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Full Opinion
USCA11 Case: 22-14128 Document: 83-1 Date Filed: 03/27/2025 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14128
____________________
UNITED STATES OF AMERICA,
PlaintiïŹ-Appellee,
versus
YNDDY BLANC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cr-60012-JIC-1
____________________
USCA11 Case: 22-14128 Document: 83-1 Date Filed: 03/27/2025 Page: 2 of 20
2 Opinion of the Court 22-14128
Before WILLIAM PRYOR, Chief Judge, and JORDAN, and MARCUS,
Circuit Judges.
PER CURIAM:
Following a multi-day trial, a federal jury convicted Ynddy
Blanc of two charges based on child pornography found on his cell
phone: transportation of child pornography, in violation of 18
U.S.C. § 2252(a)(1) & (b)(1); and possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B). The district court sen-
tenced him to 168 months of imprisonment, a term within the ad-
visory range under the Sentencing Guidelines. He now appeals,
raising a number of challenges to his convictions and his sentence.
Following a review of the record, and with the benefit of oral argu-
ment, we affirm.1
I
We summarize the evidence presented at trial in the light
most favorable to the government. See United States v. Mapson, 96
F.4th 1323, 1328 (11th Cir. 2024). Before doing so, we set out the
elements of the charged offenses to provide context for the issues
presented on appeal.
To convict Mr. Blanc of the transportation offense under 18
U.S.C. § 2252(a)(1), the government had to prove that he ââknow-
ingly transport[ed] or ship[ped]â the [child] pornography âusing any
means or facility of interstate or foreign commerce or in or
1 We address only the issues that we believe warrant discussion. With respect
to any issues not specifically discussed, we summarily affirm.
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22-14128 Opinion of the Court 3
affecting interstate or foreign commerce by any means including
by computer or mails.ââ United States v. Little, 864 F.3d 1283, 1288
n.1 (11th Cir. 2017) (quoting § 2252(a)(1)). To convict him of the
possession offense under 18 U.S.C. § 2252(a)(4)(B), the government
had to prove that he âknowingly possesse[d]â child pornography
which ââha[d] been shipped or transported using any means or fa-
cility of interstate or foreign commerce or in or affecting interstate
or foreign commerce, or which was produced using materials
which have been mailed or so shipped or transported, by any
means including by computer.ââ 18 U.S.C. § 2252(a)(4)(B). Both
charges, then, required the government to prove that Mr. Blanc
knew that his cell phone contained child pornography.
A
In April of 2021, Mr. Blanc initiated a Facebook Messenger
conversation with an undercover officer who was posing as a 14-
year-old girl. He requested photos of the fictitious child and asked
if she liked performing or receiving oral sex, if she had been in-
volved in threesomes, and if she had a favorite sex position. He ac-
cepted an invitation to meet the fictitious child at her home in St.
Petersburg, Florida, for sexual activity and said he would bring con-
doms. When he arrived at a nearby park, police officers from the
St. Petersburg Police Department arrested him. The officers
searched him and found condoms and two cell phones, including
the one he had used to communicate with the fictitious child.
There was no evidence of child pornography, or searches for child
pornography, on the phones.
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4 Opinion of the Court 22-14128
The state charged Mr. Blanc with the attempted enticement
of a child in violation of Fla. Stat. § 847.0135(4)(A) (prohibiting, in
relevant part, âtravel[ing]â within the state âfor the purpose of en-
gaging in . . . unlawful sexual conduct with a child or with another
person believed by the person to be a child after using a computer
online service [or] Internet serviceâ to â[s]educe, solicit, lure, or en-
tice or attempt to seduce, solicit, lure, or entice a child or another
person believed by the person to be a child, to engage in . . . unlaw-
ful sexual conductâ). He was released on bond pending trial.
While on bond for the attempted enticement charge, Mr.
