                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 06-4187
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United States of America,                 *
                                          *
             Appellee,                    *
                                          *
      v.                                  *       Appeal from the United States
                                          *       District Court for the
Nicholas Peck,                            *       Northern District of Iowa.
                                          *
             Appellant.                   *
                                          *
                                          *

                                ________________

                             Submitted: June 12, 2006
                                 Filed: August 6, 2007
                               ________________

Before MELLOY, SMITH and GRUENDER, Circuit Judges.
                         ________________
GRUENDER, Circuit Judge.

       Pursuant to two plea agreements, Nicholas Peck pled guilty to one count of
sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a), one count of
possession of child pornography, in violation of 18 U.S.C. § 2252A(a), and one count
of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court1


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
sentenced Peck to 420 months’ imprisonment. Peck appeals his sentence, arguing that
the Government breached one of the plea agreements, that the district court erred in
applying two enhancements under the United States Sentencing Guidelines, and that
his sentence is unreasonable. We affirm.

I.    BACKGROUND

      S.L., a fifteen-year-old girl, reported to Iowa law enforcement authorities that
Peck, a twenty-four-year-old man, was involved in trafficking controlled substances
from Illinois to Wisconsin and Iowa. S.L. also reported that Peck had a laptop
computer containing pornographic images of her and another minor girl and that Peck
had engaged in sex acts with her on six occasions in Iowa and on one occasion in
Wisconsin. S.L. also informed the authorities he had given her cocaine.

       While driving in Iowa, Peck was pulled over and arrested on an outstanding
warrant. During his post-arrest interview, Peck admitted that his computer contained
pictures of S.L.’s genitalia and pictures of a male having sex with S.L. Peck falsely
denied he was the male pictured having sex with S.L. and also falsely denied that he
took the pornographic pictures. Peck admitted he also possessed pornographic
pictures of J.C., another fifteen-year-old girl, with whom he admitted to having sex.
During the search of Peck’s vehicle, authorities seized the following items: a laptop
computer, two digital cameras, various electronic storage devices including compact
discs, a hollowed out pen containing a white powdery residue, a digital scale with a
white powdery residue, and a plastic baggie containing several pills. The compact
discs revealed digital still and video images of Peck engaged in separate sexual acts
with S.L., J.C., and another minor, K.V. At least one of the images depicted Peck
having sexual intercourse with K.V., and several depicted Peck engaging in sexual
acts with J.C. and displayed J.C.’s genitalia.




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        Following his arrest and release, Peck twice sold cocaine to a confidential
informant, again resulting in his arrest. In this post-arrest interview, Peck admitted
that he took the pornographic images of S.L. found on his laptop computer and
admitted that he knew S.L. was fifteen years old when the pictures were taken. He
also admitted that he took nude pictures of K.V. knowing that she was either fourteen
or fifteen years old.

       Peck was indicted in the Northen District of Iowa and charged with one count
of sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a), and one count
of possession of child pornography, in violation of 18 U.S.C. § 2252A(a). Peck pled
guilty to these charges pursuant to a plea agreement (“first plea agreement”). Peck
was subsequently indicted in the Western District of Wisconsin and charged with one
count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). The drug
charge was transferred pursuant to Rule 20 of the Federal Rules of Criminal Procedure
to the Northen District of Iowa, where Peck pled guilty pursuant to a second plea
agreement. The two cases were then consolidated for sentencing.

       In paragraph three of the first plea agreement, the Government promised that
it would “file no additional Title 18 criminal charges based upon information now in
[its] possession.” Paragraph five of the plea agreement stated that, in imposing
sentence:

      [T]he court will . . . consider the kinds of sentence and the sentencing
      range established by the United States Sentencing Guidelines for the
      applicable category of offense(s) committed by defendant and will
      consider any pertinent policy statements issued as part of the Guidelines.
      The court will consider relevant adjustments under the United States
      Sentencing Guidelines, which will include a review of such things as the
      defendant’s role in the offense, his criminal history, his acceptance or lack
      of acceptance of responsibility and other considerations. The court may
      also consider other information including any information concerning the
      background, character, and conduct of the defendant.

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Paragraph seven provided:

      The defendant, his attorney and the United States may make whatever
      comment and evidentiary offer they deem appropriate at the time of the
      guilty plea, sentencing or any other proceeding related to this case, so
      long as the offer or comment does not violate any other provision of this
      agreement. The parties are also free to provide all relevant information
      to the probation office for use in preparing the presentence report.

