IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2008
No. 07-30350
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DENNIS JAMES MCGEHEE
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:06-CR-20064-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Dennis James McGehee appeals from his conviction of possession of child
pornography. He challenges the district court’s decision to depart upwardly from
the guideline sentencing range of 63-78 months of imprisonment to the statutory
maximum term of 10 years of imprisonment. See 18 U.S.C. § 2252(b)(2).
We review a sentence above the guideline sentencing range under the
abuse-of-discretion standard. First, we examine whether the district court
*
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should not be published and is not precedent except under the limited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. 07-30350
committed any procedural errors, “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence--including an
explanation for any deviation from the Guidelines range.” Gall v. United States,
No. 06-7949, 2007 WL 4292116, *7 (2007). If the district court’s departure or
variance decision is procedurally sound, we then consider “the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id. We take into account the totality of the circumstances, and we may consider
the extent of the departure or variance, but we “give due deference to the district
court’s determination that the § 3553(a) factors, on a whole, justify the extent of
the variance. “ Id.
McGehee does not dispute the district court’s guideline sentencing
calculations. Moreover, the probation officer correctly calculated McGehee’s
offense level and criminal history score. Nor does McGehee dispute the facts on
which the district court based the departure. The district court was not
prohibited from taking the facts underlying McGehee’s state-court conviction
into account when determining his federal sentence. See U.S.S.G. § 1B1.4. The
district court stated that it chose the 120-month sentence because it was
necessary to protect the public from future criminal conduct, a factor listed in 18
U.S.C. § 3553(a)(2)(C).
McGehee is correct that the guideline calculations took into account his
activities involving the sexual abuse of children. However, the commentary to
the guideline governing McGehee’s offense provides that “an upward departure
may be warranted if the defendant received an enhancement under subsection
(b)(5) but that enhancement does not adequately reflect the seriousness of the
sexual offense or exploitation involved.” § 2G2.2, comment. (n.6). Additionally,
the policy statement governing upward departures generally allows for a
departure from the guideline range in child sexual offenses in which there exists
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No. 07-30350
an aggravating circumstance “to a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission.” § 5K2.0 (a)(1)(B), p.s. The
district court cited § 5K2.0 in the statement of reasons. The district court did
not procedurally err by upwardly departing.
McGehee molested seven children between the ages of six and nine on
more than 100 occasions. McGehee’s conduct at the First Baptist Church, his
victimization of foster children in his care, and his own statement in his letter
that he was involved in the Big Brothers/Big Sisters program, indicated that he
made use of religious and social service institutions and programs to gain access
to children for his sexual gratification. McGehee did not curb his predatory
behavior at the First Baptist Church, even after being counseled to do so,
suggesting that he might resume the same kind of conduct were he to gain
access to children in the future. The district court’s skepticism about McGehee’s
acceptance of responsibility was warranted in light of the phraseology used in
McGehee’s letter to the court, referring to his crimes as “unfortunate incidents”
and “errors,” and attempting to use his participation in the institutions and
programs that he abused to bolster his credibility. The decision to depart
upwardly was not an abuse of discretion. Taking into account the totality of
circumstances in McGehee’s case, the departure from the guideline range of 63-
78 months to the statutory maximum of 10 years was reasonable under the
abuse-of-discretion standard. See Gall, 2007 WL 4292116 at *7.
AFFIRMED.
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