US v. Gregory Brunner, No. 09-4987 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4987 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GREGORY DONALD BRUNNER, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00016-RLV-DSC-1) Submitted: August 17, 2010 Decided: August 27, 2010 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Lawrence W. Hewitt, Justin N. Davis, GUTHRIE, DAVIS, HENDERSON & STATON, P.L.L.C., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory Donald computer files engaging in U.S.C.A. § 2252(a)(1), possession of that sexually a Brunner pled guilty contained visual explicit conduct, (b)(1) computer (West and transporting depictions in 2000 computer to & of minors violation Supp. disks of 2010), that 18 and contained numerous images of minors engaging in sexually explicit conduct, in violation of 18 U.S.C.A. § 2252(a)(4)(B), (b)(2) (West 2000 & Supp. 2010). of The district court sentenced Brunner to 151 months imprisonment and Brunner timely appealed. Counsel for Brunner filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but questioning whether the district court abused its discretion by imposing a two-level enhancement, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 2G2.2(b)(3)(F) (2008), when the parties did not stipulate to characteristic in the plea agreement. that specific offense Brunner did not file a pro se supplemental brief, although informed of his right to do so. The Government elected not to file an answering brief. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). This review requires consideration of both procedural and substantive reasonableness of a sentence. 2 the Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). To determine advisory whether Guidelines, a district properly application including court of applied any the sentencing enhancements, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). Here, the plea agreement specifically acknowledged that enhancements beyond those enumerated in the plea agreement could be assessed, stating: These stipulations do not affect either party s right to argue in favor of, or against, [USSG §] 2G2.2 enhancements and/or reductions not listed above. the Government was entitled to argue in support Thus, of the enhancement Brunner now challenges. Moreover, the district court correctly determined that the challenged enhancement was warranted. In Layton, this court explained that [t]he term distribution is broadly defined as any act, including production, transfer minor. n.1). possession advertisement, of material and with intent transportation, involving the sexual to distribute, related to exploitation the of a Layton, 564 F.3d at 335 (quoting USSG § 2G2.2 cmt. Thus, this court joined the Seventh, Eighth, and Eleventh Circuits in holding that where as here a defendant knowingly uses a peer-to-peer file-sharing program that allows others to 3 access child pornography files, that action enhancement pursuant to USSG § 2G2.2(b)(3)(F). defendant program in to Layton, find and Brunner knowingly exchange contraband. warrants Id. used a an Like the file-sharing Accordingly, the district court properly assessed the two-level enhancement. Having reviewed the record in this case and finding no meritorious issues for review, we affirm the district court s judgment. This court requires that counsel inform Brunner in writing of his right to petition the Supreme Court of the United States for further review. If Brunner requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may withdraw from representation. move this court for leave to Counsel s motion must state that a copy thereof was served on Brunner. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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