United States v. Williams ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10534
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH RAY WILLIAMS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:99-CR-120-1-C
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February 16, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Kenneth Ray Williams appeals from his conviction for
interstate transportation of child pornography in violation of 18
U.S.C. § 2252A(a)(1) and possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). Finding no error, we
affirm.
Williams first argues that the district court erred in
denying his motion for the Government to produce a mirror image
of his computer hard drive so that his expert could test it for
*
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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viruses. We review the district court's rulings during the
discovery process for an abuse of discretion. See United States
v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998). We find that the
Government offered to provide Williams with reasonable access to
the seized hard drive and that the district court did not abuse
its discretion in denying the motion. See United States v.
Kimbrough, 69 F.3d 723, 730-31 (5th Cir. 1995); Dukes, 139 F.3d
at 476.
Williams next argues that the district court erred in
admitting into evidence a box containing adult and child
pornography, including the images that formed the basis of the
offense of conviction for possession of child pornography,
because the evidence was more prejudicial than probative and the
district court failed to review the evidence before making its
ruling. We find that Williams has failed to show an abuse of
discretion and that the evidence was properly admitted under Fed.
R. Evid. 404(b). See United States v. Layne, 43 F.3d 127, 133-34
(5th Cir. 1995). We further find that the district court's
limiting instruction on evidence of other acts tempered any
prejudice caused by the evidence. Id.
Finally, Williams argues that his sentence should not have
been enhanced under U.S.S.G. § 2G2.2(b)(3) because the images for
which he was convicted were not sadistic, masochistic or violent
in nature. Because the record before us fails to show that
Williams objected on this basis in the district court, we would
ordinarily review the argument for plain error. See United
States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).
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However, questions of fact capable of resolution by the district
court upon proper objection at sentencing can never constitute
plain error. United States v. Vital, 68 F.3d 114, 119 (5th Cir.
1995). Moreover, Williams failed to order a transcript of the
sentencing proceedings. See Fed. R. App. P. 10(b). This court
will not consider an issue about which the record on appeal is
insufficient. See United States v. Johnson, 87 F.3d 133, 136 n.1
(5th Cir. 1996).
The judgment of the district court is AFFIRMED.
3