## Facts

- U.S. Customs agents arrested James Leroy Kemmish at San Diego International Airport after he attempted to bring child-pornography videotapes into the United States and carried over $16,000 in unreported currency.
- Agents found in his luggage mailing lists and materials associated with “Overseas Male,” a Mexico City-based child-pornography producer.
- Officers obtained and executed a search warrant at Kemmish’s residence the next day.
- The residence search yielded sophisticated video reproduction equipment, hundreds of blank tapes, 204 master and 332 non-master child-pornography videotapes, and additional child-pornography photos/slides and advertising materials.
- A federal grand jury charged Kemmish in a six-count superseding indictment for currency-reporting violations, false statements, and multiple child-pornography offenses, including advertising, transporting, reproducing, and possessing with intent to sell.
- Kemmish pleaded guilty to all counts and agreed to forfeiture.
- The probation office calculated a guidelines range recommending approximately 295 months; the district court departed downward and imposed 63 months.
- The government appealed the sentence; Kemmish cross-appealed the denial of his suppression motion.

## Issues

1. Whether the border search and resulting residential search warrant were lawful, such that suppression was properly denied.
2. Whether the district court clearly erred by setting “retail value” of the child-pornography materials without reliable evidentiary support for guideline calculation purposes.
3. Whether the guideline enhancement for a “pattern of activity involving the sexual abuse or exploitation of a minor” can apply to a trafficker/distributor, not only to a producer.
4. Whether the district court’s downward departure from the guideline range to 63 months was permissible.

## Decision

- The Ninth Circuit affirmed the denial of the motion to suppress.
- The Ninth Circuit vacated the sentence and remanded for resentencing.
- The court held the district court’s retail-value determination was clearly erroneous because it lacked record support and an articulated basis.
- The court held the pattern-of-activity enhancement was not categorically limited to producers and could apply to trafficking/distribution conduct; the district court erred by excluding it on that ground.
- Because guideline errors affected the sentence and the departure analysis, the sentence could not stand and required full reconsideration on remand.

## Legal Principles

- Border searches by customs officials at an international entry point are authorized under broad border-search powers; evidence discovered may supply probable cause for a subsequent residential search warrant.
- Sentencing guideline findings (including valuation determinations) must rest on evidence bearing sufficient indicia of reliability and must be explained with a discernible methodology tied to the record.
- The guideline enhancement for a “pattern of activity involving the sexual abuse or exploitation of a minor” may apply based on extensive trafficking/distribution connected to child sexual exploitation and is not confined to defendants who personally produce the materials.
- When guideline calculations are materially flawed, a downward departure that depends on or is intertwined with those errors must be vacated and reconsidered under a corrected guideline framework.

## Conclusion

The Ninth Circuit upheld the searches leading to the evidence against Kemmish but vacated his sharply reduced sentence because the district court used an unsupported valuation and wrongly treated the pattern-of-activity enhancement as unavailable to a major trafficker, requiring resentencing under correct guideline interpretations and evidentiary findings.


United States v. Kemmish, 120 F.3d 937 (9th Cir. 1997)