                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                     DECEMBER 15, 2011
                                            No. 11-10336
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                          D.C. Docket No. 3:09-cr-00159-WKW-CSC-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff-Appellee,

                                                 versus

KENNETH ALLEN BALLARD,
a.k.a. Kenlowes736@yahoo.com,
a.k.a. Salemcandylicker,
a.k.a. Watchoutlittleholesitsbig,

lllllllllllllllllllllllllllllllllllllll                          Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (December 15, 2011)

Before BARKETT, MARCUS and KRAVITCH , Circuit Judges.
PER CURIAM:

      Kenneth Ballard, convicted by a jury of 2 counts of the knowing distribution

of child pornography and 1 count of the knowing receipt of child pornography, in

violation of 18 U.S.C. § 2252A(a)(2), appeals his convictions and 210-month total

sentence. Ballard challenges the district court’s denial of his pre-trial motion in

limine, through which he sought to prevent the government from showing images

or videos of child pornography to the jury. Ballard also challenges the district

court’s application of a sentencing enhancement for his use of a computer,

pursuant to U.S.S.G. § 2G2.2(b)(6), and the substantive reasonableness of his 210-

month total sentence.

                                          I.

      Ballard argues that the district court abused its discretion by allowing into

evidence every image and a portion of the videos of child pornography that were

charged in the indictment, despite Ballard’s stipulation that the 15 pictures and 3

videos were child pornography. Ballard contends that this evidence unfairly

prejudiced and inflamed the jurors, and that the prejudicial impact of this evidence

outweighed its relevance such that the admission of the evidence violated Rule

403 of the Federal Rules of Evidence.

      We review a district court’s evidentiary rulings for a clear abuse of

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discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). Rule 401

of the Federal Rules of Evidence defines “relevant evidence” as “evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Rule 403 of the Federal Rules of Evidence provides that

relevant evidence may be excluded if its probative value “is substantially

outweighed by the danger of unfair prejudice.” But we have cautioned that Rule

403 is an “extraordinary remedy which the district court should invoke sparingly,”

and that “the balance should be struck in favor of admissibility.” Dodds, 347 F.3d

at 897.

          Generally, the prosecution is entitled to determine how to prove its case,

and a defendant may not stipulate or admit his way out of the full evidentiary force

of the case against him. Old Chief v. United States, 519 U.S. 172, 186-87, 117

S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). Rule 403 limits the quantity and type of

evidence that may be introduced, however, as it demands a balancing approach

between the degrees of probative value that a piece of evidence has and its

prejudicial effect. Dodds, 347 F.3d at 897. Despite this balancing requirement,

“the prosecutor’s choice will generally survive a Rule 403 analysis when a

defendant seeks to force the substitution of an admission for evidence creating a

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coherent narrative of his thoughts and actions in perpetrating the offense for which

he is being tried.” Old Chief, 519 U.S. at 192, 117 S.Ct. at 656.

      In the instant case, the admittedly relevant evidence of the images and

videos was not extrinsic to the crime, but was “part of the actual pornography

possessed.” See Dodds, 347 F.3d at 898. It also had a high probative value,

despite Ballard’s stipulation. Ballard did not stipulate to the “knowledge” element

of his offenses, and the government intended to use the images and videos at trial

as proof of this element. Thus, because of the highly probative uses of the

evidence, the stipulation was not effective to prevent the government’s choice of

the evidence used in its prosecution of the case. See Alfaro-Moncada, 607 F.3d at

734. The district court did not abuse its discretion by denying Ballard’s motion in

limine and admitting the pictures and videos charged in the indictment into1

evidence.

                                         II.

      Ballard also argues that the district court erred when it applied a sentencing

enhancement under U.S.S.G. § 2G2.2(b)(6) for his use of a computer. Ballard

asserts that the government’s theory of the case, as well as the enhancement he

received under § 2G2.2(b)(3)(B), involved using a computer and, therefore,

application of the enhancement constituted impermissible double counting.

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      We review de novo a claim of double counting under the Guidelines.

