United States v. Longbine , 115 F. App'x 221 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-10438
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEFAN DEWAYNE LONGBINE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-257-ALL-Y
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Stefan Dewayne Longbine appeals from his conviction of
receipt of child pornography. The Government’s motion for
summary affirmance is GRANTED. The Government’s motion to
dismiss the appeal is DENIED. The Government’s motion for an
extension of time in which to file a brief is DENIED as moot.
Longbine contends that the district court erred by applying
U.S.S.G. § 2G2.2 to determine his offense level and, for the
first time on appeal, that the four-level adjustment to his
offense level for having material depicting sadistic and
*
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this opinion should not be published and is not precedent except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. 04-10438
-2-
masochistic images of adults having sex with children violated
Blakely v. Washington, 124 S. Ct. 2531 (2004), and constituted
plain error. Longbine concedes that his Blakely contention is
foreclosed by United States v. Pineiro, 377 F.3d 464 (5th Cir.
2004), petition for cert. filed (U.S. July 14, 2004)(No. 04-
5263), but he raises the issue to preserve it for further review.
Longbine’s receipt of child pornography was sufficient to
trigger application of U.S.S.G. § 2G2.2. United States v.
Canada, 110 F.3d 260, 264 (5th Cir. 1997). Longbine’s argument
that his guideline adjustment violated Blakely is foreclosed by
Pineiro, in which this court held that “Blakely does not extend
to the federal Guidelines.” Pineiro, 377 F.3d at 465-66.
AFFIRMED.