Finally, the first plea agreement contained no stipulation or recommendation
whatsoever regarding the advisory sentencing guidelines, and it expressly noted that
it “did not result in any express or implied promise or guarantee concerning the actual
sentence to be imposed by the court.”

      In accord with paragraph seven of the first plea agreement, the Government
provided an offense conduct statement regarding the exploitation and pornography
charges to the United States Probation Office and to Peck. In that statement, the
Government stated its belief that Peck’s advisory guidelines calculation should be
enhanced three levels pursuant to U.S.S.G. § 2G2.1(d)(1), because the offense
involved exploitation of three separate minors, and also enhanced five levels pursuant
to U.S.S.G. § 4B1.5(b)(1), because Peck engaged in a pattern of activity involving
prohibited sexual activity. The presentence investigation report subsequently prepared
by the probation office accounted for this conduct and also recommended the
enhancements.

       At sentencing, the district court applied the enhancements pursuant to
§ 2G2.1(d)(1) and § 4B1.5(b)(1), giving Peck a total guideline offense level of 42.
The district court calculated Peck’s criminal history as a category III, which resulted
in a final advisory sentencing guideline range of 360 months to life in prison. The
district court sentenced Peck to 240 months’ imprisonment on the drug charge and
360 months’ imprisonment on the sexual exploitation charge, to be served


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concurrently. The district court also sentenced Peck to 60 months on the pornography
charge, to run consecutively to the other sentence, for a final sentence of 420 months’
imprisonment. Peck filed a timely notice of appeal.

II.   DISCUSSION

      A.     Plea Agreement

       Peck argues that the Government breached paragraph three of the first plea
agreement, but he concedes that our review of this issue is for plain error because he
did not present this argument to the district court. We can correct an error not raised
before the district court if there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Rice, 449 F.3d 887, 894 (8th Cir.), cert. denied,
--- U.S. ---, 127 S. Ct. 601 (2006) (quotation omitted). “We will reverse under plain
error review only if the error prejudices the party’s substantial rights and would result
in a miscarriage of justice if left uncorrected.” United States v. McCourt, 468 F.3d
1088, 1093 (8th Cir. 2006), cert. denied, --- U.S. ---, 127 S. Ct. 1866 (2007)
(quotation omitted) .

       Paragraph three of the first plea agreement states: “The U.S. Attorney’s Office
for this District will file no additional Title 18 criminal charges based upon
information now in [its] possession.” Peck concedes—as he must—that the
Government has not filed any new indictment or information officially charging him
with additional crimes, arguing instead that the Government “effectively filed
additional charges when it advocated, after the execution of the plea agreement, [for]
sentencing enhancements” pursuant to U.S.S.G. §§ 2G2.1(d)(1) and 4B1.5(b)(1). We
disagree.

      Peck cites no case, and our research has not revealed one, that supports the
proposition that the Government’s pursuit of sentencing enhancements breaches a

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promise not to file additional criminal charges. The case cited by Peck, United States
v. Clark, 55 F.3d 9 (1st Cir. 1995), is inapposite. In Clark, the Government agreed not
to oppose a three-level downward departure for acceptance of responsibility. Id. at
12. In a sentencing memorandum it submitted to the district court, the Government
made its position clear that no reduction was warranted, adding that it could not
present “a more vigorous argument” because of the plea agreement. Id. The First
Circuit held that although the Government did not formally oppose the reduction, it
effectively opposed it in the memorandum. Id. Clark has no bearing on the present
scenario. Unlike formally opposing a downward departure, which may be done
“effectively” by other informal means such as in a memorandum, there is no way to
file criminal charges “effectively.” They are either filed or they are not. Here, the
Government filed no additional charges, and Peck concedes as much.

       Peck also cites United States v. Fowler, 445 F.3d 1035 (8th Cir. 2006), and
United States v. DeWitt, 366 F.3d 667 (8th Cir. 2004). In Fowler, we held that the
Government breached a plea agreement by actively advocating for career-offender
status where the plea agreement specifically stipulated to an offense level that did not
account for such status. Fowler, 445 F.3d at 1037. Likewise, in DeWitt, we held that
the Government breached a plea agreement that stipulated to the drug quantity and
base offense level when it presented evidence that the drug quantity and
corresponding base offense level should be higher. DeWitt, 366 F.3d at 670.

