[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10336 DECEMBER 15, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 3:09-cr-00159-WKW-CSC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
KENNETH ALLEN BALLARD,
a.k.a. Kenlowes736@yahoo.com,
a.k.a. Salemcandylicker,
a.k.a. Watchoutlittleholesitsbig,
lllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(December 15, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Kenneth Ballard, convicted by a jury of 2 counts of the knowing distribution
of child pornography and 1 count of the knowing receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2), appeals his convictions and 210-month total
sentence. Ballard challenges the district court’s denial of his pre-trial motion in
limine, through which he sought to prevent the government from showing images
or videos of child pornography to the jury. Ballard also challenges the district
court’s application of a sentencing enhancement for his use of a computer,
pursuant to U.S.S.G. § 2G2.2(b)(6), and the substantive reasonableness of his 210-
month total sentence.
I.
Ballard argues that the district court abused its discretion by allowing into
evidence every image and a portion of the videos of child pornography that were
charged in the indictment, despite Ballard’s stipulation that the 15 pictures and 3
videos were child pornography. Ballard contends that this evidence unfairly
prejudiced and inflamed the jurors, and that the prejudicial impact of this evidence
outweighed its relevance such that the admission of the evidence violated Rule
403 of the Federal Rules of Evidence.
We review a district court’s evidentiary rulings for a clear abuse of
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discretion. United States v. Dodds,
347 F.3d 893, 897 (11th Cir. 2003). Rule 401
of the Federal Rules of Evidence defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Rule 403 of the Federal Rules of Evidence provides that
relevant evidence may be excluded if its probative value “is substantially
outweighed by the danger of unfair prejudice.” But we have cautioned that Rule
403 is an “extraordinary remedy which the district court should invoke sparingly,”
and that “the balance should be struck in favor of admissibility.” Dodds,
347 F.3d
at 897.
Generally, the prosecution is entitled to determine how to prove its case,
and a defendant may not stipulate or admit his way out of the full evidentiary force
of the case against him. Old Chief v. United States,
519 U.S. 172, 186-87,
117
S.Ct. 644, 653,
136 L.Ed.2d 574 (1997). Rule 403 limits the quantity and type of
evidence that may be introduced, however, as it demands a balancing approach
between the degrees of probative value that a piece of evidence has and its
prejudicial effect. Dodds,
347 F.3d at 897. Despite this balancing requirement,
“the prosecutor’s choice will generally survive a Rule 403 analysis when a
defendant seeks to force the substitution of an admission for evidence creating a
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coherent narrative of his thoughts and actions in perpetrating the offense for which
he is being tried.” Old Chief,
519 U.S. at 192,
117 S.Ct. at 656.
In the instant case, the admittedly relevant evidence of the images and
videos was not extrinsic to the crime, but was “part of the actual pornography
possessed.” See Dodds,
347 F.3d at 898. It also had a high probative value,
despite Ballard’s stipulation. Ballard did not stipulate to the “knowledge” element
of his offenses, and the government intended to use the images and videos at trial
as proof of this element. Thus, because of the highly probative uses of the
evidence, the stipulation was not effective to prevent the government’s choice of
the evidence used in its prosecution of the case. See Alfaro-Moncada, 607 F.3d at
734. The district court did not abuse its discretion by denying Ballard’s motion in
limine and admitting the pictures and videos charged in the indictment into1
evidence.
II.
Ballard also argues that the district court erred when it applied a sentencing
enhancement under U.S.S.G. § 2G2.2(b)(6) for his use of a computer. Ballard
asserts that the government’s theory of the case, as well as the enhancement he
received under § 2G2.2(b)(3)(B), involved using a computer and, therefore,
application of the enhancement constituted impermissible double counting.
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We review de novo a claim of double counting under the Guidelines.
United States v. De La Cruz Suarez,
601 F.3d 1202, 1220 (11th Cir.), cert. denied
131 S.Ct. 393 (2010). Impermissible double counting occurs only when one part
of the guidelines is applied to increase a defendant’s sentence on account of a kind
of harm that has already been fully accounted for by application of a different part
of the guidelines.
Id. Further, “[d]ouble counting a factor during sentencing is
permissible if the Sentencing Commission intended the result, and if the result is
permissible because each section concerns conceptually separate notions related to
sentencing.”
