United States v. Geoffrey K. Loomis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 25, 2007
No. 06-16358 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00029-CR-4-CLS-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEOFFREY K. LOOMIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 25, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Geoffrey Loomis appeals his 180-month and 120-month sentences, to run
concurrently, imposed after he pled guilty to transporting child pornography, 18
U.S.C. § 2252A(a)(1), and to possessing child pornography, 18 U.S.C.
§ 2252A(a)(5)(b). On appeal, Loomis argues that the district court erred in
concluding that a youthful offender adjudication constituted a prior conviction for
sentencing purposes under 18 U.S.C. § 2252(b)(1), (b)(2). He further contends that
the district court violated his due process or equal protection rights by sentencing
him to enhanced punishment.
We ordinarily review a district court's interpretation of a statute de novo.
Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1275 (11th Cir. 2006). However,
where, as here, a defendant did not raise an objection below, we review for plain
error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). We
review a properly preserved constitutional challenge to a sentence de novo, and
“will reverse only upon a finding of harmful error based on the constitutional
challenge.” United States v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).
The district court did not plainly err in concluding that a prior youthful
offender adjudication constituted a prior conviction under the statute. We have not
yet addressed this precise issue in the context of 18 U.S.C. §§ 2252(b)(1), (b)(2);
however, we have concluded that such adjudications constituted prior convictions
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under other statutes. See United States v. Burge, 407 F.3d 1183, 1187-90 (11th
Cir. 2005) (holding juvenile adjudications can be prior convictions under Armed
Career Criminal Act, 18 U.S.C. § 924(e)); United States v. Acosta, 287 F.3d 1034
(11th Cir. 2002)(holding prior youthful adjudication counts as “prior conviction”
for sentence enhancement purposes under repeat offender provision, 21 U.S.C. §
841(b)). Furthermore, it is not "unequivocally clear" from the statute's wording
that a youthful offender adjudication is prohibited from being used in this manner,
since the word "conviction" is not statutorily defined. See United States v. Lett,
483 F.3d 782, 790 (11th Cir. 2007); 18 U.S.C. § 2256. Thus, the error, if any, was
not "plain." See Lett, 483 F.3d at 790.
Loomis also challenges both his current enhancement and prior conviction
as violating his due process rights. This argument also fails. The Supreme Court
has held that a prior conviction used for sentencing enhancement purposes is “not
subject to collateral attack in the sentence proceeding,” absent a showing that the
prior conviction was obtained in violation of the right to counsel. See Custis v.
United States, 511 U.S. 485, 492, 114 S. Ct. 1732, 1737, 128 L. Ed. 2d 517 (1994).
Likewise, we have noted that “[c]ollateral attacks on prior convictions are allowed
in federal sentencing proceedings in one narrow circumstance only: when the
conviction was obtained in violation of the defendant’s right to counsel.” United
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States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997). Here, Loomis does not
contend that he was not represented by counsel so he is prevented from collaterally
attacking the prior conviction. Furthermore, sentencing enhancements based on
recidivism have withstood numerous constitutional challenges, including those
based on due process or equal protection. See Parke v. Raley, 506 U.S. 20, 27, 113
S. Ct. 517, 522, 121 L. Ed. 2d 391 (1992). Loomis has provided no substantive
argument on why this sentencing enhancement is unconstitutional, nor has he
explained how its application may have violated his due process or equal
protection rights. Therefore, to the extent Loomis argues that a sentencing
enhancement under §§ 2552A(b)(1) and (b)(2) is per se unconstitutional, the
argument also fails.
Accordingly, we affirm Loomis’s sentences.
AFFIRMED.
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