Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: October 19, 2011
Before BYE, SMITH, and COLLOTON, Circuit Judges.
Brock Burman pleaded guilty to three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and nine counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Burman argues on appeal that the district court*fn1 plainly erred in denying his motion to dismiss the receipt counts because of a double jeopardy violation. Burman also argues that the district court erred in its calculation of the Guidelines range for his offense because the court imposed a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) and assessed two criminal history points against Burman for a 1997 conviction for indecent contact with a child. We affirm.
On April 30, 2010, officers with the Mason City Police Department searched Burman's home in Mason City, Iowa, and seized a number of items including a Sony computer, a Toshiba hard drive, a Western Digital external hard drive, six compact disks, and a mini DVD. Each of these storage devices contained multiple depictions of underage sexually explicit conduct. In an interview with investigators on April 30, 2010, Burman stated that he downloaded child pornography using Gigatribe, a peer- to-peer file-sharing program. When asked if he posted pictures through Gigatribe, he said that whenever he downloads something it "goes back on." Burman also said that he was aware that the images that he downloaded with Gigatribe were available to others through his computer. Burman's Toshiba hard drive contained 68 depictions of child pornography in a peer-to-peer downloads folder that were downloaded on April 23, 25, and 28, 2010. Altogether, the Toshiba hard drive contained over 12,000 depictions of child pornography.
According to the presentence investigation report (PSR), an individual with the screen name "rocko20031" and email address "email@example.com" used the internet program Yahoo! Messenger to upload images of child pornography on March 26, 2004. On January, 13, 2004, an individual with the email address "firstname.lastname@example.org" used Yahoo! Messenger to upload at least one image of child pornography. Burman admitted that he used Yahoo! Messenger and that his email accounts were "email@example.com" and "firstname.lastname@example.org."*fn2 Burman told investigators that he had been downloading child pornography for about two years.
On July 14, 2010, Burman was charged in a superceding indictment with three counts of receipt of child pornography on April 23, 25, and 28, 2010, after having been convicted of an offense relating to sexual abuse or abusive sexual conduct involving a minor, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) ("Counts I through III"), and nine counts of possession of child pornography between June 2009 and April 2010 after having been convicted in an offense relating to sexual abuse or abusive sexual conduct involving a minor, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) ("Counts IV through XII"). The prior offense charged in the indictment was a state court conviction on March 4, 1997, for indecent contact with a child.
Burman pleaded guilty to all 12 counts of the superseding indictment. Prior to sentencing, Burman filed a motion to dismiss Counts I, II, and III as unconstitutional under the Double Jeopardy Clause of the Fifth Amendment because the images that formed the bases for those counts were among the images that formed the basis for Count IV--possession of child pornography on the Toshiba hard drive. The district court denied Burman's motion to dismiss because the issue was not timely raised and because no double jeopardy violation had occurred. In calculating the Guidelines range for Burman's offense, the district court imposed a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for an offense involving "[d]istribution for the receipt, or expectation of receipt, of a thing of value." The district court also assessed two criminal history points against Burman under U.S.S.G. § 4A1.2(e)(2) for his March 1997 conviction for indecent contact with a child. The court determined that the Guidelines range for Burman's offense was 360 months' to life imprisonment on Counts I through III and 240 months' imprisonment on Counts IV through XII. The district court also stated:
I would just say this about the sentence that I'm going to impose. It is going to be a guideline sentence; however, if I were to totally ignore the guidelines, if they didn't exist and I was just starting as I might with a clean slate, with nothing to guide me, my sentence would still be the same. The sentence that I am going to impose is fully supported by the uncontested portions of the presentence investigation report and the evidence, not the least of which is the interview that the defendant gave to law enforcement.
The court considered the factors listed in 18 U.S.C. § 3553(a) and sentenced Burman to 420 months' imprisonment, followed by ten years of supervised release. This timely appeal followed.
Burman raises three issues on appeal. First, he contends that the district court plainly erred in denying his motion to dismiss Counts I, II, and III of the superceding indictment. Second, Burman argues that the district court erred by imposing a fivelevel enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distribution for the expected receipt of a thing of value. Third, Burman argues that the district court erred by ...