Id. (quotation omitted). We presume that “the Sentencing
Commission intended to apply separate guideline sections cumulatively, unless
specifically directed otherwise.” United States v. Rodriguez-Matos,
188 F.3d
1300, 1310 (11th Cir. 1999).
Under 18 U.S.C. § 2252A(a)(2), it is a crime to knowingly receive or
distribute child pornography “using any means or facility of interstate or foreign
commerce . . . or transported in or affecting interstate or foreign commerce by any
means, including by a computer.” 18 U.S.C. § 2252A(a)(2)(A) (emphasis added).
The Guidelines provide a base offense level of 22 for the crime of trafficking in,
receiving, transporting, shipping, soliciting, or advertising material involving the
sexual exploitation of a minor. U.S.S.G. § 2G2.2(a)(2). Section 2G2.2 provides
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for a 2-level increase in the base offense level “[i]f the offense involved the use of
a computer or an interactive computer service for the possession, transmission,
receipt, or distribution of the material.” U.S.S.G. § 2G2.2(b)(6). Section 2G2.2
also provides for a 5-level increase if the offense involved distribution of child
pornography for the receipt of a thing of value. U.S.S.G. § 2G2.2(b)(3)(B).
Ballard’s double counting arguments are without merit. Because a
defendant need not use a computer to violate 18 U.S.C. § 2252A(a)(2), the fact
that Ballard used a computer is no more than relevant conduct for the purposes of
sentencing. See U.S.S.G. § 1B1.3(a)(1). Thus, the district court did not
erroneously apply the § 2G2.2(b)(6) enhancement because Ballard’s use of a
computer was not taken into account in the calculation of his base offense level or
by any other section of the guidelines. See De La Cruz Suarez,
601 F.3d at 1220.
Moreover, Ballard has made no argument to rebut the presumption that the
Sentencing Commission intended that the § 2G2.2(b)(6) and § 2G2.2(b)(3)(B)
enhancements be applied cumulatively. Because the enhancements focus on
separate harms, and there is no evidence that the Sentencing Commission did not
intend for the enhancements to apply cumulatively, the district court did not
engage in impermissible double counting by applying both § 2G2.2(b)(3)(B) and
§ 2G2.2(b)(6).
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III.
Finally, Ballard argues that by denying in part his motion for a downward
variance, the district court imposed a substantively unreasonable sentence.
We review a sentence for substantive reasonableness under an abuse of
discretion standard. Gall v. United States,
552 U.S. 38, 51,
128 S.Ct. 586, 597,
169 L.Ed.2d 445 (2007). The party challenging the sentence carries the burden of
establishing unreasonableness. United States v. Talley,
431 F.3d 784, 788 (11th
Cir. 2005).
The reasonableness inquiry involves two steps. United States v. Pugh,
515
F.3d 1179, 1190 (11th Cir. 2008). Because Ballard does not challenge the
procedural reasonableness of his sentence, we review his sentence only for
substantive reasonableness in light of the record and the
18 U.S.C. § 3553(a)
sentencing factors. Talley,
431 F.3d at 786, 788. The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
kinds of sentences available; (6) the guidelines range; (7) pertinent Sentencing
Commission policy statements; and (8) the need to avoid unwarranted sentencing
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disparities. See id. at 786;
18 U.S.C. § 3553(a). The sentence imposed must be
“sufficient, but not greater than necessary” to achieve the purposes of sentencing
outlined in § 3553(a)(2).
18 U.S.C. § 3553(a).
Ballard has not carried his burden of demonstrating that his sentence was
substantively unreasonable. The district court explicitly considered the § 3553(a)
factors, including Ballard’s personal and criminal history and the need to avoid
sentencing disparities, prior to imposing Ballard’s sentence. The 210-month
sentences were also well below the statutory maximum of 20 years’ imprisonment
for each count. Taking into account the § 3553(a) factors and the discretion the
district court is afforded in weighing those factors, the district court did not abuse
its discretion in sentencing Ballard to 3 concurrent terms of 210 months’
imprisonment.
In light of the foregoing, and after carefully reviewing the parties’ briefs and
the record, we affirm Ballard’s convictions and 210-month total sentence.
AFFIRMED.
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