United States v. Fugit

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4111

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY ANDREW FUGIT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:07-cr-00065-JBF-JEB-1)

Submitted: September 15, 2008 Decided: October 14, 2008

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Lisa R.
McKeel, Assistant United States Attorney, Newport News, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Timothy Andrew Fugit pled guilty to distribution of child

pornography in violation of 18 U.S.C.A. § 2252A(a)(2) (West Supp.

2008) (Count One), and coercion or enticement, 18 U.S.C.A.

§ 2422(b) (West Supp. 2008) (Count Two). He was sentenced to a

term of 310 months imprisonment. Fugit appeals his sentence,

arguing that (1) the district court erred in making two-level

enhancements for distribution and use of a computer, U.S.

Sentencing Guidelines Manual § 2G2.2(b)(3)(F), (b)(6) (2007); (2)

the district court erred in making a five-level enhancement for

engaging in a pattern of behavior involving sexual abuse or

exploitation of a minor, USSG § 2G2.2(b)(5); and (3) the sentence

was unreasonable. We affirm.

Fugit first maintains that the base offense level set out

in § 2G2.2 accounted for his distribution of child pornography and

use of a computer to do so because those two actions were charged

in the indictment. Therefore, he argues that the enhancements

amounted to impermissible double counting. The district court’s

interpretation of a guideline is reviewed de novo. See United

States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000) (issue that

turns primarily on legal interpretation of guidelines is reviewed

de novo); see also United States v. Butner, 277 F.3d 481, 488 (4th

Cir. 2002) (where facts not contested, issue is legal one and

review is de novo).

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 Double counting of sentencing factors is generally

permitted under the guidelines unless expressly prohibited. United

States v. Reevey, 364 F.3d 151, 158-60 (4th Cir. 2004). Here, the

district court correctly noted that § 2G2.2, the base offense level

applicable to the offense of conviction, did not account for

Fugit’s distribution of child pornography or his use of a computer

because § 2G2.2 covers many different offenses, a number of which

could be committed without distribution or use of a computer. The

guideline accounts for the particular acts a defendant has

committed by means of the specific offense characteristics

enhancements set out in § 2G2.2(b). Therefore, no double counting

occurred.

The district court’s determination that Fugit engaged in

a pattern of activity involving sexual abuse or exploitation of a

minor is also a legal issue which is reviewed de novo. Kinter, 235

F.3d at 195. Fugit contends that his history of computer chats and

prior telephone calls to minors does not constitute “sexual abuse

or exploitation” as defined in Application Note 1. He argues that,

apart from the count of coercion and enticement in violation of 18

U.S.C. § 2422 to which he pled guilty, none of the conduct

described in the presentence report falls within any of the

statutes listed in Application Note 1, and that the district court

erred in so finding. (Appellant’s Br. at 27). He relies on United

States v. Pharis, 176 F.3d 434, 436 (8th Cir. 1999), which held

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that four obscene telephone calls to young girls and a conviction

for child molestation involving “exposure of [the defendant’s]

genital area to three female children on separate occasions” did

not amount to sexual abuse or exploitation under the definition

then contained in Application Note 1, which did not include

coercion or enticement as described in 18 U.S.C. § 2422.

However, in 2004, Amendment 664 revised § 2G2.2 and its

commentary. The definition of “sexual abuse or exploitation” in

use when Fugit was sentenced includes conduct described in § 2422

(coercion or enticement), see USSG § 2G2.2, comment. (n.1), making

Fugit’s reliance on Pharis inapposite. In this case, the district

court did not err in finding a pattern of activity involving sexual

abuse or exploitation because the telephone call underlying the

§ 2422 count to which Fugit pled guilty was very similar to the

prior computer chats and telephone calls that were the basis for

the enhancement. Fugit’s contention of error is thus without

merit.

Last, Fugit contends that his sentence is greater than

necessary and, therefore, unreasonable. A sentence is reviewed for

reasonableness, applying an abuse of discretion standard. Gall v.

United States, 128 S. Ct. 586, 597 (2007); see also United States

v. Go, 517 F.3d 216, 218 (4th Cir. 2008). The appellate court must

first determine whether the district court committed any

“significant procedural error,” Gall, 128 S. Ct. at 597, and then

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consider the substantive reasonableness of the sentence, applying

a presumption of reasonableness to a sentence within the guideline

range. Go, 517 F.3d at 218; see also Gall, 128 S. Ct. at 597; Rita

v. United States, 127 S. Ct. 2456 (2007) (upholding this court’s

presumption of reasonableness).

Fugit argues that the district court abused its

discretion by imposing a sentence within the guideline range that

was greater than necessary to reflect the seriousness of the

offense and satisfy the sentencing goals. He claims that the court

applied a presumption of reasonableness to the guideline sentence

when it refused his request for a downward departure. The record

does not support this claim. In fact, the court noted that Fugit

had not shown any grounds for a downward departure and was thus not

entitled to a departure. The court then observed that Fugit was

really requesting a variance. The court considered whether a

variance was warranted, and decided that it was not, stating that,

“[a]lthough the defendant can make a compelling case that the

guidelines as calculated for these types of offenses are draconian,

. . . the facts in this particular case are, in my opinion,

particularly egregious.” The court discussed the details of the

offense, said it had considered the positive facts in Fugit’s

history and the other § 3553(a) factors, and then concluded that a

variance was not appropriate.

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 Fugit asserts that the court failed to consider

adequately his history and characteristics, and that the guidelines

for child pornography offenses overstate the seriousness of the

offense and provide unjustly harsh sentences. He also asserts that

the district court failed to consider adequately the need to avoid

sentencing disparity among defendants convicted of similar conduct,

as evidenced by four cases submitted to the court by Fugit in which

lower sentences were imposed for child pornography offenses.

Although the district court discussed the cases and distinguished

them, Fugit argues that the court did not explain why a higher

sentence was called for in his case.

However, “when a judge decides simply to apply the

Guidelines to a particular case, doing so will not necessarily

require lengthy explanation.” Rita, 127 S. Ct. at 2468. Fugit has

not shown any procedural or substantive error in the sentence and

we conclude that the sentence is reasonable.

We therefore affirm the sentence imposed by the district

court. 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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