Blanc traveled to Haiti to visit family members. He returned to the
United States on January 19, 2022, through the Ft. Lauderdale Air-
port, where Customs and Border Patrol officers referred him for
secondary inspection based on the pending state criminal case.
When they conducted a preliminary search of his cell phone
(with the password provided by Mr. Blanc) CBP officers found one
video of child pornography in a photo album that stored content
received from WhatsApp, a phone application used for making
phone calls and exchanging messages.
A user must go to the app store on his phone to download
WhatsApp. Once it is installed, WhatsApp automatically saves vid-
eos and images received through its chats to the userâs phone un-
less the user elects to change the default settings. Mr. Blancâs phone
was set to the default settings, and WhatsApp therefore automati-
cally downloaded child pornography onto the phone.
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22-14128 Opinion of the Court 5
A grand jury returned an indictment charging Mr. Blanc
with the transportation and possession of child pornography. Mr.
Blanc defended against the charges on the ground that the child
pornography videos on his phoneâwhich he had owned for about
eight monthsâwere automatic downloads from the WhatsApp
program that he was unaware of.
B
Following the discovery of the child pornography, Special
Agents Jeanne Neill and Eric Stowers from the Department of
Homeland Security interviewed Mr. Blanc. He waived his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), consented to a search
of his phone, and agreed to be interviewed. The recorded interview
took about one and half hours, including a break.
Mr. Blanc told Agents Neill and Stowers that he used
WhatsApp and that some of the groups that he belonged to ex-
changed pornographic videos, including âkids porn.â He also re-
called seeing a couple of child pornography videos through these
groups and described one of the videos from memory. He also said
that he had seen another video involving a 10-year-old girl perform-
ing oral sex on an adult male. But he denied seeing other porno-
graphic videos found on his phone, and explained that any videos
he received through WhatsApp would âautomatically downloadâ
to his phone without his knowledge and be saved both to his âpic-
turesâ on the phoneâs camera roll and to a designated WhatsApp
folder in the phoneâs photo album. He acknowledged that he did
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6 Opinion of the Court 22-14128
not delete child pornography videos from his phone after seeing
them.
Brian Hixson, a DHS computer forensic analyst, found 18
videos of child pornography on Mr. Blancâs phone. Over defense
objection, video clips from some of the videos were played for the
jury.
Of the 72 WhatsApp groups on the phone, 67 had zero child
pornography videos. And for the five groups that had child pornog-
raphy videos, those videos were a small percentage of the down-
loads. For example, the âMen negâ group had 1,696 downloads but
only two child pornography videos.
According to the videosâ metadata, Mr. Blanc received the
videos through WhatsApp from five different group chats that he
had joined or created himself. One of the group chats had a Haitian
Creole title (âRache [Pwel] Timoun 2000â) which in context meant
having sex with children in a manner so rough that their pubic hair
falls off.
Mr. Blanc told Agents Neill and Stowers that he had re-
moved himself or been removed from some of the groups that
were sharing child pornography, and made critical comments
about that content when he saw it. Agent Neill confirmed that she
saw removal messages in certain groups, including one dated No-
vember 24, 2021, in which Mr. Blanc had been removed. Agent
Neill said, however, that she could not find evidence on the phone
that he had removed himself from other group chats because the
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22-14128 Opinion of the Court 7
Cellebrite extraction report from the forensic examination indi-
cated that a search for the words âyou leftâ yielded negative results.
The forensic examination of the phone showed that at the
time of his arrest Mr. Blanc was still an active member of some of
the groups that were sharing child pornography. The examination
also indicated that he had opened these chats sometime after the
pornographic videos had been received. But the Cellebrite pro-
gram that Mr. Hixson used for the phone could not tell when a
person opened and viewed a video.
According to Agent Neill, Mr. Blanc was confused during a
part of the interview. For example, when she was asking him about
the January 2022 videos she had found, he was talking about the
November 2021 timeframe, when he said he had removed himself
from a chat group.
