United States v. Franklin

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2006

Charles R. Fulbruge III Clerk No. 05-30776 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

D.J. FRANKLIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:05-CR-60005-ALL --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

D.J. Franklin appeals his 51-month sentence for possession

of child pornography. As his sole issue on appeal, Franklin

contends that the district court erred as a matter of law when it

applied a two-level increase under U.S.S.G. § 2G2.4(b)(2) for

possession of ten or more “items” that contained visual

depictions involving the sexual exploitation of a minor.

Franklin argues that the record is devoid of evidence to support

the increase. The Government concedes error, concludes that it

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-30776 -2-

cannot show that the error is harmless, and asserts that

Franklin’s sentence should be vacated and his case remanded for

resentencing.

Franklin objected in the district court to increases applied

pursuant to § 2G2.4(b)(2) and § 2G2.4(b)(5)(B) on the grounds

that the increases constituted impermissible double-counting. He

now contends for the first time that the record is devoid of

evidence to support the § 2G2.4(b)(2) increase; thus, our review

is for plain error only. See United States v. Green, 324 F.3d

375, 381 (5th Cir. 2003) (citing United States v. Jimenez, 256

F.3d 330, 340 (5th Cir. 2001)).

Section 2G2.4(b)(2) authorizes a two-level increase if “the

offense involved possessing ten or more books, magazines,

periodicals, films, videotapes, or other items, containing a

visual depiction involving the sexual exploitation of a minor.”

A “file” that contains a visual depiction and is stored on a

digital, electrical, or magnetic storage medium or device is

considered one “item.” § 2G2.4(b)(2), comment. (n.2).

As the Government concedes, there is no evidence in the

record that demonstrates that Franklin possessed ten or more

items or files of images. Accordingly, the imposition of the

§ 2G2.4(b)(2) increase was error that is plain or obvious. See

United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).

To demonstrate that the error affected his substantial

rights, Franklin must show that the error affected the outcome of No. 05-30776 -3-

the sentencing proceedings such that there is a probability of

error “sufficient to undermine confidence in the outcome.”

United States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005). Absent the § 2G2.4(b)(2) increase,

the advisory guidelines range would have been 33 to 41 months of

imprisonment; Franklin’s 51-month sentence is outside of this

range. Therefore, we conclude that the error affected Franklin’s

substantial rights and seriously affected the fairness and

integrity of the judicial proceedings. See United States v.

Wheeler, 322 F.3d 823, 828 (5th Cir. 2003); United States v.

Franks, 46 F.3d 402, 405 (5th Cir. 1995). Accordingly,

Franklin’s sentence is VACATED, and the case is REMANDED for