UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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