United States v. Randy Bise , 610 F. App'x 587 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3689
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Randy Bise
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: July 22, 2015
Filed: July 27, 2015
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Randy Bise directly appeals the sentence imposed by the district court1 after he
pleaded guilty to two counts of producing child pornography, in violation of 18
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The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
U.S.C. § 2251(a). The district court sentenced Bise to 360 months in prison followed
by 25 years of supervised release, which included a special condition limiting his
internet access.
On appeal, counsel moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the sentence was substantively
unreasonable because the court erred in weighing the 18 U.S.C. § 3553(a) factors; and
that the court erred in imposing the special supervised-release condition. We denied
counsel’s withdrawal motion and ordered supplemental briefing addressing whether
the district court’s application of a 2-level sentencing enhancement under U.S.S.G.
§§ 3D1.2, 3D1.4 (grouping of offenses), and a 5-level enhancement under U.S.S.G.
§ 4B1.5(b) (increase for pattern of activity involving prohibited sexual conduct with
a minor), resulted in impermissible double counting, as both enhancements appeared
to be based on evidence that prohibited conduct occurred on two separate occasions
with the same victim.
Upon reviewing the supplemental briefs, we conclude that application of both
enhancements did not constitute impermissible double-counting. See United States
v. Clark, 780 F.3d 896, 898 (8th Cir. 2015) (per curiam) (de novo review).
Specifically, the district court properly declined to group the counts under section
3D1.2, see U.S.S.G. § 3D1.2, comment. (n.4) (provision authorizes grouping of
offenses only when they represent one composite harm; for example, robberies of
same victim on different occasions are not grouped); United States v. Kiel, 454 F.3d
819, 822 (8th Cir. 2006) (district court properly refused to group three counts of
producing child pornography involving same victim under § 3D1.2, because
defendant inflicted distinct harm each time he molested the victim), which resulted
in a 2-level increase; and we find nothing in the Guidelines preventing use of the
same conduct for the Chapter Four enhancement, see U.S.S.G. § 1B1.1, comment.
(n.4(B)) (Guidelines Chapters Two, Three, and Four are to be applied cumulatively
and, in some cases, may be triggered by same conduct); U.S.S.G. § 4B1.5(b)(1)
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(offense level shall be 5 plus offense level determined under Chapters Two and
Three); United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013) (double counting
is prohibited only if Guidelines at issue specifically forbid it); United States v. Von
Loh, 417 F.3d 710, 714-15 (7th Cir. 2005) (rejecting double-counting argument
where district court did not group offenses under § 3D1.2 and applied 5-level increase
under § 4B1.5(b) for same conduct, as process for determining base offense level
under Chapters Two and Three is unrelated to process for calculating enhancements
under Chapter Four).
As to the contentions in counsel’s Anders brief, we conclude the district court’s
below-Guidelines sentence was not substantively unreasonable. See United States
v. Salazar-Aleman, 741 F.3d 878, 881 (8th Cir. 2013) (under substantive review,
district court abuses its discretion if it fails to consider relevant factor, gives
significant weight to improper or irrelevant factor, or commits clear error of judgment
in weighing factors); United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)
(when district court varies downward from presumptively reasonable Guidelines
recommendation, it is “nearly inconceivable” that court abused its discretion by not
varying downward further). We review for plain error the challenge to the special
supervised release condition, as Bise did not object to the condition at sentencing, see
Fed. R. Crim. P. 52(b); United States v. Simons, 614 F.3d 475, 478 (8th Cir. 2010)
(when defendant fails to object to supervised release condition at sentencing, review
is for plain error), and we find no such error, see 18 U.S.C. § 3583(d) (condition must
be reasonably related to certain § 3553(a) factors, involve no greater deprivation of
liberty than reasonably necessary, and be consistent with Sentencing Commission
policy statements); cf. U.S.S.G. § 5D1.3(d)(7)(B) (recommending special condition
limiting use of computer or interactive computer service in sex offense case in which
defendant used such items).
Finally, we conclude Bise’s additional pro se assertion that the evidence
against him may have been tainted by police misconduct fails, as he stipulated to the
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government’s factual basis during the plea hearing. See United States v. Limley, 510
F.3d 825, 827 (8th Cir. 2007) (valid guilty plea is admission of guilt that waives all
non-jurisdictional defects and defenses).
The judgment is affirmed.
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