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491 F.3d 858 
491 F.3d 858 
(Cite as: 491 F3d 858) 
incoherent, prescribing that a sentence which has 
already been imposed ... shall be 5 or 20 years longer 
than it was"). 
FN7. Essentially, Leach argues for one defini-
tion of "conviction" the fast time it appears in 
§ 4B1.5(a)-an adjudication of guilt-and a dif-
ferent definition for "conviction" the second 
time the term is used-a judgment of conviction 
requiring a sentence to be imposed. This result 
would go against one of the basic rules of stat-
utory interpretation-that identical words used in 
different parts of the same act or statute are 
!
in-
tended to have the sa e meaning. See Comm'r 
of Internal Revenue 
Lundy, 516 U.S. 235, 
250, 116 5.0. 647, 
33 L.Ed.2d 611 (1996) 
("the normal rule of statutory construction [is] 
that identical words used in different parts of 
the same act are intended to have the same 
meaning."). 
Our reading of the term "conviction" in § 481.5(a) 
as only requiring an adjudication of guilt is confirmed 
by the "Background" section of § 4B1.5, which states: 
The guideline is intended to provide lengthy incar-
ceration for offenders who commit sex offenses against 
minors and who present a continuing danger to the pub-
lic. It applies to offenders whose instant offense of con-
viction is a sex offense committed against a minor vic-
tim. The relevant criminal provisions provide for in-
creased statutory maximum penalties for repeat sex of-
fenders and make those increased statutory maximum 
penalties available if the defendant previously was con-
victed of any of several federal and state sex offenses 
(see 18 U.S.C. 2247, 2426). In addition, section 632 of 
Public Law 102-141 and section 505 of Public Law 
105-314 directed the Commission to ensure lengthy in-
carceration for offenders who engage in a pattern of 
activity involving the sexual abuse or exploitation of 
minors. Section 401(iX1XA) of Public Law 108-21 dir-
ectly amended Application Note 4(bXi), effective April 
30, 2003. 
U.S.S.G. § 4B1.5 cmt. Background (Emphasis ad-
ded). 
Page 26 of 27 
Page 9 
As stated above, § 4B1.5"is intended to provide 
lengthy incarceration for offenders who commit sex of-
fenses against minors and who present a continuing 
danger to the public," and to increase the maximum 
penalties for "repeat sex offenders." Requiring a "repeat 
sex offender," such as Leach, to have been sentenced 
for a prior sex offense against a minor, when he has 
already been adjudicated guilty of the offense does 
nothing to effectuate the stated intent of the enhance-
ment. 
(a) Maximum term of imprisonment: The maximum 
term of imprisonment for a violation of this chapter 
after a prior sex offense conviction shall be twice the 
term of imprisonment otherwise provided by this 
chapter, unless section 3559(e) applies. 
(b) Definitions.-In this section-
•868 (I) the term "prior sex offense conviction" 
means a conviction for an offense-
(A) under this chapter, chapter 109A, or chapter 
110; or 
(B) under State law for an offense consisting of 
conduct that would have been an offense under a 
chapter referred to in paragraph (1) if the conduct had 
occurred within the special maritime and territorial jur-
isdiction of the United States; 
18 U.S.C. § 2426 (emphasis added). 
Although this section does not explicitly state 
whether a "conviction" requires sentencing to have oc-
curred, subsection (a) of § 2426 doubles a defendant's 
maximum term of imprisonment if the defendant had a 
prior "sex offense conviction" against a minor. 18 
U.S.C. § 2426. In the plea agreement entered into in this 
case, Leach acknowledged, in the "Statutory Penalties" 
section of his plea agreement, that upon pleading guilty 
to Count One of the indictment, his maximum sentence 
was 60 years "pursuant to 18 U.S.C. § 2426(a) because 
said offense occurred after (Leach) had a prior sex of-
fense conviction.... " Plea Agreement 1 5 (emphasis ad-
ded). Because the phrase "sex offense conviction" in § 
4B1.5(a) is defined as "any offense described in 18 
U.S.C. 2426(b)(1XA) or (B), if the offense was perpet-
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Page 27 of 27 
491 F.3d 858 
491 F.3d 858 
(Cite as: 491 F.3d 858) 
rated against a minor" and Leach stipulated in his plea 
agreement that his maximum sentence would be 
doubled to 60 years under 18 U.S.C. § 2426(a) because 
the Kansas offense qualified as a prior "sex offense con-
viction" against a minor, Leach essentially stipulated in 
the plea agreement that the Kansas offense was a prior 
"sex offense conviction" under § 2426(bXIXA). 
Because we find that § 4B1.5(a) applies to Leach, 
we need not address the merits of the district court's de-
cision regarding the inapplicability of § 4B1.5(b), as 
subsection (b) can only apply if subsection (a) is inap-
plicable. U.S.S.G. § 4B1.5(b). 
III. Conclusion 
Accordingly, we vacate Leach's sentence and re-
mand the case for resentencing in accordance with this 
decision. 
C.A.8 (Mo.),2007. 
U.S. I. Leach 
491 F.3d 858 
END OF DOCUMENT 
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Page 1 of 4 
Wastlaw. 
Slip Copy 
Slip Copy, 2007 WL 3273402 (W.D.Ky.) 
(Cite as: Slip Copy) 
H 
U.S. I Moore 
W.D.Ky.,2007. 
Only the Westlaw citation is currently available. 
United States District Court, W.D. Kentucky, 
at Louisiville. 
UNITED STATES of America, Plaintiff 
v. 
James Terry MOORE, Defendant. 
Criminal Action No. 3:06-CR-98-S. 
Nov. 5, 2007. 
Jo E. Lawless, U.S. Attorney Office, Louisville, 
lilt 
laintiff. 
J. Bouldin, Western Kentucky Federal 
Community Defender, inc., Louisville, KY, for De-
fendant. 
MEMORANDUM OPINION 
CHARLES R. SIMPSON, III, United States District 
Judge. 
*I This matter is before the court upon the mo-
tion of the defendant, James Terry Moore 
("Moore"), to reconsider this court's Memorandum 
Opinion and Order entered July 9, 2007, which con-
cluded that Moore is subject to a mandatory life 
sentence pursuant to 18 U.S.C. § 3559(e). Moore 
contends that we should fmd the penalty provision 
of IS U.S.C. § 2251(e) applicable in this case and 
impose the thirty-five year mandatory minimum 
sentence. 
In September 2006, after having been arrested 
for advertising and facilitating the distribution of 
child pornography on the Internet, Moore pled 
guilty to violations of 18 U.S.C. §§ 2251(dX1XA), 
(dX2)(B), 
2252A(aX2), (aX5X8), (b)(I), and 
03)(4 At that time the court advised Moore that 
under 18 U.S.C. § 2251(e) he faced a mandatory 
minimum penalty of thirty-five years imprisonment 
and a maximum of life imprisonment. The United 
States now asserts that 18 U.S.C. § 3559(e) man-
Page 1 
dates that Moore receive a life sentence. 
In this court's Memorandum Opinion and Order 
entered July 9, 2007, we noted that Moore qualified 
for sentencing under both § 2251(e) and § 3559(e). 
We also noted that if irreconcilable sentencing pro-
visions applicable to the same offense were enacted 
simultaneously, "the last
order or arrangement
United States in. I Moore, Criminal Ac-
tion No. 3:06-CR-98-S Memorandum Opinion (Jut 
9, 2007) (citing United States, a rel. Harris 
Daniels, 279 Fed. 844 (2nd Cir.1922)). Recogniz-
ing that both § 2251(e) and § 3559(e) were enacted 
simultaneously as part of the Prosecutorial Remed-
ies and Tools Against the Exploitation4 of Children 
Today Act of 2003, Pub.L. 108-21, 117 Stat. 650, 
we held that since § 3559(e) was later in arrange-
ment, both in Title 18 of the U.S.Code and in Pub. 
108-21, it prevails. Thus we concluded that Moore 
was subject to mandatory life imprisonment for his 
offenses under 18 U.S.C. § 2251. Moore now urges 
us to apply the rule of lenity and impose the thirty-
five year mandatory minimum sentence provided 
for in § 2251(e). 
