Case: 12-30563 Document: 00512161580 Page: 1 Date Filed: 03/01/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 1, 2013
No. 12-30563
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL DESCHENES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-319-21
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Daniel Deschenes pleaded guilty to engaging in a child exploitation
enterprise in violation of 18 U.S.C. § 2252A(g) and was sentenced within the
guidelines range to 260 months of imprisonment and a lifetime of supervised
release. Deschenes challenges the application of the two-level enhancement in
U.S.S.G. § 2G2.6(b)(4) for use of a computer in the commission of the offense as
well as the substantive reasonableness of the term of imprisonment imposed.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30563
Sentences are reviewed for procedural error and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). The district court
commits a significant procedural error by improperly calculating the guidelines
range. Id. “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.” United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
In reliance on United States v. John, 309 F.3d 298 (5th Cir. 2002),
Deschenes argues that the enhancement constituted impermissible double-
counting because the statute of conviction contemplates the use of a computer
as an element of the offense of conviction. In John, we held that an
enhancement for the victim’s age constituted double-counting because the
statute of conviction required that the victim be under the age of 12, and,
therefore, the age of the victim was already factored into the base offense level.
Id. at 305-06. Since computer usage was not required by the statutes of
conviction in this case, see 18 U.S.C. §§ 2251(d), 2252A(g)(2), Deschenes’s
computer usage was not already factored into the base offense level in
§ 2G2.6(a). John is thus distinguishable. Additionally, double-counting is
prohibited only if the relevant Guideline expressly forbids it, and § 2G2.6(b)(4)
contains no such prohibition. See United States v. Calbat, 266 F.3d 358, 364 (5th
Cir. 2001).
Next, Deschenes argues that the district court failed to give appropriate
weight and consideration to his advanced age, history of heart attacks, obesity,
lack of criminal history, cooperation with the Government, and employment
history as well as evidence that he did not personally produce any child
pornography, have inappropriate contact with a child, or financially profit from
his postings. The district court was aware of these mitigating factors but gave
more weight to the seriousness of the offense, particularly the nature of the
images depicted in Deschenes’s posts and the impact of Deschenes’s conduct on
the victims. Deschenes has failed to rebut the presumption of reasonableness
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No. 12-30563
that is accorded to his within-guidelines sentence. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
The judgment of the district court is AFFIRMED.
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