UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN TOD SCHELLENBERGER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-cr-00367-BO)
Submitted: August 10, 2007 Decided: September 6, 2007
Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Anthony E. Flanagan, LAW OFFICES OF ANTHONY E. FLANAGAN, P.A.,
Raleigh, North Carolina, for Appellant. George E.B. Holding,
Acting United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Tod Schellenberger pled guilty by written plea
agreement and was convicted of four counts of sexual exploitation
of a child (Counts 1, 3-5), in violation of 18 U.S.C. § 2251(a)
(2000); possession of child pornography (Count 2), in violation of
18 U.S.C.A. § 2252(a)(4)(B) and (b)(2) (West 2000 & Supp. 2003);
and use of interstate commerce facilities for murder for hire and
aiding and abetting same (Count 6), in violation of 18 U.S.C.
§§ 1958(a) and 2 (2000). The district court sentenced
Schellenberger to 100 years in prison. It did so by imposing
consecutive sentences, for the statutory maximum terms, on Counts
1 through 5.
Schellenberger contends on appeal that: (1) the district
court erred in calculating his guideline sentence of life
imprisonment; (2) “stacking” consecutive sentences to impose what
is, in effect, a life sentence was improper; and (3) his 100-year
sentence was not authorized by 18 U.S.C. § 3553(a). Finding no
error, we affirm.
I.
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court held that the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
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of the evidence violated the Sixth Amendment. Id. at 226-44. The
Court remedied the constitutional violation by severing two
statutory provisions, 18 U.S.C. § 3553(b)(1) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C. § 3742(e) (setting forth appellate standards of
review for guideline issues), thereby making the guidelines
advisory. Booker, 543 U.S. at 244-65.
Schellenberger’s crimes fall under 18 U.S.C.
§ 3553(b)(2). Because Booker only excised the mandatory sentencing
provisions under § 3553(b)(1), it left unaddressed whether the
opinion would also apply to the child and sexual crimes described
in § 3553(b)(2). United States v. Hecht, 470 F.3d 177 (4th Cir.
2006), answers this question in the affirmative.
After Booker, a district court is no longer bound by the
range prescribed by the sentencing guidelines. However, in
imposing a sentence post-Booker, courts still must calculate the
applicable guideline range after making the appropriate findings of
fact and consider the range in conjunction with other relevant
factors under the guidelines and § 3553(a). United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). This Court will affirm a post-Booker sentence if it
“is within the statutorily prescribed range and is reasonable.”
Id. at 433 (internal quotation marks omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
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reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006); see also Rita v. United States, 127 S. Ct. 2456 (2007).*
II.
A.
Schellenberger contends that the court erred by
improperly enhancing his offense level under the guidelines. A
presentence investigation report (“PSR”) established
Schellenberger’s base offense level at 17, and added 29 levels to
account for various sentencing factors. Three points were then
subtracted for acceptance of responsibility. This yielded a total
offense level of 43. Coupled with a criminal history category of
I, Schellenberger’s advisory guideline range was life imprisonment.
Schellenberger maintains that the court “impermissibl[y]
double-count[ed]” when he received two separate five-level
increases for engaging in a pattern of activity involving the abuse
or exploitation of a minor, see USSG § 2G2.2(b)(4) (2003), and for
engaging in a pattern of prohibited sexual conduct, see id. §
4B1.5(b)(1). He contends that the same course of conduct netted
two increases for the same reason. As the district court correctly
*
At sentencing, Schellenberger unsuccessfully raised
objections based upon Booker. To the extent that Schellenberger
intends to raise Booker challenges on appeal, we find the district
court properly treated the guidelines as advisory and found
sentencing factors by a preponderance of the evidence. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
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determined, this double-counting was permitted, as it was not
expressly prohibited by the guidelines. See United States v.
Wilson, 198 F.3d 467, 472 (4th Cir. 1999). Each guideline applies
because Schellenberger’s conduct fell squarely within its
definition. Moreover, § 4B1.5(b)(1) states that the five-level
enhancement is to be added to the offense levels determined under
Chapters Two and Three. Thus, the guidelines intend the cumulative
application of these enhancements. We accordingly conclude that
Schellenberger’s claim fails.
Schellenberger also appeals the district court’s
application of a two-level enhancement under USSG § 3B1.1(c)
(2003), arguing that the court erred by finding he was a leader or
organizer in using interstate commerce facilities in the plot to
kill his wife. Section 3B1.1(c) applies if the defendant was an
organizer, leader, manager, or supervisor in any criminal activity
involving fewer than five participants. Schellenberger solicited
four people over the Internet to kill his wife, and offered to pay
for driving lessons, sent money and pornography to these
individuals, and offered his own sons to be raped, killed or sold
into sex slavery as compensation. Also in furtherance of the
murder plot, Schellenberger sent his wife’s schedule, drawings of
his home and aerial photography to an individual who had agreed to
brutalize and murder Schellenberger’s wife, and placed materials
under the house to aid that individual in the torture and killing.
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All arrangements were made through the Internet. Because
Schellenberger clearly was the organizer of the plot to kill his
wife, we conclude the district court properly enhanced his sentence
based upon § 3B1.1(c).
B.
Schellenberger next argues that the district court erred
when it stacked his sentences consecutively to attain the
applicable guideline range of life imprisonment. Schellenberger
contends that his 100-year sentence is the functional equivalent of
life imprisonment, which exceeds the statutory maximum sentence for
each of his convictions, and is thus illegal.
Although Schellenberger is correct that the highest
statutory maximum for any of the six counts to which he pled guilty
is thirty years of imprisonment, “[i]n the case of multiple counts
of conviction, the guidelines instruct that if the total punishment
mandated by the guidelines exceeds the highest statutory maximum,
the district court must impose consecutive terms of imprisonment to
the extent necessary to achieve the total punishment.” United
States v. White, 238 F.3d 537, 543 (4th Cir. 2001) (citing USSG §
5G1.2(d)). Accordingly, we find no error in the district court’s
decision to “stack” sentences to satisfy Schellenberger’s guideline
sentence.
C.
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Finally, Schellenberger claims his sentence was not
authorized by § 3553(a) because his sentence is greater than
necessary to comply with the purposes of sentencing. He argues
that as a forty-three-year-old man, his 100-year sentence exceeds
the term needed to ensure that he remains imprisoned for life.
Because Schellenberger’s 100-year sentence is essentially
a life sentence (and not more than a life sentence), it is within
the applicable guideline range and, thus, presumptively reasonable.
The district court appropriately treated the guidelines as advisory
and properly calculated and considered the guideline range as well
as the relevant factors under 18 U.S.C. § 3553(a). The court
accepted the facts found in the PSR, and the testimony of the
witnesses about the conduct, and found no reason to depart from the
guideline range. Although the court did not discuss every
§ 3553(a) factor, it was not required to do so. Cf. United States
v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006) (“The district court need not discuss each factor set
forth in § 3553(a) in checklist fashion; it is enough to calculate
the range accurately and explain why (if the sentence lies outside
it) this defendant deserves more or less.” (internal quotation
marks omitted)). Implicit in the court’s ruling was the serious
nature of Schellenberger’s offenses against his wife and children.
While his sentence is lengthy, we conclude that neither
Schellenberger nor the record suggests any information sufficiently
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compelling to rebut the presumption that a sentence within the
properly calculated guideline range is reasonable.
III.
Accordingly, we affirm Schellenberger’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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