UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4734
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL C. MARLOWE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00406-REP-1)
Submitted: May 3, 2011 Decided: May 19, 2011
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Nia A. Vidal,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Thomas K. Johnstone, IV, Samuel E.
Fishel, IV, Special Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul C. Marlowe pleaded guilty to two counts of
transporting child pornography in interstate commerce, in
violation of 18 U.S.C.A. § 2252A(a)(1) (West Supp. 2010). The
district court sentenced Marlowe to 210 months of imprisonment,
and he now appeals. Finding no error, we affirm.
On appeal, Marlowe argues that the district court
erred in making factual findings supporting an enhancement under
the sentencing Guidelines. Specifically, Marlowe argues that
the application of the preponderance of the evidence standard
violated his Fifth Amendment right to due process. However,
Marlowe’s argument is foreclosed by our decision in United
States v. Grubbs, 585 F.3d 793 (4th Cir. 2009), cert. denied,
130 S. Ct. 1923 (2010), in which this court held that the
preponderance of the evidence standard is the appropriate
standard of proof for sentencing purposes. Id. at 799-803
(“[T]he post-[United States v. Booker, 543 U.S. 220 (2005)]
advisory nature of the Guidelines eliminates any due process
argument for a heightened standard of proof at sentencing.”)
(citation omitted). As we may not overrule this court’s binding
precedent, United States v. Simms, 441 F.3d 313, 318 (4th Cir.
2006) (“[a] decision of a panel of this court becomes the law of
the circuit and is binding on other panels unless it is
overruled by a subsequent en banc opinion of this court or a
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superseding contrary decision of the Supreme Court” (internal
quotation omitted)), this claim fails.
Marlowe also argues that, under any standard of proof,
there was insufficient reliable evidence to support the district
court’s factual findings for the enhancement. In reviewing the
district court’s calculations under the Guidelines, this court
“review[s] the district court’s legal conclusions de novo and
its factual findings for clear error.” United States v.
Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation
marks and citation omitted). We will “find clear error only if,
on the entire evidence, [we are] left with the definite and firm
conviction that a mistake has been committed.” Id. at 631
(internal quotation marks and citation omitted).
The sentencing Guidelines provide for a five level
enhancement if a defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor. See U.S.
Sentencing Guidelines Manual (“USSG”) § 2G2.2(b)(5) (2010). A
“pattern of activity involving the sexual abuse or exploitation
of a minor” is defined as “any combination of two or more
separate instances of the sexual abuse or sexual exploitation of
a minor by the defendant, whether or not the abuse or
exploitation (A) occurred during the course of the offense;
(B) involved the same minor; or (C) resulted in a conviction for
such conduct.” USSG § 2G2.2(b)(5) comment. n.1. The sentencing
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Guidelines then define sexual abuse or exploitation as conduct
falling within various enumerated sections of the United States
Code or an offense under state law that would constitute an
offense under the specifically enumerated sections. Id. We
have thoroughly reviewed the record and conclude that the
district court’s application of this enhancement was not clearly
erroneous.
Accordingly, we affirm the judgment of 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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