Opinion
No. 17-1510
11-09-2017
United States of America Plaintiff - Appellee v. Scottie O'Neal McDuffie Defendant - Appellant
Appeal from United States District Court for the Southern District of Iowa - Davenport [Unpublished] Before WOLLMAN, GRUENDER, and BENTON, Circuit Judges. PER CURIAM.
Scottie O'Neal McDuffie pled guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e), and two counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). In a brief filed under Anders v. California, 386 U.S. 738 (1967), counsel challenges the application of certain Sentencing Guidelines provisions. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
The district court sentenced McDuffie to an aggregate prison term of 480 months. McDuffie challenges, as a matter of plain error, the application of a five-level increase to his offense level for a pattern of activity involving prohibited sexual conduct in combination with a multiple-victim increase. This court concludes that his substantial rights were not affected. See Fed. R. Crim. P. 52(b) (plain error that affects substantial rights may be considered even though it was not brought to the court's attention); United States v. Peck, 496 F.3d 885, 890-91 (8th Cir. 2007) (finding an increase for multiple victims and an increase under U.S.S.G.§ 4B1.5 for a pattern of prohibited sexual activity does not result in double counting). McDuffie also raises a preserved challenge to the district court's application of a four-level increase for material involving sadistic or masochistic depictions. This court has previously rejected this challenge under circumstances similar to those presented in this case. See United States v. Belflower, 390 F.3d 560, 561-62 (8th Cir. 2004).
The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa. --------
Following independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), this court finds no nonfrivolous issues for appeal.
The judgment is affirmed. Counsel's motion to withdraw is granted.