United States v. De La Cruz Suarez, 601 F.3d 1202, 1220 (11th Cir.), cert. denied

131 S.Ct. 393 (2010). Impermissible double counting occurs only when one part

of the guidelines is applied to increase a defendant’s sentence on account of a kind

of harm that has already been fully accounted for by application of a different part

of the guidelines. Id. Further, “[d]ouble counting a factor during sentencing is

permissible if the Sentencing Commission intended the result, and if the result is

permissible because each section concerns conceptually separate notions related to

sentencing.” Id. (quotation omitted). We presume that “the Sentencing

Commission intended to apply separate guideline sections cumulatively, unless

specifically directed otherwise.” United States v. Rodriguez-Matos, 188 F.3d

1300, 1310 (11th Cir. 1999).

      Under 18 U.S.C. § 2252A(a)(2), it is a crime to knowingly receive or

distribute child pornography “using any means or facility of interstate or foreign

commerce . . . or transported in or affecting interstate or foreign commerce by any

means, including by a computer.” 18 U.S.C. § 2252A(a)(2)(A) (emphasis added).

The Guidelines provide a base offense level of 22 for the crime of trafficking in,

receiving, transporting, shipping, soliciting, or advertising material involving the

sexual exploitation of a minor. U.S.S.G. § 2G2.2(a)(2). Section 2G2.2 provides

                                          5
for a 2-level increase in the base offense level “[i]f the offense involved the use of

a computer or an interactive computer service for the possession, transmission,

receipt, or distribution of the material.” U.S.S.G. § 2G2.2(b)(6). Section 2G2.2

also provides for a 5-level increase if the offense involved distribution of child

pornography for the receipt of a thing of value. U.S.S.G. § 2G2.2(b)(3)(B).

      Ballard’s double counting arguments are without merit. Because a

defendant need not use a computer to violate 18 U.S.C. § 2252A(a)(2), the fact

that Ballard used a computer is no more than relevant conduct for the purposes of

sentencing. See U.S.S.G. § 1B1.3(a)(1). Thus, the district court did not

erroneously apply the § 2G2.2(b)(6) enhancement because Ballard’s use of a

computer was not taken into account in the calculation of his base offense level or

by any other section of the guidelines. See De La Cruz Suarez, 601 F.3d at 1220.

Moreover, Ballard has made no argument to rebut the presumption that the

Sentencing Commission intended that the § 2G2.2(b)(6) and § 2G2.2(b)(3)(B)

enhancements be applied cumulatively. Because the enhancements focus on

separate harms, and there is no evidence that the Sentencing Commission did not

intend for the enhancements to apply cumulatively, the district court did not

engage in impermissible double counting by applying both § 2G2.2(b)(3)(B) and

§ 2G2.2(b)(6).

                                          6
                                         III.

      Finally, Ballard argues that by denying in part his motion for a downward

variance, the district court imposed a substantively unreasonable sentence.

      We review a sentence for substantive reasonableness under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). The party challenging the sentence carries the burden of

establishing unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

      The reasonableness inquiry involves two steps. United States v. Pugh, 515

F.3d 1179, 1190 (11th Cir. 2008). Because Ballard does not challenge the

procedural reasonableness of his sentence, we review his sentence only for

substantive reasonableness in light of the record and the 18 U.S.C. § 3553(a)

sentencing factors. Talley, 431 F.3d at 786, 788. The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and characteristics

of the defendant; (2) the need for the sentence to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for deterrence; (4) the need to protect the public; (5) the

kinds of sentences available; (6) the guidelines range; (7) pertinent Sentencing

Commission policy statements; and (8) the need to avoid unwarranted sentencing

                                           7
disparities. See id. at 786; 18 U.S.C. § 3553(a). The sentence imposed must be

“sufficient, but not greater than necessary” to achieve the purposes of sentencing

outlined in § 3553(a)(2). 18 U.S.C. § 3553(a).

      Ballard has not carried his burden of demonstrating that his sentence was

substantively unreasonable. The district court explicitly considered the § 3553(a)

factors, including Ballard’s personal and criminal history and the need to avoid

sentencing disparities, prior to imposing Ballard’s sentence. The 210-month

sentences were also well below the statutory maximum of 20 years’ imprisonment

for each count. Taking into account the § 3553(a) factors and the discretion the

district court is afforded in weighing those factors, the district court did not abuse

its discretion in sentencing Ballard to 3 concurrent terms of 210 months’

imprisonment.

      In light of the foregoing, and after carefully reviewing the parties’ briefs and

the record, we affirm Ballard’s convictions and 210-month total sentence.

      AFFIRMED.




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