The rule of lenity is a principle of statutory 
construction which applies not only to interpreta-
tions of the substantive scope of criminal statute , 
but also to the penalties they impose. Bifulco 
United States, 447 U.S. 381, 387, 100 S.Ct. 224 , 
2252, 65 L.Ed .2d 205 (1980)."This policy of lenity 
means that the Court will not interpret a federal 
criminal statute so as to increase the penalty that it 
places on an individual when such an interpretation 
can be based on no more 
Congress intended."Ladner 
U.S. 169, 178, 79 &Ct. 21 
(1958). However, the "touchstone" of the rule of 
lenity is statutory ambiguity.Bifidco, 447 U.S. at 
387. The rule of lenity is generally inapplicable un-
less "after seizing everything from which aid can be 
derived" 
court is still left with an ambiguity. 
Chapman 
United States, 500 U.S. 453, 463, Ill 
S.O. 1919, 1926, 114 L.Ed.2d 524 (quoting United 
a guess as to what 
United States, 358 
, 214, 3 L.Ed.2d 199 
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Page 2 of 4 
Slip Copy 
Slip Copy, 2007 WL 3273402 (W.D.Ky.) 
(Cite as: Slip Copy) 
Stases !Bass. 404 U.S. 336, 347, 92 S.Ct. 515, 
522, 30 .Ed.2d 488 (1971)). 
*2 The rule of lenity is inapplicable to this 
case. Application of the rule is predicated on stat-
utory, ambiguity. This court is not faced with any 
ambiguity insofar as whether § 3559(e) is applic-
able to Moore based on his current criminal con-
duct and past criminal convictions. The plain lan-
guage of § 3559(e) applies directly to Moore and 
mandates a life sentence. Simply because Moore's 
criminal conduct also places him within § 2551(e) 
does not give rise to any ambiguity as to whether 
Moore's conduct places him within the ambit of § 
3559(e). This court is not applying the mandatory 
life sentence of § 3559(e) based simply on a guess 
as to what Congress intended. Rather this court is 
applying the mandatory life sentence based on the 
fact that Moore's criminal conduct and past crimin-
al convictions place him directly within § 3559(e), 
and § 3559(e) prevails over § 2551(e) because it is 
later in order of arrangement in the Prosecutorial 
Remedies and Tools Against the Exploitation of 
Children Today Act of 2003. Accordingly, we will 
deny Moore's motion for reconsideration. 
A separate order will be entered herein this 
date in accordance with this opinion. 
W.D.Ky.,2007. 
U.S. I Moore 
Slip Copy, 2007 WL 3273402 (W.D.Ky.) 
END OF DOCUMENT 
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%€stlaw 
Slip Copy 
Slip Copy, 2007 WL 2025191 (W.D.Ky.) 
(Cite as: Slip Copy) 
H 
U.S. I. Moore 
W.D.Ky.,2007. 
Only the Westlaw citation is currently available. 
United States District Court, W.D. Kentucky, 
at Louisiville. 
UNITED STATES of America, Plaintiff 
v. 
James Terry MOORE, Defendant. 
Criminal Action No. 3:06-CR-98-S. 
July 5, 2007. 
Jo E. Lawless, U.S. Attorney Office, Louisville, 
KY, for Plaintiff. 
Patrick J. Bouldin, Western Kentucky Federal 
Community Defender, Inc., Louisville, KY, for De-
fendant. 
MEMORANDUM OPINION 
CHARLES R. SIMPSON III, United States District 
Judge. 
•1 This matter is before the court upon the 
parties' briefs regarding sentencing of the defend-
ant, James Terry Moore ("Moore"). Moore, due to 
his prior sex convictions involving minors, faces 
statutory mandatory sentencing. At issue is whether 
the mandatory life sentence provided for in 18 
U.S.C. § 3559(e) or the thirty-five years to life 
range contemplated by 18 U.S.C. § 2251(e) should 
be applied to him. 
In September 2006, after having been arrested 
for advertising and facilitating the distribution of 
child pornography on the intemet, Moore pled 
guilty to violations of 18 U.S.C. §§ 2251(dX1XA). 
(dX2XB), 
2252A(aX2), 
(aX5XB), 
(bX I), and 
(bX2). At that time the court advised Moore that 
under 18 U.S.C. § 2259(e) he faced a mandatory 
minimum penalty of thirty-five years imprisonment 
and a maximum of life imprisonment. Now, the 
United States asserts that 18 U.S.C. § 3559(e) man-
dates Moore receive a life sentence. 
Page 1 
In short, § 2251(e) and § 3559(e) conflict, as 
Moore qualifies for sentencing under both. When 
two statutes conflict and cannot be reconciled, "the 
general rule of statutory interpretation is that a sub-
sequent statutory provision prevails over a pre-
existing and irreconcilably conflicting provision 
which is not expressly repealed ." 73 Am. Jr.2d 
Statutes § 169 (2007). This rule, however, is inap-
plicable here given that § 2251(e), in its most cur-
rent form, and § 3559(e) were enacted simultan-
eously as part of the Prosecutorial Remedies and 
Tools Against the Exploitations of Children Today 
Act of 2003, Pub.L. No. 108-21, 117 Stat. 
650.Thus, the more precise issue becomes: if Con-
gress has simultaneously enacted irreconcilable 
sentencing provisions applicable to the same of-
fense, which applies? 
United States, ev rel. Harris' Daniels, 279 
Fed. 844 (2nd Cir.I992), provides guidance on this 
issue. In Ex. rel. Harris, the Second Circuit was 
faced with a potential conflict between two senten-
cing provisions, one which permitted " 'all sen-
tences' of summary court-martial [to] be carried in-
to effect upon the approval of the senior officer 
present ...", and another, which provided "that the 
Secretary of the Navy may set the proceedings of 
the court aside and 'remit or mitigate in whole or in 
part the sentence imposed.' " Id. at 849.Although 
the court ultimately decided that the "apparent con-
flict [was not] one in reality[ )," it first stated: 
In consideration of irreconcilable conflicting 
provisions, if both were enacted at the same time, 
the last in order or arrangement controls. 
Id. (citing pi Equator M & S Co., Fed. 
l iz
Cas. No. 5931; n re ichards, 96 Fed. 93 
939;in 
re Tune, 115 Fed. 906, 911g/nited States 
Jack-
son, 143 Fed. 783;ifoward I Bangor & A. . Co., 
29 Ad. 1101;State I Public Svc. Comm., 172 Pac. 
890). 
Section 3559(e) is later in arrangement, both in 
Title 18 of the U.S.Code and Pub.L. No. 108-2I.As 
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Page 4 of 4 
Slip Copy 
Page 2 
Slip Copy, 2007 WL 2025191 (W.D.Ky.) 
(Cite as: Slip Copy) 
such, it prevails, subjecting Moore to mandatory 
life imprisonment. Moreover, an argument exists 
that § 2251(e) and § 3559(e) were not enacted sim-
ultaneously. This argument, if accepted, permits the 
court to apply the general rule of statutory construc-
tion calling for the later enacted provision to con-
trol. Section 2559(e) existed at the time at the time 
§ 3559(e) was enacted. Public Law No. 108-21 
merely amended§ 2259(e) by raising the mandatory 
minimum sentence from thirty to thirty-five years. 
On the other hand, Pub. Law No. 108-21 added an 
entirely new subsection to § 3559, subsection (e), 
which provides for mandatory life imprisonment for 
repeated sex offenses against minors. 
*2 Accordingly, the court concludes that pursu-
ant to 18 U.S.C. § 3559(e) Moore is subject to a 
sentence of mandatory life imprisonment for his of-
fenses under 18 U.S.C. § 2251. It is so ordered. 
W.D.Ky.,2007. 
U.S. I. Moore 
Slip Copy, 2007 WL 2025191 (W.D.Ky.) 
END OF DOCUMENT 
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Page 1 of 28 
NAkstlaw. 
496 F.3d 885 
496 F.3d 885 
(Cite as: 496 F.3d 885) 
H 
U.S. I. Peck 
C.A.8 (lowa),2007. 
