United States v. Jimmy D. Morell ( 2005 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 05-1586
    ________________
    United States of America,                *
    *
    Appellee,                    *
    *      Appeal from the United States
    v.                                 *      District Court for the
    *      Western District of Arkansas.
    Jimmy Dwayne Morell,                     *
    *
    Appellant.                   *
    ________________
    Submitted: October 11, 2005
    Filed: December 1, 2005
    ________________
    Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
    ________________
    GRUENDER, Circuit Judge.
    Jimmy D. Morell pleaded guilty to one count of possession of child
    pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2) and 2256(2), (8)(A).
    The district court1 sentenced Morell to 92 months’ imprisonment. Morell appeals the
    sentence. For the reasons discussed below, we affirm.
    1
    The Honorable Jimm Larry Hendren, Chief Judge, United States District for
    the Western District of Arkansas.
    I.    Background
    Morell pleaded guilty after United States Customs agents searched his residence
    and seized computer equipment on which child pornography was stored. At
    sentencing, Morell objected generally to any increase in his sentence that was based
    on judicial fact-findings, arguing that United States v. Booker, 
    125 S. Ct. 738
    (2005),
    proscribes increasing a sentence based on facts not found by a jury or admitted by the
    defendant. Morell also objected to the district court calculating his base offense level
    according to the image trafficking provision of the United States Sentencing
    Guidelines rather than the image possession provision. In addition, Morell
    unsuccessfully argued that his criminal history warranted a downward departure.
    Using the 2003 edition of the guidelines manual, the district court determined that
    Morell’s offense level was 26 and his criminal history category was IV, providing an
    advisory guidelines range of 92-115 months. The district court sentenced Morell to
    92 months’ imprisonment. On appeal, Morell argues the district court erred on
    several issues of law and in its application of the guidelines.
    II.   Discussion
    Morell argues that the district court erred in holding that a sentence within the
    applicable guidelines range is prima facie reasonable. We review the district court’s
    conclusions of law de novo. United States v. Mashek, 
    406 F.3d 1012
    , 1016 (8th Cir.
    2005). Morell’s argument mischaracterizes what the district court reasoned. The
    district court opined:
    I think there’s some merit to the [n]otion that at least it
    might be argued that it would be prima facie reasonable, if
    I may use that term, to start there with the guidelines, and
    then consider whether there are features and arguments that
    . . . would persuade the Court to go away from or to find a
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    different level or a different area of the range of sentence
    that’s available under the statute to fix the sentence.
    In other words, the district court stated that it might be appropriate to begin with the
    guidelines when making a sentencing determination. This approach is consistent with
    Booker and is not error. 
    Booker, 125 S. Ct. at 767
    (holding that “[t]he district courts,
    while not bound to apply the Guidelines, must consult those Guidelines and take them
    into account when sentencing”); 
    Mashek, 406 F.3d at 1016
    n.4 (collecting cases and
    holding that “[t]he appropriate guidelines range, though now calculated under an
    advisory system, remains the critical starting point for the imposition of a sentence
    under § 3553(a)”).
    Morell next argues that the district court erred under Booker by making findings
    of fact when applying the guidelines. Judicial fact-finding is permitted provided that
    it is done with the understanding that the guidelines are to be applied in an advisory
    fashion. United States v. Ameri, 
    412 F.3d 893
    , 899 (8th Cir. 2005) (citing United
    States v. Haack, 
    403 F.3d 997
    , 1003 (8th Cir. 2005)). Because the record establishes
    that the guidelines were applied in an advisory manner, the district court did not err
    in finding facts that enhanced the advisory guidelines sentence.
    Morell also claims the district court erred by enhancing his sentence based on
    his prior convictions. According to Morell, Shepard v. United States, 
    125 S. Ct. 1254
    (2005), implicitly overruled Almendarez-Torres v. United States, 
    523 U.S. 224
    (1998),
    thereby making it error to enhance a sentence based on prior convictions. This Court
    has held that it remains “bound by Almendarez-Torres until the Supreme Court
    explicitly overrules it.” United States v. Torres-Alvarado, 
    416 F.3d 808
    , 810 (8th Cir.
    2005). Accordingly, the district court did not err by enhancing the sentence based on
    Morell’s prior convictions.
    Lastly, Morell argues that the district court erred in its application of the
    guidelines in two ways: first, by incorrectly calculating the base offense level; and
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    second, by refusing to depart downward based on a criminal history category that
    Morell claims overstated the seriousness of his prior criminal conduct. Morell
    incorrectly cites reasonableness as the standard of review for these issues.2 We have
    held that questions involving the application of the guidelines are reviewed de novo.
    United States v. Mathijssen, 
    406 F.3d 496
    , 498 (8th Cir. 2005).
    Morell’s argument regarding the calculation of his base offense level is
    meritless. He argues that because he pleaded guilty only to possessing, but not to
    trafficking in, child pornography, a base offense level of 15 was required pursuant to
    U.S.S.G. § 2G2.4, the guidelines provision setting the base offense level for image
    possession. However, the Presentence Investigation Report (“PSR”), to which Morell
    did not object, supports the district court’s determination that Morell did, in fact,
    traffic in child pornography. Because Morell did not object to the specific facts set
    forth in the PSR, the district court did not err in relying on them. United States v.
    Arrieta-Buendia, 
    372 F.3d 953
    , 955 (8th Cir. 2004). Thus, the district court correctly
    determined a base offense level of 17 pursuant to U.S.S.G. § 2G2.2, the guidelines
    provision setting the base offense level for image trafficking.
    The argument that the district court improperly refused to depart downward
    pursuant to U.S.S.G. § 4A1.3 based on Morell’s claim that his criminal history
    category over-represented the seriousness of his criminal conduct also fails. The
    decision not to depart downward is not reviewable under 18 U.S.C. § 3742. United
    States v. Frokjer, 
    415 F.3d 865
    , 875 (8th Cir. 2005) (holding that “we see no reason
    why Booker –which left intact §§ 3742(a) and (b)–should alter our rule that a district
    court’s discretionary decision not to depart downward is unreviewable”). We thus
    decline further review on this issue.
    2
    Morell does not argue that his sentence is unreasonable. The argument in his
    brief is framed solely as a challenge to the application of the guidelines.
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    III.   Conclusion
    Accordingly, we affirm the sentence of the district court.
    _____________________________
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