Smartphones Are “Computers” Under U.S.S.G. §2G2.2(b)(6): Third Circuit Clarifies Digital-Format Enhancement

Introduction

United States v. Randal Wise, 24-2460 (3d Cir. Apr. 22, 2025), presents a consolidated appeal of convictions for possession of child pornography (18 U.S.C. § 2252A), attempt to transfer obscene matter to a minor (18 U.S.C. § 1470), and attempt to entice a minor (18 U.S.C. § 2422(b)). Wise challenged (1) the joinder and severance of four charges involving sexual exploitation of minors, (2) three sentencing enhancements under the U.S. Sentencing Guidelines, and (3) the applicability of the “computer enhancement” at U.S.S.G. § 2G2.2(b)(6) to his iPhone. The Third Circuit affirmed on all counts, and—in a matter of first impression in this Circuit—held that a smartphone qualifies as a “computer” under § 2G2.2(b)(6).

Summary of the Judgment

1. Joinder & Severance: The district court properly joined the four child-exploitation charges under Federal Rule of Criminal Procedure 8(a) (“same or similar character”) and reasonably denied severance under Rule 14, finding no undue prejudice.
2. Sentencing Enhancements:
   • U.S.S.G. § 2G2.2(b)(5) (pattern of sexual exploitation): A five-level increase based on two prior sex offenses against minors (Indiana conviction; sexting incident).
   • U.S.S.G. § 4B1.5(b)(1) (repeat sex offender): A separate five-level enhancement for multiple convictions for sexual abuse of minors—permitted even if based on same underlying facts as § 2G2.2(b)(5).
   • U.S.S.G. § 2G2.2(b)(6) (use of a computer): A two-level increase was appropriate because an iPhone is unambiguously a “computer” under the plain text of the Guideline.
3. Ineffective Assistance: The court declined to address this on direct appeal, deferring to 28 U.S.C. § 2255 procedures.

Analysis

1. Precedents Cited

• Rule 8(a) & Rule 14 Joinder Standards:
  • United States v. Lacerda, 958 F.3d 196 (3d Cir. 2020) – de novo review of joinder.
  • United States v. Davis, 397 F.3d 173 (3d Cir. 2005) – abuse of discretion on severance and limiting instructions.
  • United States v. Rivera, 546 F.3d 245 (2d Cir. 2008) & United States v. Hersh, 297 F.3d 1233 (11th Cir. 2002) – joining multiple sexual-exploitation charges.
• Pattern Enhancement (§ 2G2.2(b)(5)):
  • U.S.S.G. § 2G2.2(b)(5) cmt. n.1 – commentary defining “pattern” as two separate instances (including current offense). Third Circuit’s en banc decision in United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) – limits deference to commentary only when guideline text is truly ambiguous.
• Repeat Sex Offender (§ 4B1.5(b)(1)):
  • United States v. Seibert, 971 F.3d 396 (3d Cir. 2020) – simultaneous application of § 2G2.2(b)(5) and § 4B1.5(b)(1) is permissible.
• Computer Enhancement (§ 2G2.2(b)(6)):
  • Riley v. California, 573 U.S. 373 (2014) – characterizing smartphones as “minicomputers” under Fourth Amendment analysis.
  • United States v. Kramer, 631 F.3d 900 (8th Cir. 2011) & United States v. Mathis, 767 F.3d 1264 (11th Cir. 2014) – basic cell phones also qualify as “computers” under § 2G2.2(b)(6).

2. Legal Reasoning

a. Joinder & Severance: The Court applied the familiar two-step analysis: (i) under Rule 8(a), charges are properly joined if they are “same or similar in character”; (ii) under Rule 14, severance is warranted only if the defendant suffers “serious prejudice” that cannot be cured by limiting instructions. Because all counts involved online sexual exploitation of minors using the same Snapchat/Grindr platform and overlapping evidence, joinder was appropriate. The district court’s careful limiting instructions cured any risk of spillover.

b. Sentencing Enhancements: Pattern (§ 2G2.2(b)(5)) & Repeat Offender (§ 4B1.5(b)(1)): The court accepted the guideline commentary’s definition of “pattern” (two instances including the current offense) and found two qualifying prior incidents. It then applied § 4B1.5(b)(1) separately to reflect Wise’s status as a repeat sex offender. Third Circuit precedent allows stacking of these enhancements even if based on the same factual record.

c. Computer Enhancement (§ 2G2.2(b)(6)): The Court performed the interpretive hierarchy mandated by Nasir. It first asked whether the text is unambiguous: “computer” is defined by common dictionaries as an electronic, programmable device that stores, processes, and transmits data; smartphones indisputably meet that definition. Because the text is clear, reliance on commentary was unnecessary. The Enhancement’s purpose—to penalize digital format’s heightened risk of mass distribution—further supports inclusion of smartphones.

3. Impact

• Sentencing: Future defendants cannot evade the computer enhancement by pointing to mobility or miniaturization of devices; any device meeting the dictionary definition of “computer” (smartphones, tablets, laptops, and likely advanced feature phones) will trigger § 2G2.2(b)(6).
• Guideline Interpretation: Reinforces textual-first approach; courts should consult commentary only where genuine ambiguity exists.
• Child Exploitation Law: Validates the government’s use of digital evidence to prove intent and knowledge in online enticement cases.

Complex Concepts Simplified

• Joinder vs. Severance: Joinder (Rule 8) lets prosecutors try related charges together to save time and avoid repetitive evidence. Severance (Rule 14) lets a defendant request separate trials if a combined trial would unfairly prejudice them.
• Relevant Conduct: Under § 1B1.3 of the Guidelines, a sentencing court can consider past acts that were part of the same criminal scheme or course of conduct when calculating guidelines ranges.
• Commentary Deference: Sentencing commentary helps explain guidelines but has force only if the guideline text is truly ambiguous. If the text is clear, commentary cannot override it.
• Enhancement Stacking: Even if two guideline enhancements rest on the same underlying facts (here, prior sex crimes), if each implements a distinct policy goal, both can apply.

Conclusion

United States v. Wise marks a significant clarification of the Sentencing Guidelines in the digital age. By holding that smartphones are “computers” under § 2G2.2(b)(6), the Third Circuit ensures that the two-level enhancement for use of a computer in child-exploitation offenses will apply broadly to modern devices. In so doing, the court reaffirmed a text-driven approach to guideline interpretation, endorsed the permissibility of multiple overlapping enhancements, and confirmed best practices for joinder and severance. Wise’s case will serve as binding authority in this Circuit—and persuasive authority elsewhere—whenever digital devices facilitate the exploitation of minors.