United States v. Brian John McRee, Sr.

625 F. App'x 430
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 27, 2015
Docket15-10242
StatusUnpublished
Cited by1 cases

This text of 625 F. App'x 430 (United States v. Brian John McRee, Sr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brian John McRee, Sr., 625 F. App'x 430 (11th Cir. 2015).

Opinion

PER CURIAM:

Brian McRee, Sr. appeals his sentences for sexual enticement of a minor and possession of child pornography. McRee ar-gués that his sentences were proeedurally unreasonable because the district court: (a)- increased his' sentences pursuant to both U.S.S.G.’ § 4B1.5(b)(l) and § 2G2.2(b)(5), resulting in double counting, (b) relied on his status as a former police officer in imposing higher sentences, (c) increased his sentences under both § 2G2,2(b)(4) and (b)(2), resulting in doú-ble counting, and (d) applied a two-level increase under § 2G2.2(b)(6) for.using a computer, when almost all child pornography offenses involve the use of a computer. Finally, McRee argues that because of those procedural errors, his sentences were substantively unreasonable.

Ka).

First, McRee argues that the district court erred by applying a five-level pattern of activity enhancement, under U.S.S.G. § 4B1.5(b)(l), after grouping the enticement and possession offenses, because that section explicitly does not apply to possession of child pornography offenses. Furthermore, the court had already applied a five-level increase for pattern of activity within- the possession of child pornography guideline, under § 2G2.2(b)(5), and so adding the. second pattern of activity enhancement amounted to double counting.

We review a claim of double counting under the Guidelines de novo. United States v. De La Cruz Suarez, 601 F.3d 1202, 1220 (11th Cir.2010). Impermissible double counting occurs only when one part of the guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of a different part of the guidelines. Id. Double counting a factor during sentencing is permissible if the Sentencing Commission intended the result, and if each section concerns conceptually separate notions related to sentencing. Id. We presume that the Sentencing Commission intended separate guideline sections to apply cumulatively, unless, specifically directed ■ otherwise. United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir.1999).

Section 2G2.2(b)(5) of the sentencing guidelines provides for a five-level increase if the’ defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. Section 4B1.5(b)(l) applies to repeat and dangerous sex offenders against minors, and provides that, in any case in which the defendant’s offense of conviction is a covered sex crime and the defendant engaged in a pattern of activity involving prohibited sexual conduct, the offense level shall be five plus the offense level determined under Chapters Two and Three. Sexual enticement of a minor is a covered sex crime, but possession of child pornography is not. See U.S.S.G. § 4B1.5 cmt. (n. 2).

' The district court did not err in applying § 4B1.5(b)(l) because- the plain language of § 4B1.5(b)(l) requires that that enhancement be applied after the offense level is calculated under Chapters *433 Two and Three. Furthermore, applying both sections is permissible because each concerns conceptually different notions related to sentencing.

Kb).

Second, McRee argues that the district court’s reliance on McRee’s history as a former police officer in imposing an upward variance was reversible error.

An error in the district court’s calculation of the sentencing guidelines range warrants vacating the sentence, unless the error is harmless. United States v. Barner, 572 F.3d 1239, 1247 (11th Cir.2009). Where a district court clearly states that it would impose the same sentence, even if it erred in calculating the guidelines,- any error in the calculation is harmless. Id. at 1248.

There-was no upward variance'in this case, but tb the extent that McRee argues that consideration of his status as a former police officer resulted in higher sentences within the guideline range, any error was harmless, because the district court stated that it would apply the same sentences if it did not consider his status. Accordingly, there was no error on this ground.

Kc).

Third, McRee argues that the district court plainly erred by applying both U.S.S.G. § 2G2.2(b)(4) and § 2G2.2(b)(2), because using both enhancements resulted in impermissible double counting.

An appellate court may not correct an error the defendant failed to raise in the district court unless it is an error that is plain and that affects substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). If all three of those conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if the error seriously affects .the.fairness, integrity, or public reputation of judicial proceedings. Id. Error must be plain under controlling precedent or in view of the unequivocally clear words of a statute or rule. United States v. Lett, 483 F.3d 782, 790 (11th Cir.2007).

Under § 2G2.2(b)(2),. the district court applies a two-level increase to the defendant’s offense level if .the material involved a prepubescent minor or a minor who had not attained the age of 12 years. If the material portrays sadistic or • masochistic conduct or other depictions of violence* the district court applies a four-level increase under § 2G2.2(b)(4). There is every indication that the Sentencing Commission intended each applicable provision of § 2G2.2 to apply cumulatively. United States v. Cubero, 754 F.3d 888, 894 (11th Cir.), cert. denied — U.S. —, 135 S.Ct. 764, 190 L.Ed.2d 636 (2014). iTherefore, the district court did not plainly err in applying-both enhancements, because our binding precedent holds that each applicable provision of § 2G2.2 applies cumulatively. .

Kd).

Fourth McRee argues that the district court plainly erred when it applied a two-level enhancement, .under U.S.S.G. § 2G2.2(b)(6) for use of a computer and cell phone, because, with technology today, child pornography offenses will almost,-always involve the use of a computer. -

Section 2G2.2(b)(6) provides for a two-level increase in offense level if the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view material involving the sexual exploitation of a minor. We have stated that Commission report that McRee cites as undermining the enhancements- under § 2G2.2 did “not change the statutory sentencing scheme,-the applicable sentencing guidelines, or the binding precedent about *434 § 2G2.2 in this Circuit.” Cubero, 754 F.3d at 900.

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Bluebook (online)
625 F. App'x 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brian-john-mcree-sr-ca11-2015.