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United States v. Snow, 01-20129 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-20129 Visitors: 3
Filed: Oct. 11, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-20129 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LARRY GILBERT SNOW, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-537-ALL - October 9, 2001 Before DAVIS, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Larry Gilbert Snow appeals his conviction and sentence for possession of child pornography in violation of 18 U.S.C. § 2252A
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-20129
                         Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

LARRY GILBERT SNOW,

                                          Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. H-00-CR-537-ALL
                       --------------------
                          October 9, 2001

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Larry Gilbert Snow appeals his conviction and sentence for

possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B).   He contends that the statute of conviction is

unconstitutionally vague and overbroad.     This argument is

foreclosed by circuit precedent.    See United States v. Fox, 
248 F.3d 394
, 406-07 (5th Cir. 2001).   Although the issue is pending

before the Supreme Court, this court must continue to follow its

own precedent even when the Supreme Court grants certiorari on an

issue.   See Ellis v. Collins, 
956 F.2d 76
, 79 (5th Cir. 1992).

     *
        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that this opinion should not be published and is not precedent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.
                           No. 01-20129
                                -2-

     Snow contends that the district court erred in applying

U.S.S.G. § 2G2.2, the guideline governing pornography

trafficking, in calculating his base offense level.   The facts as

set forth in the presentence investigation report reveal that

Snow had sent a pornographic image to a customs agent, had

admitted to sending and receiving images on the morning agents

searched his home, and had sent images to another individual.

Snow contends that the district court should not have considered

his transmission of an image to the customs agent because the

agent contacted him first, and using that to enhance his sentence

would constitute sentencing entrapment.    This court has not had

to determine whether sentencing entrapment is a cognizable

defense to a sentence.   United States v. Washington, 
44 F.3d 1271
, 1280 n.28 (5th Cir. 1995).   However, even if it were

considered here, Snow has failed to show that the government

agent persuaded Snow to commit a greater criminal offense than he

was predisposed to commit or that the agent’s conduct was

outrageous, resulting in sentencing factor manipulation.      See

United States v. Sanchez, 
138 F.3d 1410
, 1414 (11th Cir. 1998).

Snow’s challenge to the base offense level fails.

     Snow also asserts that the district court abused its

discretion in imposing a special condition of supervised release

which prohibited Snow from possessing a personal computer or

accessing any non-work-related computer.    To the extent that Snow

is challenging the denial of Internet access from a home

computer, his challenge would be foreclosed by his specific

request to place this restriction on him.   To the extent that he
                           No. 01-20129
                                -3-

is challenging the court’s refusal to allow him to possess a home

computer, Snow cannot show an abuse of discretion on the part of

the district court, as he has failed to show that the limitation

is unreasonably broad under the facts of the case.   See United

States v. Coenen, 
135 F.3d 938
, 940 (5th Cir. 1998); U.S.S.G.

§ 5D1.3(b).   To the extent that Snow is challenging the district

court’s limitation of his use of non-home computers that are not

related to his employment, he failed to challenge that limitation

in the district court, and review would be for plain error.       See

United States v. Ruiz, 
43 F.3d 985
, 988 (5th Cir. 1995).    The

district court’s explanation of its intent behind the restriction

makes it apparent that although the use of non-home computers was

not favored, the court accepted the possibility that Snow could

do so.   Under the facts of this case, Snow has failed to show

that the special condition constituted a “greater deprivation of

liberty than is reasonably necessary” for the purposes of

rehabilitation and protection of the public.   See U.S.S.G.

§ 5D1.3(b).   Consequently, the district court’s judgment is

AFFIRMED.

Source:  CourtListener

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