United States Court of Appeals,Eighth Circuit. 
UNITED STATES of America, Appellee, 
Nicholas PECK, Appellant. 
No. 06-4187. 
Submitted: June 12, 2006. 
Filed: Aug. 6, 2007. 
Rehearing and Rehearing En BancDenied Sept. 10, 
2007. 
Background: Defendant pled guilty in the 
United States District Court for the Northern Dis-
trict of Iowa, Linda R. Reade, Chief Judge, to sexu-
al exploitation of a child, possession of child porno-
graphy, and distribution of cocaine. Defendant ap-
pealed. 
Holdings: The Court of Appeals, Gruender, 
Circuit Judge, held that: 
(I) government did not breach its plea agree-
ment by advocating for sentencing enhancements; 
(2) imposition of enhancements for pattern of 
activity and exploiting more than one minor was 
not impermissible double counting; and 
(3) sentence of 420 months' imprisonment was 
not unreasonable. 
Affirmed. 
West Headnotes 
II) Criminal Law 110 €=.273.1(2) 
110 Criminal Law 
110XV Pleas 
110k272 Plea of Guilty 
1 I Ok273.1 Voluntary Character 
Page 1 
110k273.1(2) 
k. 
Representations, 
Promises, or Coercion; Plea Bargaining. Most Cited 
Cases 
Government did not breach its plea agreement with 
defendant, in which it agreed to file no additional 
criminal charges, by advocating for sentencing en-
hancements, where plea agreement expressly per-
mitted government to provide all relevant informa-
tion to probation office for use in preparing presen-
tence report and the agreement did not contain any 
provision regarding the advisory guidelines calcula-
tions. 
121 Criminal Law 110 e=1030(1) 
110 Criminal Law 
I IOXXIV Review 
110XXIV(E) Presentation and Reservation in 
Lower Court of Grounds of Review 
110XXIV(E)1 In General 
110k1030 Necessity of Objections in 
General 
110k1030(1) k. In General. Most 
Cited Cases 
The Court of Appeals can correct an error not 
raised before the district court if there is error, that 
is plain, and that affects substantial rights. 
[3[ Criminal Law 110 e=1030(1) 
110 Criminal Law 
110XXIV Review 
110XXIV(E) Presentation and Reservation in 
Lower Court of Grounds of Review 
110XXIV(E)1 In General 
I 1 Ok1030 Necessity of Objections in 
General 
110k1030(1) k. In General. Most 
Cited Cases 
The Court of Appeals will reverse under plain error 
review only if the error prejudices the party's sub-
stantial rights and would result in a miscarriage of 
justice if left uncorrected. 
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496 F.3d 885 
496 F.3d 885 
(Cite as: 496 F.3d 885) 
141 Sentencing and Punishment 350H C=906 
350H Sentencing and Punishment 
350H1V Sentencing Guidelines 
350HIV(G) Dual or Duplicative Use 
350Hk903 Particular Cases and Problems 
350H1:906 k. Adjustments. Most Cited 
Cases 
Imposition of five-level enhancement for engaging 
in a pattern of activity involving prohibited sexual 
conduct, after imposition of three-level enhance-
ment for exploiting more than one minor, for de-
fendant convicted of sexual exploitation of a child 
and possession of child pornography was not im-
permissible double counting; separate adjustments 
for the number of minors exploited and for the fact 
that those minors were exploited on multiple occa-
sions were not premised on the same conduct. 
U.S.S.G. §§ 2G2.1(dX I), 4B1.5(bX1), 18 U.S.C.A. 
151 Criminal Law 110 4=1139 
110 Criminal Law 
110XX1V Review 
1107OUV(L) Scope of Review in General 
110k1139 k. Additional Proofs and Trial 
De Novo. Most Cited Cases 
The Court of Appeals reviews de novo whether the 
district court's application of the 
sentencing 
guidelines amounts to impermissible double count-
ing. 
161 Sentencing and Punishment 350H C=.902 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350HIV(G) Dual or Duplicative Use 
350H1c902 k. Factor Taken Into Account 
by Guidelines in General. Most Cited Cases 
Double counting occurs when one part of the 
Guidelines is applied to increase a defendant's pun-
ishment on account of a kind of harm that has 
already been accounted for by application of anoth-
er part of the Guidelines; such double counting is 
permissible where the Sentencing Commission in-
tended the result and each statutory section con-
Page 2 of 28 
Page 2 
terns conceptually separate notions related to sen-
tencing. 
171 Sentencing and Punishment 35014 e=645 
35014 Sentencing and Punishment 
350H111 Sentence on Conviction of Different 
Charges 
3501111I(D) Disposition 
350Hk645 k. Total Sentence Deemed Not 
Excessive. Most Cited Cases 
Sentence of 420 months' imprisonment imposed on 
defendant convicted of sexual exploitation of a 
child, possession of child pornography, and distri-
bution of cocaine was not unreasonable, where 
court considered the statutory sentencing factors, 
sentence was within the guidelines range, death of 
one of the victims who defendant described as his 
"girlfriend" did not call for leniency, and court did 
consider the letters submitted on defendant's behalf. 
18 U.S.C.A. § 3553(a). 
181 Criminal Law 110 C=.1147 
110 Criminal Law 
110XXIV Review 
110XXIV(N) Discretion of Lower Court 
110k1147 k. In General. Most Cited Cases 
Sentencing and Punishment 35014 C=651 
350H Sentencing and Punishment 
350HP/ Sentencing Guidelines 
350HIV(A) In General 
350Hk651 k. Operation and Effect of 
Guidelines in General. Most Cited Cases 
The Court of Appeals reviews a sentence for reas-
onableness and in doing so, like the district court, 
begins with the applicable guidelines sentencing 
range. 
191 Criminal Law 110 C=1144.17 
110 Criminal Law 
110XXIV Review 
1107OCIV(M) Presumptions 
110k1144 
Facts 
or Proceedings Not 
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Page 3 of 28 
496 F.3d 885 
496 F.3d 885 
(Cite as: 496 F.3d 885) 
Shown by Record 
1101(1144.17 k. Judgment, Sentence, 
and Punishment. Most Cited Cases 
Although 
a 
sentence 
within 
the 
applicable 
guidelines sentencing range is presumed reason-
able, the presumption may be rebutted by reference 
to the statutory sentencing factors. 18 U.S.C.A. § 
3553(a). 
110i Sentencing and Punishment 350H €=0651 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350HIV(A) In General 
350Hk651 k. Operation and Effect of 
Guidelines in General. Most Cited Cases 
A defendant must show that the district court failed 
to consider a relevant factor that should have re-
ceived significant weight, gave significant weight 
to an improper or irrelevant factor, or considered 
only appropriate factors but nevertheless committed 
a clear error of judgment, in order for his sentence 
within the guidelines range to be considered unreas-
onable. 
I) Sentencing and Punishment 35011€=,373 
350H Sentencing and Punishment 
350H11 Sentencing Proceedings in General 
350H1I(G) Hearing 
350Hk369 Findings and Statement of 
Reasons 
350Hk373 k. Sufficiency. Most Cited 
Cases 
While the district court is not required to mechanic-
ally recite each of the statutory sentencing factors, 
it must be clear from the record that it actually con-
sidered them in determining the appropriate sen-
tence. 18 U.S.C.A. § 3553(a). 
•886 Anne M. Laverty, argued, Cedar Rapids, IA, 
for appellant. 
Charles J. Williams, AUSA, argued, Sean R. Berry, 
AUSA, on the brief, Cedar Rapids, IA, for appellee. 
Before MELLOY, SMITH and GRUENDER, Cir-
Page 3 
cuit Judges. 
GRUENDER, Circuit Judge. 
Pursuant to two plea agreements, Nicholas 
Peck pled guilty to one count of sexual exploitation 
of a child, in violation of 18 U.S.C. § 2251(a), one 
count of possession of child pornography, in viola-
tion of 18 U.S.C. § 2252A(a), and one count of dis-
tribution of cocaine, in violation of 21 U.S.C. § 
84I(a)(1). The district court FN' sentenced •887 
Peck to 420 months' imprisonment. Peck appeals 
his sentence, arguing that the Government breached 
one of the plea agreements, that the district court 
erred in applying two enhancements under the 
United States Sentencing Guidelines, and that his 
sentence is unreasonable. We affirm. 
