US v. Steve Singo


UNPUBLISHED PER CURIAM OPINION filed.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]

Download PDF
Appeal: 16-4409 Doc: 30 Filed: 02/24/2017 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4409 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEVE G. SINGO, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4409 Doc: 30 Filed: 02/24/2017 Pg: 2 of 6 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 Appeal: 16-4409 the Doc: 30 conduct Filed: 02/24/2017 of excluded. an Id. omitted). offense must (internal Singo’s Pg: 3 of 6 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 Appeal: 16-4409 Doc: 30 download and Filed: 02/24/2017 share images Pg: 4 of 6 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) 4 Appeal: 16-4409 Doc: 30 Filed: 02/24/2017 Pg: 5 of 6 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. 5 Appeal: 16-4409 Doc: 30 Filed: 02/24/2017 Pg: 6 of 6 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 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?