United States v. Bobby Clark, Jr. , 780 F.3d 896 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2772
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bobby Gene Clark, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: February 9, 2015
Filed: March 17, 2015
[Published]
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Bobby Gene Clark Jr. appeals the district court's1 sentence of 276 months'
imprisonment for his production of child pornography in violation of 18 U.S.C.
§ 2251(a) and (b). We affirm.
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
I. Background
Clark filmed himself touching and attempting to penetrate the vagina and anus
of a seven-year-old girl with his penis. The child reported Clark's conduct to local law
enforcement authorities, and Clark ultimately pleaded guilty to producing child
pornography in violation of 18 U.S.C. § 2251(a) and (b).
The revised presentence investigation report (PSR) recommended a two-level
sentencing enhancement under U.S.S.G. § 2G2.1(b)(2)(A) because the offense
involved "sexual contact." The PSR also recommended a four-level sentencing
enhancement under U.S.S.G. § 2G2.1(b)(4) because the offense involved "material
that portrays sadistic or masochistic conduct." Clark objected on the grounds that
applying both enhancements would constitute impermissible double counting—that
is, "when one part of the Guidelines is applied to increase a defendant's punishment
on account of a kind of harm that has already been fully accounted for by application
of another part of the Guidelines." United States v. Hipenbecker, 115 F.3d 581, 583
(8th Cir. 1997) (quotation and citation omitted). The district court disagreed, however,
finding that "[u]nlike the enhancement for sadistic or violent conduct, the 'sexual
contact' enhancement does not require penetration, nor even attempted penetration."
Thus, the court found, "even though both guidelines apply to the same conduct in this
case, there is no impermissible double counting."
The Guidelines' range for Clark's crime was 360 months to life imprisonment.
The district court nevertheless sentenced Clark to only 276 months' imprisonment. In
so doing, the court informed Clark that his sentence "would occur with or without" the
Guidelines because the sentence Clark received was "about the offense, [the] victim
and [his] prior history."
II. Discussion
On appeal, Clark again argues that the application of enhancements under both
§§ 2G2.1(b)(2)(A) and 2G2.1(b)(4) constitutes impermissible double counting. We
review "de novo whether the district court's application of the sentencing guidelines
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amounts to impermissible double counting." United States v. Myers, 598 F.3d 474,
475–76 (8th Cir. 2010) (quoting United States v. Peck, 496 F.3d 885, 890 (8th Cir.
2007)). "Double counting is prohibited only if the guidelines at issue specifically
forbid it." United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013) (citing Myers,
598 F.3d at 477; U.S.S.G. § 1B1.1 cmt. n.4(A)).
Section 2G2.1(b)(2)(A) provides a two-level enhancement for offenses
involving "the commission of a sexual act or sexual contact." Such "sexual contact"
includes "intentional touching, either directly or through clothing," of a person's
"genitalia, anus, groin, breast, inner thigh, or buttocks." 18 U.S.C. § 2246(3); see also
U.S.S.G. § 2G2.1(b)(2)(A) cmt. n.2 (adopting the definition of "sexual contact" in 18
U.S.C. § 2246(3)). Critically, neither penetration nor attempted penetration is
necessary for the "sexual contact" to occur. Id. In contrast to § 2G2.1(b)(2)(A),
§ 2G2.1(b)(4) provides a four-level enhancement for offenses involving "material that
portrays sadistic or masochistic conduct or other depictions of violence."
Although these sentencing enhancements may encompass similar conduct at
times, the enhancements are plainly not redundant or duplicative. Indeed, in this case,
they apply to wholly separate and distinct behavior: the enhancement for "sexual
contact" applies to Clark's touching the child's vagina and anus; the enhancement for
"material that portrays sadistic or masochistic conduct," however, applies to Clark's
filming himself attempting to penetrate the child. Pappas, 715 F.3d at 228 ("'[I]mages
involving . . . an adult male performing anal sex on a minor girl . . . are per se sadistic
or violent.'" (quoting United States v. Street, 531 F.3d 703, 711 (8th Cir. 2008)
(emphasis added)); United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004) (per
curiam) ("[I]mages of an adult attempting [anal sex on a minor] are likewise 'sadistic'
or 'violent' . . . ."). In other words, Clark did more than merely touch the child. The
enhancement for "material that portrays sadistic or masochistic conduct" applies
because he, in addition, filmed himself attempting to penetrate the child.
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Clark cites no provision of the Guidelines that prohibits the application of
enhancements under both §§ 2G2.1(b)(2)(A) and 2G2.1(b)(4), much less any
provision or case that prohibits their application to the instant facts. To the contrary,
"[s]everal courts have concluded that it is not impermissible double counting to apply
both these enhancements based on [similar] conduct." Pappas, 715 F.3d at 229 (citing
United States v. Mouton, 481 F. App'x 96, 97 (5th Cir. 2011); United States v.
McDade, 399 F. App'x 520, 523 (11th Cir. 2010)).
Furthermore, even assuming arguendo that either of the enhancements were
improperly recommended in the PSR, the court made clear that it would have issued
the same sentence "with or without" the enhancements given "the offense, [the] victim
and [Clark's] prior history." Any enhancement-related error was therefore harmless.
Pappas, 715 F.3d at 230 ("Since the district court explicitly stated that it would have
imposed a 480 month sentence regardless of the guidelines, any error in applying the
guidelines would be harmless."); United States v. Davis, 583 F.3d 1081, 1095 (8th Cir.
2009) ("Because the district court explicitly stated it would have imposed a sentence
of 293 months imprisonment regardless of whether [the defendant] was a career
offender, any error on the part of the district court is harmless and we affirm.").
III. Conclusion
Accordingly, we affirm the district court's sentencing decision.
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