FN1. The Honorable Linda R. Reade, 
Chief Judge, United States District Court 
for the Northern District of Iowa. 
I. BACKGROUND 
S.L., a fifteen-year-old girl, reported to Iowa 
law enforcement authorities that Peck, a twenty-
four-year-old man, was involved in trafficking con-
trolled substances from Illinois to Wisconsin and 
Iowa. S.L. also reported that Peck had a laptop 
computer containing pornographic images of her 
and another minor girl and that Peck had engaged 
in sex acts with her on six occasions in Iowa and on 
one occasion in Wisconsin. S.L. also informed the 
authorities he had given her cocaine. 
While driving in Iowa, Peck was pulled over 
and arrested on an outstanding warrant. During his 
post-arrest interview, Peck admitted that his com-
puter contained pictures of S.L.'s genitalia and pic-
tures of a male having sex with S.L. Peck falsely 
denied he was the male pictured having sex with 
S.L. and also falsely denied that he took the porno-
graphic pictures. Peck admitted he also possessed 
pornographic pictures of J.C., another fifteen-
year-old girl, with whom he admitted to having sex. 
During the search of Peck's vehicle, authorities 
seized the following items: a laptop computer, two 
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496 F.3d 885 
496 F.3d 885 
(Cite as: 496 F.3d 885) 
digital cameras, various electronic storage devices 
including compact discs, a hollowed out pen con-
taining a white powdery residue, a digital scale 
with a white powdery residue, and a plastic baggie 
containing several pills. The compact discs revealed 
digital still and video images of Peck engaged in 
separatesual acts with S.L., J.C., and another 
minor, 
At least one of the 
depicted 
Peck having sexual intercourse with 
., and sev-
eral depicted Peck engaging in sexual acts with 1.C. 
and displayed i.e.'s genitalia. 
Following his arrest and release, Peck twice 
sold cocaine to a confidential informant, again res-
ulting in his arrest. In this post-arrest interview, 
Peck admitted that he took the pornographic images 
of S.L. found on his laptop computer and admitted 
that he knew S.L. was fifteen years old when the 
pictures were talc 
e also admitted that he took 
nude pictures of iiknowing 
that she was either 
fourteen or fifteen years old. 
Peck was indicted in the Northern District of 
Iowa and charged with one count of sexual exploit-
ation of a child, in violation of 18 U.S.C. § 225I(a), 
and one count of possession of child pornography, 
in violation of 18 U.S.C. § 2252A(a). Peck pled 
guilty to these charges pursuant to a plea agreement 
("first plea agreement"). Peck was subsequently in-
dicted in the Western District of Wisconsin and 
charged with one count of distribution of cocaine, 
in violation of 21 U.S.C. § 841(a)(1). The drug 
charge was transferred pursuant to Rule 20 of the 
Federal Rules of Criminal Procedure to the North-
ern District of Iowa, where Peck pled guilty pursu-
ant to a second plea agreement. The two cases were 
then consolidated for sentencing. 
In paragraph three of the fast plea agreement, 
the Government promised that it would "file no ad-
ditional Title 18 criminal charges based upon in-
formation now in [its) possession." Paragraph five 
of the plea agreement stated that, in imposing sen-
tence: 
[T]he court will ... consider the kinds of sen-
tence and the sentencing range established by the 
Page 4 of 28 
Page 4 
United States Sentencing Guidelines for the applic-
able category of offense(s) committed by defendant 
and will consider any pertinent policy statements 
issued as part of the *888 Guidelines. The court 
will consider relevant adjustments under the United 
States Sentencing Guidelines, which will include a 
review of such things as the defendant's role in the 
offense, his criminal history, his acceptance or lack 
of acceptance of responsibility and other considera-
tions. The court may also consider other informa-
tion including any information concerning the 
background, character, and conduct of the defend-
ant. 
Paragraph seven provided:The defendant, his 
attorney and the United States may make whatever 
comment and evidentiary offer they deem appropri-
ate at the time of the guilty plea, sentencing or any 
other proceeding related to this case, so long as the 
offer or comment does not violate any other provi-
sion of this agreement. The parties are also free to 
provide all relevant information to the probation of-
fice for use in preparing the presentence report. 
Finally, the first plea agreement contained no 
stipulation or recommendation whatsoever regard-
ing the advisory sentencing guidelines, and it ex-
pressly noted that it "did not result in any express 
or implied promise or guarantee concerning the ac-
tual sentence to be imposed by the court." 
In accord with paragraph seven of the first plea 
agreement, the Government provided an offense 
conduct statement regarding the exploitation and 
pornography charges to the United States Probation 
Office and to Peck. In that statement, the Govern-
ment 
stated 
its belief that 
Peck's advisory 
guidelines calculation should be enhanced three 
levels pursuant to U.S.S.G. § 2O2.1(dX1), because 
the offense involved exploitation of three separate 
minors, and also enhanced five levels pursuant to 
U.S.S.G. § 4B1.5(b)(1), because Peck engaged in a 
pattern of activity involving prohibited sexual 
activity. The presentence investigation report sub-
sequently prepared by the probation office accoun-
ted for this conduct and also recommended the en-
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496 F.3d 885 
496 F.3d 885 
(Cite as: 496 F-3d 885) 
hancements. 
At sentencing, the district court applied the en-
hancements pursuant to § 262.1(d)(1) and § 
4B1.5(bXI), giving Peck a total guideline offense 
level of 42. The district court calculated Peck's 
criminal history as a category III, which resulted in 
a final advisory sentencing guideline range of 360 
months to life in prison. The district court sen-
tenced Peck to 240 months' imprisonment on the 
drug charge and 360 months' imprisonment on the 
sexual exploitation charge, to be served concur-
rently. The district court also sentenced Peck to 60 
months on the pornography charge, to run consecut-
ively to the other sentence, for a final sentence of 
420 months' imprisonment. Peck filed a timely no-
tice of appeal. 
II. DISCUSSION 
A. Plea Agreement 
[1][2][3] Peck argues that the Government 
breached paragraph three of the first plea agree-
ment, but he concedes that our review of this issue 
is for plain error because he did not present this ar-
gument to the district court. We can correct an error 
not raised before the district court if there is "(1) er-
ror, (2) that is plain, tut (3) that affects substantial 
rights." United States 
Rice, 449 F.3d 887, 894 
(8th Cir.), cert. denied,— U.S. ---, 127 S.Ct. 601, 
166 L.Ed.2d 446 (2006) (quotation omitted). "We 
will reverse under plain error review only if the er-
ror prejudices the party's substantial rights and 
would result in a miscarria 
of justice if left un-
corrected." United States I McCoun, 468 F.3d 
1088, 1093 (8th Cir.2006), cert. denied,— U.S. ---, 
127 S.Ct. 1866, 167 L.Ed.2d 356 (2007) (quotation 
omitted). 
*889 Paragraph three of the first plea agree-
ment states: "The U.S. Attorney's Office for this 
District will file no additional Title 18 criminal 
charges based upon information now in [its] posses-
sion." Peck concedes-as he must-that the Govern-
Page 5 
ment has not filed any new indictment or informa-
tion officially charging him with additional crimes, 
arguing instead that the Government "effectively 
filed additional charges when it advocated, after the 
execution of the plea agreement, [for] sentencing 
enhancements" 
pursuant 
to 
U.S.S.G. 
§§ 
262.1(dX1) and 4B1.5(bXI). We disagree. 
Peck cites no case, and our research has not re-
vealed one, that supports the proposition that the 
Government's pursuit of sentencing enhancements 
breaches a promise not to file additional c * 
• 
charges. The case cited by Peck, United States 
Clark, 55 F.3d 9 (1st Cir.1995), is inapposite. 
Clark, the Government agreed not to oppose a 
three-level downward departure for acceptance of 
responsibility. Id. at 12. In a sentencing memor-
andum it submitted to the district court, the Gov-
ernment made its position clear that no reduction 
was warranted, adding that it could not present "a 
more vigorous argument" because of the plea 
agreement. Id. The First Circuit held that although 
the Government did not formally oppose the reduc-
tion, it effectively opposed it in the memorandum. 
Id. Clark has no bearing on the present scenario. 
Unlike formally opposing a downward departure, 
which may be done "effectively" by other informal 
means such as in a memorandum, there is no way to 
file criminal charges "effectively." They are either 
filed or they are not. Here, the Government filed no 
additional charges, and Peck concedes as much. 
Peck also cites United States' Fowler, 
F.3d 1035 (8th Cir.2006), and United States 4411 
DeWitt. 366 F.3d 667 (8th Cir.2004). In Fowler, we 
held that the Government breached a plea agree-
ment by actively advocating for career-offender 
status where the plea agreement specifically stipu-
lated to an offense level that did not account for 
such status. Fowler, 445 F.3d at 1037. Likewise, in 
DeWitt, we held that the Government breached a 
plea agreement that stipulated to the drug quantity 
and base offense level when it presented evidence 
that the drug quantity and corresponding base of-
fense level should be higher. DeWitt, 366 F.3d at 
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496 F.3d 885 
(Cite as: 496 F.3d 885) 
670. 
In contrast to the plea agreements in Fowler 
and DeWitt, the plea agreement in this case does 
not contain any provision whatsoever regarding the 
advisory guidelines calculations. It does contain 
general language, not present in the plea agree-
ments in Fowler and DeWitt, that expressly permits 
the Government to "provide all relevant informa-
tion to the probation office for use in preparing the 
presentence report." Peck's case, therefore, is more 
akin to our decision in United States I Stobaugh, 
420 F.3d 796 (8th Cir.2005), cert. denied,546 U.S. 
1120, 126 S.Ct. 1093, 163 L.Ed.2d 908 (2006). In 
Stobaugh, the plea agreement specified certain 
guidelines calculations but also stated that the cal-
culations "are only estimates and do not bind the 
parties." Id. at 801. The agreement also contained a 
provision stating "that information about 'the en-
tirety of the defendant's criminal activities' would 
be provided to the district court and would 'not [be] 
limited to the count to which the defendant pled 
guilty.' " Id. Noting that the plea agreement did not 
contain a more specific provision like that in 
DeWitt that conflicted with the Government's gen-
eral authority under the plea agreement to present 
evidence of relevant conduct, we held that there 
was no breach. Id. at 800-01 (citing DeWitt). 
*890 As in Stobaugh, Peck's plea agreement 
lacks a specific provision that conflicts with the 
general provision granting the Government express 
authority to "provide all relevant information to the 
probation office for use in preparing the presen-
tence report." Absent a conflicting provision, Peck 
cannot successfully challenge the Government's de-
cision to present to the probation office and to the 
district court the very information contemplated by 
paragraph seven of the first plea agreement. There-
fore, because the Government did not file addition-
al charges and engaged in conduct expressly au-
thorized by the first plea agreement, we hold that 
there was no breach. Accordingly, Peck's claim 
fails to survive our plain error review because 
without an identified error there is no substantial 
Page 6 of 28 
Page 6 
injustice left uncorrected. See Rice, 449 F.3d at 894. 
B. Double Counting 
[4][5] The district court applied sentencing en-
hancements pursuant to U.S.S.G. §§ 2G2.1(dX1) 
and 4B1.5(bX1). Peck does not dispute that his 
conduct qualifies him for these enhancements. 
Rather, Peck contends that the five-level increase to 
his sentence pursuant to § 4B1.5(bX1) impermiss-
ibly double counts conduct already accounted for in 
the three-level enhancement he received pursuant to 
§ 2G2.1(d)(1). We review de novo whether the dis-
trict court's application of the sentencing guidelines 
amount to impermissible double counting. United 
States 
Kiel, 454 F.3d 819, 822 (8th Cir.2006). 
[6] "Double counting occurs when one part of 
the Guidelines is applied to increase a defendant's 
punishment on account of a kind of harm that has 
already been ... accounted for by application of at 
other part of the Guidelines." United States 
Jones, 440 F.3d 927, 929 (8th Cir.), cert. denied,--
U.S. —, 127 S.Ct. 130, 166 L.Ed.2d 95 (2006) 
(quotations omitted). Such double counting is per-
missible where "(1) the [Sentencing] Commission 
intended the result and (2) each statutory section 
concerns conceptually separ
 notions related to 
sentencing." United States 
Hipenbecker, 115 
F.3d 581, 583 (8th Cir.1997). 
Section 262.1(d)(1) states: "If the offense in-
volved the exploitation of more than one minor, 
Chapter Three, Part D (Multiple Counts) shall be 
applied as if the exploitation of each minor had 
been contained in a separate count of conviction." 
Peck acknowledged that he sexually exploited three 
minor children, and the district court applied 
Chapter Three of the Guidelines as though each of 
the three minors had been contained in a separate 
count. This application resulted in an increase of 
three 
levels 
to 
Peck's 
base 
offense 
level. 
SeeU.S.S.G. § 3D1.4. 
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496 F.3d 885 
496 F.3d 885 
(Cite as: 496 F-3d 885) 
Section 481.5(bX1) states: "In any case in 
which the defendant's instant offense of conviction 
is a covered sex crime ... and the defendant engaged 
in a pattern of activity involving prohibited sexual 
conduct: (I) The offense level shall be 5 plus the 
offense level determined under Chapters Two and 
Three...." Peck does not dispute that his conviction 
for production of child pornography in violation of 
18 U.S.C. § 2251(a) constitutes a "covered sex 
crime" and is "prohibited sexual conduct." A 
"pattern of activity" for the purposes of § 
4B1.5(bX1) occurs when the defendant engages in 
the prohibited sexual conduct with a minor on at 
least two separate occasions. U.S.S.G. § 4B1.5 , 
cmt. n. 4(BXi). Peck also does not dispute that he 
engaged in prohibited sexual conduct with minor 
children on at least two separate occasions, thus 
constituting a pattern of activity involving prohib-
ited sexual conduct. 
*891 Peck contends that the district court's im-
position of a five-level increase pursuant to § 
4111.5(b)(1) for engaging in a "pattern of activity" 
after the imposition of a three-level, multiple-vic-
tim enhancement under § 2O2.1(dX1) constitutes 
impermissible double counting because both en-
hancements are premised upon the same conduct-
namely, his sexual exploitation of each of the three 
minor children. Peck's characterization of the tar-
geted harm is too broad. 
The application of § 262.1(dX1) punished 
Peck for exploiting three different minors, while the 
§ 4B1.5(bX1) enhancement punished him for ex-
ploiting those minors on multiple occasions. See 
United States 
Schmeilski, 408 F.3d 917, 920 (7th 
Cir.2005) (holding that the application of both § 
262.1(d)(1) and § 4B1.5(bX1) does not constitute 
impermissible double counting). As such, the separ-
ate enhancements for the number of minors Peck 
exploited and for the fact that Peck exploited the 
minors on multiple occasions are not premised on 
the same harm. See id.(noting that for a defendant 
who had on only one occasion photographed three 
minor children engaging in sexually explicit con-
Page 7 of 28 
Page 7 
duct, § 2O2.1(d)(1) would apply because more than 
one minor was exploited but § 4B1.5(b)(1) would 
not because prohibited sexual conduct did not occur 
on at least two separate occasions). Therefore, be-
cause § 262.1(dX1) and § 4B1.5(bX1) do not ad-
dress the same kind of harm, the application of both 
in calculating Peck's sentence did not constitute 
double counting under these circumstances. 
C. Peck's Sentence 
A
[7)(8] "We review appell 
's sentence for 
reasonableness." United States 
Cadenas, 445 
F.3d 1091, 1094 (8th Cir.2006). " n doing so we, 
like the district court, begin with the applicable 
guidelines sentencing range." Id. The Supreme 
Court recently held that "a court of appeals may ap-
ply a presumption of reasonableness to a district 
court sentence that reflects a proles application of 
the Sentencing Guidelines." Rita I United States, -
-- U.S. ----, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 
(2007). Because the district court properly calcu-
lated the advisory sentencing guidelines range for 
Peck, and because it sentenced Peck within that 
range, Peck's sentence is cloaked in a presumption 
of reasonableness. See id. 
