relief from his sentence in 97-630, we reject his request. To the extent the government contends that we cannot reach the merits of the issuein regard to Defendant’s sentence in 97-282, we disagree. In sentencing Defendant, thedistrict court applied a multiple count adjustment pursuant to U.S.S.G. � 3D1.4. In doingso, the district court effectively combined the counts in 97-282 and 97-630. Thus, thecourt necessarily incorporated the offense level of the charge in 97-630 in determiningDefendant’s sentence on the charges in 97-282. Because the � 2G2.4(b)(3) enhancementapplied by the district court in 97-630 affects Defendant’s sentence in 97-282, Defendantmay, despite his failure to timely appeal the sentence in 97-630, challenge theenhancement through his timely appeal of the sentence imposed in 97-282. Thischallenge, however, will impact only the sentence imposed in 97-282. In other words, ifwe embrace Defendant’s attack on his sentence in 97-282, he will be entitled to no reliefon the concurrent sentence in 97-630.
[FOOTNOTE 1] 2. U.S.S.G. � 2G2.4(b)(3) provides for a two-level increase in a defendant’spossession of child pornography sentence where the defendant obtained the visualimages through use of a computer. Restated, Defendant argues that � 2G2.4(b)(3), asapplied to him, is contrary to Congress’ intent in drafting the statute which requires theincrease. Defendant contends that Congress intended for the increase to apply where thepossessor sent the images via computer, not where the possessor received the imagesthrough use of a computer. The Eighth Circuit recently rejected this exact argument. In
United States v.Vincent, 167 F.3d 428 (8th Cir. 1999), the defendant was convicted of possession ofchild pornography, in violation of 18 U.S.C.���� 2252(a)(4)(B) and(b)(2). Because thedefendant received the pornographic images via the Internet, the court increased hisoffense level by two pursuant to U.S.S.G. � 2G2.4(b)(3). On appeal, the defendantargued that Congress did not intend for ��2G2.4(b)(3) to apply to receivers of childpornography because it directed an increase in offense level only if a computer was usedto transport or ship the visual depiction. With little analysis, the Eighth Circuit flatlyrejected the defendant’s strained interpretation of Congress’ intent. The defendant further urged judicial review of the guideline on the grounds that��2G2.4(b)(3) violates due process because no rational justification exists forpenalizingan individual who obtains child pornography over the Internet more severely than anindividual who bought magazines, videos or photographs from a supplier. Disagreeingwith the defendant’s position, the court stated that the “Internet has become a commonmeans of transmitting obscene and illicit material . . . [which] is difficult to detect . . . incyberspace.” Section 2G2.4(b)(3), the court explained, “provides an extra deterrent tothose inclined to pursue illicit pictures in the anonymity of the computer world.” We agree with the Eighth Circuit that the Commission’s interpretation is not atodds with Congress’ intent. Defendant pled guilty to violating 18 U.S.C.��2252(a)(4)(B). Public Law 104-71, the legislation supporting��2G2.4(b)(3), requiredthe Sentencing Commission to formulate a guideline increasing “the base offense levelby at least 2 levels for an offense committed under . . . 2252(a) . . . if a computer wasused to transmit the notice or advertisement to the intended recipient or to transport orship the visual depiction.” Defendant argues that because he did not transmit, transport,or ship the child pornography found in his computer, the guideline as applied to him iscontrary to Congressional intent. While Defendant’s argument is novel, we do notconstrue the statute as limiting the base level increase to only those who transmit images. Instead, a common sense reading suggests that the increase applies when a defendant isconvicted of 2252(a) and the images supporting the conviction were transported viacomputer. It is of no moment that the person convicted of the � 2252(a) offense was nota sender, but only a receiver. The district court properly applied the two-level increase. B. As part of Defendant’s sentence, the district court ordered Defendant to payrestitution in the amount of $2,875.87. Defendant argues that the district court erred byordering him to pay restitution without considering his ability to pay. Specifically,Defendant argues that because the crimes to which he pled guilty, enticing a minor inviolation of 18 U.S.C. � 2422(b) and interstate travel for the purpose of engaging insexual acts with a minor in violation of 18 U.S.C. � 2423(b), are not governed by theMandatory Victim Restitution Act (MVRA), 18 U.S.C. � 3663A, the district court couldnot order restitution without considering his ability to pay. Defendant did not raise this issue before the district court. Accordingly, wereview for plain error.
[FOOTNOTE 2] Fed. R. Crim. P.52(b). For Defendant to prevail on his plainerror argument, he must “show clear or obvious error that affected his substantial rights,and that seriously affected the integrity of the judicial proceedings.”
