                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3931
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Charles Michael Ashley,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 15, 2003

                                  Filed: September 9, 2003
                                   ___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
                           ___________

BYE, Circuit Judge.

      Charles Michael Ashley pleaded guilty to one count of receipt of pornographic
materials involving minors in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Ashley
was sentenced by the district court2 to 135 months imprisonment. Ashley now seeks
review of a five-level sentencing enhancement for a “pattern of activity involving the

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
      2
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
sexual abuse or exploitation of a minor.” See United States Sentencing Guidelines
(U.S.S.G.) § 2G2.2(b)(4). We affirm.

                                          I

      Charles Michael Ashley’s home was searched by the North Dakota Parole and
Probation Office during a home compliance visit. During this search, Special Agent
Erickson, Special Agent Pfennig, and Dunn County Sheriff Boepple observed
photographs of young children, which could be considered child erotica, hanging on
the wall. While agents went to secure a search warrant, Ashley volunteered
statements about his sexual interest in children and his interest in collecting child
pornography from the Internet. Ashley further admitted to accumulating over 2,000
images of child pornography and to possessing videos containing child pornography.
Ashley informed Special Agent Erickson that 95% of his collection of child
pornography contained children between the ages of four and thirteen.

      Agents seized Ashley’s computer, digital camera, and magnetic and optical
media while conducting a search of his premises. These items contained
pornographic materials in violation of federal law. Ashley was indicted in July 2002
on two counts: Count 1, knowingly receiving child pornography; and Count 2,
knowingly possessing numerous computer files containing child pornography.
Ashley pleaded guilty to Count 1 of the indictment on September 18, 2002. Count
2 was dismissed as agreed to in the plea agreement.

       The presentence investigation report noted Ashley was convicted in 1997 of
two counts of gross sexual imposition in Dunn County, North Dakota, for molesting
his son and daughter. Because of these convictions, the presentence investigation
report recommended a five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4).
The district court adopted this recommendation.



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     Ashley waived his right to appeal all but the application of the U.S.S.G.
§ 2G2.2(b)(4) enhancement, and the enhancement is the sole issue on appeal.

                                          II

     We review the district court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Akbani, 151 F.3d 774, 777 (8th Cir. 1998).

       The crux of Ashley’s argument is that he believes U.S.S.G. § 2G2.2(b)(4) may
be read to refer only to characteristics of the current offense, and because his
interpretation is reasonable, the enhancement is ambiguous. Ashley argues the rule
of lenity should apply in his favor to make the five-level enhancement inapplicable.

      The Guideline states “if the defendant engaged in a pattern of activity involving
the sexual abuse or exploitation of a minor, increase by five levels.” U.S.S.G.
§ 2G2.2(b)(4). Application note 1 further states a

      “pattern of activity involving the sexual abuse or exploitation of a
      minor” means any combination of two or more separate instances of the
      sexual abuse or sexual exploitation of a minor by the defendant, whether
      or not the abuse or exploitation (A) occurred during the course of the
      offense; (B) involved the same or different victims; or (C) resulted in a
      conviction for such conduct.

U.S.S.G. § 2G2.2, cmt. n.1.

       “When construing the Guidelines, we look first to the plain language, and
where that is unambiguous we need look no further.” United States v. Andreas, 216
F.3d 645, 676 (7th Cir. 2000). Application Note 1, corresponding to U.S.S.G.
§ 2G2.2(b)(4), was amended in 1996 to make it clear a “pattern of activity” includes
acts of sexual abuse or exploitation committed prior to the charged offense. United

                                         -3-
States v. Anderton, 136 F.3d 747, 750 (11th Cir. 1998). The Sentencing Commission
has further explained “the conduct considered for purposes of the ‘pattern of activity’
enhancement is broader than the scope of relevant conduct typically considered under
§ 1B1.3.” U.S. Sentencing Commission Guidelines Manual, App. C at 373. Note 1
makes U.S.S.G. § 2G2.2(b)(4) unambiguous; the enhancement applies “whether or
not the abuse . . . occurred during the course of the offense.” U.S.S.G. § 2G2.2 cmt.
n.1.

       Ashley was convicted in 1997 of two counts of gross sexual imposition for
sexually abusing his son and daughter. Therefore, the district court did not err when
it used these prior convictions to apply a five-level enhancement pursuant to U.S.S.G.
§ 2G2.2(b)(4).

      Accordingly, we affirm the decision of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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