[9][10][11) However, this presumption may be 
rebutted by reference to the factors listed in 18 
(
U.S.C. § 3553(a). 
denas. 445 F.3d at 1094,see 
also United States 
Harris, 493 F.3d 928, 932-33 
(8th Cir.2007). In o r words, Peck must show that 
the "district court failed to consider a relevant 
factor that should have received significant weight, 
gave significant weight to an improper or irrelevant 
factor, or considered only appropriate factors but 
nevertheless committed a clear error of judgment," 
in order for his sentence within the guidelines range 
to be considered unreasonable. Cadenas, 445 F.3d 
at 1094. "(W)hile we do not require the district 
court to mechanically recite each of the § 3553(a) 
factors, it must be clear from the record that it actu-
ally considered them in determining the appropriate 
sentence." Id. 
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496 F.3d 885 
(Cite as: 496 F.3d 885) 
Peck concedes that the facts considered by the 
district court in reaching his sentence were 
"doubtless 'relevant' under 18 U.S.C. § 3553(a)," 
and he instead argues that "[Oven the maximum 
sentence permitted by law on the most serious 
count, [sexual exploitation of a minor], is thirty 
years, it is reasonable to conclude that a sentence at 
the bottom of the 360 to life range might be appro-
priate." While this argument may explain why a 
different sentence would be reasonable, it fails to 
explain*892 why the within-guidelines-range sen-
tence 
received is unreasonable. See United 
States 
Bryant. 446 F.3d 1317, 1319 (8th 
Cir.2 
(noting that "there is a range of reason-
ableness available to the district court in any given 
case"). Further, to the extent that this argument sug-
gests that the district court should have run his sen-
tence on the possession of child pornography 
charge concurrently rather than consecutively, we 
find it to be without merit. The district courts de-
cision to run Peck's sentences consecutively is au-
thorized under the guidelines and is proper under 
this circuit's case law. SeeU.S.S.G. § 5G1.2(d) ("If 
the sentence imposed on the count carrying the 
highest statutory maximum is less than the total 
punishment, then the sentence imposed on one or 
more of the other counts shall run consecutively, 
but only to the extent necessary to produce a com-
bined sentenciequal to the total punishment."); 
United States 
Thomas, 484 F.3d 542, 546 (8th 
Cir.2007). 
Peck 
argues 
that 
because 
each 
minor 
"apparently may have even thought of [Peck) as 
their boyfriend," there was no evidence to support 
the district court's conclusion that Peck "preyed 
upon" teenage girls for sexual relations. We reject 
Peck's argument and note that the district court's 
conclusion regarding Peck's conduct 
supported 
by our cases. See, e.g., United States 
Abed, 350 
F.3d 793, 798 (8th Cir.2003) ("[W]hen sexual as-
saults are committed upon children ..., consent is 
not a defense. The reason is that the victims in 
these cases, because of ignorance or deceit, do not 
understand what is happening to them. Therefore 
Page 8 of 28 
Page 8 
their 'consent' is of no significance.") (quotation 
omitted). 
Peck also contends that the district court did 
not consider facts in his background that call for le-
niency, such as the death of his girlfriend and let-
ters submitted to the district court on his behalf. 
First, the girl Peck claims was his "girlfriend" was 
actually one of the minor victims he sexually ex-
ploited. Her death, though tragic, does not call for 
leniency vis-a-vis Peck. Second, the record reveals 
that the district court did consider the letters sub-
mitted on Peck's behalf, and nothing in the record 
demonstrates that they were given inappropriate 
weight. 
Peck's arguments are without merit in that they 
fail to demonstrate that the district court's sentence 
was unreasonable. The district court made a clear 
record of the sentencing factors relevant under § 
3553(a), and our review of it shows that the district 
court considered them, weighed them properly and 
did not commit a clear error of judgment in arriving 
at Peck's sentence, which was within the range of 
choice dictated by the facts of the case. Accord-
ingly, Peck's sentence was not unreasonable. See 
Harris, 493 F.3d at 932-33; Cadences, 445 F.3d at 
1094. 
HI. CONCLUSION 
For the foregoing reasons, we affirm Peck's 
sentence. 
C.A.8 (lowa),2007. 
U.S. 
Peck 
496 F.3d 885 
END OF DOCUMENT 
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Mkstlaw. 
232 Fed.Appx. 336 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 (N.C.)) 
(Cite as: 232 Fed.Appx. 336) 
H 
U.S. I. Denkler 
C.A.4 (N.C.),2007. 
This case was not selected for publication in the 
Federal Reporter.Not for Publication in West's Fed-
eral Reporter See Fed. Rule of Appellate Procedure 
32.1 generally governing citation of judicial de-
cisions issued on or after Jan. 1, 2007. See also 
Fourth Circuit Rule 32.1 (Find CTA4 Rule 32.1) 
United States Court of Appeals,Fourth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
Phillip Daniel DENKLER, a/k/a George Austin, 
Defendant-Appellant. 
No. 06-4781. 
Submitted: March 7, 2007. 
Decided: July 10, 2007. 
Background: Defendant pled guilty in the 
United States District Court for the Eastern District 
of North Carolina, at Raleigh, James C. Dever, III, 
J., to interstate transportation of a minor with intent 
to engage in criminal sexual activity and interstate 
transportation of a stolen vehicle, for which he was 
sentenced to respective terms of 360 months and 
120 months. Defendant appealed. 
Holdings: The Court of Appeals held that: 
(1) victim's out-of-court statements to investig-
ators had sufficient indicia of reliability to render 
them admissible for sentencing purposes, and 
(2) guidelines departure was reasonable in light 
of defendant's criminal history and likelihood of re-
cidivism. 
Affirmed. 
West Fleadnotes 
Page 1 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350HIV(H) Proceedings 
350HIV(H)2 Evidence 
350Hk967 k. Hearsay. Most Cited Cases 
Victim's out-of-court statements to investigators 
had sufficient indicia of reliability to render them 
admissible for sentencing purposes, for determina-
tion of whether imposition of enhancement for us-
ing threats and force to engage in sex with victim 
was warranted, in prosecution for interstate trans-
portation of a minor with intent to engage in crim-
inal sexual activity; victim submitted willingly to a 
medical examination and to interviews by local and 
federal authorities, and acknowledged that she had 
engaged in text messaging with other men, and her 
statement to the agent was consistent with her pre-
vious statement to local police. 18 U.S.C.A. § 
2423(a); U.S.S.G. § 6A1.3(a), p.s. 18 U.S.C.A. 
121 Sentencing and Punishment 350H C=841 
350H Sentencing and Punishment 
350HIV Sentencing Guidelines 
350H1V(F) Departures 
350HIV(F)2 Upward Departures 
350Hk841 k. Inadequacy of Criminal 
History Category. Most Cited Cases 
District court acted reasonably both with respect to 
its decision to impose departure sentence and with 
respect to the extent of the divergence from the 
range, upon finding that defendant's criminal his-
tory category substantially underrepresented his 
criminal history and the likelihood of recidivism, 
for sentencing on conviction for interstate trans-
portation of a minor with intent to engage in crim-
inal sexual activity; defendant had twice received 
lenient sentences in state court for offenses against 
females and, rather than comply with the conditions 
of probation, he initiated the instant offense. 18 
U.S.C.A. §§ 2423(a), 3553(a); U.S.S.G. § 4A1.3, 
p.s. 18 U.S.C.A. 
Sentencing and Punishment 350H e=467 
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Page 10 of 28 
232 Fed.Appx. 336 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 (N.C.)) 
(Cite as: 232 Fed.Appx. 336) 
*337 Appeal from the United States District Court 
for the Eastern District of North Carolina, at 
Raleigh. James C. Dever, III, District Judge. 
