United States v. David E. Merry

USCA11 Case: 21-12926 Date Filed: 08/19/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12926
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
DAVID E. MERRY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cr-00157-MCR-1
____________________
USCA11 Case: 21-12926 Date Filed: 08/19/2022 Page: 2 of 6
2 Opinion of the Court 21-12926
Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
David Merry appeals his 120-month sentence, which the dis-
trict court imposed after he pled guilty to two counts of receipt of
child pornography. On appeal, Merry argues that the district court
erred in applying a 5-level “pattern of activity” enhancement under
§ 2G2.2(b)(5) of the Sentencing Guidelines based on his alleged
prior sexual abuse of a minor. After careful review, we affirm.
I.
Merry pled guilty pursuant to a plea agreement to two
counts of receipt of child pornography, in violation of 18
U.S.C. § 2252A(a)(2), (b)(1). In anticipation of sentencing, the pro-
bation office prepared a presentence investigation report (“PSR”).
The PSR calculated a base offense level of 22 under § 2G2.2(a)(2) of
the Sentencing Guidelines. As relevant to this appeal, the PSR ap-
plied a five-level increase under § 2G2.2(b)(5) because Merry had
engaged in a pattern or activity involving the sexual abuse or ex-
ploitation of a minor. Specifically, the PSR explained that Merry
had on four separate occasions sexually abused a minor, C.L. Merry
was arrested in 2002, tried in 2004, and ultimately acquitted. Based
on other reductions and increases not relevant to this appeal, the
PSR calculated Merry’s total offense level to be 36. With a criminal
history category of I, Merry’s resulting guidelines range was 188 to
235 months’ imprisonment.
USCA11 Case: 21-12926 Date Filed: 08/19/2022 Page: 3 of 6
21-12926 Opinion of the Court 3
Merry objected to the five-level increase under
§ 2G2.2(b)(5). At a sentencing hearing, the government offered tes-
timony from C.L. about the alleged assaults and the trial. The gov-
ernment also filed a memorandum highlighting additional evi-
dence of the assaults from the 2004 trial, including trial testimony
of C.L.’s mother, C.L.’s pastor, and law enforcement, to all of
whom C.L. made contemporaneous disclosures about the assaults;
and trial testimony by law enforcement that Merry did not initially
deny the assaults but claimed to have forgotten the acts.
The district court overruled Merry’s objection, concluding
that the government had demonstrated by a preponderance of the
evidence that Merry had engaged in a pattern of activity involving
the sexual abuse or exploitation of a minor. At a second hearing,
the court sentenced Merry to 120 months’ imprisonment.
This is Merry’s appeal.
II.
Merry challenges the district court’s application of the
§ 2G2.2(b)(5) enhancement. 1 Acknowledging that “[t]he law of this
circuit, and every circuit, and the United States Sentencing Guide-
lines[] provide that acquitted conduct may be considered in
1
When determining whether the district court properly applied a sentencing
enhancement, “we review legal questions de novo, factual findings for clear
error, and the district court’s application of the guidelines to the facts with due
deference, which is tantamount to clear error review.” United States v. Isaac,
987 F.3d 980, 990 (11th Cir. 2021) (internal quotation marks omitted).
USCA11 Case: 21-12926 Date Filed: 08/19/2022 Page: 4 of 6
4 Opinion of the Court 21-12926
determining a sentence for a defendant,” 2 Appellant’s Br. at 23,
Merry contends that the enhancement should not have been ap-
plied in his case because the alleged conduct was not related to the
instant offenses. We disagree.
Section 2G2.2 of the Sentencing Guidelines provides for a
five-level increase to a defendant’s offense level “[i]f the defendant
engaged in a pattern of activity involving the sexual abuse or ex-
ploitation of a minor.” U.S. Sent’g Guidelines Manual § 2G2.2(b)(5)
(U.S. Sent’g Comm’n 2018). Application Note 1 to § 2G2.2 defines
a “[p]attern of activity involving the sexual abuse or exploitation of
a minor” as:
any combination of two or more separate instances of
the sexual abuse or sexual exploitation of a minor by
the defendant, whether or not the abuse or exploita-
tion (A) occurred during the course of the offense; (B)
involved the same minor; or (C) resulted in a convic-
tion for such conduct.
Id., cmt. n.1. The commentary further provides that “‘[s]exual
abuse or exploitation’ does not include possession, accessing with
2
Merry nonetheless challenges this rule as violating the Fifth Amendment’s
Due Process Clause and the Sixth Amendment’s right to a jury trial. Although
we acknowledge that Merry’s challenges are preserved for further appellate
review, we reject them as conflicting with binding precedent. See United
States v. Watts, 519 U.S. 148, 157 (1997) (holding that, consistent with due
process, a sentencing court may consider acquitted conduct so long as it finds
by a preponderance of the evidence that the conduct occurred); United States
v. Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006) (rejecting a Sixth Amendment
challenge to the use of acquitted conduct to enhance a guidelines sentence).
USCA11 Case: 21-12926 Date Filed: 08/19/2022 Page: 5 of 6
21-12926 Opinion of the Court 5
intent to view, receipt, or trafficking in material relating to the sex-
ual abuse or exploitation of a minor.” Id.Merry does not challenge that the alleged conduct he com-
mitted that resulted in his acquittal was sexual abuse or exploita-
tion of a minor. Nor does he argue that there were fewer than two
alleged instances of sexual abuse or exploitation. Rather, he argues
that the alleged conduct was too remote in time and too different
in nature to warrant the enhancement. This Court has previously
rejected arguments similar to Merry’s, however.
In United States v. Turner, we held that there is no temporal
limitation on the conduct that district courts can consider under
§ 2G2.2(b)(5). 626 F.3d 566, 572–73 (11th Cir. 2010). There, we up-
held a district court’s application of the enhancement even when
the pattern-of-activity conduct occurred 20 years before the de-
fendant’s sentencing at which the enhancement was applied. Id.Under Turner, the district court was within its discretion to con-
sider Merry’s two-decades-old conduct.
In Turner we further rejected the argument that there must
be a connection between the child pornography offense and the
prior sexual abuse or exploitation. Id. at 572. There, as here, the
pattern-of-activity conduct did not involve the same victim and did
not otherwise relate to the offense to which the enhancement ap-
plied. See id. Because Application Note 1 specifically excludes from
the definition of sexual abuse or exploitation the receipt or posses-
sion of child pornography, we explained, there will always be some
disconnect between the offense to which the enhancement applies
and the pattern-of-activity conduct. Id. Applying this logic, which
USCA11 Case: 21-12926 Date Filed: 08/19/2022 Page: 6 of 6
6 Opinion of the Court 21-12926
binds us today, Merry’s argument that the pattern-of-activity con-
duct and instant offense must be connected is meritless. See United
States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (explaining
that, under the prior-panel-precedent rule, a prior panel’s holding
is binding on all subsequent panels unless and until it is overruled
or undermined to the point of abrogation by the Supreme Court
or by us sitting en banc). 3
For the foregoing reasons, we affirm Merry’s sentence.
AFFIRMED.
3
Merry argues that “[a]n enhancement imposed pursuant to [this commen-
tary] is invalid because the plain text of the guidelines limits the pattern of
activity to acts committed in the course of the federal offense of conviction.”
Appellant’s Br. at 29. Even assuming for the sake of argument that he is correct
about the plain text of § 2G2.2(b)(5), we remain bound by Turner’s reliance
on the commentary. See United States v. Golden, 854 F.3d 1256, 1257 (11th
Cir. 2017) (explaining that the prior panel precedent rule applies even if a later
panel believes the prior precedent to be analytically flawed).