US v. Steve Singo

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00027-FPS-JES-1. Copies to all parties and the district court. [1000030017]. [16-4409]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4409

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVE G. SINGO,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:15-cr-00027-FPS-JES-1)

Submitted:

January 26, 2017

Decided:

February 24, 2017

Before TRAXLER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Donald J. Tennant, Jr., TENNANT LAW OFFICES, Wheeling, West
Virginia, for Appellant.
William J. Ihlenfeld, II, United
States Attorney, Stephen L. Vogrin, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Steve G. Singo was convicted after a jury trial of receipt
and distribution of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2)(A),

(b)(1)

(2012),

and

possession

of

child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2),
and was sentenced to 97 months’ imprisonment.

Singo appeals his

sentence, arguing that the district court erred in applying the
two-level

enhancement

for

distribution

under

Guidelines Manual § 2G2.2(b)(3)(F) (2015).

U.S.

Sentencing

We affirm.

Singo maintains that the calculation of his base offense
level under USSG § 2G2.2(a)(2) accounted for his distribution of
child pornography and that the two-level enhancement he received
under USSG § 2G2.2(b)(3)(F) for distribution thus amounted to
impermissible double counting.

“Double counting occurs when a

provision of the Guidelines is applied to increase punishment on
the basis of a consideration that has been accounted for by
application of another Guideline provision or by application of
a

statute.”

United

States

v.

Dowell,

771

F.3d

(4th Cir. 2014) (internal quotation marks omitted).

162,

170

“It is well

established that the Sentencing Commission plainly understands
the concept of double counting, and expressly forbids it where
it is not intended.”
(4th

Cir.

omitted).

2003)

United States v. Schaal, 340 F.3d 196, 198

(internal

quotation

marks

and

alteration

“Accordingly, an adjustment that clearly applies to
2

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the

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conduct

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of

excluded.

an

Id.

omitted).

offense

must

(internal

Singo’s

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claim

be

imposed

quotation
of

unless”

marks

and

impermissible

expressly
alteration

double

counting

involves a legal interpretation of the Guidelines that we review
de novo.

See id.

Under USSG § 2G2.2(b)(3)(F), a defendant’s offense level is
to

be

increased

by

two

levels

for

distribution

of

child

pornography that is not to minors and is not for money or other
things of value.
include

“any

distribute,

The term “distribution” is broadly defined to
act,

including

production,

possession

transmission,

with

intent

advertisement,

to
and

transportation, related to the transfer of material involving
the sexual exploitation of a minor.”
(emphasis

added).

This

court

has

USSG § 2G2.2 cmt. n.1
held

that

“use

of

a

peer-to-peer file-sharing program constitutes ‘distribution’ for
the

purposes

Layton,

[USSG]

F.3d

564

of

330,

§ 2G2.2(b)(3)(F).”
335

(4th

Cir.

United

2009).

States

Thus,

v.

“[w]hen

knowingly using a file-sharing program that allows others to
access

child

‘related

to

pornography
the

transfer

exploitation of a minor.’”
Here,

undisputed

files,
of

a

defendant

material

commits

involving

the

an

act

sexual

Id. (quoting USSG § 2G2.2 cmt. n.1).

information

in

the

presentence

report

adopted by the district court makes clear that Singo’s offense
conduct

included

his

use

of

a
3

file-sharing

network

both

to

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download

and

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share

images

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and

videos

of

child

pornography.

Singo thus committed an act “related to the transfer of material
involving the sexual exploitation of a minor.”
cmt. n.1.

USSG § 2G2.2

There is no indication from the record that Singo’s

distribution in this regard was to minors or for money or other
things of value; accordingly, the two-level enhancement under
USSG § 2G2.2(b)(3)(F) was to be applied for his distribution
behavior

unless

the

enhancement

was

prohibited

by

another

Guidelines provision or statute.
Singo concedes that there is “no explicit language” in USSG
§ 2G2.2

that

behavior,”

would

prohibit

including

the

double

particular

counting

for

behavior

“any

of

given

using

a

file-sharing network to download and share images and videos of
child pornography. 1

He further has not identified any other

Guideline or statutory provision that would expressly forbid the
applicability of the two-level distribution enhancement in his
case. 2

We further observe that other Courts of Appeals that have

1

We observe that Singo references on appeal the two-level
reduction in USSG § 2G2.2(b)(1) in support of his argument of
double counting.
Singo, however, does not explain how the
reduction — which he does not contend applies in his case —
supports his conclusion that impermissible double counting
occurred.
We therefore reject this argument as a basis to
vacate Singo’s sentence.
2

Singo also references 18 U.S.C. § 2252A(a)(2)(A) and the
lack of a special interrogatory submitted to the jury.
Singo,
however, neither establishes the relevance of a lack of such
(Continued)
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addressed the issue have rejected double counting objections to
the

application

of

USSG

§ 2G2.2(b)(3)(F)

child pornography distribution.

in

prosecutions

for

See United States v. Walters,

775 F.3d 778, 784-85 (6th Cir.), cert. denied, 135 S. Ct. 2913
(2015); United States v. Cubero, 754 F.3d 888, 893-95 (11th Cir.
2014); United States v. Reingold, 731 F.3d 204, 227-28 (2d Cir.
2013);

United

(1st Cir.
335-36

States

2012);

(10th

United

Cir.

v.

Chiaradio,

States

2010).

We

v.

684

Frakes,

therefore

F.3d
402

265,

282-83

F. App’x

conclude

that

332,
the

district court did not err in applying the two-level enhancement
under USSG § 2G2.2(b)(3)(F) in this case. 3

interrogatory to his case nor contends that 18 U.S.C. § 2252A
expressly prohibits application of the two-level enhancement
under USSG § 2G2.2(b)(3)(F).
We therefore reject these
references as bases for vacating Singo’s sentence.
3

Singo also devotes a portion of his brief to recounting:
conclusions
and
recommendations
made
by
the
Sentencing
Commission regarding the emphases placed by the sentencing
scheme set forth in USSG § 2G2.2, a summarily-made argument that
“the Guidelines” fail to “meaningfully distinguish” between
“non-contact offenders” like himself and others “who physically
exploit and do harm to children,” decisions by various other
Circuit and district courts rejecting § 2G2.2 and sentences
based thereon on policy grounds or as otherwise unreasonable, a
request that this court adopt these courts’ “skeptical view” of
USSG § 2G2.2, and a conclusion that these matters “demonstrate
the frustration that the advisory guideline provides for
sentencing in the child pornography area.”
Because Singo does
not explain how these matters support his claim of impermissible
double counting in the application of the enhancement under USSG
§ 2G2.2(b)(3)(F), we also reject them as bases for vacating his
sentence.

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Accordingly, we affirm the criminal judgment.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

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