00-4133 U.S. v. Walton

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“[E]nhancing Walton’s sentence under sec. 2G2.2(b)(3) without requiring

any proof that Walton intentionally received images depicting sadism,

masochism, or other violent conduct does not deprive Walton of sec.

2252’s scienter requirement. As the government notes, Walton’s knowledge

and intent regarding his receipt and possession of prohibited child

pornography has been proven. His knowledge that he received and

possessed such pornography was an element of the charged offense, and in

convicting Walton the jury necessarily found that he had the requisite

intent. Indeed, Walton does not appeal the fact of his conviction or

argue that the evidence that he intended to receive and possess child

pornography was insufficient to sustain the conviction. Therefore, the

application of the sentencing enhancement under sec. 2G2.2(b)(3) did not

somehow skirt the statutory intent requirement, but merely increased the

punishment within the range authorized for a proven violation of the

statute (which entails proof of the requisite intent). In short, Walton

was not convicted of a strict liability crime (in violation of

X-Citement Video), but instead was merely subject to a strict liability

sentencing enhancement. Cf. United States v. Singleton, 946 F.2d 23, 26

(5th Cir. 1991).” Affirmed.

Appeal from the

United States District Court for the Northern District of Indiana,

Lozano, J., Bauer, J.