United States v. Royal Taylor , 128 F. App'x 556 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2668
___________
United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Royal Taylor, * [UNPUBLISHED]
*
Defendant - Appellant. *
___________
Submitted: April 12, 2005
Filed: April 25, 2005
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Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.
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PER CURIAM.
Royal Taylor pled guilty, pursuant to a plea agreement, to a two-count
indictment for sexually exploiting a minor. At sentencing Taylor objected to the
district court’s1 enhancement of Taylor’s offense level based on a finding that Taylor
had engaged in a “pattern of activity” involving sexual conduct with minors. The
district court overruled the objection and sentenced Taylor to 188 months
imprisonment and three years supervised release. On appeal, Taylor argues the
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
district court erred, in violation of Blakely, by enhancing his offense level based on
a finding that he had engaged in a pattern of activity. We find no error and affirm.
I. BACKGROUND
The government charged Taylor in a two-count indictment with sexually
exploiting a minor. Count I charged that between March 1, 2003 and April 15, 2003
Taylor videotaped three minors as they engaged in sexual activity. Count II alleged
that on another occasion during this same period, Taylor videotaped himself and one
of the three minors engaging in sexual activity. In each instance, Taylor used a
camcorder that traveled in interstate commerce.
Taylor pled guilty to the charges pursuant to a plea agreement. In the plea
agreement, Taylor agreed not to appeal the sentence if it was consistent with the plea
agreement. The presentence investigation report recommended an enhancement to
Taylor’s offense level, because Taylor engaged in a “pattern of activity” involving
sexual conduct with minors. Taylor objected to the presentence investigation report’s
recommendation.
At sentencing, the district court overruled Taylor’s objection, enhanced his
offense level based on the finding that he engaged in a “pattern of activity” involving
sexual conduct with minors, and sentenced him to concurrent sentences of 188
months imprisonment on both counts, to be followed by three years supervised
release. Taylor filed a timely notice of appeal. The government filed a motion to
dismiss the appeal. This court ordered the motion would be taken with the case.
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II. DISCUSSION
We reject the motion to dismiss, notwithstanding the waiver of Taylor’s Sixth
Amendment claim, as we can review the sentence for unreasonableness.2 United
States v. Booker, __ U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (Breyer, J.).
Here, the statutory maximum for each of Taylor’s charged counts is twenty
years (the statutory minimum for each count is ten years). The district court
sentenced Taylor to fifteen years and eight months for each count and ordered the
sentences to be served concurrently. The district court did not exceed the statutory
maximum, and the district court sentenced Taylor to the middle of the enhanced
guideline range. In addition, Taylor admitted to all of the facts that the district court
used to enhance Taylor’s offense level. We conclude that Taylor’s sentence was not
unreasonable.
III. CONCLUSION
Accordingly, we affirm the judgment of the district court.
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2
We do not dismiss the appeal based on Taylor’s appeal waiver in the plea
agreement, because we may address whether Taylor’s sentence was unreasonable.
See United States v. Killgo, 397 F.3d 628, 630 n.4 (8th Cir. 2005) (stating “[w]hile
Killgo’s appeal waiver is sufficient to bar his Sixth Amendment claim, we recognize
that it did not waive the application of a constitutional standard of review on
appeal.”).
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