United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2005
Charles R. Fulbruge III
Clerk
No. 03-10511
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
THOMAS REEDY, JANICE REEDY
Defendants - Appellants
--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-54-1-Y
USDC No. 4:00-CR-54-2-Y
--------------------
Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Thomas and Janice Reedy appeal the sentences imposed
following remand to the district court for resentencing. See
United States v. Reedy, 304 F.3d 358 (5th Cir. 2002). The Reedys
owned and operated a company that provided computerized credit
card verification services to webmasters whose websites contained
adult and child pornography. Janice Reedy (Janice) was
resentenced to 168 months of imprisonment and three years of
supervised release on each of 11 counts, with the sentences to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-10511
-2-
run concurrently. Thomas Reedy (Thomas) was resentenced to 180
months of imprisonment and three years of supervised release on
each of 12 counts, with the sentences of imprisonment to run
consecutively to the extent necessary to produce a life sentence.
As a threshold issue, we must determine whether we have
jurisdiction over Janice’s appeal. This matter was remanded to
the district court for a determination of excusable neglect due
to the late filing of the notice of appeal. On remand, the
district court denied the motion for an extension of time to file
the notice of appeal, holding that Janice had not shown excusable
neglect. Janice argues that this decision was an abuse of
discretion because her attorney filed the notice of appeal after
Thomas was sentenced due to the attorney’s belief that the cases
remained consolidated following remand. The district court found
that counsel’s failure to timely file amounted to mere
inadvertence because counsel had been provided with written
notice of the time for appealing and had signed this notice,
indicating his understanding of it. Under these circumstances,
the district court did not abuse its discretion. See Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
392 (1993). Because Janice’s notice of appeal is untimely, we
dismiss her appeal for lack of jurisdiction. See United States
v. Rodriguez, 278 F.3d 486, 489-90 (5th Cir. 2002).
Thomas seeks to revisit several issues that were decided in
his prior appeal or that are beyond the scope of this court’s
No. 03-10511
-3-
remand for resentencing. In particular, Thomas challenges the
district court’s determination of the amount of pecuniary gain,
the relevant unit of prosecution, and the denial of his motion
for a judgment of acquittal based on his contention that the
district court impermissibly shifted the burden of proof to the
defense. Because these issues are barred by the law of the case,
we do not address them. See United States v. Matthews, 312 F.3d
652, 657 (5th Cir. 2002).
Thomas also raises a number of issues for the first time on
appeal. Our review of these issues is for plain error. To
establish plain error, Thomas must show: (1) there is an error,
(2) that is clear or obvious, and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 731-37 (1993)). Thomas asserts that his Sixth
Amendment rights were violated pursuant to Blakely v. Washington,
124 S. Ct. 2531 (2004), because his sentence was increased based
on an amount of pecuniary gain found by the district court rather
than the jury. Thomas filed his brief prior to the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738
(2005). In light of Booker, this error is clear and obvious.
However, Thomas has not shown that the error affected his
substantial rights because, although the district court may have
expressed sympathy at the length of his sentence, the court did
not indicate that it would have sentenced Thomas differently
No. 03-10511
-4-
under an advisory guidelines scheme. See United States v.
Creech, 408 F.3d 264, 272 (5th Cir. 2005). Rather, the court
stated that the sentence was appropriate under the facts. Thomas
has not established plain error under Booker. United States v.
Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517).
Thomas also asserts for the first time on appeal that the
district court erred by imposing consecutive sentences and by
failing to consider the sentencing factors in 18 U.S.C.
§ 3553(a). The district court imposed consecutive sentences
pursuant to U.S.S.G. § 5G1.2(d), and it stated that it found no
reason to depart from the guidelines and that the law was
vindicated by the sentence. Thomas has not established plain
error with respect to the imposition of consecutive sentences.
See United States v. Izaguirre-Losoya, 219 F.3d 437, 439-42 (5th
Cir. 2000).
Thomas also contends that his sentence of life imprisonment
violates the Eighth Amendment. He asserts that he is less
culpable than the creators or distributors of child pornography
and that his sentence is disproportionate to his offense. Thomas
also asserts that the credit card verification services he
provided were authorized by the legislation Congress passed
requiring webmasters to use credit card verification services to
distribute adult pornography. In addition to the ten counts of
transporting images of minors engaged in sexually explicit
No. 03-10511
-5-
conduct, Thomas also was convicted of one count of conspiracy to
transport such images and one count of possession of child
pornography. Although Thomas has no prior criminal convictions,
he has pointed to no authority that clearly establishes that the
imposition of consecutive sentences under these circumstances
renders his sentence grossly disproportionate to his offense.
Accordingly, he has not established plain error. See Olano,
507 U.S. at 734; Harmelin v. Michigan, 501 U.S. 957 (1991)
(holding mandatory sentence of life imprisonment without parole
for possession of 650g of cocaine did not violate the Eighth
Amendment).
Thomas argues that the district court erred in resentencing
him under 18 U.S.C. § 2252 based on ten different images. He
asserts that the Government failed to prove the number of
websites that contained the images. The superseding indictment
listed each image and the website from which it was obtained. At
trial, the investigating officer testified regarding each image
and the website from which it was obtained. The district court
sentenced Thomas based on its finding that ten different websites
were involved in the offense, and it chose one count from each of
those websites on which to sentence Thomas. In his prior appeal,
Thomas argued that he should have been sentenced based only on
the ten websites that contained child pornography. See Reedy,
304 F.3d at 365 n.5. Thomas has not established that the
district court clearly erred in resentencing him for ten counts.
No. 03-10511
-6-
As the Government concedes, Thomas has established plain
error with respect to the 180-month sentence he received for
count 89 (possession of child pornography). The statutory
maximum for this offense is five years of imprisonment.
18 U.S.C. § 2252A(b)(2) (2000). Accordingly, Thomas’s sentence
on Count 89 is vacated, and the matter is remanded to the
district court for resentencing on this count. The remainder of
Thomas’s sentence is AFFIRMED.
APPEAL DISMISSED AS TO JANICE REEDY; THOMAS REEDY’S SENTENCE
ON COUNT 89 IS VACATED AND REMANDED TO THE DISTRICT COURT
FOR RESENTENCING; THE REMAINDER OF THOMAS REEDY’S SENTENCE
IS AFFIRMED.