United States v. Bobby Clark, Jr.
2015 U.S. App. LEXIS 4194
8th Cir.2015Background
- Defendant Bobby Gene Clark Jr. filmed himself touching and attempting to penetrate a 7‑year‑old girl and pleaded guilty to producing child pornography in violation of 18 U.S.C. § 2251(a),(b).
- The PSR recommended a two‑level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for "sexual contact" and a four‑level enhancement under U.S.S.G. § 2G2.1(b)(4) for "material that portrays sadistic or masochistic conduct."
- Clark objected, arguing that applying both enhancements constituted impermissible double counting.
- The district court rejected Clark’s objection, finding the enhancements addressed distinct conduct (touching vs. attempted penetration), calculated a Guidelines range of 360 months to life, but sentenced Clark to 276 months and stated it would have imposed that sentence "with or without" the Guidelines enhancements.
- On appeal the court reviewed double counting de novo and considered whether the Guidelines or precedent forbids applying both enhancements to the same offense conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying §§ 2G2.1(b)(2)(A) and (b)(4) together is impermissible double counting | Clark: both enhancements punish the same harm, so applying both duplicates punishment | Government: enhancements target different conduct elements (sexual contact vs. sadistic/violent depiction) | Court: Not impermissible — enhancements address distinct behavior (touching vs. attempted penetration) |
| Whether any guideline error was harmless | Clark: enhancements increase Guidelines range and affected sentencing calculation | Government: district court said it would impose same sentence regardless of enhancements | Court: Harmless — sentence would have been the same "with or without" the enhancements |
Key Cases Cited
- United States v. Hipenbecker, 115 F.3d 581 (8th Cir.) (defines impermissible double counting concept)
- United States v. Myers, 598 F.3d 474 (8th Cir.) (de novo review of double counting)
- United States v. Peck, 496 F.3d 885 (8th Cir.) (double counting standard)
- United States v. Pappas, 715 F.3d 225 (8th Cir.) (upholding application of both enhancements in similar context)
- United States v. Street, 531 F.3d 703 (8th Cir.) (images of adult performing anal sex on minor are per se sadistic/violent)
- United States v. Belflower, 390 F.3d 560 (8th Cir.) (attempted anal sex on a minor is sadistic/violent)
- United States v. Davis, 583 F.3d 1081 (8th Cir.) (harmless‑error application where district court stated sentence would be same regardless of Guidelines)