United States v. Michael Adam Davidson, 360 F.3d 1374 (11th Cir. 2004). · Go Syfert
United States v. Michael Adam Davidson, 360 F.3d 1374 (11th Cir. 2004). Cases Citing This Book View Copy Cite
47 citation events (47 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Roy M. Belfast, Jr. (ca11, 2010-07-15)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Roy M. Belfast, Jr.
11th Cir. · 2010 · confidence medium
In particular, we review de novo “whether the district court applied the correct sentencing guideline (or subsection of a sentencing guideline) for the defendant’s underlying conduct.” United States v. Davidson, 360 F.3d 1374, 1376 (11th Cir. 2004) (citation omitted).
discussed Cited as authority (rule) United States v. Belfast
11th Cir. · 2010 · confidence medium
In particular, we review de novo “whether the district court applied the correct sentencing guideline (or subsection of a sentencing guideline) for the defendant’s underlying conduct.” United States v. Davidson, 360 F.3d 1374, 1376 (11th Cir.2004) (citation omitted).
discussed Cited as authority (rule) United States v. Vincent McCaffrey
7th Cir. · 2006 · confidence medium
See United States v. Farrelly, 389 F.3d 649, 652 (6th Cir.2004) (consumer of child pornography should be sentenced under § 2.2G2.4); United States v. Davidson, 360 F.3d 1374, 1377 (11th Cir.2004) (same).
discussed Cited as authority (rule) United States v. McCaffrey, Vincent
7th Cir. · 2006 · confidence medium
See United States v. Farrelly, 389 F.3d 649, 652 (6th Cir. 2004) (consumer of child pornogra- phy should be sentenced under § 2.2G2.4); United States v. Davidson, 360 F.3d 1374, 1377 (11th Cir. 2004) (same).
cited Cited "see" Rundgren v. Washington Mutual Bank, FA
9th Cir. · 2014 · signal: see · confidence high
See Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1061 (9th Cir.2003) (en banc), as amended by 360 F.3d 1374 (9th Cir.2004) (en banc).
cited Cited "see" Nancy Graf v. Zynga Game Network, Inc.
9th Cir. · 2014 · signal: see · confidence high
See Wilderness Soc’y v. U.S. Fish & Wildlife *1106 Serv., 353 F.3d 1051, 1061 (9th Cir.2003) (en banc), amended by 360 F.3d 1374 (9th Cir.2004) (en banc).
discussed Cited "see" Arizona Health Care v. McClellan
9th Cir. · 2007 · signal: see · confidence high
See Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1061 (9th Cir. 2003) (en banc) (when no statutory or 15654 ARIZONA HEALTH CARE v. MCCLELLAN regulatory provision defines the meaning of a term, we con- sider the common sense meaning of the words, including review of dictionaries), amended by 360 F.3d 1374 (9th Cir. 2004) (en banc). [2] After referring to dictionaries that were current when Congress was drafting this legislation, we are unable to resolve this ambiguity.
discussed Cited "see" Arizona Health Care Cost Containment System v. McClellan
9th Cir. · 2007 · signal: see · confidence high
See Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1061 (9th Cir.2003) (en banc) (when no statutory or regulatory provision defines the meaning of a term, we consider the common sense meaning of the words, including review of dictionaries), amended by 360 F.3d 1374 (9th Cir.2004) (en banc).
discussed Cited "see" Michael J. Rossi, Dba Internet movies.com v. Motion Picture Association of America Inc.
9th Cir. · 2004 · signal: see · confidence high
See Wilderness Soc’y v. United States Fish and Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc), amended by 360 F.3d 1374 (9th Cir.2004) (“[I]t is also a fundamental canon[of statutory construction] that the words of a statute must be read in then-context and with a view to their place in the overall statutory scheme.”) (citation and internal quotation marks omitted).
