United States v. Carroll Damon Jones, United States of America v. Linda Pearl Winningnear JonesUnited States v. Carroll Damon Jones, United States of America v. Linda Pearl Winningnear Jones
In these consolidated appeals, Carroll Damon Jones appeals from a final judgment entered in the District Court for the Eastern District of Arkansas
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sentencing him to 120 months imprisonment, 3 years supervised release and a special assessment of $50.00, following his guilty plea to receiving a visual depiction of a minor engaging in sexually explicit conduct, in violation of
In addition to the charge of receiving a visual depiction of a minor engaged in sexually explicit conduct, Mr. Jones was charged with producing a visual depiction of such conduct, in violation of
According to the Presentence Reports (PSRs), photographs depicting a young female lying on a bed with her genitals exposed were turned over to the Postal Inspection Service by a film processing company. The photographs were delivered to the Jones residence, and a search of the residence was then conducted. Mr. Jones told the postal inspector that he took the photographs. He stated that he was loading the film and he accidentally “exposed the first few frames.” He stated the camera was pointing toward the minor who was lying on a bed and removing her panties. He also stated that the minor took her panties off because she wanted to, not because he asked her to. In a subsequent interview conducted by the United States Probation Office, Mr. Jones stated that he did not take the photographs. He stated that he believed the minor had taken the photographs. During an interview with the Probation Office, Mrs. Jones stated that she did not take the photographs and she did not know how they were taken. During an interview conducted by a state prosecuting attorney 2 and a social worker, the minor stated that Mr. Jones would undress her and lay her on a bed, and he would take pictures of her while she was undressed. The minor also stated that Mrs. Jones was present when Mr. Jones did this, but she would not make him stop.
The Guideline applicable to offenses involving the receipt of material involving the sexual exploitation of a minor provides a cross-reference to U.S.S.G. § 2G2.1 if the offense involved causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. U.S.S.G. § 2G2.2(c)(l). Mr. Jones’s PSR applied this cross-reference provision and set his base offense level at 25.
See
U.S.S.G. § 2G2.1(a). The PSR increased Mr. Jones’s offense level by four because his offense involved a minor under the age of twelve years, and by two more because the minor was in the custody, care, or supervisory control of Mr. Jones.
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Guidelines § 2G2.1(b)(l), (b)(2). The PSR recommended denial of a reduction for acceptance of responsibility because Mr. Jones had denied taking the photographs. With a total offense level of 31 and a criminal history category of II, the Guidelines sentencing range was 121 to 151 months. The PSR noted, however, that the range exceeded the statutory maximum of 120 months.
See
The district court overruled objections to the PSRs and an objection to the introduction of the transcript of the minor’s interview." The district court concluded it was proper to consider the conduct of the dismissed charges in sentencing defendants, and the district court found by a preponderance of the evidence that Mr. Jones took the photographs. The district court stated “I don’t find it credible that a nine-year-old child would take that sort of picture of herself and later in an interview indicate that [Mr. Jones] took the pictures.” Although the district court did not make an explicit finding that Mrs. Jones concealed Mr. Jones’s conduct of taking the photographs, the district court adopted all sentencing calculations and recommendations of both PSRs.
For reversal, defendants argue that the district court erred in considering conduct from dismissed charges in calculating the base offense levels and in denying them reductions for acceptance of responsibility.
We disagree. The relevant conduct Guideline states in part that the applicability of cross-reference provisions are determined
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on the basis of all acts committed by the defendant that occurred during the commission of the offense of conviction, in preparation for that offense, or in furtherance of that offense. U.S.S.G. § lB1.3(a)(iii)(l) (1991). The Guidelines also provide that a defendant may receive a sentencing reduction if he or she accepts responsibility for the offense
and related conduct.
U.S.S.G. § 3E1.1, comment. (backg’d.) (1991). Mr. Jones’s conduct in taking the photographs was done in preparation for his commission of the offense of conviction of receiving the photographs, and thus, was properly considered by the district court in applying the cross-reference provision of Guidelines § 2G2.2. Also, the statement by Mr. Jones that he did not take the photographs and the statement by Mrs. Jones that she did not know who took the photographs were properly considered by the district court in determining whether the Joneses were entitled to reductions for acceptance of responsibility. Furthermore, the district court did not deprive Mr. and Mrs. Jones of the benefit of their plea agreements by sentencing them based on conduct from the dismissed charges. Despite them pleas, Mr. and Mrs. Jones were bound by the Sentencing Guidelines, and this court has previously held that conduct relevant to charges dismissed pursuant to a plea agreement may be considered by the district court at sentencing.
See United States v. Williams,
Defendants also argue the district court erred in admitting into evidence the transcript of the minor’s interview. We disagree. The Confrontation Clause does not apply in sentencing proceedings.
United States v. Wise,
Because the record supports the district court’s findings that Mr. Jones took the photographs, that Mrs. Jones was present when he did so, and that Mr. and Mrs. Jones denied the conduct, we conclude the district court properly denied the Joneses sentencing reductions for acceptance of responsibility.
See United States v. Lublin,
Accordingly, we affirm the judgments of the district court.