USA v. David Williford
UNPUBLISHED OPINION FILED. [17-30108 Affirmed] Judge: FPB, Judge: LHS, Judge: GJC. Mandate issue date is 11/16/2017 for Appellant David K. Williford [17-30108]
Date Filed: 10/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
October 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
DAVID K. WILLIFORD,
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:15-CR-107-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
David K. Williford appeals the 72-month, within-guidelines prison term
that he received after entering a guilty plea to one count of receiving child
pornography. In challenging his sentence, he raises the following claims.
First, Williford argues that the district court erroneously applied
U.S.S.G. § 2G2.2 because it lacks an empirical basis and does not distinguish
between the least and most culpable defendants. He concedes, however, that
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 10/25/2017
the issue is foreclosed by United States v. Miller, 665 F.3d 114 (5th Cir. 2011),
but asks this court to reconsider Miller. One panel of our court may not
overrule the decision of another absent an intervening change in the law.
United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014). Accordingly, the
rule of orderliness prevents our reconsideration of Miller. See id.
Williford next argues that the district court procedurally erred by failing
to provide sufficient reasons for rejecting his challenge to the application of
§ 2G2.2, for enhancing his offense level under §2G2.2(b)(6) based on a finding
that a computer was used in his offense, and by failing to explain its imposition
of a 72-month prison term. Even if it is assumed that the district court’s
reasons were inadequate and constituted plain error, Williford has not shown
that a more extensive explanation would have changed the sentencing outcome
or his within-guidelines sentence. See United States v. Mondragon-Santiago,
564 F.3d 357, 364-65 (5th Cir. 2009). Accordingly, he has not shown any plain
error affecting his substantial rights. See id.
Regarding the § 2G2.2(b)(6) enhancement, Williford raises an additional
claim of procedural error.
Specifically, he observes that the Sentencing
Commission has criticized the enhancement because it applies in nearly every
child pornography case and that application of the enhancement constitutes
impermissible double counting. Section 2G2.2(b)(6) does not expressly prohibit
double counting. See United States v. Roetcisoender, 792 F.3d 547, 553 (5th
Cir. 2015). Accordingly, Williford has shown no error, plain or otherwise. See
id.; Miller, 665 F.3d at 121, 123.
In his last challenge to the guidelines calculations, Williford argues that
the district court erroneously assessed the five-level enhancement of
§ 2G2.2(b)(7)(D) based on a finding that his offense involved more than 600
He observes that there were conflicting reports addressing the
Date Filed: 10/25/2017
number of images involved in his offense and that the district court clearly
erred in choosing the report with the higher quantity. The district court’s
factual finding was plausible in light of the record taken as a whole and not
clearly erroneous. See United States v. Cedillo-Narvaez, 761 F.3d 397, 401 (5th
Cir. 2014); see also Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
Finally, Williford argues that the district court imposed a substantively
unreasonable sentence by failing to give sufficient weight to his 31-year
military career, his years of service as a firefighter, the fact that he did not
produce or distribute pornography, the conflicting evidence regarding the
quantity of photographs involved in his case, the lack of evidence regarding the
nature of the photographs, the fact that he had a low likelihood of recidivism
given his age, and the absence of any other criminal history. We discern no
error, plain or otherwise. See United States v. Heard, 709 F.3d 413, 425 (5th
Cir. 2013). The record reflects that the district court considered the 18 U.S.C.
§ 3553(a) factors and concluded that a within-guidelines sentence was
warranted. Williford’s arguments regarding the district court’s weighing of
those factors is insufficient to rebut the presumption of reasonableness
attaching to his within-guidelines sentence on appellate review. See United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008); Miller, 665 F.3d at 12426.
Accordingly, the judgment of the district court is AFFIRMED.
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