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United States v. Ross

United States Court of Appeals, Fifth Circuit

January 10, 2020

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
JOE CEPHUS ROSS, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.

          RHESA HAWKINS BARKSDALE, CIRCUIT JUDGE

         At issue are Joe Cephus Ross' constitutional challenges to the district court's denying: Ross' motion to dismiss his being charged, in count one of his two-count indictment, with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) (count two charged possession of child pornography on a separate, subsequent date, in violation of 18 U.S.C. § 2252A(a)(5)(B)); and his similar objection to being sentenced, pursuant to Sentencing Guideline § 2G2.2, for receipt, as opposed to possession, of child pornography (higher base offense level for the former). AFFIRMED.

          I.

         In March 2016, an undercover Homeland Security special agent identified an internet-protocol (IP) address was sharing, via a peer-to-peer-internet network, computer files with hash values (alphanumeric string of characters that identifies computer file's contents, see United States v. Reddick, 900 F.3d 636, 637 (5th Cir. 2018), cert. denied, 139 S.Ct. 1617 (2019)) known to belong to child-pornography videos and images. Further investigation revealed the IP address: was associated with the residence of Ross and his mother; and, from February to July 2016, shared child-pornography files with other internet users.

         That August, members of a Houston, Texas, police taskforce executed a search warrant at the residence, seizing several computers and other devices. A subsequent forensic examination revealed these contained more than 17, 000 images and 500 videos depicting child pornography, including victims appearing to be as young as four, as well as file-sharing programs. Ross admitted he collected child-pornography images and videos; explained how the file-sharing programs worked; and acknowledged he used them to distribute child pornography.

         In a two-count indictment, Ross was charged, in count one, with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and based on his operating the peer-to-peer-file-sharing program between February and July 2016; and, in count two, with possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and pertaining to the images and videos discovered on the devices seized during the August 2016 search. Ross moved to dismiss the receipt count, claiming: because there is no meaningful distinction between a person's receiving child pornography and possessing it, § 2252A was unconstitutionally vague, in violation of the Fifth Amendment's Due-Process Clause, in allowing arbitrary prosecutorial charging decisions.

          The motion was denied from the bench at the conclusion of an April 2018 hearing. Although the district judge doubted the constitutionality of the receipt statute, he reasoned the controlling law was "decidedly the contrary" to Ross' claim. Later that month, Ross pleaded guilty, unconditionally and without a plea agreement, to both charges.

         For sentencing, and incorporating the same constitutional grounds as in his motion to dismiss, Ross objected to the presentence investigation report's (PSR) calculating his advisory Guidelines sentencing range pursuant to the above-described Guideline § 2G2.2. The objection was denied.

         Regarding the PSR's recommending an advisory Guidelines sentencing range of 151-188 months' imprisonment, the court varied downward, however, sentencing Ross to, inter alia, 110 months' imprisonment on each count, concurrently, and deducting a further 23 months for time held in state custody. The sentence was to run concurrently with any imposed in a pending state criminal case charging Ross with possession of child pornography.

         II.

         Except for the stated constitutional challenges, Ross does not challenge either his guilty-plea convictions or the sentence imposed, including not claiming a double-jeopardy violation. Ross preserved in district court his constitutional challenges (to the child-pornography statute, 18 U.S.C. § 2252A, and Guideline § 2G2.2); accordingly, our review is de novo. E.g., United States v. Jones, 854 F.3d 737, 738 (5th Cir. 2017) (citation omitted) (constitutional challenge to statute as vague); United States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015) (citations omitted) (constitutional challenge to Guidelines' application). ...


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