United States v. Padgett , 50 F. App'x 125 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4923
JOHN MARK PADGETT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-99-457)
Submitted: October 10, 2002
Decided: November 8, 2002
Before WILKINS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael S. Seekings, MULLEN, WYLIE & SEEKINGS, Charleston,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Mary Gordon Baker, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PADGETT
OPINION
PER CURIAM:
John Mark Padgett appeals his conviction and sentence for know-
ingly transporting and shipping child pornography, in interstate com-
merce by computer, in violation of 18 U.S.C. § 2252A(a)(1) (2000).
Finding no reversible error, we affirm.
On appeal, Padgett contends that the district court erred in impos-
ing two sentencing enhancements pursuant to U.S. Sentencing Guide-
lines Manual ("USSG") § 2G2.2 (1998). First, Padgett argues that the
district court erred in imposing a five level enhancement for distribu-
tion of child pornography pursuant to USSG § 2G2.2(b)(2) because
there was no evidence of any pecuniary gain. This argument is fore-
closed by our decision in United States v. Williams, 253 F.3d 789,
793-95 (4th Cir. 2001) (holding that the enhancement applies to dis-
tributions not made solely for pecuniary gain, and that trading child
pornography is a transaction for pecuniary gain).
Second, Padgett contends that the district court erred in imposing
an enhancement pursuant to USSG § 2G2.2(b)(4), which provides for
a five level increase in the offense level "[i]f the defendant engaged
in a pattern of activity involving the sexual abuse or exploitation of
a minor." The district court imposed an enhancement on this ground
based on its finding that Padgett had sexually abused a minor child.
Padgett argues that the enhancement does not apply because there was
no evidence that the allegations of sexual abuse related to the offense
of conviction. In support of this argument, Padgett cites United States
v. Chapman, 60 F.3d 894 (1st Cir. 1995) (holding that a § 2G2.2(b)(4)
enhancement is not appropriate where the Government fails to show
that the defendant actually sexually abused or exploited minors in
conjunction with trafficking child pornography).
Subsequent to Chapman, however, the Sentencing Commission
amended the commentary to the guideline to provide that the pattern
of activity warranting the enhancement need not relate to the offense
of conviction. See USSG § 2G2.2, cmt. n.1; see also United States v.
Woodward, 277 F.3d 87, 91 n.2 (1st Cir. 2002) (recognizing that the
commentary effectively overruled its holding in Chapman); United
UNITED STATES v. PADGETT 3
States v. Neilssen, 136 F.3d 965, 971 n.* (4th Cir. 1998) (noting that
the amended commentary responded in part to the Chapman deci-
sion); United States v. Anderton, 136 F.3d 747, 750 & n.2 (11th Cir.
1998) (discussing the effect of the amendment to the commentary).
We find that the amended commentary makes clear that the Govern-
ment need not prove that Padgett’s sexual abuse of the minor child
was related to the offense of conviction in order for the § 2G2.2(b)(4)
enhancement to apply.
We note that Padgett has filed a motion for leave to file a pro se
supplemental brief. Although we grant this motion, we find no merit
to the claims raised therein. We therefore affirm Padgett’s conviction
and sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED