Summary
affirming lifetime supervision single count possession child pornography
Summary of this case from United States v. BaconOpinion
No. 05-20889.
August 17, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Kevin Matthew Hall, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, (USDC No. 4:03-CR-357-ALL).
Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
Robert Warren Chapman appeals his sentence following his conviction of one count of possession of child pornography in violation of 18 U.S.C. § 2252A. To avoid ex post facto issues, the district court calculated Chapman's guideline range using the 2002 U.S. Sentencing Guidelines Manual and the April 30, 2003 Supplement. The district court enhanced Chapman's offence level by two levels under U.S.S.G. § 2G2.4(b)(2) because Chapman possessed ten or more computer files containing a visual depiction involving sexual exploitation of a minor and by two levels under § 2G2.4(b)(5)(A) because the offense involved at least 10, but fewer than 150 images. Under United States v. Gonzalez, 445 F.3d 815, 818 (5th Cir. 2006), this double-counting was error, and the Government concedes that the error requires re-sentencing. We vacate the sentence but add that the court's assessment of a life term of supervised release was consistent with the guidelines and reasonable under the circumstances.
SENTENCE VACATED; REMANDED FOR RE-SENTENCING.