discussed Cited "see, e.g." San Luis & Delta-Mendota Water Authority v. Jewell
E.D. Cal. · 2014 · signal: see also · confidence low
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 , 108 S.Ct. 376 , 98 L.Ed.2d 306 (1987) (“It is well settled that the starting point for interpreting a statute is the language of the statute itself.”) (internal quotation marks and citation omitted); see also The Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003), amended on reh’g en banc in part sub nom., Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 360 F.3d 1374 (9th Cir.2004) (“Canons of statutory construction help give meaning to a statute’s words.
discussed Cited "see, e.g." Nijjar v. Holder
9th Cir. · 2012 · signal: see also · confidence low
Id. at 843 , 104 S.Ct. 2778 ; see also Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc) ("Congressional intent may be determined by traditional tools of statutory construction, and if a court using these tools ascertains that Congress had a clear intent on the question at issue, that intent must be given effect as law.”) (internal quotation marks omitted), amended by 360 F.3d 1374 (9th Cir.2004). 27 . 8 U.S.C. § 1158 (c)(2). 28 .
discussed Cited "see, e.g." United States v. W.R. Grace & Co. Kootenai Development, Corporation W.R. Grace & Co. Conn. (2×)
9th Cir. · 2005 · signal: see also · confidence low
Even if full-blown Chevron deference is not due because of the informal nature of the interpretation, we will still accord a modified level of respect because “Chevron did nothing to eliminate Skidmore’s [ 18 ] holding that an agency’s interpretation may merit some deference whatever its form.” Mead, 533 U.S. at 234 , 121 S.Ct. 2164 ; see also Wilderness Soc’y v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059-62 (9th Cir.2003) (en banc), amended by 360 F.3d 1374 (2004) (applying this analytical framework to review of an agency’s interpretation).
discussed Cited "see, e.g." United States v. Grace & Co.
9th Cir. · 2005 · signal: see also · confidence low
GRACE & CO. interpretation may merit some deference whatever its form.” Mead, 533 U.S. at 234 ; see also Wilderness Soc’y v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059-62 (9th Cir. 2003) (en banc), amended by 360 F.3d 1374 (2004) (applying this analytical framework to review of an agency’s interpreta- tion).
cited Cited "see, e.g." The Lands Council v. Powell
9th Cir. · 2005 · signal: see, e.g. · confidence low
See, e.g., The Wilderness Society v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc), amended by, 360 F.3d 1374 (9th Cir.2004).
cited Cited "see, e.g." The Lands Council v. Powell
9th Cir. · 2005 · signal: see, e.g. · confidence low
See, e.g., The Wilderness Society v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc), amended by, 360 F.3d 1374 (9th Cir.2004).
cited Cited "see, e.g." Lands Council v. Powell
9th Cir. · 2004 · signal: see, e.g. · confidence low
See, e.g., The Wilderness Society v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc), amended by, 360 F.3d 1374 (9th Cir.2004).
cited Cited "see, e.g." The Lands Council v. Powell
9th Cir. · 2004 · signal: see, e.g. · confidence low
See, e.g., The Wilderness Society v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc), amended by, 360 F.3d 1374 (9th Cir.2004).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellant,
v.
Michael Adam DAVIDSON, Defendant-Appellee
03-10613.
Court of Appeals for the Eleventh Circuit.
Mar 1, 2004.
360 F.3d 1374
Maria E. Murphy, Mobile, AL, for Plaintiff-Appellant., Peter J. Madden, Arthur J. Madden, III, Madden & Soto, Mobile, AL, for Defendant-Appellee.
Carnes, Wilson, Hancock.
Cited by 8 opinions  |  Published
PER CURIAM:

