United States v. Ownby ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4449
JOHN WESLEY OWNBY, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4466
JOHN WESLEY OWNBY, JR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-65)
Submitted: October 31, 1997
Decided: November 26, 1997
Before HALL, NIEMEYER, and WILKINS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
David L. Heilberg, Llezella A. Dugger, LAW OFFICE OF DAVID
L. HEILBERG, Charlottesville, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Vanessa Chandler, Third Year Law Student,
Charlottesville, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
John Wesley Ownby, Jr. pleaded guilty to single counts of know-
ingly receiving and transmitting by computer visual depictions of
minors engaging in sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(1), (a)(2) (1994), and knowingly possessing three or more
visual depictions of a minor engaging in sexually explicit conduct
which were transported in interstate commerce by computer in viola-
tion of 18 U.S.C. § 2252(a)(4)(B) (1994). The Government sought
and received criminal forfeiture of certain personal and real property
belonging to Ownby, including his residence, under 18 U.S.C. § 2253(1994). Ownby was sentenced to 36 months in prison on each of the
counts, to be served concurrently to each other but consecutively to
an unrelated state sentence. On appeal, Ownby alleges that the district
court's forfeiture of his residence violates the Excessive Fines Clause
of the Eighth Amendment and that the court erred in imposing his
federal sentence to run consecutively to his undischarged state sen-
tence. Finding no error, we affirm.
Viewing the facts in the light most favorable to the Government,
the record discloses that the FBI discovered that Ownby repeatedly
sent and received depictions of minors engaging in sexually explicit
conduct by computer through an "on-line" service. A search of
Ownby's residence uncovered 76 floppy diskettes containing 1612
images in boxes, some of which were labeled "YM" for "Young
Male" and "YF" for "Young Female." Of the 1612 images, over 62
percent depicted juveniles engaged in sexually explicit conduct.
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Approximately 20 percent of the images could not be viewed due to
software incompatibilities. Agents also found various files on
Ownby's hard drive which contained numerous images of children,
individuals of questionable age, and adults engaged in sexually
explicit conduct. Ownby confessed to one of the agents that he had
been trading pornographic images through computer on-line services
for approximately two years and that he maintained both a "clean"
and "dirty" account on-line. He further revealed that he placed a com-
puter in his home to conduct legitimate business activities and to trade
pornographic images in private.
Ownby first contends that the court's forfeiture of his home vio-
lated the Excessive Fines Clause of the Eighth Amendment. In ana-
lyzing excessive fines claims in the context of in personam criminal
forfeitures, the court must consider the proportionality of the fine to
the offense. See United States v. Wild, 47 F.3d 669 (4th Cir.), cert.
denied, ___ U.S. ___, 64 U.S.L.W. 3242 (U.S. Oct. 2, 1995) (No.
94-9563). The district court provided extensive and thorough analysis
of the proportionality issues of this case in a memorandum opinion
and concluded that the forfeiture was proportional to the crime. We
agree with the court's sound and reasoned judgment and therefore
affirm the forfeiture based on the reasoning of the district court.
Ownby also maintains that the court erred in denying his motion
to impose his federal sentence concurrently with his undischarged
state sentence. The applicable guideline, USSG § 5G1.3(c),* states
that the court has discretion to impose a concurrent, consecutive, or
partially concurrent sentence to the prior undischarged term of impris-
onment "to achieve a reasonable punishment for the instant offense."
The district court should consider factors set forth in 18 U.S.C.
§ 3584 (1994) (referencing 18 U.S.C. § 3553(a) (1994)) and take note
of four additional factors stated in USSG § 5G1.3, comment (n.3).
We review factual issues regarding application of the Guidelines
under a clearly erroneous standard. See United States v. Daughtrey,
874 F.2d 213, 217 (4th Cir. 1989). We review the legal issues involv-
ing application of the Guidelines de novo. Id. To the extent that the
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*U.S. Sentencing Guidelines Manual § 5G1.3(c) (1996).
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issue before the court is more factual than legal, the standard of
review approaches that of review for clear error. Id.
Again, the court's memorandum opinion reflects a very thorough
analysis of the various considerations involved in its decision to
impose the federal sentence consecutively to the state sentence. We
find no abuse of discretion in the court's decision that a consecutive
sentence constitutes a reasonable punishment under the facts of this
case and affirm his sentence based on the reasoning of the district
court.
Accordingly, we affirm Ownby's conviction and sentence. We fur-
ther deny Ownby's motion for leave to file a supplemental brief. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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