United States v. Guffey , 185 F. App'x 295 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID SCOTT GUFFEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-474)
Submitted: June 2, 2006 Decided: July 3, 2006
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, Chapel Hill, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Michael A. DeFranco,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Scott Guffey appeals his 96-month sentence imposed
following his guilty plea for possession of child pornography that
had been shipped in interstate commerce, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2) (2000). For the reasons stated below, we
affirm.
In January 2005, Guffey pled guilty to possession of
child pornography that had been shipped in interstate commerce, in
violation of 18 U.S.C. § 2252(a) (2000). At Guffey’s plea hearing,
the Government filed a factual basis outlining its evidence,
including the fact that 3777 images of child pornography, as
defined in 18 U.S.C. § 2256(8)(A) (2000),1 were found on the hard
drive of his computer. Guffey agreed that the Government had
evidence as outlined in the factual basis.
The presentence report recommended a base offense level
of seventeen, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2G2.2(a) (2003). The offense level was increased two
levels, pursuant to USSG § 2G2.2(b)(1), because the material
involved a minor under the age of twelve. Because the material was
distributed for the receipt, or expectation of receipt, of a thing
of value, but not for pecuniary gain, the offense level was
1
The term child pornography is defined under 18 U.S.C.
§ 2256(8)(A) (2000), as any picture or image where: “the
production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct.”
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increased five levels, pursuant to USSG § 2G2.2(b)(2)(B). Because
the materials involved or portrayed sadistic or masochistic conduct
or other depictions of violence, the offense level was increased
four levels, pursuant to USSG § 2G2.2(b)(3). Because a computer
was used for the transmission of material, the offense level was
increased by two levels, pursuant to USSG § 2G2.2(b)(5). Because
the offense involved more than 600 images, the offense level was
increased by five levels, pursuant to USSG § 2G2.2(b)(6)(D). The
offense level was reduced three levels for acceptance of
responsibility, pursuant to USSG § 3E1.1(b), thereby resulting in
a total offense level of thirty-two.
The presentence report noted Guffey’s criminal history of
a single speeding ticket, resulting in a criminal history category
of I. Based on a total offense level of thirty-two and a criminal
history category of I, the recommended advisory guidelines range
was 121 to 151 months’ imprisonment. Because the 120-month
statutory maximum was less than the low end of the guidelines
range, the statutory maximum became the guidelines sentence
pursuant to USSG § 5G1.1(a).
At sentencing, the district court conducted a
comprehensive analysis of each of the factors set forth in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005).2 Noting the disparity
2
Those factors include the nature and circumstances of the
offense and the history and characteristics of the defendant, the
need to reflect the seriousness of the offense, to promote respect
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between Guffey and an unrepentant, recidivist offender, the court
sentenced Guffey to ninety-six months’ imprisonment, a twenty
percent reduction from the statutory maximum.
Guffey contends on appeal that the district court
violated due process and ex post facto principles by imposing a
sentence under United States v. Booker, 543 U.S. 220 (2005). We
find this claim without merit. See United States v. Williams, 444
F.3d 250, 254 (4th Cir. 2006) (ruling defendant had fair warning
that distributing cocaine base was punishable by a prison term of
up to twenty years, as spelled out in the United States Code);
United States v. Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006)
(ruling that retroactive application of remedial holding of Booker
did not violate Ex Post Facto Clause; defendant was on notice of
statutory penalty when he committed crime). When he committed the
crime, and as later reaffirmed at his guilty plea hearing, Guffey
was on notice that the maximum statutory penalty was ten years;
this is all that is required to satisfy the concerns of fair notice
embodied by the Ex Post Facto Clause. See Davenport, 445 F.3d at
370.
Moreover, a sentence imposed within a properly calculated
guidelines range is presumptively reasonable. See United States v.
for the law, to provide just punishment, to afford adequate
deterrence, to protect the public from the defendant’s future
crimes, and to provide the defendant with needed training, medical
care and other correctional treatment.
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Green, 436 F.3d 449, 456 (4th Cir. 2006), cert. denied, ___ U.S.
___, 2006 WL 1057741 (U.S. May 22, 2006) (No. 05-10474). See also
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005)
(citations omitted) (holding that sentence must be within the
statutorily prescribed range and reasonable). Here, the district
court properly consulted the guidelines and took them into account
in determining Guffey’s sentence, made all the factual findings
appropriate for that determination, considered the sentencing range
along with the other factors described in § 3553(a), and imposed a
sentence that was within the statutorily prescribed range and
reasonable.
We therefore affirm Guffey’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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