United States v. Alfred E. Daking, Jr. ( 2015 )

Case: 14-10716 Date Filed: 01/02/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10716
Non-Argument Calendar
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D.C. Docket No. 2:12-cr-14069-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED E. DAKING, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 2, 2015)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Alfred Daking appeals his 180-month prison sentence, a downward
deviation from the Guidelines sentence range of 235-240 months,1 imposed after
he pled guilty to transportation of child pornography, in violation of 18 U.S.C.
§ 2252(a)(1). Daking seeks the vacation of his sentence on the ground that it is
both procedurally and substantively unreasonably. He contends that his sentence is
procedurally unreasonable because the district court erred in applying U.S.S.G. §§
2G2.2(b)(2), 2G2.2(b)(3)(D) and 2G2.2(b)(5), all specific offense characteristics,
and that it is substantively unreasonable due to these procedural errors. We affirm.
I.
The district court increased the base offense level of Dakings’s offense,
U.S.S.G. § 2G2.2, by two levels under § 2G2.2(b)(2) because the pornographic
material he transmitted “involved a prepubescent minor or a minor who had not
attained the age of 12 years.” Daking argues that the court erred because the child
to whom he transmitted the pornography—D.R.—was over age twelve when he
began transmitting illicit content to him. Dakings failed to object to the courts §
2G2.2(b)(2) enhancement, so we review the enhancement for plain error.
To prevail, Daking must convince us that the court not only erred, but that
the error was plain and prejudicially affected his substantial rights. United States v.
Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995). Even then, he would not be
1
The statutory maximum term of imprisonment was 240 months. See 18 U.S.C. §
2252(b)(1).
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entitled to relief unless we conclude that the error seriously affected the fairness,
integrity, or public reputation of his sentencing proceeding. United States v. Olano,
507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993). We find no
error here, much less error that is plain. The search of Daking’s computer
equipment, and a comparison of the images found to a national child pornography
database, revealed that Daking was responsible for images of child victims known
to be under twelve.
II.
Section § 2G2.2(b)(5) requires the district court to increase the base offense
level by five levels “[i]f the defendant engaged in a pattern of activity involving
the sexual abuse or exploitation of a minor.” Section § 2G2.2(b)(3)(D) requires the
district court to increase the base offense level by six levels if “[d]istribution to a
minor that was intended to persuade, induce, entice, or coerce the minor to engage
in any illegal activity, other than illegal activity covered under subdivision (E).”
The invited error doctrine precludes our review of Daking’s argument that the
district court erred in applying these guidelines in fixing the total offense level for
his offense because his attorney, at the sentencing hearing, informed the court that
he was withdrawing any objections Dakings may have had to the application of
these guidelines. See Doc. 115: 6, 11-12. See, e.g., United States v. Love, 449
F.3d 1154, 1157 (11th Cir. 2006) (applying invited error doctrine where defendant
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requested supervised release as a sentence and then contested his eligibility for
supervised release on appeal).
III.
Dakings’ argument that his sentence is substantively unreasonable is based
on the assumption that the district court erred in applying the guidelines cited
above. Since we do not disturb the court’s application of those guidelines, his
argument that his sentence is substantively unreasonable fails.
AFFIRMED.
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