United States v. Snow ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20129
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY GILBERT SNOW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-537-ALL
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October 9, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Larry Gilbert Snow appeals his conviction and sentence for
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). He contends that the statute of conviction is
unconstitutionally vague and overbroad. This argument is
foreclosed by circuit precedent. See United States v. Fox, 248
F.3d 394, 406-07 (5th Cir. 2001). Although the issue is pending
before the Supreme Court, this court must continue to follow its
own precedent even when the Supreme Court grants certiorari on an
issue. See Ellis v. Collins, 956 F.2d 76, 79 (5th Cir. 1992).
*
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that this opinion should not be published and is not precedent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.
No. 01-20129
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Snow contends that the district court erred in applying
U.S.S.G. § 2G2.2, the guideline governing pornography
trafficking, in calculating his base offense level. The facts as
set forth in the presentence investigation report reveal that
Snow had sent a pornographic image to a customs agent, had
admitted to sending and receiving images on the morning agents
searched his home, and had sent images to another individual.
Snow contends that the district court should not have considered
his transmission of an image to the customs agent because the
agent contacted him first, and using that to enhance his sentence
would constitute sentencing entrapment. This court has not had
to determine whether sentencing entrapment is a cognizable
defense to a sentence. United States v. Washington, 44 F.3d
1271, 1280 n.28 (5th Cir. 1995). However, even if it were
considered here, Snow has failed to show that the government
agent persuaded Snow to commit a greater criminal offense than he
was predisposed to commit or that the agent’s conduct was
outrageous, resulting in sentencing factor manipulation. See
United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998).
Snow’s challenge to the base offense level fails.
Snow also asserts that the district court abused its
discretion in imposing a special condition of supervised release
which prohibited Snow from possessing a personal computer or
accessing any non-work-related computer. To the extent that Snow
is challenging the denial of Internet access from a home
computer, his challenge would be foreclosed by his specific
request to place this restriction on him. To the extent that he
No. 01-20129
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is challenging the court’s refusal to allow him to possess a home
computer, Snow cannot show an abuse of discretion on the part of
the district court, as he has failed to show that the limitation
is unreasonably broad under the facts of the case. See United
States v. Coenen, 135 F.3d 938, 940 (5th Cir. 1998); U.S.S.G.
§ 5D1.3(b). To the extent that Snow is challenging the district
court’s limitation of his use of non-home computers that are not
related to his employment, he failed to challenge that limitation
in the district court, and review would be for plain error. See
United States v. Ruiz, 43 F.3d 985, 988 (5th Cir. 1995). The
district court’s explanation of its intent behind the restriction
makes it apparent that although the use of non-home computers was
not favored, the court accepted the possibility that Snow could
do so. Under the facts of this case, Snow has failed to show
that the special condition constituted a “greater deprivation of
liberty than is reasonably necessary” for the purposes of
rehabilitation and protection of the public. See U.S.S.G.
§ 5D1.3(b). Consequently, the district court’s judgment is
AFFIRMED.