II
Mr. Blanc challenges some evidentiary rulings by the district
court. We discuss them below.
A
The government, over defense objection, presented evi-
dence at trial about the April 2021 events leading to the arrest of
Mr. Blanc in Florida for the attempted enticement of a child. See
Fla. Stat. § 847.0135(4)(a). He argues that this evidence did not sat-
isfy Rule 404(b)âs requirements.
Rule 404(b)(1) provides that â[e]vidence of any other crime,
wrong, or act is not admissible to prove a personâs character in
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8 Opinion of the Court 22-14128
order to show that on a particular occasion the person acted in ac-
cordance with the character.â But Rule 404(b)(2) allows such evi-
dence âfor another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.â As we have said, subsection (b)(2) is a rule âof
inclusion which allows [extrinsic] evidence unless it tends to prove
only criminal propensity.â United States v. Ellisor, 522 F.3d 1255,
1267 (11th Cir. 2008) (citation and internal quotation marks omit-
ted).
To be admissible under Rule 404(b)(2), extrinsic evidence
must be relevant to an issue other than the defendantâs character
and sufficient for the jury to find by a preponderance that the de-
fendant committed the extrinsic act. Its probative value must also
not be substantially outweighed by its undue prejudice, and it must
otherwise satisfy Rule 403. See United States v. Nerey, 877 F.3d 956,
974 (11th Cir. 2017); United States v. Cenephat, 115 F.4th 1359, 1365
(11th Cir. 2024).
Mr. Blanc argues that the government used the evidence
concerning his attempted solicitation arrest as impermissible pro-
pensity evidence because the intent element for that charge is dif-
ferent than the intent for the child pornography transportation and
possession offenses. We disagree.
In admitting the evidence under Rule 404(b), the district
court noted that Mr. Blancâs primary defense was a âlack of
knowledge of the images being stored in the WhatsApp photo al-
bum of [his] cell phone.â D.E. 115 at 35. It then reasoned that
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22-14128 Opinion of the Court 9
evidence that he had previously used his phone to communicate
with someone he thought was a minor and then traveled to meet
that fictitious child for sex helped to establish his knowledge. First,
the jury could use the evidence to find that he had a sexual interest
in children and that he joined certain WhatsApp group chats for
the purpose of obtaining and viewing child pornography. Second,
the evidence was âhighly probativeâ of his knowledge of the
WhatsApp videos and rebutted any claim that he obtained the vid-
eos by âmistake or accident.â Third, one of the videosâshowing
two adults and a child being abusedâwhen viewed in light of his
question to the fictitious minor about threesomes, helped remove
doubt about his intentions in acquiring the child pornography.
Fourth, knowledge and lack of mistake or accident are non-propen-
sity reasons under Rule 404(b). See id. at 36â37.
Reviewing for abuse of discretion, see United States v. Dia-
mond, 102 F.4th 1347, 1353 (11th Cir. 2024), we do not discern any
error. Mr. Blanc defended against the child pornography charges
on the ground that he did not know about the videos on his cell
phone. And in a somewhat similar child pornography case where
the defendant argued in part âthat someone else downloaded child
pornography onto his computer or, alternatively, that it happened
automatically,â we affirmed the admission of Rule 404(b) evidence
that he had previously âengaged in sexual acts with minorsâ in an-
other country; such evidence was not impermissible propensity ev-
idence but rather went to the issues of knowledge, identity, or ab-
sence of mistake or accident. See United States v. Kapordelis, 569 F.3d
1291, 1313 (11th Cir. 2009). We come to the same conclusion here.
