United States v. Oscar Stamper ( 2013 )

Case: 12-30881 Document: 00512349707 Page: 1 Date Filed: 08/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 21, 2013
No. 12-30881
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSCAR STAMPER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:11-CR-23-1
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Oscar Stamper appeals the 480-month sentence imposed following his
guilty-plea conviction for receiving child pornography. Additionally, Stamper
has filed pro se two motions to appoint substitute counsel, to strike the brief filed
on his behalf by defense counsel, and for discovery of a detective’s initial exam
of his computer and a forensic report of his computer.
The outstanding motions are DENIED. Stamper complains of difficulty
communicating with defense counsel; the Federal Public Defender responded by
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-30881
explaining the communications efforts. Neither Stamper’s motions nor his
counsel’s response demonstrates that “there is a conflict of interest or other most
pressing circumstances or that the interests of justice otherwise require relief
of counsel.” Fifth Circuit Plan Under the Criminal Justice Act, § 5B; see 18
U.S.C. § 3006A(c). As Stamper continues to be represented by counsel, he does
not have the right to hybrid representation or simultaneous representation by
himself and counsel. See United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th
Cir. 1999).
As to the merits of the appeal, Stamper suggests that we reevaluate our
holding in United States v. Miller, 665 F.3d 114, 119-23 (5th Cir. 2011), cert.
denied, 132 S. Ct. 2773 (2012), that U.S.S.G. § 2G2.2 is entitled to a presumption
of reasonableness in light of a 2012 United States Sentencing Commission
Report that criticizes § 2G2.2. We may not overrule Miller absent an en banc or
superseding Supreme Court decision. See United States v. Lipscomb, 299 F.3d
303, 313 n.34 (5th Cir. 2002). Additionally, we have repeatedly held that
challenges to the presumption of reasonableness of § 2G2.2 are foreclosed by
Miller. See, e.g., United States v. Ellis, ___ F.3d ___, No. 12-10162, 2013 WL
3156007, at *6 (5th Cir. May 20, 2013).
Next, Stamper contends that his sentence is substantively unreasonable
based on the facts and circumstances of his case. He points to the staleness of
his prior convictions that increased the statutory minimum sentence and
contends that his offense did not involve contact with minors or the distribution
of child pornography. Additionally, he argues that a lower sentence was
necessary to avoid unwarranted sentencing disparities given that defendants
who engaged in significantly more egregious conduct have received lower
sentences than him.
The district court was aware of these allegedly mitigating circumstances
but concluded that a sentence of 480 months was warranted due to Stamper’s
history of engaging in sexual abuse or exploitation of a minor, his current offense
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No. 12-30881
conduct, and the need to protect the public from his further crimes. Stamper has
failed to show that any sentencing disparity was unwarranted given that he
provides no information regarding the other defendants’ records. See United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Accordingly, he has failed to
rebut the presumption of reasonableness that is accorded to his within-
guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009).
The judgment of the district court is AFFIRMED.
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