United States v. Remington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4459
LARRY THOMAS REMINGTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-00-25-BR)
Submitted: January 16, 2001
Decided: February 5, 2001
Before: WIDENER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
2 UNITED STATES v. REMINGTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Larry Thomas Remington appeals his sentence of fifty-seven
months’ imprisonment pursuant to his guilty plea to four counts of
sexual abuse of a minor. Because he did not object to the challenged
upward departure at sentencing, we review the sentence for plain
error. See United States v. Olano, 507 U.S. 725, 731-32 (1993);
United States v. Rolle, 204 F.3d 133, 138 (4th Cir. 2000). Finding no
such error, we affirm.
Remington admitted having repeated sexual contact with the same
victim approximately once per week for four years. The district court
found that "[t]he guidelines used in this case neither consider the
number of occasions in which the defendant had sexual conduct with
a minor, nor do they take into account the duration of these encoun-
ters." (J.A. 44). The court, therefore, applied a five-level upward
departure for engaging in a pattern of activity involving the sexual
abuse of a minor pursuant to U.S. Sentencing Guidelines Manual
§§ 5K2.0 and 2G2.2(b)(4) (1998). On appeal, Remington argues that
because he received a four-level multi-count adjustment, that the
court’s upward departure results in unreasonable double-counting.
We conclude that the district court imposed the upward departure
based upon sexual conduct with a minor that was not accounted for
by the four charges to which Remington pled guilty. See United States
v. Amirault, 224 F.3d 9, 11 (9th Cir. 2000) (affirming application of
five-level upward departure under USSG §§ 5K2.0 and 2G2.2(b)(4)).
Therefore, we conclude the sentence did not amount to "double-
counting" of the same conduct. We have thoroughly reviewed the
briefs and record on appeal and find no reversible error. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED