United States v. Robert Bowling, Jr. , 427 F. App'x 461 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0511n.06
FILED
No. 09-5140
Jul 22, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
ROBERT DAMON BOWLING, JR., ) DISTRICT OF KENTUCKY
)
Defendant - Appellant. ) OPINION
)
)
BEFORE: COLE and STRANCH, Circuit Judges; and ZATKOFF, District Judge.1
ZATKOFF, District Judge. Defendant Robert Bowling, Jr. (“Bowling”) appeals his
sentence of 360 months imposed by the district court upon acceptance of his guilty plea for
production of child pornography. Specifically, Bowling contends that the district court erred when
it applied a five-level sentencing enhancement under U.S.S.G. § 4B1.5(b) for engaging in a pattern
of activity involving “prohibited sexual conduct” (i.e., a repeat and dangerous sex offenders
enhancement). For the reasons that follow, we AFFIRM the district court’s sentence of 360 months
and supervised release for a term of life.
I. BACKGROUND
1
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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No. 09-5140
USA v. Robert Damon Bowling, Jr.
On January 29, 2009, Bowling pleaded guilty to one count of production of child
pornography under 18 U.S.C. § 2251 and one count of criminal forfeiture under 18 U.S.C. § 2253in the United States District Court of the Eastern District of Kentucky according to a Fed. R. Crim.
P. Rule 11 plea agreement. Bowling reserved his right to appeal the district court’s sentence.
Bowling’s sentence was based on the following facts. It is undisputed that in May of 2007,
Bowling took approximately eighty-two images of himself and his then girlfriend’s daughter, I.G.,
who was seven years of age at the time the images were taken. The images depict Bowling engaged
in sexual conduct with I.G. and I.G. engaged in lascivious exhibition of herself. Bowling then
transferred the images from a camera to his computer.
During an audio-recorded interview between Bowling and Kentucky State Police Detective
Joey Peters, Bowling stated that one night he and I.G. had been asleep on the couch and that, when
he woke up, I.G. was playing with his penis. Bowling further stated that, approximately two weeks
later, he exposed his penis to I.G. Bowling stated that he eventually took sexually explicit images
of I.G., but he contends that all of the images of I.G. were taken on one occasion. During the
interview, Bowling, however, expressed difficulty remembering any details concerning the images.
He also stated that he remembered engaging in sexual activity with I.G. at the time he took the
images and that he had oral sex with I.G. on one occasion, but it is not clear whether this occurred
on the same day Bowling took the images of I.G.
Detective Peters characterized the images of I.G. at the sentencing hearing. Detective Peters
testified that the images depicted I.G. in the living room on a couch, in the bedroom, and in a
bathroom in Bowling and his girlfriend’s home. In these images, Detective Peters testified that I.G.
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No. 09-5140
USA v. Robert Damon Bowling, Jr.
was wearing different clothing, including different colored underwear. Detective Peters further
testified that the images were stored electronically on a computer disc seized from the home. The
images were organized in separate folders. Each folder was created on separate dates, ranging from
May 9, 2007, to May 17, 2007. The set of images stored within each folder depicted I.G. in the same
location with I.G. wearing the same clothing.
Bowling also purportedly participated in producing images of child pornography involving
a sixteen year-old female. Detective Peters testified that, at the time of Bowling’s arrest, images of
Bowling and the sixteen year-old female standing in a nude embrace were stored on a computer
seized from his home. Detective Peters interviewed the female and determined that she was sixteen
years old on the date that the computer was seized and that she had been living in the home with
Bowling and his girlfriend.
Based on Bowling’s conduct, the final presentence investigation report (“PSR”) calculated
that Bowling’s base offense level is 32. He received a five-level enhancement for being a repeat and
dangerous sexual predator (the enhancement disputed in this appeal), a four-level increase because
his victim was under twelve years-old, a two-level increase because his offense involved a sexual
act or sexual contact, and a two-level enhancement because the victim was in his custody, care, or
supervisory control. He also received a three-level downward adjustment for acceptance of
responsibility. His total offense level was 42, and his criminal history category was I.
Based on his total offense level and criminal history category, the Guidelines range for his
sentence was 360 months to life with a statutory maximum sentence of thirty years under 18 U.S.C.
§ 2251(e). Bowling objected to the five-level enhancement for being a repeat and dangerous sexual
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No. 09-5140
USA v. Robert Damon Bowling, Jr.
predator. At the sentencing hearing, the district court heard argument for and against the
enhancement, as well as testimony from Detective Peters. Defense counsel also presented an audio-
recording of the interview between Bowling and Detective Peters. Additionally, the government
introduced images that depicted I.G. and images that depicted a sixteen year-old female. The district
court rejected Bowling’s argument and applied the five-level repeat and dangerous sexual predator
enhancement based on the images of I.G. and a finding that Bowling confessed to a prior sexual act
with I.G. or, in the alternative, that he had created child pornography with a sixteen year-old female.
After denying Bowling’s objection, the district court adopted the factual findings in the PSR and the
Guidelines calculation. The district court accepted the plea agreement and then sentenced Bowling
to 360 months of imprisonment, and upon release from imprisonment, supervised release for a term
of life. After the sentence was imposed, Bowling filed a timely notice of appeal, which this Court
has jurisdiction to entertain pursuant to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
This Court “review[s] a district court’s calculation of the advisory sentencing Guidelines as
part of our obligation to determine whether the district court imposed a sentence that is procedurally
unreasonable.” United States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009) (quoting United States v.