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10 Opinion of the Court 22-14128
In addition, â[m]otive is always relevant in a criminal case,
even if it is not an element of the crime.â United States v. Hill, 643
F.3d 807, 843 (11th Cir. 2011) (citation and internal quotation
marks omitted). Under Rule 404(b)(2) extrinsic evidence can be
used to establish motive, and â[p]rior instances of sexual miscon-
duct with a child victim may establish a defendantâs sexual interest
in children and thereby serve as evidence of the defendantâs motive
to commit a charged offense involving the sexual exploitation of
children.â United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006)
(affirming, in a case charging child pornography offenses, the ad-
mission of Rule 404(b) evidence that the defendant had molested a
young male relative and driven to another state intending to have
sex with a minor female).
We also reject Mr. Blancâs assertion that the district court
abused its discretion in concluding that the probative value of the
evidence was not substantially outweighed by its undue prejudice
under Rule 403. As relevant here, Rule 403 allows the exclusion of
relevant evidence âif its probative value is substantially outweighed
by a danger of . . . unfair prejudice.â We have said in a number of
cases that Rule 403 is an ââextraordinary remedy which should be
used sparingly[.]ââ United States v. McGregor, 960 F.3d 1319, 1324
(11th Cir. 2020) (citing cases standing for the same proposition).
We acknowledge that Rule 404(b) evidence âof a crime,
wrong, or other act is inherently prejudicial to the defendant be-
cause it risks a juryâs convicting the defendant for the extrinsic of-
fense or conduct rather than the charged one.â Nerey, 877 F.3d at
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22-14128 Opinion of the Court 11
974. Although the issue here is a close one, our review is deferen-
tial, and Mr. Blanc defended on the ground that he lacked
knowledge. That tips the scales in this particular scenario. See Ka-
pordelis, 569 F.3d at 1313â14 (holding that the probative value of
evidence that the defendant had engaged in prior sexual acts with
minors was not outweighed by the danger of unfair prejudice, con-
sidering the â[d]efendantâs identity and knowledge defense[s]â).
With respect to the requirements of Rule 403, the district
court told the jury three timesâwhen the evidence was admitted,
at the close of the evidence, and during the governmentâs closing
argumentâthat the Rule 404(b) evidence could be considered only
to decide whether Mr. Blanc had âthe state of mind or knowledge
necessary to commit the crimes charged in the indictment.â See,
e.g., D.E. 117 at 184. The ââscalpelâ of an appropriate limiting in-
struction at the time the evidence was admitted,â we have said,
âcan reduce the risk of inherent prejudice[.]â Ellisor, 522 F.3d at
1268. And we think it did so here. See United States v. Fortenberry,
971 F.2d 717, 721 (11th Cir. 1992) (âThe evidence had clear proba-
tive value; its prejudicial effect was minimized by the district
courtâs limiting instruction.â); United States v. Wilchcombe, 838 F.3d
1179, 1193 (11th Cir. 2016) (â[T]he district courtâs standard limiting
instruction mitigated whatever prejudice may have resulted from
the admission of [the Rule 404(b)] evidence.â).
B
Mr. Blanc contends that the district court erred under Rule
403 in allowing the government to play certain clips from the
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12 Opinion of the Court 22-14128
videos at trial despite his stipulation that the videos contained child
pornography and his concession that anyone seeing the images
would know that they constituted child pornography. Reviewing
again for abuse of discretion, see United States v. Bradberry, 466 F.3d
1249, 1253 (11th Cir. 2006), we reject the argument.
The âaccepted rule that the prosecution is entitled to prove
its case free from any defendantâs option to stipulate the evidence
away rests on good sense. A syllogism is not a story, and a naked
proposition in a courtroom may be no match for the robust evi-
dence that would be used to prove it.â Old Chief v. United States, 519
U.S. 172, 189 (1997) (holding that a district court abuses its discre-
tion when it admits evidence of a defendantâs legal status (e.g., be-
ing a felon) where the defense has offered to stipulate to that sta-
tus). Here the district court permitted the government to play short
clips of four of the videos found on Mr. Blancâs phone. Those clips
lasted less than 30 seconds, and the district court found that the
short duration of the clips mitigated the danger of unfair prejudice.
