United States v. Foster

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1089
UNITED STATES OF AMERICA,
Appellee,
v.
GARY FOSTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Lynch, and Howard, Circuit Judges.
Thomas P. Colantuono, United States Attorney, and Peter E. Papps,
First Assistant United States Attorney, on brief for appellee.
Jonathan R. Saxe, Assistant Federal Public Defender, on brief for
appellant.
July 15, 2005
Per Curiam. Gary Foster pleaded guilty to an
information charging him with possession of child pornography, see
18 U.S.C. § 2252A(a)(5)(B), and was sentenced to 51 months in
prison. He challenges his sentence on two grounds. First, he
argues that the district court's application of a cross reference
in U.S.S.G. § 2G2.4(c)(2), and further application of a sentence
enhancement in U.S.S.G. § 2G2.2(b)(2)(E), constituted impermissible
double punishment (or "double counting") for the same conduct.
Second, he contends that his sentence, imposed under a Guidelines
regime that the sentencing judge erroneously (although
understandably) regarded as mandatory, constitutes plain error
under the Supreme Court's decision in United States v. Booker, 125
S. Ct. 738 (2005), and our decision in United States v.
Antonakopoulos, 399 F.3d 68 (1st Cir. 2005). Neither argument
merits extended discussion.
The premise of Foster's double counting argument is that
both the cross reference and the enhancement were triggered by his
emailing to others images of child pornography that he previously
had received on his computer. But Foster's premise is faulty.
Application of the cross reference was justified not only by the
distribution of the images in question (which triggered the
enhancement in U.S.S.G. § 2G2.2(b)(2)(E)); it also was justified by
his prior receipt of the material "with intent to traffic."
U.S.S.G. § 2G2.4(c)(2). (Foster acknowledges as much on page 10 of
his opening brief). And there is no double counting when different
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components or aspects of the relevant criminal conduct trigger
different Guidelines provisions which increase one's base offense
level. See United States v. Johnson, 221 F.3d 83, 99 (2d Cir.
2000) (child pornography case); see also United States v. Brown,
169 F.3d 89, 93 (1st Cir. 1999).
Foster's Booker argument falters on the third prong of the
plain error test -- that the error affected his substantial rights.
See Antonakopoulos, 399 F.3d at 75 (requiring a “reasonable
probability” that the district court would sentence more leniently
on remand). Although we are not “overly demanding as to proof of
[such a] probability,” United States v. Heldeman, 402 F.3d 220, 224
(1st Cir. 2005), nothing in the record suggests that the district
court would give Foster a shorter sentence under the advisory
Guidelines. The sentencing judge explicitly stated that, while he
thought that the Guidelines generally "underpunished" the
possession of child pornography, Foster's 51-month sentence was
"appropriate" because of the applicability of several sentence
enhancements. See United States v. Martins, ___ F.3d ___, 2005 WL
1502939, at *12 (1st Cir. June 27, 2005) (where the sentencing
court had stated that the sentence was “just,” there was no
reasonable probability of a lesser sentence on remand).
Consequently, this is not a situation which calls for resentencing
under Antonakopoulos.
Affirmed.
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