Case: 15-10242   Date Filed: 08/27/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10242
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:14-cr-00156-ACC-TBS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

BRIAN JOHN MCREE, SR.,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 27, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Brian McRee, Sr. appeals his sentences for sexual enticement of a minor and

possession of child pornography. McRee argues that his sentences were

procedurally unreasonable because the district court: (a) increased his sentences

pursuant to both U.S.S.G. § 4B1.5(b)(1) and § 2G2.2(b)(5), resulting in double

counting, (b) relied on his status as a former police officer in imposing higher

sentences, (c) increased his sentences under both § 2G2.2(b)(4) and (b)(2),

resulting in double counting, and (d) applied a two-level increase under

§ 2G2.2(b)(6) for using a computer, when almost all child pornography offenses

involve the use of a computer. Finally, McRee argues that because of those

procedural errors, his sentences were substantively unreasonable.

                                         I(a).

      First, McRee argues that the district court erred by applying a five-level

pattern of activity enhancement, under U.S.S.G. § 4B1.5(b)(1), after grouping the

enticement and possession offenses, because that section explicitly does not apply

to possession of child pornography offenses. Furthermore, the court had already

applied a five-level increase for pattern of activity within the possession of child

pornography guideline, under § 2G2.2(b)(5), and so adding the second pattern of

activity enhancement amounted to double counting.

      We review a claim of double counting under the Guidelines de novo. United

States v. De La Cruz Suarez, 

, 1220 (11th Cir. 2010). Impermissible


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double counting occurs only 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 fully

accounted for by application of a different part of the guidelines. 

a factor during sentencing is permissible if the Sentencing Commission

intended the result, and if each section concerns conceptually separate notions

related to sentencing. 

that the Sentencing Commission intended

separate guideline sections to apply cumulatively, unless specifically directed

otherwise. United States v. Matos-Rodriguez, 

, 1310 (11th Cir.

1999).

      Section 2G2.2(b)(5) of the sentencing guidelines provides for a five-level

increase if the defendant engaged in a pattern of activity involving the sexual abuse

or exploitation of a minor. Section 4B1.5(b)(1) applies to repeat and dangerous

sex offenders against minors, and provides that, in any case in which the

defendant’s offense of conviction is a covered sex crime and the defendant

engaged in a pattern of activity involving prohibited sexual conduct, the offense

level shall be five plus the offense level determined under Chapters Two and

Three. Sexual enticement of a minor is a covered sex crime, but possession of

child pornography is not. See U.S.S.G. § 4B1.5 cmt. (n.2).

      The district court did not err in applying § 4B1.5(b)(1) because the plain

language of § 4B1.5(b)(1) requires that that enhancement be applied after the


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offense level is calculated under Chapters Two and Three. Furthermore, applying

both sections is permissible because each concerns conceptually different notions

related to sentencing.

                                         I(b).

      Second, McRee argues that the district court’s reliance on McRee’s history

as a former police officer in imposing an upward variance was reversible error.

      An error in the district court’s calculation of the sentencing guidelines range

warrants vacating the sentence, unless the error is harmless. United States v.

Barner, 

, 1247 (11th Cir. 2009). Where a district court clearly states

that it would impose the same sentence, even if it erred in calculating the

guidelines, any error in the calculation is harmless. 

      There was no upward variance in this case, but to the extent that McRee

argues that consideration of his status as a former police officer resulted in higher

sentences within the guideline range, any error was harmless, because the district

court stated that it would apply the same sentences if it did not consider his status.

Accordingly, there was no error on this ground.

                                         I(c).

      Third, McRee argues that the district court plainly erred by applying both

U.S.S.G. § 2G2.2(b)(4) and § 2G2.2(b)(2), because using both enhancements

resulted in impermissible double counting.


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       An appellate court may not correct an error the defendant failed to raise in

the district court unless it is an error that is plain and that affects substantial rights.

United States v. Rodriguez, 

, 1298 (11th Cir. 2005). If all three of

those conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings. 

be plain under

controlling precedent or in view of the unequivocally clear words of a statute or

rule. United States v. Lett, 

, 790 (11th Cir. 2007).

       Under § 2G2.2(b)(2), the district court applies a two-level increase to the

defendant’s offense level if the material involved a prepubescent minor or a minor

who had not attained the age of 12 years. If the material portrays sadistic or

masochistic conduct or other depictions of violence, the district court applies a

four-level increase under § 2G2.2(b)(4). There is every indication that the

Sentencing Commission intended each applicable provision of § 2G2.2 to apply

cumulatively. United States v. Cubero, 

, 894 (11th Cir.), cert. denied

(No. 14-16921) (U.S. Dec. 8, 2014). Therefore, the district court did not plainly

err in applying both enhancements, because our binding precedent holds that each

applicable provision of § 2G2.2 applies cumulatively.




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                                         I(d).

      Fourth, McRee argues that the district court plainly erred when it applied a

two-level enhancement under U.S.S.G. § 2G2.2(b)(6) for use of a computer and

cell phone, because, with technology today, child pornography offenses will almost

always involve the use of a computer.

      Section 2G2.2(b)(6) provides for a two-level increase in offense level if the

offense involved the use of a computer or an interactive computer service for the

possession, transmission, receipt, or distribution of the material, or for accessing

with intent to view material involving the sexual exploitation of a minor. We have

stated that Commission report that McRee cites as undermining the enhancements

under § 2G2.2 did “not change the statutory sentencing scheme, the applicable

sentencing guidelines, or the binding precedent about § 2G2.2 in this Circuit.”

.

      McRee admitted to investigators that he communicated with several children

over the internet about sex and that he downloaded images and videos of child

pornography off of the internet and stored them on a laptop and thumb drives, and

he does not challenge those admissions on appeal. Those facts are sufficient to

support this enhancement, and so the district court did not plainly err.




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                                          II.

      Finally, McRee argues that, in light of his objections to the procedural

reasonableness of his sentences, his sentences and the upward variance were

substantively unreasonable. He also points to his lack of criminal history and

argues that other people who committed more serious crimes than him have less

severe sentences.

      We review the reasonableness of a sentence using a deferential abuse of

discretion standard of review. United States v. Irey, 

, 1188-89 (11th

Cir. 2010) (en banc). The party challenging the sentence has the burden of

demonstrating that the sentence is unreasonable in light of the record and factors

outlined in 18 U.S.C. § 3553(a). United States v. Gonzalez, 

, 1324

(11th Cir. 2008). In evaluating the reasonableness of a sentence, we follow a two-

step process, first determining whether the sentence is procedurally reasonable, and

then if necessary, determining whether the sentence is substantively reasonable.

A sentence may be procedurally unreasonable if the sentencing

court fails to consider the factors set forth in § 3553(a), considers the Guidelines

mandatory, fails to properly calculate the appropriate guideline range, or fails to

adequately explain the chosen sentence. 

      In reviewing for substantive reasonableness, we examine the totality of the

circumstances and ask whether the statutory factors in 18 U.S.C. § 3553(a) support


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the sentence in question. 

The weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court.

United States v. Clay, 

, 743 (11th Cir. 2007).

      First, there was no upward variance, and so McRee’s arguments to that

effect fail. Second, McRee’s objection to the substantive reasonableness of his

sentences rests on the other sentencing issues he raises on appeal, and, because

there was no error in any of the other issues, this argument also must fail. To the

extent McRee argues that his sentences were substantively unreasonable because

the district court did not give enough weight to his lack of criminal history, the

weight to be given to each § 3553 factor is committed to the discretion of the

district court. McRee’s sentences are not substantively unreasonable.

Accordingly, we affirm.

      AFFIRMED.




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