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United States v. Williams, 00-10534 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 00-10534 Visitors: 5
Filed: Feb. 21, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-10534 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENNETH RAY WILLIAMS, Defendant-Appellant. - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:99-CR-120-1-C - February 16, 2001 Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges. PER CURIAM:* Kenneth Ray Williams appeals from his conviction for interstate transportation of child pornography in violation o
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-10534
                         Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

KENNETH RAY WILLIAMS,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 5:99-CR-120-1-C
                      --------------------
                        February 16, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

     Kenneth Ray Williams appeals from his conviction for

interstate transportation of child pornography in violation of 18

U.S.C. § 2252A(a)(1) and possession of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B).    Finding no error, we

affirm.

     Williams first argues that the district court erred in

denying his motion for the Government to produce a mirror image

of his computer hard drive so that his expert could test it for

     *
        Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.

                                 1
viruses.    We review the district court's rulings during the

discovery process for an abuse of discretion.       See United States

v. Dukes, 
139 F.3d 469
, 476 (5th Cir. 1998).      We find that the

Government offered to provide Williams with reasonable access to

the seized hard drive and that the district court did not abuse

its discretion in denying the motion.       See United States v.

Kimbrough, 
69 F.3d 723
, 730-31 (5th Cir. 1995); 
Dukes, 139 F.3d at 476
.

     Williams next argues that the district court erred in

admitting into evidence a box containing adult and child

pornography, including the images that formed the basis of the

offense of conviction for possession of child pornography,

because the evidence was more prejudicial than probative and the

district court failed to review the evidence before making its

ruling.    We find that Williams has failed to show an abuse of

discretion and that the evidence was properly admitted under Fed.

R. Evid. 404(b).    See United States v. Layne, 
43 F.3d 127
, 133-34

(5th Cir. 1995).    We further find that the district court's

limiting instruction on evidence of other acts tempered any

prejudice caused by the evidence.     
Id. Finally, Williams
argues that his sentence should not have

been enhanced under U.S.S.G. § 2G2.2(b)(3) because the images for

which he was convicted were not sadistic, masochistic or violent

in nature.    Because the record before us fails to show that

Williams objected on this basis in the district court, we would

ordinarily review the argument for plain error.       See United

States v. Cabral-Castillo, 
35 F.3d 182
, 188-89 (5th Cir. 1994).

                                  2
However, questions of fact capable of resolution by the district

court upon proper objection at sentencing can never constitute

plain error.    United States v. Vital, 
68 F.3d 114
, 119 (5th Cir.

1995).   Moreover, Williams failed to order a transcript of the

sentencing proceedings.    See Fed. R. App. P. 10(b).   This court

will not consider an issue about which the record on appeal is

insufficient.   See United States v. Johnson, 
87 F.3d 133
, 136 n.1

(5th Cir. 1996).

     The judgment of the district court is AFFIRMED.




                                  3

Source:  CourtListener

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