The government appeals the thirty-three month sentence of Michael Adam Davidson, imposed following Davidson’s plea of guilty to Count One of a superseding indictment charging him with receiving and attempting to receive images of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). The government challenges Davidson’s sentence on the theory that the district court erred in sentencing him under United States Sentencing Guideline § 2G2.4 rather than under sentencing guideline § 2G2.2. Specifically, the government asserts that because Davidson pled guilty to receipt of child pornography under 18 U.S.C.[*1376] § 2252A(a)(2), and not merely possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), the language and history of § 2G2.2 dictates that it, and not § 2G2.4, is the appropriate sentencing guideline. Concluding that our prior decision in Dodds instructs that § 2G2.4 is the appropriate guideline to be applied under the facts of this case, we affirm the sentence imposed by the trial judge.

In an indictment filed March 28, 2002, Davidson was charged with fifteen counts of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(l). Apparently because § 2252A(a)(l) does not proscribe receipt of child pornography, a five-count superseding indictment was filed August 30, 2002. As relevant to this appeal, Davidson was charged in Count One of the superseding indictment with receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). [1] Pursuant to a written plea agreement Davidson pled guilty on September 30, 2002 to the Count One charge in the superseding indictment.

At Davidson’s sentencing, the district court considered and relied upon the Pre-sentence Investigation Report, which recommended that U.S.S.G. § 2G2.4 be used to calculate Davidson’s base offense level. [2] The district court determined that the proper guideline range was twenty-seven to thirty-three months and sentenced Davidson to thirty-three months imprisonment to be followed by three years supervised release. The district court reasoned that § 2G2.4 is applicable to all receipt of child pornography offenses unless there is specific evidence that the defendant distributed or intended to distribute the child pornography, in which case § 2G2.2 would be the appropriate sentencing guideline. There was no such evidence before the district court.

Once the statute of conviction has been determined, the sentencing court, as does this Court, turns for assistance in determining the applicable offense guideline to the Statutory Index set forth as Appendix A to the Guidelines Manual. See United States v. Saavedra, 148 F.3d 1311, 1315 (11th Cir.1998). This Court gives due deference to the district court’s application of the sentencing guidelines to the facts and reviews decisions of interpretation of the Federal Sentencing Guidelines to those facts de novo. See United States v. Singh, 291 F.3d 756, 763 (11th Cir.2002) (citing United States v. Yount, 960 F.2d 955, 956 (11th Cir.1992) and United States v. Trout, 68 F.3d 1276, 1279 (11th Cir.1995)). But this Court reviews de novo “whether the district court applied the correct sentencing guideline (or subsection of a sentencing guideline) for the defendant’s underlying conduct.” United States v. Williams, 340 F.3d 1231, 1240 (11th Cir.2003) (citing United States v. De La Mata, 266 F.3d 1275, 1302 (11th Cir.2001)).

[*1377] The Statutory Index regarding violations of 18 U.S.C. § 2252A lists both U.S.S.G. §§ 2G2.2 and 2G2.4 as the guidelines applicable to violations of 18 U.S.C. § 2252A. Where two guidelines are referenced in the Statutory Index as being applicable to a single statute, the court is to “use the guideline section most appropriate for the offense conduct charged in the count of which the defendant was convicted.” [3] U.S.S.G.App. A, intro.

The issue for us to determine is whether the district court appropriately used § 2G2.4 rather than § 2G2.2 in determining the sentencing guideline range where the defendant had been convicted of receipt of child pornography under 18 U.S.C. § 2252A(a)(2) without any evidence that the defendant received the pornography with an intent to traffic in the pornography. This Court is bound on this issue by the decision reached in United States v. Dodds, 347 F.3d 893 (11th Cir.2003). The issue presented in Dodds was whether a sentence applying § 2G2.2 requires evidence of the defendant’s intent to traffic in child pornography where the defendant had been convicted of knowingly possessing material that contained images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and of knowingly receiving obscene pictures in violation of 18 U.S.C. § 1462. See id. at 900-02. Agreeing with the defendant’s argument that the statutory purpose of § 2G2.2 was to punish receiving only when pornography is received with the intent to traffic, the Dodds court stated that “§ 2G2.2 was intended to apply where the government has shown that the defendant had received with the intent to traffic.” Id. at 901. Dodds discredits the government’s argument made in the instant case that § 2G2.2 should apply to all cases in which a defendant has been convicted of receiving child pornography, regardless of intent to traffic, and instructs that “ § 2G2.2 was meant to punish crimes related to the trafficking of child pornography, while § 2G2.4 is reserved for punishing those who merely possess child pornography ...” Id. at 902.

In the instant case the district court properly applied guideline § 2G2.4 in sentencing Davidson.

AFFIRMED.

1

. Count One of the superseding indictment reads that "Michael Adam Davidson did knowingly receive and attempt to receive images of child pornography as defined in 18 U.S.C. § 2256(8)(A) that had been shipped and transported in interstate and foreign commerce, specifically by computer.” The facts underlying the charge in the superseding indictment are not in dispute. Davidson and the government jointly filed a "Factual Resume” in conjunction with the written plea agreement.

2

. Paragraph 29 of the Presentence Investigation Report correctly states that when calculating Davidson's base offense level, the starting point is the fact that “the guideline for an offense charged under 18 U.S.C. § 2252A(a)(2) is found at U.S.S.G. § 2G2.2 or § 2G2.4.” District Judge Butler stated that the probation officer "has correctly analyzed the applicable guideline section and the reasons for it ... I think this is clearly a case where the more appropriate guideline is the possession, the one that's been applied.”

3

. A Sentencing Commission policy statement cautions that a pure "real offense” approach to sentencing and a pure "charge offense” approach to sentencing both have drawbacks. See U.S.S.G. Ch. 1, Pt. A(4)(a) (2002).