United States v. Ferrell Walker ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 20, 2008
No. 07-15704 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00030-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERRELL WALKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 20, 2008)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant pled guilty pursuant to a plea agreement to an Information that
charged him with possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B), and the district court sentenced him to a prison term of 87
months. He now appeals his sentence, contending that the district court incorrectly
calculated his sentence range under the Sentencing Guidelines because it held him
accountable for pornographic images that he had deleted from his computer before
he knew he was under criminal investigation. Accordingly, the court should have
calculated his sentence range to include only the images that were currently
accessible to him.
Appellant did not object to the district court’s decision to hold him
accountable for the deleted images. We therefore review the court’s decision for
plain error.1 We will correct a plain error when (1) there is an error, (2) that is
plain, and (3) that affects substantial rights. Bennett, 472 F.3d at 831. If all three
conditions are met, we may then “exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005). Plain error means an error that is “clear” or “obvious.” United States v.
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“It is the law of this circuit that a failure to object to allegations of fact in a
[presentence investigation report] admits those facts for sentencing purposes” and precludes the
argument that such facts contained error. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006). “Challenges to the [report] must be asserted with specificity and clarity . . . [o]therwise
the objection is waived. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).
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Olano. 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). “At a
minimum, court of appeals cannot correct an error . . . unless the error is clear
under current law.” Id. “The error must be so ‘plain’ the trial judge and prosecutor
were derelict in countenancing it, even absent the defendant’s timely assistance in
detecting it.” United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71
L.Ed.2d 816 (1982). “When neither the Supreme Court nor this Court has resolved
an issue, and other circuits are split on it, there can be no plain error in regard to
that issue.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).
Given the lack of binding authority on the Guidelines-calculation-issue
presented, we conclude that the district court did not plainly err by including
previously deleted images in the total number of images for purposes of calculating
Walker’s advisory guideline range.
AFFIRMED.
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