Submitted February 9, 2015
Appeal from United States District Court for the District of Nebraska - Lincoln.
For United States of America, Plaintiff - Appellee: Steven A. Russell, Assistant U.S. Attorney, U.S. Attorney's Office, Lincoln, NE.
Bobby Gene Clark, Jr., Defendant - Appellant, Pro se, Leavenworth, KS.
For Bobby Gene Clark, Jr., Defendant - Appellant: Jennifer L. Gilg, Federal Public Defender's Office, Omaha, NE; Michael Hansen, Assistant Federal Public Defender, Federal Public Defender's Office, Lincoln, NE.
Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
Bobby Gene Clark Jr. appeals the district court's sentence of 276 months' imprisonment for his production of child pornography in violation of 18 U.S.C. § 2251(a) and (b). We affirm.
Clark filmed himself touching and attempting to penetrate the vagina and anus of a seven-year-old girl with his penis. The child reported Clark's conduct to local law enforcement authorities, and Clark ultimately pleaded guilty to producing child pornography in violation of 18 U.S.C. § 2251(a) and (b).
The revised presentence investigation report (PSR) recommended a two-level sentencing enhancement under U.S.S.G. § 2G2.1(b)(2)(A) because the offense involved " sexual contact." The PSR also recommended a four-level sentencing enhancement under U.S.S.G. § 2G2.1(b)(4) because the offense involved " material that portrays sadistic or masochistic conduct." Clark objected on the grounds that applying both enhancements would constitute impermissible double counting--that is, " when one part of the Guidelines is applied to increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines." United States v. Hipenbecker, 115 F.3d 581, 583
(8th Cir. 1997) (quotation and citation omitted). The district court disagreed, however, finding that " [u]nlike the enhancement for sadistic or violent conduct, the 'sexual contact' enhancement does not require penetration, nor even attempted penetration." Thus, the court found, " even though both guidelines apply to the same ...