United States v. Clarence Byron Carter, II

292 F. App'x 16
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 27, 2008
Docket08-10443
StatusUnpublished
Cited by4 cases

This text of 292 F. App'x 16 (United States v. Clarence Byron Carter, II) 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. Clarence Byron Carter, II, 292 F. App'x 16 (11th Cir. 2008).

Opinion

PER CURIAM:

Clarence Byron Carter, II, appeals his combined 45-year sentences for producing, distributing, and possessing child pornography. Carter argues that certain enhancements should not have been applied cumulatively, that an enhancement for “pattern of activity” should not have been applied at all, and that his multiple sentences should run concurrently, rather than consecutively. For the reasons below, we affirm the sentence.

BACKGROUND

Carter pleaded guilty to the production of child pornography in violation of 18 U.S.C. § 2251(a) (count 1), distribution or receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) (count 2), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (count 3).

According to the presentence investigation report, FBI investigators discovered approximately 4,800 image, text, and movie files pertaining to sexual exploitation of children, including images of child bondage on Carter’s computer. Eleven known children, ages 7 through 14, were identified in the images. The images included photographs and videos produced by Carter, some involving Carter physically touching the genitalia of two child victims. The victims were the children of his sister’s personal friends.

*18 The probation officer calculated the Sentencing Guideline range using the 2007 Sentencing Guidelines, 1 after grouping counts 2 and 3 and separating count 1 into two groups because of the existence of two victims. Numerous enhancements and adjustments were made to the base offense levels for the various counts which are not at issue in this appeal. The enhancements and adjustments relevant to this appeal are as follows:

The offense level for grouped counts 2 and 3 were enhanced two levels under § 2G2.2(b)(3)(F) for distributing the child pornography to others through a file-sharing computer program and another two levels under § 2G2.2(b)(6) because the offense involved the use of a computer for possession, transmission, receipt, or distribution. Carter objected to the use of both these enhancements because he claimed they were redundant and thus were “double-counting.”

The offense level for grouped counts 2 and 3 was enhanced five levels under § 2G2.2(b)(5) because Carter engaged in a “pattern of activity involving the sexual abuse or exploitation of a minor.” After the total offense level was calculated, the probation officer then recommended a five level enhancement under § 4B1.5(b)(l) for engaging in a “pattern of activity involving prohibited sexual conduct.” Carter objected to the use of these enhancements because (1) he had not engaged in a “pattern of activity” but rather one episode of ongoing conduct, and (2) the use of both § 2G2.2(b)(5) and § 4B1.5(b)(l) constituted impermissible double-counting because both sections address patterns of áctivity.

After overruling Carter’s objections to the calculations made in the presentence report, the court addressed the potential sentences under the Guidelines and considered the statutory sentencing range. The Sentencing Guidelines calculations for counts 1 through 3 resulted in a recommended sentence of life imprisonment. The statutory máximums, however, limited the sentences to not more than 20 years for count 1, not more than 15 years for count 2, and not more than 10 years for count 3. Because the total punishment recommended under the Sentencing Guidelines exceeded the statutory máxi-mums, the court imposed the sentences for the three counts consecutively, rather than concurrently. Carter objected because he had requested a 30-year sentence and is in poor health. The court overruled his objection and imposed a combined 45-year sentence using the statutory máximums for each count. Carter timely appealed his sentence.

STANDARD OF REVIEW

We review the interpretation and application of the Sentencing Guidelines de novo, and review the district court’s factual findings for clear error. United States v. Williams, 527 F.3d 1235, 1247-48 (11th Cir.2008). Although the sentencing guidelines are now advisory after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “district courts are still required to correctly calculate the appropriate advisory guidelines range.” United States v. Livesay, 484 F.3d 1324, 1329 (11th Cir.2007).

DISCUSSION

A. Double Counting for Use of Computer

Carter argues that the district court erred in enhancing his sentence pur *19 suant to both § 2G2.2(b)(3)(F) and § 2G2.2(b)(6) because using both enhancements punished him twice for the same conduct, for using a computer in commission of the crime. We disagree.

“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 another part of the Guidelines.” United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir.1999) (internal citation omitted). Double counting is permitted, however, “if the Sentencing Commission intended that result and each guideline section in question concerns conceptually separate notions relating to sentencing.” United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995); see also United States v. Dudley, 463 F.3d 1221, 1227 (11th Cir.2006) (finding no impermissible double counting where the Guidelines sections at issue addressed separate harms). “This court presumes the Sentencing Commission intended to apply separate guideline sections cumulatively, unless specifically directed otherwise.” Matos-Rodriguez, 188 F.3d at 1310.

Nothing in the Guidelines indicates that the Sentencing Commission intended for §§ 2G2.2(b)(3)(F) and (b)(6) to not be applied together. Furthermore, Carter has made no argument to rebut the presumption that the Commission intended these sections to be cumulative. These sections also address separate harms. Section 2G2.2(b)(3)(F) provides for an enhancement for distribution of material involving the sexual exploitation of a minor. This section addresses the harms attendant to the act of distributing and sharing child pornography with other individuals; this section does not address the medium used for the distribution.

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Bluebook (online)
292 F. App'x 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clarence-byron-carter-ii-ca11-2008.