United States v. Christopher Edward Persall , 176 F. App'x 1 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 13, 2006
No. 05-12602 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00336-CR-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER EDWARD PERSALL,
a/k/a Christopher Persall,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama.
_________________________
(March 13, 2006)
Before ANDERSON, BIRCH and HILL, Circuit Judges.
PER CURIAM:
Christopher Edward Persall appeals his seventy (70) month sentence for
possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), receipt of child
pornography, 18 U.S.C. § 2252A(a)(2)(A), and possession of child pornography
under Section 2252A(a)(5)(B)(as amended).1 The sole issue raised on appeal by
Persall is a Booker issue, i.e., that the district court erred by enhancing his sentence
in excess of the guidelines range for his crime by using facts not admitted to by
him and not found by a jury. Booker v. Washington, 125 S.Ct. 738 (2005).
This issue is entirely without merit as Persall was sentenced on April 21,
2005, under the post-Booker advisory guidelines and not the pre-Booker mandatory
guidelines system.2 After Booker, “the use of extra-verdict enhancements in an
advisory guidelines system is not unconstitutional.” United States v. Chau, 426
F.3d 1318, 1323 (11 th Cir. 2005).
Therefore, Persall’s argument fails under the precedent of this circuit. See
also United States v. Winingear, 422 F.3d 1241, 1244 (11 th Cir. 2005); United
States v. Duncan, 400 F.3d 1297, 13044-05 (11 th Cir. 2005). Finding no error, the
sentencing judgment of the district court as to Persall is affirmed.
AFFIRMED.
1
Although counts one and two addressed the same crime under Section 2252A(a)(5)(B),
Persall’s possession occurred both before and after a statutory amendment that lengthened the
maximum statutory penalty for the crime.
2
In sentencing him, the district court expressly stated that sentence was imposed under
the Sentencing Reform Act of 1984, as modified by the Supreme Court decision in Booker. R6-
16.
2