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United States v. Owens

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ARGUED OCTOBER 7, 2009

Before RIPPLE, KANNE, and SYKES,Circuit Judges.

James Owens pled guilty to transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Owens’s plea agreement included a stipulation of the sentencing guidelines offense level calculation, including all aggravating and mitigating sentencing factors, except for one enhancement. The parties could not agree on the applicability of U.S.S.G. § 2G2.2(b)(3)(B), which comes into play when a defendant expects to receive a thing of value in exchange for his distribution of child pornography. Owens maintains that he should receive only a two-level enhancement because he did not expect to receive anything of value, and even if he did have an expectation, that expectation was of “role play” and not of a sexual encounter. The government maintains that Owens did expect to receive a sexual encounter, and accordingly, the five-level enhancement was appropriate. The district court agreed with the government and sentenced Owens to a term of 360 months’ imprisonment. Owens appealed the enhancement to his sentence, and we now affirm.

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