UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5335
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHAWN MICHAEL CLARK,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00336-TDS-1)
Submitted: July 19, 2011 Decided: August 9, 2011
Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Michael Clark pleaded guilty, pursuant to a plea
agreement, to three counts of sex trafficking into forced labor,
in violation of 18 U.S.C.A. § 1590 (West Supp. 2011), and three
counts of sex trafficking of a child, in violation of 18
U.S.C.A. § 1591 (West Supp. 2011). The district court sentenced
Clark to 360 months’ imprisonment.
Clark appealed, and his counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), certifying that
there are no meritorious issues for appeal but asking this court
to review whether Clark’s sentence is reasonable. Clark has not
filed a pro se supplemental brief, though informed of his right
to do so. Finding no reversible error, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Llamas, 599 F.3d 381,
387 (4th Cir. 2010). This review requires appellate
consideration of the procedural and substantive reasonableness
of a sentence. Gall, 552 U.S. at 51. In determining procedural
reasonableness, we consider whether the district court properly
calculated the defendant’s advisory Guidelines range, considered
the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. A sentence is reviewed for substantive
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reasonableness by “examin[ing] the totality of the circumstances
to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards
set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). This court presumes that a
sentence within a properly determined advisory Guidelines range
is substantively reasonable. United States v. Allen, 491 F.3d
178, 193 (4th Cir. 2007).
Counsel contends that the district court erred in
enhancing Clark’s Guidelines range by finding that Clark unduly
influenced a minor to engage in prohibited sexual conduct. U.S.
Sentencing Guidelines Manual § 2G1.3(b)(2)(B) (2010). Counsel
argues that because the elements of sex trafficking of a child
include the victim’s status as a minor and that force or
coercion is used, the enhancement constitutes impermissible
double counting.
Counsel’s claim of double counting involves a legal
interpretation of the Guidelines that we review de novo. United
States v. Schaal, 340 F.3d 196, 198 (4th Cir. 2003). Double
counting occurs when a Guidelines provision is applied based on
considerations that have already been accounted for by another
provision or by statute. United States v. Reevey, 364 F.3d 151,
158 (4th Cir. 2004). “[T]here is a presumption that double
counting is proper where not expressly prohibited by the
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[G]uidelines.” United States v. Hampton, 628 F.3d 654, 664
(4th Cir. 2010). We conclude that this claim is without merit
because sex trafficking of a child, 18 U.S.C. § 1591, does not
include force or coercion as an element of the offense.
Counsel next contends that the district court should
have imposed a variant sentence below the Guidelines range. He
asserts that, based on the psychological evaluation submitted
into evidence at sentencing, there were sufficient extenuating
circumstances to support a variant sentence.
Clark has failed to rebut the presumption that his
within-Guidelines sentence is reasonable. The district court
explained at length its reasons for imposing the selected
sentence. The court explicitly considered Clark’s difficult
childhood and resulting mental problems. However, the district
court concluded that the justification for a variance on these
grounds was undermined by Clark’s status as the father of
thirteen children who should have been aware of the serious harm
he was causing, and by the fact that Clark made a living from
his criminal conduct. Based on the totality of the
circumstances, we conclude that Clark’s within-Guidelines
sentence was substantively reasonable.
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm Clark’s conviction and
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sentence. This court requires that counsel inform Clark, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Clark requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Clark.
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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