United States v. Erik Miltonhall

670 F. App'x 345

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 15, 2016
• Docket: 15-11283 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Defendant-Appellant Erik Miltonhall pleaded guilty to transporting a visual depiction of a minor engaged in sexually explicit conduct and was sentenced to the statutory maximum of 240 months. He appeals his sentence on several grounds.

Miitonhall first contends that the district court misapplied the vulnerable victim enhancement under U.S.S.G. § 3A1.1(b). However, even absent the enhancement, Miltonhall’s guidelines range exceeded the statutory maximum sentence. Further, the district court stated that it would impose the same sentence without the enhancement, Thus, even if the district court did err, it was harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 718-19 (5th Cir. 2010).

Miitonhall also asserts that the district court misapplied the five-level enhancement under § 2G2.2(b)(7)(A) for an offense involving 600 or more images. The presen-tence report (PSR) states that Miitonhall possessed 1,625 images of child pornography at the time he distributed 13 images to another person. Moreover, testimony at sentencing revealed that he was actively searching a large inventory of images when he was chatting with the person with whom he ultimately transported the 13 images. As it is plausible in light of the record as a whole that Miitonhall possessed 600 .or more images of child pornography “during the commission” of his acts of transporting child pornography, the district court did not clearly err by applying the enhancement. United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).

Finally, Miitonhall contends that the district court violated his Fifth and Sixth Amendment rights by considering pending state charges when applying the pattem-of-activity enhancement under § 2G2.2(b)(5). The PSR listed statutory sodomy as a “pending charge” and explained that the charge arose from allegations that Miitonhall sexually abused his ex-girlfriend’s daughter. The probation officer gathered information regarding these allegations from interviews conducted by the Child Advocacy Center of East Alabama and conversations Miitonhall had with his ex-girlfriend on Facebook. Miiton-hall did not present any evidence (other than a self-serving denial that he ever touched his. ex-girlfriend’s daughter) to demonstrate that the information was materially untrue, inaccurate, or unreliable. Absent contrary evidence, the district court was entitled to rely on the information in the PSR when determining Milton-hall’s sentence. See United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013); United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). Moreover, we have held .that a defendant’s right to confrontation does not extend to sentencing proceedings. See United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006); United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999).

The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.