United States v. Dembowski ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20476
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES SCOTT DEMBOWSKI,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CR-7-ALL)
October 30, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Charles Scott Dembowski appeals from the enhancement of his
sentence, after he pleaded guilty to transporting child pornography
in interstate commerce over the Internet, in violation of 18 U.S.C.
§§ 2252A(a)(1) and 2256(8), and to traveling in interstate commerce
for the purpose of engaging in a sexual act with a person under the
age of 18, in violation of 18 U.S.C. §§ 2423(b) and 2246. We
review the district court's application of the Sentencing
Guidelines de novo and its factual findings for clear error. E.g.,
United States v. Goynes, 175 F.3d 350, 353 (5th Cir. 1999).
*
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this opinion should not be published and is not precedent except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.
Dembowski contends the district court erred by enhancing his
sentence five levels under U.S.S.G. § 2G2.2(b)(2) for
"distribution" of child pornography because the materials he
transmitted were not sent with an expectation of pecuniary gain.
However, enhancement under § 2G2.2(b)(2) is appropriate if
Dembowski distributed the images “with a purpose of enticing
another person to have sex with him”. United States v. Fowler, 216
F.3d 459, 460 (5th Cir.), petition for cert. filed, 69 U.S.L.W.
3235 (U.S. 18 Sept. 2000) (No. 00-460); United States v. Canada,
110 F.3d 260, 263 (5th Cir.), cert. denied, 522 U.S. 875 (1997).
The district court did not clearly err in finding that Dembowski
transmitted the pornography for that purpose.
Dembowski also contends that the district court erred by
enhancing his sentence five levels under U.S.S.G. § 2G2.2(b)(4) for
engaging in a pattern of sexual activity with minors because the
individuals with whom he had sexual relations were 16 and 17 years
old. Although not controlling, the Sentencing Commission's
proposed amendments to the commentary of § 2G2.2(b)(4), effective
1 November 2000 and referenced by the district court at sentencing,
sufficiently indicate the Commission's intent that the enhancement
applies when the individuals in question were under the age of
eighteen. See United States v. Anderson, 5 F.3d 795, 802 (5th Cir.
1993), cert. denied, 510 U.S. 1137 (1994).
AFFIRMED
2