## Facts

- A federal special agent, posing online as a woman with two young daughters, entered a Yahoo! Internet chat room.
- A user with the screenname “sigmadogman” initiated contact with the agent and expressed interest in sexual activity with the agent’s daughters.
- “Sigmadogman” sent the agent 20 images depicting sexual acts and later said he was willing to travel from Michigan to Miami and pay to have sex with the agent and her daughters.
- Investigators subpoenaed Yahoo!, which reported that “sigmadogman” was registered to Todd Lewis and provided IP addresses used by that account.
- The Internet service provider for those IP addresses confirmed the addresses were assigned to Lewis.
- Officers obtained and executed a search warrant at Lewis’s location.
- Lewis admitted his computer contained child pornography and admitted he had chatted with the agent about traveling to Florida and paying for sex with the agent’s children.
- Officers seized Lewis’s computer; a forensic examination found child-pornography images stored on it.
- Lewis pleaded guilty to violating 18 U.S.C. § 2252(a)(1), which prohibits knowingly transporting in interstate or foreign commerce, by any means (including by computer or mail), a visual depiction of a minor engaged in sexually explicit conduct.
- At sentencing, the district court calculated Lewis’s offense level under the U.S. Sentencing Guidelines and applied a two-level increase under U.S.S.G. § 2G2.2(b)(6) for use of a computer to transmit illicit images.
- Lewis appealed, arguing that applying the § 2G2.2(b)(6) computer-use enhancement was impermissible double counting because computer use was already part of the conduct covered by the statute of conviction.

## Issues

1. Whether the district court impermissibly double counted by applying U.S.S.G. § 2G2.2(b)(6)’s two-level computer-use enhancement to a conviction under 18 U.S.C. § 2252(a)(1), which covers transportation “by any means,” including by computer.

## Decision

- The Sixth Circuit affirmed the sentence.
- The court rejected Lewis’s double-counting argument and upheld the two-level enhancement under U.S.S.G. § 2G2.2(b)(6).
- The court concluded that applying § 2G2.2(b)(6) did not punish the same element twice in a way barred by the Guidelines because the statute can be violated through non-computer means, and the Guideline provision separately addresses computer-related risks and harms.

## Legal Principles

- “Double counting” in Guidelines calculations is generally allowed unless the Sentencing Commission has clearly prohibited it or the same specific factor is fully accounted for by another guideline provision in a way that makes an added increase improper.
- A sentencing enhancement for use of a computer may apply even when the offense of conviction is defined broadly to include computer-based conduct, so long as the offense can also be committed without a computer and the Guidelines treat computer use as an additional aggravating feature.
- When a statute criminalizes transportation “by any means,” including by computer or mail, computer use is a method of committing the offense rather than a required element in every case; an enhancement keyed to computer use can therefore apply without duplicating a mandatory element.
- On appeal, a sentence calculated under the Guidelines is reviewed for procedural correctness, including proper application of guideline enhancements, and will be affirmed when the district court applies the correct guideline rule.

## Conclusion

United States v. Lewis held that the district court properly applied U.S.S.G. § 2G2.2(b)(6)’s two-level computer-use enhancement to Lewis’s conviction for transporting child pornography under 18 U.S.C. § 2252(a)(1). Because the statute can be violated through means other than a computer and the Guidelines treat computer use as an added aggravating factor, the enhancement was not impermissible double counting, and the Sixth Circuit affirmed the sentence.


United States v. Lewis, 605 F.3d 395 (2010)