United States v. Brian John McRee, Sr. , 625 F. App'x 430 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10242
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00156-ACC-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN JOHN MCREE, SR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(August 27, 2015)
Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Brian McRee, Sr. appeals his sentences for sexual enticement of a minor and
possession of child pornography. McRee argues that his sentences were
procedurally unreasonable because the district court: (a) increased his sentences
pursuant to both U.S.S.G. § 4B1.5(b)(1) and § 2G2.2(b)(5), resulting in double
counting, (b) relied on his status as a former police officer in imposing higher
sentences, (c) increased his sentences under both § 2G2.2(b)(4) and (b)(2),
resulting in double counting, and (d) applied a two-level increase under
§ 2G2.2(b)(6) for using a computer, when almost all child pornography offenses
involve the use of a computer. Finally, McRee argues that because of those
procedural errors, his sentences were substantively unreasonable.
I(a).
First, McRee argues that the district court erred by applying a five-level
pattern of activity enhancement, under U.S.S.G. § 4B1.5(b)(1), after grouping the
enticement and possession offenses, because that section explicitly does not apply
to possession of child pornography offenses. Furthermore, the court had already
applied a five-level increase for pattern of activity within the possession of child
pornography guideline, under § 2G2.2(b)(5), and so adding the second pattern of
activity enhancement amounted to double counting.
We review a claim of double counting under the Guidelines de novo. United
States v. De La Cruz Suarez, 601 F.3d 1202, 1220 (11th Cir. 2010). Impermissible
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double counting occurs only when one part of the guidelines is applied to increase
a defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of a different part of the guidelines. Id. Double
counting a factor during sentencing is permissible if the Sentencing Commission
intended the result, and if each section concerns conceptually separate notions
related to sentencing. Id. We presume that the Sentencing Commission intended
separate guideline sections to apply cumulatively, unless specifically directed
otherwise. United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir.
1999).
Section 2G2.2(b)(5) of the sentencing guidelines provides for a five-level
increase if the defendant engaged in a pattern of activity involving the sexual abuse
or exploitation of a minor. Section 4B1.5(b)(1) applies to repeat and dangerous
sex offenders against minors, and provides that, in any case in which the
defendant’s offense of conviction is a covered sex crime and the defendant
engaged in a pattern of activity involving prohibited sexual conduct, the offense
level shall be five plus the offense level determined under Chapters Two and
Three. Sexual enticement of a minor is a covered sex crime, but possession of
child pornography is not. See U.S.S.G. § 4B1.5 cmt. (n.2).
The district court did not err in applying § 4B1.5(b)(1) because the plain
language of § 4B1.5(b)(1) requires that that enhancement be applied after the
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offense level is calculated under Chapters Two and Three. Furthermore, applying
both sections is permissible because each concerns conceptually different notions
related to sentencing.
I(b).
Second, McRee argues that the district court’s reliance on McRee’s history
as a former police officer in imposing an upward variance was reversible error.
An error in the district court’s calculation of the sentencing guidelines range
warrants vacating the sentence, unless the error is harmless. United States v.
Barner, 572 F.3d 1239, 1247 (11th Cir. 2009). Where a district court clearly states
that it would impose the same sentence, even if it erred in calculating the
guidelines, any error in the calculation is harmless. Id. at 1248.
There was no upward variance in this case, but to the extent that McRee
argues that consideration of his status as a former police officer resulted in higher
sentences within the guideline range, any error was harmless, because the district
court stated that it would apply the same sentences if it did not consider his status.
Accordingly, there was no error on this ground.
I(c).
Third, McRee argues that the district court plainly erred by applying both
U.S.S.G. § 2G2.2(b)(4) and § 2G2.2(b)(2), because using both enhancements
resulted in impermissible double counting.
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An appellate court may not correct an error the defendant failed to raise in
the district court unless it is an error that is plain and that affects substantial rights.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If all three of
those conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. Error must be plain under
controlling precedent or in view of the unequivocally clear words of a statute or
rule. United States v. Lett, 483 F.3d 782, 790 (11th Cir. 2007).
Under § 2G2.2(b)(2), the district court applies a two-level increase to the
defendant’s offense level if the material involved a prepubescent minor or a minor
who had not attained the age of 12 years. If the material portrays sadistic or
masochistic conduct or other depictions of violence, the district court applies a
four-level increase under § 2G2.2(b)(4). There is every indication that the
Sentencing Commission intended each applicable provision of § 2G2.2 to apply
cumulatively. United States v. Cubero, 754 F.3d 888, 894 (11th Cir.), cert. denied
(No. 14-16921) (U.S. Dec. 8, 2014). Therefore, the district court did not plainly
err in applying both enhancements, because our binding precedent holds that each
applicable provision of § 2G2.2 applies cumulatively.
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I(d).
Fourth, McRee argues that the district court plainly erred when it applied a
two-level enhancement under U.S.S.G. § 2G2.2(b)(6) for use of a computer and
cell phone, because, with technology today, child pornography offenses will almost
always involve the use of a computer.
Section 2G2.2(b)(6) provides for a two-level increase in offense level if the
offense involved the use of a computer or an interactive computer service for the
possession, transmission, receipt, or distribution of the material, or for accessing
with intent to view material involving the sexual exploitation of a minor. We have
stated that Commission report that McRee cites as undermining the enhancements
under § 2G2.2 did “not change the statutory sentencing scheme, the applicable
sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit.”
Cubero, 754 F.3d at 900.
McRee admitted to investigators that he communicated with several children
over the internet about sex and that he downloaded images and videos of child
pornography off of the internet and stored them on a laptop and thumb drives, and
he does not challenge those admissions on appeal. Those facts are sufficient to
support this enhancement, and so the district court did not plainly err.
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II.
Finally, McRee argues that, in light of his objections to the procedural
reasonableness of his sentences, his sentences and the upward variance were
substantively unreasonable. He also points to his lack of criminal history and
argues that other people who committed more serious crimes than him have less
severe sentences.
We review the reasonableness of a sentence using a deferential abuse of
discretion standard of review. United States v. Irey, 612 F.3d 1160, 1188-89 (11th
Cir. 2010) (en banc). The party challenging the sentence has the burden of
demonstrating that the sentence is unreasonable in light of the record and factors
outlined in 18 U.S.C. § 3553(a). United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). In evaluating the reasonableness of a sentence, we follow a two-
step process, first determining whether the sentence is procedurally reasonable, and
then if necessary, determining whether the sentence is substantively reasonable.
Id. at 1323-24. A sentence may be procedurally unreasonable if the sentencing
court fails to consider the factors set forth in § 3553(a), considers the Guidelines
mandatory, fails to properly calculate the appropriate guideline range, or fails to
adequately explain the chosen sentence. Id. at 1323.
In reviewing for substantive reasonableness, we examine the totality of the
circumstances and ask whether the statutory factors in 18 U.S.C. § 3553(a) support
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the sentence in question. Id. at 1324. The weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court.
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
First, there was no upward variance, and so McRee’s arguments to that
effect fail. Second, McRee’s objection to the substantive reasonableness of his
sentences rests on the other sentencing issues he raises on appeal, and, because
there was no error in any of the other issues, this argument also must fail. To the
extent McRee argues that his sentences were substantively unreasonable because
the district court did not give enough weight to his lack of criminal history, the
weight to be given to each § 3553 factor is committed to the discretion of the
district court. McRee’s sentences are not substantively unreasonable.
Accordingly, we affirm.
AFFIRMED.
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