Bullock, 526 F.3d 312, 315 (6th Cir. 2008)). In reviewing the district court’s sentence, “[t]he district
court’s interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are
reviewed for clear error.” United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009), cert. denied,
130 S. Ct. 1106 (2010); see Bullock, 526 F.3d at 315–16.
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USA v. Robert Damon Bowling, Jr.
III. ANALYSIS
Sentencing enhancements under the Guidelines must be proven by a preponderance of the
evidence. See United States v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006); see also United States
v. Brown, 327 F. App’x 526, 534 (6th Cir. 2006). Relevant to Bowling’s sentence, a defendant’s
base offense level is subject to a five-level enhancement “[i]n any case in which the defendant’s
instant offense of conviction is a covered sex crime . . . and the defendant engaged in a pattern of
activity involving prohibited sexual conduct.” U.S. Sentencing Comm’n, Guidelines Manual, §
4B1.5(b)(1). For purposes of U.S.S.G. § 4B1.5(b), “the defendant engaged in a pattern of activity
involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in
prohibited sexual conduct with a minor.” Id., cmt. (n.4B(i)).2 “Prohibited sexual conduct” includes
“the production of child pornography” and “any offense described in 18 U.S.C. § 2426(b)(1)(A) or
(B).” Id., cmt. n.4(A).
On appeal, Bowling does not dispute that his conviction for production of child pornography
under 18 U.S.C. § 2251 constitutes a “covered sex crime,” or that the production of child
pornography is “prohibited sexual conduct.” Instead, he objects to the enhancement because he
contends that there was insufficient evidence to prove he engaged in a pattern of activity with I.G.
on more than one occasion. In response, the Government argues that the district court properly
applied the repeat and dangerous sex offenders enhancement because: (1) the evidence before the
2
According to the § 4B1.5 application notes, an “occasion of prohibited sexual conduct may be
considered . . . without regard to whether the occasion (I) occurred during the course of the instant
offense; or (II) resulted in a conviction for the conduct that occurred on that occasion.” U.S.S.G. §
4B1.5, cmt., (n.4(B)(ii)).
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USA v. Robert Damon Bowling, Jr.
district court showed that the images of I.G. were taken on separate occasions; (2) Bowling produced
child pornography involving a sixteen year-old female on a separate occasion; and (3) Bowling
admitted to engaging in sexual activity with I.G. on at least two occasions.
In this case, we conclude, as the district court did, that the Government met its burden of
showing, by a preponderance of the evidence, that Bowling engaged in “prohibited sexual conduct”
on at least two separate occasions, thus satisfying the elements of the five-level repeat and dangerous
sex offender enhancement.
In reviewing the record, there was sufficient evidence before the district court to conclude
by a preponderance of evidence that Bowling produced images of I.G. on more than one occasion,
thus engaging in a pattern of activity involving prohibited sexual conduct. The images depicted I.G.
in a variety of locations in the home, including the living room, the bedroom, and the bathroom. In
these images, I.G. is wearing different clothing, including different colored underwear. Moreover,
the images were electronically stored in separate folders, which were created on different dates.
Within each folder, the images of I.G. all appeared to be taken in the same location, with I.G.
wearing the same clothing. These facts were supported by Detective Peter’s testimony, the images
introduced at the hearing, and the audio-recorded interview.
Further, although Bowling claims that the pictures were taken on only one occasion, he also
claims that he downloaded the pictures onto the computer at one time, yet, the time stamps that
indicate when the folders were created range from May 9, 2007, to May 17, 2007. He also denies
any contact with a sixteen year-old female who also resided at the home. Yet, two images introduced
by the government depict Bowling in a nude embrace with that female. Although the district court
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No. 09-5140
USA v. Robert Damon Bowling, Jr.
did not clearly express that it determined that the images of I.G. were taken on multiple dates, “we
may affirm on any grounds supported by the record, even though different from the grounds relied
on by the district court.” United States v. Allen, 106 F.3d 695, 700 n.4 (6th Cir. 1997); accord United
States v. Robertson, 260 F.3d 500, 503 (6th Cir. 2001). As such, we find that the record supports
the district court’s five-level enhancement under U.S.S.G. § 4B1.5(b).3
Accordingly, we find that the district court’s five-level enhancement under U.S.S.G. §
4B1.5(b) was appropriate, that the advisory Guidelines were calculated correctly, and that Bowling’s
sentence was not procedurally unreasonable. We further find that Bowling’s sentence was
substantively reasonable. A sentence within the advisory Guidelines range is afforded a rebuttable
presumption of reasonableness, Rita v. United States, 551 U.S. 338, 347 (2007), and Bowling has
not challenged the substantive reasonableness of his sentence.
IV. CONCLUSION
For the reasons above, Bowling’s sentence is AFFIRMED.
3
The Government’s remaining two arguments provide additional support for the district court’s
application of the enhancement. The record supports the district court’s conclusion that Bowling
engaged in “prohibited sexual conduct” on a separate occasion when he produced child pornography
involving a sixteen year-old female and that Bowling’s admitted sexual contact with I.G. prior to the
occasion that he took the images was “prohibited sexual conduct” under U.S.S.G. § 4B1.5(b).
7