A published panel said a distribution enhancement did not double count conduct already captured by the federal child pornography guideline.
What happened
The Eighth Circuit affirmed William Aloys Wameling Jr.'s 300-month prison sentence Wednesday, rejecting his argument that a federal judge impermissibly double counted his conduct by adding a two-level enhancement for distributing child pornography.
In a published per curiam opinion, Judges L.R. Smith, Benton and Stras said the enhancement under U.S.S.G. § 2G2.2(b)(3)(F) did not duplicate the base offense level tied to Wameling's conviction under 18 U.S.C. § 2252(a)(2). The panel summed up the point directly: "This does not constitute double counting."
Wameling pleaded guilty without a written plea agreement to distribution and possession counts under § 2252. The opinion says he sent child pornography to an undercover law enforcement officer, and officers later found numerous images and videos on his phone.
The probation office calculated a total offense level of 34 and a criminal history category of II, producing an advisory range of 180 to 210 months. The district court adopted those calculations, then varied upward and imposed 300 months on the distribution count and 240 months on the possession count, to run concurrently.
On appeal, Wameling argued that the same distribution conduct was counted once in his base offense level and again through the two-level distribution enhancement. Because he had not objected to the enhancement in district court, the Eighth Circuit reviewed only for plain error.
The panel rejected the premise of his challenge. Section 2252(a)(2), the court explained, covers several forms of conduct, including receiving, distributing and reproducing child pornography, so the base offense level did not already account for the specific fact that Wameling distributed the material rather than received or reproduced it.
The opinion also pointed to similar reasoning from other circuits, citing decisions from the Eleventh, Sixth and Second circuits. With no error, plain or otherwise, the panel affirmed the judgment.