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United States v. Whited

August 25, 2008


Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 05 CR 50060-Philip G. Reinhard, Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge


Before EASTERBROOK, Chief Judge, and CUDAHY and SYKES, Circuit Judges.

Defendant Matthew Whited was charged with possession, receipt, and distribution of child pornography based on evidence gathered in a search of his home pursuant to an anticipatory warrant. Federal agents obtained the warrant after Whited ordered a videotape of child pornography from an undercover postal inspector; the warrant was premised upon a suc- cessful controlled delivery of the package Whited had ordered. There were two conditions precedent to the search: Whited's acceptance of the package and entry into his home with it.

Whited challenged the legality of the search under the Fourth Amendment, arguing that one of the conditions precedent in the warrant did not occur-he claimed he was on his front stoop when he accepted the delivery and never entered his house after signing for the package. Federal agents executing the warrant testified otherwise. The district court believed the agents and denied the suppression motion.

Whited pleaded guilty and reserved the right to appeal the denial of his suppression motion. At sentencing the district court applied the sentencing guidelines enhancement specified in U.S.S.G. § 2G2.2(b)(3)(B), which adds five levels to the base offense level when the distribution of child pornography is for "receipt, or expectation of receipt, of a thing of value." The factual basis for this enhancement was Whited's transmission of child-pornography images to an e-mail correspondent with whom he was trying to arrange a sexual encounter.

Whited now appeals his conviction and sentence, challenging the denial of his suppression motion, the application of the § 2G2.2(b)(3)(B) enhancement, and the reasonableness of his sentence under 18 U.S.C. § 3553(a). We affirm. Anticipatory warrants are constitutional, and although the testimony at the suppression hearing was conflicting, the district court's determination that the warrant's triggering conditions had occurred was not clear error. The court properly applied the § 2G2.2(b)(3)(B) sentencing enhancement based on the e-mail correspondence establishing that Whited reasonably expected his transmission of child pornography would lead to the sexual encounter he and his e-mail correspondent were then discussing. Finally, the 300-month sentence imposed by the district court was within the applicable guidelines range and is therefore presumed reasonable; Whited's perfunctory challenge to the district court's consideration of the § 3553(a) factors is not enough to rebut the presumption.

I. Background

In March 2004 an undercover postal inspector received an e-mail responding to an advertisement the inspector had posted on the Internet offering child-pornography videos. The e-mail came from an address later determined to be Whited's. After an initial exchange of e-mails, Whited sent the inspector $30 for a video depicting child pornography. The inspector then forwarded this information on to the federal Child Exploitation Strike Force in Chicago.

The Strike Force then arranged for a controlled delivery of the package and obtained an anticipatory warrant permitting agents to search Whited's residence after two conditions were satisfied: (1) Whited accepted the control package; and (2) he entered his house with it. On July 29, 2004, Postal Inspector Lary Maxwell, dressed as a postal carrier, approached Whited's home with the control package and rang the doorbell. Michael Hoeft, a friend of Whited's 12-year-old son who had stayed overnight on a "sleepover," answered the door and then called Whited. Whited came down the stairs, accepted the package, and walked to his car. Whether he was inside or outside of the house when he accepted the package is disputed; we will discuss the testimony in more detail in a moment. As Whited was getting into his car, he was detained by FBI agents.

The agents then searched the home and found child pornography in a locked suitcase in a closet, on compact discs, and on the hard drive of Whited's computer. The agents also discovered e-mail correspondence on Whited's computer between Whited and a man named "Will," in which child-pornography images were transmitted and arrangements for a sexual encounter were discussed. More specifically, Whited sent Will two images of child pornography and expressed his interest in using child pornography in connection with the sexual encounter they were then planning. Will, in turn, expressed his approval of the images and asked Whited to continue to send him child pornography to "keep me happy" until the proposed encounter could take place.

Whited was charged with two counts of distribution of child pornography under 18 U.S.C. § 2252A(a)(1), one count of receipt of child pornography under 18 U.S.C. § 2252A(a)(2)(A), and one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). He moved to suppress the evidence seized during the search of his home. Whited testified at the suppression hearing that when he came to the door after being summoned by his son's friend, he stepped out onto the stoop and closed both the main door and the exterior screen door before speaking with Inspector Maxwell.

In contrast, Inspector Maxwell testified that when Whited came to the door, he stood on the threshold between the main door and the screen door, opened the screen door for Inspector Maxwell, and from that position-with the main door still open behind him-accepted and signed for the control package. Inspector Maxwell then turned and began to walk away, but looked back over his shoulder and saw Whited retreat back into the house momentarily before exiting the house, closing both doors behind him, and starting toward his car. Maxwell testified that when Whited signed for the package, he had not closed either door but stood on the threshold between them. FBI Special Agent Scott McDonough, observing the operation from about 200 feet away, also testified that the exchange of the package took place when Whited was standing on the threshold between the doors; he testified that he saw Whited briefly go back into the house before leaving with the package.

Michael Hoeft-the friend of Whited's son who had spent the night and answered the door when Inspector Maxwell rang the bell-testified that he had been asleep in the living room when he was awakened by the doorbell ringing. He said he answered the door and a mailman asked for Matthew Whited. Michael went to get Whited, and then observed as Whited talked to the mailman while standing in the doorway with both feet still in the house. He saw Whited sign for and take the package from the mailman and then leave the house. Ryan Manley, another friend of ...

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