United States v. Tashbook ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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Nos. 97-40327 & 97-40617
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JAY TASHBOOK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(6:96-CR-32-1)
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March 20, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Tashbook, who pleaded guilty to one count of
traveling in interstate commerce for the purpose of engaging in sexual
acts with a minor and also to possessing three or more visual depictions
transported by computer in interstate commerce of minors engaging in
sexually explicit conduct, appeals one issue in his sentencing. He
contends that U.S.S.G. § 2G2.4, as effective in 1995, did not explain
how its enhancement for “possessing ten or more . . . items, containing
*
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opinion should not be published and is not precedent except under the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.
a visual depiction involving the sexual exploitation of a minor” applies
to depictions stored on a computer. Finding no error in the trial
court’s sentencing decision, we affirm.
Tashbook contends that the 20-30 graphic images that were
contained on his computer and depicted minors engaged in sexually
explicit activities were stored in one directory and were therefore like
images contained in one magazine, which would be counted as one item for
purposes of this sentencing enhancement. This legal argument is
foreclosed by Tashbook’s guilty plea. First, Tashbook pled guilty to
the crime of possessing “three or more visual depictions transported by
computer” (emphasis added), a plea utterly inconsistent with the
contention that for sentencing purposes, he possessed only one offending
item. Second, his guilty plea agreement specifically states that he
“possessed ten (10) or more items containing a visual depiction
involving the sexual exploitation of a minor as referenced in the
specific offense characteristics of U.S.S.G. § 2G2.4.” (emphasis added).
Having stipulated to the precise facts that undergird
application of this sentencing enhancement, Tashbook cannot now turn
around on appeal and assert that possessing more than three items, and
ten or more items of computer-transmitted visual depictions of sexual
exploitation of a minor are in fact only one such depiction for criminal
purposes. Even if Tashbook had not foreclosed this argument by his own
agreement, however, we would be skeptical of the contention that
transmission of these images over the Internet could result in a finding
that only one offending item existed based solely on the way in which
defendant chose to store the images in his computer.
2
The sentence imposed by the trial court is AFFIRMED.
3