(5:05-cr-00264-D). 
Thomas P. McNamara, Federal Public Defender, 
Devon L. Donahue, Assistant Federal Public De-
fender Raleigh, North Carolina, for Appellant. 
E. 
United States Attorney, Anne 
M. Hayes, 
P. May-Parker, Assistant United 
States Attorneys, Raleigh, North Carolina, for Ap-
pellee. 
Before WILLIAMS, Chief Judge, and KING and 
SHEDD, Circuit Judges. 
Affirmed by unpublished PER CURIAM opinion. 
Unpublished opinions are not binding precedent in 
this circuit.PER CURIAM: 
"I Phillip Daniel Denkler pled guilty to inter-
state transportation of a minor with intent to engage 
in criminal sexual activity, 18 U.S.C.A. § 2423(a) 
(West Supp.2006) (Count One), and interstate 
transportation of a stolen vehicle, 18 U.S.C. § 2312 
(2000) (Count Two). He received a sentence of 360 
months imprisonment on Count One and a concur-
rent sentence of 120 months on Count Two. Denk-
ler appeals his sentence, arguing that (1) the district 
court erred in considering the victim's statement to 
a federal agent because it lacked sufficient indicia 
of reliability to support certain fact findings that af-
fected the sentence, see U.S. Sentencing Guidelines 
Manual § 6A 1.3(a), p.s. (2005); (2) the district 
court clearly erred in finding that the victim's abil-
ity to appraise or control the situation was substan-
tially impaired after Denkler gave her vodka to 
drink, USSG § 2G1.3, comment. (n.5 (BXI)); and 
(3) the district court abused its discretion by depart-
ing upward pursuant to USSG § 4A1.3, iff.,li on the 
ground that criminal history category 
substan-
tially under-represented the seriousness o 
S crim-
inal history. We affirm. 
In August 2005, after serving an eight-month 
custodial sentence for taking indecent liberties with 
a thirteen-year-old girl, and then violating proba-
Page 2 
Lion, Denkler began serving six months electronic 
*
house arrest in Rocky Mount, No 
lina. 
Within a few days, using the name ' 
" he 
had somehow come in contact by telep one with a 
twelve-year-old girl, who told Denkler she wanted 
to leave home. On August 25, 2005, driving a car 
he had stolen from a former roommate, and in pos-
session of a credit card stolen from his mother, 
Denkler picked up the victim. 
On August 30, 2005, Denkler left the victim at 
a bus station in Des Moines after helping her call 
her grandparents f 
re. The victim told her 
grandparents that ' 
' had forced her to have 
intercourse multiple times. At a local hospital, the 
victim described the sexual contacts she had with 
Denkler to local authorities and a Federal Bureau of 
Investigation (FBI) agent, and identified him from a 
photographic line-up. She told investigators that 
Denkler had threatened to kill her if she did not 
have sex with him, and when she refused to per-
form oral sex on him, he choked her until she 
nearly passed out to make her comply. The victim 
said Denkler refused to let her call her grandparents 
during *338 the trip. She told the FBI agent that 
Denkler slapped her and pulled her hair and made 
her drink a glass of vodka. She also said Denkler 
told her that, if he went to jail because of her, he 
would kill her when he got out, and that he would 
kill her if she was pregnant with his child and had 
an abortion or gave up the child. 
The results of the medical examination were 
not made available to the investigators or, later, to 
the court, and investigators were not able to obtain 
independent evidence that Denkler used force or 
threats with the victim because she had showered 
and had been swimming since the last time she and 
Denkler had intercourse, and the motel room where 
the last intercourse occurred had been cleaned. 
**2 Denkler was arrested on September 1, 
2005, in Colorado. He told authorities that he and 
the victim had consensual intercourse several times 
during the trip, but denied using force or threats. He 
said that, on the first night they spent in a motel, 
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232 Fed.Appx. 336 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 (N.C.)) 
(ate as: 232 Fed.Appx. 336) 
they ha 
vodka together, after which the vic-
tim got' rand they had intercourse. 
After Denkler's guilty plea, the probation of-
ficer calculated the offense level for the sex offense 
under U.S. Sentencing Guidelines Manual § 2O1.3 
(2005) (Transportation of Minors to Engage in Pro-
hibited Sexual Contact with a Minor). Denkler had 
9 criminal history points, which placed him in crim-
inal history category IV. However, because he qual-
ified for sentencing as a repeat and dangerous sex 
offender against minors, seeUSSG § ri., 
, 
he 
was
placed in criminal history category 
The recom-
mended advisory guideline range was 168-210 
months imprisonment. 
With advance notice to the parties, the district 
court decided to apply a cross reference in USSG § 
2G1.3(cX3) for offenses involving conduct de-
scribed in 18 U.S.C.A. § 2241(a) or (b) (West 2000 
& Supp.2006), to USSG 2A3.I (Criminal Sexual 
Abuse). The court determined that the cross refer-
ence applied because it found as a fact that Denider 
used force to engage in sexual conduct with the vic-
tim, see§ 201.3, comment. (n.5(BXiX1)), and also 
forced her to drink vodka, which substantially im-
paired her ability to appraise or control her conduct, 
see id.(n.5 (BXiXIV)). The offense level calculated 
under § 2A3.I produced a higher offense level than 
§ 2G1.3 or USSG § 4B1.5 (Repeat and Dangerous 
Sex Offender Against Minors); accordingly, the 
court applied it. 
At sentencing, after the FBI agent who inter-
viewed the victim in the hospital in Des Moines 
testified, the district court found as a fact that Den-
kler had used force to engage in sexual conduct 
with the victim. The court consequently determined 
that § 2A3.1 applied and recalculated the guideline 
range as 262-327 months. The court then departed 
upward, pursuanio USSG § 4A1.3, from criminal 
ry
histo 
category 
to category VI, which increased 
the guideline range to 292-365 months. After con-
sidering the factors set out in 18 U.S.C.A. § 
3553(a) (West 2000 & Supp.2006), the court im-
posed a sentence of 360 months on Count One and 
Page 3 
a concurrent 120-month sentence (the statutory 
maximum) on Count Two. A natively, the court
I
stated that, "even if category 
were the appropri-
ate criminal history category, 
e court would sen-
tence Denkler, pursuant to a variance, to the same 
sentence of 360 months for Count One and 120 
months for Count Two, to run concurrently," be-
cause his threats to kill the victim if he went to jail 
or if she became pregnant and aborted or gave up 
the child increased the seriousness of the offense 
and were not accounted for in the offense level. 
[1] On appeal, Denkler first challenges the dis-
trict court's application of § 2A3.I*339 on the 
ground that the district court erred in relying on in-
formation that lacked sufficient indicia of reliability 
when it determined that he used threats and force to 
engage in sex with the victim. Policy statement § 
6A1.3(a) provides that, in resolving disputes about 
sentencing factors, the district court "may consider 
relevant information without regard to its admissib-
ility under the rules of evidence applicable at trial, 
provided that the information has sufficient indicia 
of reliability to support its probable accuracy." 
**3 Denkler fast contends that allowing sen-
tencing courts to rely on he 
violates the Sixth 
a"
Amendment, citing Crawford 
Washington, 541 
U.S. 36, 124 S.Ct. 1354, 158 
.Ed.2d 177 (2004) 
(addressing right of confrontation at trial), but con-
cedes that other circuits have held that Crawford 
i c
does not appl 
to sentencing hearings. See, e.g., 
United States 
•
Chau, 426 F.3d 1318, 1323 (11th 
Cir.2005). De ler principally argues that the dis-
trict court should not have relied on the victim's 
statements to investigators, asserting that she 
wished to portray herself in a sympathetic light to 
her grandparents, and to place the blame for the 
anxiety she caused them on Denkler. 
Denkler maintains that the district court ig-
nored certain facts, such as, that the victim used the 
screen name "sexysatinangel" when text messaging 
on her cell phone, sexually explicit language was 
used in some of her text message exchanges, and 
the clothing she brought on the trip included lace 
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232 Fed.Appx. 336 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 (N.C.)) 
