from the United States District Court for the Southern
District of Texas
OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
HAWKINS BARKSDALE, CIRCUIT JUDGE
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).
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.
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
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.
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
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.
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
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). ...