See D.E. 55 at 6.
Mr. Blancâs Rule 403 argument is largely foreclosed by
United States v. Alfaro-Moncada, 607 F.3d 720 (11th Cir. 2010). In that
case, the defendant was charged with possessing two DVDs that
contained child pornography. At trial the government introduced,
over defense objection, five still images from the DVDs. On appeal,
the defendant argued that the admission of the still images violated
Rule 403, but we held that there was no error under Old Chief:
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22-14128 Opinion of the Court 13
Admission of the ïŹve still images from the DVDs
served valid purposes. Those images proved that the
DVDs actually contained child pornography, alt-
hough it is true that AlfaroâMoncada stipulated to
that fact. They also tended to show that Alfaroâ
Moncada knew he was in possession of child pornog-
raphy, a fact that he did not stipulate. Even if showing
the images to the jury created some risk of injecting
emotions into the juryâs decision-making, it was not
an abuse of discretion for the district court to decide
that the risk did not substantially outweigh the still
imagesâ probative value. That is especially true since
the jury was only shown a small number of the im-
ages on the DVDsâonly 5 out of 4,650.
Id. at 734 (citations omitted).
Here the video clips played by the government were collec-
tively less than 30 seconds in duration. Each child pornography
prosecution is of course different, but Mr. Blanc has not explained
why his case is meaningfully different from Alfaro-Moncada. The
district court did not abuse its discretion in allowing the govern-
ment to play the short video clips.
III
Mr. Blanc argues that the evidence was insufficient to con-
vict him of transporting and possessing child pornography. The
only element he challenges for both charges, however, is
knowledge. See United States v. Pruitt, 638 F.3d 763, 766 (11th Cir.
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14 Opinion of the Court 22-14128
2011) (âInadvertent receipt of child pornography is not a violation
of [18 U.S.C. § 2252A(a)(2)].â).
âWe review sufficiency challenges de novo, viewing the evi-
dence, and all reasonable inferences therefrom, in the light most
favorable to the juryâs verdicts. The question is whether any ra-
tional jury could have found the essential elements of the crime
beyond a reasonable doubt.â Mapson, 96 F.4th at 1336 (citations and
internal quotation marks omitted). Critically, the âevidence need
not be inconsistent with every reasonable hypothesis except guilt,
and the jury is free to choose between or among the reasonable
conclusions to be drawn from the evidence presented at trial.â Id.
(citation and internal quotation marks omitted).
The child pornography videos were automatically down-
loaded to Mr. Blancâs phone by WhatsApp. Nevertheless,
âknowledge can be inferred from circumstantial evidence,â Staples
v. United States, 511 U.S. 600, 615 n.11 (1994), and the evidence here
permitted the jury to find that Mr. Blanc acted with the requisite
knowledge. First, he was a member of several WhatsApp groups,
one of which had a Haitian Creole title referencing rough sex with
children. Second, he knew that some of the groups he belonged to
exchanged pornographic videos, including âkids porn.â Third, he
admitted viewing two videos containing child pornography
through these groups; he described one of the videos from memory
and said he had seen another video involving a 10-year-old girl per-
forming oral sex on an adult male. Fourth, he knew that he was
storing the child pornography on his phone through WhatsApp
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22-14128 Opinion of the Court 15
and he did not delete the videos after viewing them. Fifth, he had
recently tried to entice a fictitious 14-year-old girl to have sex with
him. See Pruitt, 638 F.3d at 767 (affirming conviction for knowing
receipt of child pornography: â[T]he evidence showed that on 15
March 2007, without a job-related need to do so, Defendant used
his work computer to seek out and to view child-pornography im-
ages on the Countyâs server via remote access. Defendant admitted
knowing that the files contained child-pornography images when
he opened the files out of âcuriosityâ and âstupidity.â This evidence
is sufficient for a reasonable jury to have concluded beyond a rea-
sonable doubt that Defendant âknowingly receive[d]â child-pornog-
raphy images on his work computer.â).