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thong panties, black lace panties, and a sleeveless 
shirt with the phrase "no boundaries" on it. Denkler 
also argues that the court ignored the fact that the 
medical examination of the victim revealed no in-
dication of forcible intercourse, bruises, or serious 
injuries. He points out that the medical examination 
form states that the victim answered "Yes," when 
asked whether she had "any consensual coitus in 
the previous 72 hours" With respect to this ques-
tion, the FBI agent who interviewed the victim test-
ified at sentencing that the doctor who filled out the 
form told her the question was meant to determine 
whether there had been recent sexual activity, not 
whether it had actually been consensual. The agent 
also testified that the victim was cooperative with 
her and with the hospital staff, and was "very hon-
est and very credible." 
Even though authorities were unable to find 
evidence to substantiate the victim's statements, we 
conclude that her statements had sufficient indicia 
of reliability to support their probable accuracy. 
She submitted willingly to a medical examination 
and to interviews by local and federal authorities, 
and acknowledged that she had engaged in text 
messaging with other men. Her statement to the 
FBI agent was consistent with her previous state-
ment to local police. Therefore, the district court 
did not err in relying on her statements. 
Denkler also contends that the district court 
clearly erred in finding that the victim's ability to 
appraise or control the situation was substantially 
impaired after she drank alcohol because the court 
lacked the information necessary to reach that con-
clusion. We need not decide this issue because the 
district court's finding that Denkler used force 
against the victim to engage in sex with her was 
supported by the victim's statement and that finding 
is sufficient to trigger the application of § 2A3.I. 
(21 Finally, Denkler maintains that the district 
court abused its discretion has departing upward 
from criminal history category I to category VI. In 
his view, the guideline sentence adequately accoun-
ted for his past criminal conduct and the court de-
Page 4 
parted merely because it was dissatisfied with the 
length of the guideline sentence.*340 Denkler does 
not challenge the court's determination that a depar-
ture was also warranted based on the high likeli-
hood of recidivism. 
II
**4 Following United States 
Booker, 543 
U.S. 220, 125 5.O. 738, 160 L.Ed. d 621 (2005), 
we revjiew a sentence for reasonableness. United 
States i Hernandez-Villanueva, 473 F.3d 118, 123 
(4th Cir.2007). "When we review a sentence out-
side advisory sentencing range-whether as a 
product of a departure or a variance-we consider 
whether the sentencing court acted reasonably both 
with respect to its decision to impose such a sen-
tence and with respect to the extent of the diver-
gence from the range ...." Id. A departure pursuant 
to § 4A1.3 is encouraged, provided that the crimin-
al history category does not account adequately for 
his past criminal conduct or the likelihooi that he 
will commit other crimes. United States 
Dixon, 
318 F.3d 585, 588 (4th Cir.2003). 
slic
Here, the di 
• t court decided that criminal 
history category 
substantially underrepresented 
Denkler's criminal istory, even though the applica-
tion
I
of § 4B1.5 had 
eady raised him from cat-
egory IV to category 
First, the court noted that 
Denkler was prosecute in the juvenile court sys-
tem in Kentucky for stealing his father's car. This 
finding is based solely on a statement to investigat-
ors by Denkler's estranged father that is contained 
in the presentence report. Although Denkler did not 
dispute it, no official record of the charge and its 
disposition was available. The court decided that 
the offense was similar to Count Two, transporta-
tion of a stolen vehicle, and that it could consider 
both juvenile offenses and prior similar conduct as 
a basis for departure. While not exhaustive, the 
factors suggested in § 4A1.3(a) as possible bases 
for upward departure include "(plrior sentence(s) 
not used in computing the criminal history cat-
egory," and "Nrior similar adult conduct not res-
ulting in a criminal conviction." USSG § 4A1.3 
(aX2XA), (E) (emphasis added). 
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232 Fed.Appx. 336 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 (N.C.)) 
(Cite as: 232 Fed.Appx. 336) 
Second, the district court considered the fact 
that Denkler had previously been charged with stat-
utory rape (for which the court estimated he would 
have received a custodial sentence of at least 192 
months), was permitted to plead guilty to a lesser 
offense, served a short custodial sentence, violated 
his probation and then, after being placed on house 
arrest, absconded to engage in the criminal conduct 
that resulted in his current prosecution. The back-
ground commentary to § 4A1.3 suggests that a de-
fendant who has a history of serious offenses for 
which he has received very lenient sentences may 
be in a category that underrepresents his criminal 
history. The court found that Denkler fit this de-
scription. 
Last, the court decided that category' did not 
adequately represent the likelihood that Denkler 
would commit similar crimes in the future. The 
court noted that Denkler had been prosecuted for 
sexual intercourse with a thirteen-year-old girl and 
a twelve-year-old girl, and for assaulting another 
female.Fm The court found that Denkler's conduct 
showed that he had no respect for the law and had 
"a strong tendency to revert to grossly inappropri-
ate behavior toward females, particularly young 
girls." The court decided that category VI best rep-
resented his criminal history and likelihood of re-
cidivism. 
FN1. Denkler received one criminal his-
tory point for a sentence of 30 days cus-
tody and 36 months unsupervised proba-
tion after he was convicted in 2002 of mis-
demeanor assault on a female. 
•"5 Denkler argues that category I adequately 
addressed his criminal history because it took into 
account his repeated sexual offenses involving 
minors, his custodial status when he committed the 
instant •341 offense, and the recency of the prior 
conviction, and he emphasizes that he was awarded 
criminal history points for all his serious adult sen-
tences. Denkler maintains that the court erred in as-
suming that he would necessarily have been found 
guilty of statutory rape had he gone to trial instead 
Page 5 
of pleading guilty to the lesser offense, and would 
automatically have received a sentence of 192 
months imprisonment. He further maintains that his 
juvenile conviction for stealing his father's car was 
not counted because the sentence and the offense 
were not sufficiently serious, and that the district 
court decided otherwise without adequate basis for 
doing so. 
After carefully considering Denkler's argu-
ments, we conclude that the district court's decision 
to depart pursuant to § 4A1.3 was reasonable. Den-
kler had twice received lenient sentences in state 
court for offenses against females and, rather than 
comply with the conditions of probation, he initi-
ated the instant offense. The district court based its 
decision to depart in part on the under-rep-
resentation of Denkler's past criminal conduct and 
in part on the likelihood that he would commit fu-
ture crimes. Taking the two factors together, the 
district court could reasonably conclude that an up-
ward departure was warranted. 
We must also consider whether the extent of a 
departure is reasonable. Hernandez-Villanueva, 473 
F.3d at 123. Here, the court departed upward by 
one category. The resulting guideline range was 
292-365 months, and the sentence of 360 months 
(the statutory maximum) was within the departure 
range. The court explained that it chose the maxim-
um sentence in light of several factors set out in § 
3553(a), specifically, "the need to protect the pub-
lic, to deter this defendant, to reflect the seriousness 
of the offense, and to provide just punishment." 
The court further stated that it imposed a sentence 
at the top of the guideline range because of Denk-
ler's "history of violence and predatory behavior, 
and the court's views on his likelihood to commit 
similar crimes if released earlier." 
The top of the pre-departure range in this case 
was 327 months, thirty-three months less than the 
sentence imposed. While it is impossible to be say 
whether Denkler would exhibit the same predatory 
tendencies if he were released after a term of im-
prisonment 327 months, or another term of impris-
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232 Fed.Appx. 336 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 (N.C.)) 
(Cite as: 232 Fed.Appx. 336) 
onment that is less than 360 months, the court reas-
onably concluded that only the maximum sentence 
was adequate to protect potential victims and pun-
ish Denkler for the offenses he committed. We con-
clude that the length of the sentence was reason- able. 
We therefore affirm the sentence imposed by 
the district court. We dispense with oral argument 
because the facts and legal contentions are ad-
equately presented in the materials before the court 
and argument would not aid the decisional process. 
**6 AFFIRMED. 
C.A.4 (N.C.),2007. 
U.S. I. Denkler 
232 Fed.Appx. 336, 2007 WL 2012431 (C.A.4 
(N.C.)) 
END OF DOCUMENT 
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