United States v. Foster

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 04-1089

UNITED STATES OF AMERICA,

Appellee,

v.

GARY FOSTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Lynch, and Howard, Circuit Judges.

Thomas P. Colantuono, United States Attorney, and Peter E. Papps,
First Assistant United States Attorney, on brief for appellee.
Jonathan R. Saxe, Assistant Federal Public Defender, on brief for
appellant.

July 15, 2005
 Per Curiam. Gary Foster pleaded guilty to an

information charging him with possession of child pornography, see

18 U.S.C. § 2252A(a)(5)(B), and was sentenced to 51 months in

prison. He challenges his sentence on two grounds. First, he

argues that the district court's application of a cross reference

in U.S.S.G. § 2G2.4(c)(2), and further application of a sentence

enhancement in U.S.S.G. § 2G2.2(b)(2)(E), constituted impermissible

double punishment (or "double counting") for the same conduct.

Second, he contends that his sentence, imposed under a Guidelines

regime that the sentencing judge erroneously (although

understandably) regarded as mandatory, constitutes plain error

under the Supreme Court's decision in United States v. Booker, 125

S. Ct. 738 (2005), and our decision in United States v.

Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). Neither argument

merits extended discussion.

The premise of Foster's double counting argument is that

both the cross reference and the enhancement were triggered by his

emailing to others images of child pornography that he previously

had received on his computer. But Foster's premise is faulty.

Application of the cross reference was justified not only by the

distribution of the images in question (which triggered the

enhancement in U.S.S.G. § 2G2.2(b)(2)(E)); it also was justified by

his prior receipt of the material "with intent to traffic."

U.S.S.G. § 2G2.4(c)(2). (Foster acknowledges as much on page 10 of

his opening brief). And there is no double counting when different

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components or aspects of the relevant criminal conduct trigger

different Guidelines provisions which increase one's base offense

level. See United States v. Johnson, 221 F.3d 83, 99 (2d Cir.

2000) (child pornography case); see also United States v. Brown,

169 F.3d 89, 93 (1st Cir. 1999).

Foster's Booker argument falters on the third prong of the

plain error test -- that the error affected his substantial rights.

See Antonakopoulos, 399 F.3d at 75 (requiring a “reasonable

probability” that the district court would sentence more leniently

on remand). Although we are not “overly demanding as to proof of

[such a] probability,” United States v. Heldeman, 402 F.3d 220, 224

(1st Cir. 2005), nothing in the record suggests that the district

court would give Foster a shorter sentence under the advisory

Guidelines. The sentencing judge explicitly stated that, while he

thought that the Guidelines generally "underpunished" the

possession of child pornography, Foster's 51-month sentence was

"appropriate" because of the applicability of several sentence

enhancements. See United States v. Martins, ___ F.3d ___, 2005 WL

1502939, at *12 (1st Cir. June 27, 2005) (where the sentencing

court had stated that the sentence was “just,” there was no

reasonable probability of a lesser sentence on remand).

Consequently, this is not a situation which calls for resentencing

under Antonakopoulos.

Affirmed.

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