All of this evidence, taken together, distinguishes Mr. Blancâs
case from United States v. Dobbs, 629 F.3d 1199, 1201 (10th Cir.
2011), where images of child pornography were automatically
stored on the temporary internet folder, or cache, of the defend-
antâs computer and there was no evidence that the defendant ever
accessed them. See id. at 1204 (âA careful review of the record re-
veals that the government presented no evidence that Mr. Dobbs
had accessed the files stored in his computerâs cache, including the
two images at issue. And, more tellingly, there was no evidence
that he even knew about his computerâs automatic-caching func-
tion. Moreover, as to the two images at issue, there was no evi-
dence presented to the jury that Mr. Dobbs even saw them, much
less had the ability to exercise control over them by, for example,
clicking on them or enlarging them.â).
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16 Opinion of the Court 22-14128
IV
For offenses involving the possession of child pornography,
the Sentencing Guidelines call for an enhancement to the base of-
fense level based on the number of âimagesâ involved. See U.S.S.G.
§ 2G2.2(b)(7)(A)â(D). The commentary to § 2G2.2(b)(7) provides
that â[e]ach video . . . shall be considered to have 75 images.â Id. at
cmt. n.6(B)(ii). Because the evidence at the sentencing hearing
showed that Mr. Blanc possessed fourteen videos containing child
pornography, the district court imposed a five-level enhancement
under § 2G2.2(b)(7)(D) for more than 600 images. See D.E. 94 at 11â
12.
Mr. Blanc challenges the district courtâs reliance on the com-
mentary to § 2G2.2(b)(7), arguing that it violated the dictates of Ki-
sor v. Wilkie, 588 U.S. 558 (2019), and United States v. Dupree, 57
F.4th 1269 (11th Cir. 2023) (en banc). In his view, the guideline is
unambiguous and calls for each video to be treated as a single im-
age. Because he did not object to the use of the commentary at the
sentencing hearing, however, we review for plain error. See United
States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019) (âWe review
unpreserved sentencing objections only for plain error.â).2
2 We have explained that â[l]itigants can waive or forfeit positions or issues
through their litigation conduct in the district court but not authorities or ar-
guments.â ECB USA, Inc. v. Chubb Ins. Co. of N.J., 113 F.4th 1312, 1320 (11th Cir.
2024) (citing cases). So, had Mr. Blanc challenged the commentary to
§ 2G2.2(b)(7) on some ground below, he could now assert a new argument on
appeal to support that challenge. But he did not object to the commentary on
any ground at sentencing.
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22-14128 Opinion of the Court 17
An error is plain if it is âclear or obvious.â Rosales-Mireles v.
United States, 585 U.S. 129, 134 (2018). And it is âenough that an
error be âplainâ at the time of appellate consideration.â Johnson v.
United States, 520 U.S. 461, 468 (1997). But where âthe explicit lan-
guage of a statute or rule does not specifically resolve an issue,
there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.â United States v.
Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (citation and internal
quotation marks omitted). We hold that the district court did not
plainly err in relying on and applying the commentary.
In 2003, Congress amended the Sentencing Guidelines to in-
clude an image table that applies to child pornography offenses. See
Prosecutorial Remedies and Other Tools to End the Exploitation
of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21,
117 Stat. 650. The image table provides a two-level enhancement
for 10 to 149 images; a three-level enhancement for 150 to 299 im-
ages; a four-level enhancement for 300 to 599 images; and a five-
level enhancement for 600 or more images. See U.S.S.G.
§ 2G2.2(b)(7)(A)â(D). Congress did not define the term âimagesâ or
instruct how media formats other than still photographs should be
tallied under the table.
