Professional Documents
Culture Documents
No. 06-4209
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:03-cr-00367-BO)
Submitted:
Decided:
September 6, 2007
PER CURIAM:
Brian Tod Schellenberger pled guilty by written plea
agreement and was convicted of four counts of sexual exploitation
of a child (Counts 1, 3-5), in violation of 18 U.S.C. 2251(a)
(2000); possession of child pornography (Count 2), in violation of
18 U.S.C.A. 2252(a)(4)(B) and (b)(2) (West 2000 & Supp. 2003);
and use of interstate commerce facilities for murder for hire and
aiding and abetting same (Count 6), in violation of 18 U.S.C.
1958(a)
and
(2000).
The
district
court
sentenced
It did so by imposing
erred
in
calculating
his
guideline
sentence
of
life
Finding no
error, we affirm.
I.
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court held that the mandatory manner in which the federal
sentencing
guidelines
required
courts
to
impose
sentencing
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remedied
the
constitutional
Id. at 226-44.
violation
by
severing
The
two
for
guideline
issues),
thereby
making
the
guidelines
advisory.
Schellenbergers
crimes
fall
under
18
U.S.C.
prescribed
by
the
sentencing
guidelines.
However,
in
United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006).
[A] sentence
within
presumptively
the
proper
advisory
Guidelines
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range
is
reasonable. United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006); see also Rita v. United States, 127 S. Ct. 2456 (2007).*
II.
A.
Schellenberger
contends
that
the
court
erred
investigation
report
(PSR)
by
A
established
when
he
received
two
separate
five-level
two increases for the same reason. As the district court correctly
because
squarely
Schellenbergers
definition.
conduct
fell
within
its
also
appeals
the
district
courts
Schellenberger solicited
four people over the Internet to kill his wife, and offered to pay
for
driving
lessons,
sent
money
and
pornography
to
these
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All
arrangements
were
made
through
the
Internet.
Because
it
stacked
his
sentences
consecutively
to
attain
the
Schellenberger
Schellenberger
is
correct
that
the
highest
statutory maximum for any of the six counts to which he pled guilty
is thirty years of imprisonment, [i]n the case of multiple counts
of conviction, the guidelines instruct that if the total punishment
mandated by the guidelines exceeds the highest statutory maximum,
the district court must impose consecutive terms of imprisonment to
the extent necessary to achieve the total punishment.
United
States v. White, 238 F.3d 537, 543 (4th Cir. 2001) (citing USSG
5G1.2(d)).
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Finally,
Schellenberger
claims
his
sentence
was
not
He argues
The court
accepted the facts found in the PSR, and the testimony of the
witnesses about the conduct, and found no reason to depart from the
guideline
range.
Although
the
court
did
not
discuss
every
v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006) (The district court need not discuss each factor set
forth in 3553(a) in checklist fashion; it is enough to calculate
the range accurately and explain why (if the sentence lies outside
it) this defendant deserves more or less. (internal quotation
marks omitted)).
his
sentence
is
lengthy,
we
conclude
that
neither
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III.
Accordingly, we affirm Schellenbergers sentence.
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
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