United States v.Hatatley, 130 F.3d 1399, 1405 (1997). The MVRA requires federal district courts to order restitution to the victim of anoffense described in 18 U.S.C. � 16 as a crime of violence, regardless of the defendant’sability to pay.
See 18 U.S.C. �� 3663A(c)(1)(A)(i) and 3664(f)(1)(A). Defendantcontends that the MVRA is inapplicable in this case because the crimes to which he pledguilty are not crimes of violence under ��16. The question of whether �� 2423(b) or 2422(b) constitute crimes ofviolence forpurposes of � 16 is one of first impression in this circuit and has not been directlyaddressed by any of our sister circuits. The only decision coming close to deciding theissue,
United States v. Butler, 92 F.3d 960, 964 (9th Cir. 1996) (stating that �2423(b) is,by nature, crime of violence), is contrary to Defendant’s position. To prevail under ourplain error standard, Defendant must show that the alleged error is “clear or obvious”.
Hatatley, 130 F.3d at 1405. Because only one court has addressed this issue andreacheda result contrary to Defendant’s position on appeal, he fails to make the necessaryshowing.
United States v. Byrd, 116 F.3d 770, 773 (5th Cir. 1996). Thus, we decline tohold that the district court committed plain error by ordering restitution withoutconsidering Defendant’s ability to pay. C. Defendant finally argues that the district court was not authorized to orderrestitution for expenses related to the mental health treatment of the victim. Specifically,Defendant argues that restitution for mental health treatment is proper under � 3663Aonly where the victim suffers bodily injury. Defendant contends that because the victimin this case suffered no bodily injury, the district court had no authority to orderrestitution for the cost of his mental health treatment. Defendant did not make this argument before the district court. In fact, at hissentencing hearing, Defendant asserted that while he was responsible for some of thevictim’s problems, the victim’s family was responsible for others. Thus, he argued thathe should only be required to pay restitution for a small portion of the victim’s treatment. By impliedly conceding that he owed restitution for part of the victim’s treatment andfailing to challenge the court’s order on the grounds he now raises, Defendant strippedthe district court of its ability to make findings regarding any bodily injury the victimmay have suffered.
See United States v. Alzanki, 54 F.3d 994, 1009 (1st Cir.1995);
United States v. Haggard, 41 F.3d 1320, 1329 (9th Cir. 1994). A party may not invitethe district court to impose restitution, albeit in an amount smaller than that ultimatelyordered, and later complain that the court was without authority to require any restitutionat all.
United States v. Burson, 952 F.2d 1196, 1203 (10th Cir. 1991). BecauseDefendant attempts exactly that, we decline to address his final argument. AFFIRMED; MOTION TO STRIKE DENIED :::FOOTNOTES:::
FN* After examining the briefs and appellaterecord, this three-judge panel hasdetermined unanimously that oral argument would not be of material assistance in thedetermination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. 34.1(G). The cause istherefore ordered submitted without oral argument.
FN1 We do note that the government did notrespond to the merits argument in thebrief it filed on September 25, 1998. In his reply brief, filed on October 13, 1998,Defendant noticed this failure to respond and argued that the government should not beheard on the argument during oral argument. On November 4, 1998, the governmentfiled a motion to strike explaining that it did not address the argument because Defendantimproperly raised it in this appeal. By choosing not to address this issue, the governmentassumed the risk that we would reach the merits without hearing its position on the issue. In the future, the government would be well advised to make its jurisdictional argumentin addition to an alternative argument stating its position on the merits. At the same time,we do not condone Defendant’s failure to pay attention to detail. Had Defendant timelyfiled a notice of appeal in both cases, this jurisdictional problem would never havearisen.
FN2 Arguing that Defendant invited this errorbelow, the government urges the courtto refuse to review the issue for plain error. The invited error doctrine prevents a partyfrom inducing action by a court and later seeking reversal on the ground that therequested action was error. Although Defendant no doubt failed to make the presentargument to the district court, on the record before us, we are not convinced that hisfailure to do so induced the district court to order restitution without considering hisability to pay. Indeed, as the government concedes, the district court’s restitution orderwas based on its belief that restitution was mandatory under the Mandatory VictimRestitution Act.
UNITED STATES OF AMERICA, Plaintiff-Appellee v. DAWSON JOHNSON, Defendant-Appellant. No. 98-2082 United States Court Of Appeals for the Tenth Circuit Appeal From The United States District Court For The District Of New Mexico (D.C. No. CR-97-282-JC) Before SEYMOUR, Chief Judge, and BALDOCK, and BRISCOE, Circuit Judges.
[FOOTNOTE *] Norman C. Bay, Assistant United States Attorney, (John J. Kelly, United States Attorneywith him on the brief) Albuquerque, New Mexico, for Plaintiff-Appellee. Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico, forDefendant-Appellant.