As a result, the Sentencing Commission sought public com-
ment and conducted studies regarding these and other changes to
the guidelines. After receiving a range of suggestionsâsuch as that
one video should equal one image and that each moving image
should result in an enhancement of two or three levelsâthe
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18 Opinion of the Court 22-14128
Commission âdetermined that because each video contained mul-
tiple images it should be counted as more than one image.â United
States Sentencing Commission, History of the Child Pornography
Guidelines 41â44 (Oct. 2009).
Because of the disproportionate results that would occur by
counting each video as a single image or by counting each frame of
a video as a single image, the Commission selected a ratio of 75
images to one video to respect the penalty scale that Congress es-
tablished. See id. The commentary it adopted instructs that each
âphotograph, picture, computer or computer-generated image, or
any similar visual depictionâ shall count as one image, and each
âvideo, video-clip, movie, or similar visual depiction shall be con-
sidered to have 75 imagesâ unless the recording is âsubstantially
more than 5 minutes,â which may warrant an upward departure.
See U.S.S.G. § 2G2.2(b)(7), cmt. n.6(B)(i),(ii).
In Kisor, the Supreme Court held that a district court should
defer to an agencyâs interpretation of a regulation âonly if a regula-
tion is genuinely ambiguous. . . . even after a court has resorted to
all the standard tools of interpretation.â 588 U.S. at 573. We held in
Dupree that Kisor applies to the Sentencing Guidelines and that the
commentary cannot deviate from an unambiguous guideline. See
57 F.4th at 1275, 1277.
The district court did not plainly err by relying on the com-
mentary. First, the guideline at issue, § 2G2.2(b)(7), does not define
the term âimagesâ; nor does it specify how a video containing a
sequence of images should be tallied under the image table.
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22-14128 Opinion of the Court 19
Second, we have no published decisions resolving the issue Mr.
Blanc now raises.3
The two appellate courts that have confronted the issue
have come to different conclusions about whether § 2G2.2(b)(7) is
ambiguous. A divided panel of the Sixth Circuit held that
§ 2G2.2(b)(7) is ambiguous and that, as a result, the commentary
establishing the 75:1 ratio is entitled to deference. See United States
v. Phillips, 54 F.4th 374, 380â86 (6th Cir. 2022). The third member
of the panel, Judge Larsen, asserted that an âimage,â in the context
of a video, means âframe.â See id. at 390â92 (Larsen, J., concurring
in the judgment). The Third Circuit, in a case decided after Phillips,
agreed with Judge Larsenâs view and held that âimageâ unambigu-
ously means âframe,â which results in no deference being given to
the 75:1 ratio in the commentary. See United States v. Haggerty, 107
F.4th 175, 183â89 (3d Cir. 2024). Despite their disagreement about
ambiguity, the Sixth and Third Circuits rejected the position advo-
cated by Mr. Blanc on appealâthat each video must be treated as
one image. See Phillips, 54 F.4th at 381â82 (majority opinion) & 392
(Larsen, J., concurring in the judgment); Haggerty, 107 F.4th at 183.
Given the uncertain legal landscape about the 75:1 ratio pre-
scribed by the commentary to § 2G2.2(b)(7), Mr. Blanc cannot
3 In two unpublished opinions we have concluded that district courts properly
applied the commentary because § 2G2.2(b)(7) is ambiguous as to how to treat
videos under the image table. See United States v. Vandyke, 2024 WL 505080, at
*2â*4 (11th Cir. Feb. 9, 2024); United States v. Peralta, 2024 WL 4603297, at *2
(11th Cir. Oct. 29, 2024).
USCA11 Case: 22-14128 Document: 83-1 Date Filed: 03/27/2025 Page: 20 of 20
20 Opinion of the Court 22-14128
show that any error committed by the district court was plain. We
therefore affirm his sentence.4
V
Mr. Blancâs convictions and sentence are aïŹrmed.
AFFIRMED.
4 Mr. Blancâs motion for a stay is denied.
Case Information
- Court
- 11th Cir.
- Decision Date
- March 27, 2025
- Status
- Precedential