USA v. Thomas K. Tanner, No. 09-16379 (11th Cir. 2010)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-16379 DEC 08, 2010 ________________________ JOHN LEY CLERK D. C. Docket No. 09-00132-CR-ORL-22GJK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus THOMAS K. TANNER, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (December 8, 2010) Before BARKETT and MARTIN, Circuit Judges, and HUNT,* District Judge. PER CURIAM: * Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of Georgia, sitting by designation. Thomas K. Tanner appeals his 262-month sentence following a plea of guilty for distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). Tanner seeks reversal of his sentence arguing that the district court erred in finding that he had a prior conviction that subjected him to an increased minimum and maximum sentence under 18 U.S.C. § 2252A(b)(1). On this record, we find no reversible error. In evaluating Tanner s prior conviction for sentencing purposes, the district court did not err in considering the state court indictment for his prior conviction in light of the ambiguity in the state court s final judgment in that case. See United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273-74 (11th Cir. 2006). Based thereupon, the district court did not err in determining that Tanner had a prior conviction in state court for the felony exposure of his sexual or genital parts to a child under Virginia Code § 18.2-370, which supports the sentence imposed within the increased statutory range of 15 to 40 years as set forth in § 2252A(b)(1). AFFIRMED. 2
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