       In contrast to the plea agreements in Fowler and DeWitt, the plea agreement in
this case does not contain any provision whatsoever regarding the advisory guidelines
calculations. It does contain general language, not present in the plea agreements in
Fowler and DeWitt, that expressly permits the Government to “provide all relevant
information to the probation office for use in preparing the presentence report.”
Peck’s case, therefore, is more akin to our decision in United States v. Stobaugh, 420
F.3d 796 (8th Cir. 2005), cert. denied, --- U.S. ---, 126 S. Ct. 1093 (2006). In
Stobaugh, the plea agreement specified certain guidelines calculations but also stated

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that the calculations “are only estimates and do not bind the parties.” Id. at 801. The
agreement also contained a provision stating “that information about ‘the entirety of
the defendant’s criminal activities’ would be provided to the district court and would
‘not [be] limited to the count to which the defendant pled guilty.’” Id. Noting that the
plea agreement did not contain a more specific provision like that in DeWitt that
conflicted with the Government’s general authority under the plea agreement to
present evidence of relevant conduct, we held that there was no breach. Id. at 800-01
(citing DeWitt).

       As in Stobaugh, Peck’s plea agreement lacks a specific provision that conflicts
with the general provision granting the Government express authority to “provide all
relevant information to the probation office for use in preparing the presentence
report.” Absent a conflicting provision, Peck cannot successfully challenge the
Government’s decision to present to the probation office and to the district court the
very information contemplated by paragraph seven of the first plea agreement.
Therefore, because the Government did not file additional charges and engaged in
conduct expressly authorized by the first plea agreement, we hold that there was no
breach. Accordingly, Peck’s claim fails to survive our plain error review because
without an identified error there is no substantial injustice left uncorrected. See Rice,
449 F.3d at 894.

      B.     Double Counting

       The district court applied sentencing enhancements pursuant to U.S.S.G.
§§ 2G2.1(d)(1) and 4B1.5(b)(1). Peck does not dispute that his conduct qualifies him
for these enhancements. Rather, Peck contends that the five-level increase to his
sentence pursuant to § 4B1.5(b)(1) impermissibly double counts conduct already
accounted for in the three-level enhancement he received pursuant to § 2G2.1(d)(1).
We review de novo whether the district court’s application of the sentencing
guidelines amounts to impermissible double counting. United States v. Kiel, 454 F.3d
819, 822 (8th Cir. 2006).

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      “Double counting occurs 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 . . .
accounted for by application of another part of the Guidelines.” United States v.
Jones, 440 F.3d 927, 929 (8th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 130 (2006)
(quotations omitted). Such double counting is permissible where “(1) the
[Sentencing] Commission intended the result and (2) each statutory section concerns
conceptually separate notions related to sentencing.” United States v. Hipenbecker,
115 F.3d 581, 583 (8th Cir. 1997).

       Section 2G2.1(d)(1) states: “If the offense involved the exploitation of more
than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the
exploitation of each minor had been contained in a separate count of conviction.”
Peck acknowledged that he sexually exploited three minor children, and the district
court applied Chapter Three of the Guidelines as though each of the three minors had
been contained in a separate count. This application resulted in an increase of three
levels to Peck’s base offense level. See U.S.S.G. § 3D1.4.

       Section 4B1.5(b)(1) states: “In any case in which the defendant’s instant offense
of conviction is a covered sex crime . . . and the defendant engaged in a pattern of
activity involving prohibited sexual conduct: (1) The offense level shall be 5 plus the
offense level determined under Chapters Two and Three. . . .” Peck does not dispute
that his conviction for production of child pornography in violation of 18 U.S.C. §
2251(a) constitutes a “covered sex crime” and is “prohibited sexual conduct.” A
“pattern of activity” for the purposes of § 4B1.5(b)(1) occurs when the defendant
engages in the prohibited sexual conduct with a minor on at least two separate
occasions. U.S.S.G. § 4B1.5, cmt. n. 4(B)(i). Peck also does not dispute that he
engaged in prohibited sexual conduct with minor children on at least two separate
occasions, thus constituting a pattern of activity involving prohibited sexual conduct.

      Peck contends that the district court’s imposition of a five-level increase
pursuant to § 4B1.5(b)(1) for engaging in a “pattern of activity” after the imposition

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of a three-level, multiple-victim enhancement under § 2G2.1(d)(1) constitutes
impermissible double counting because both enhancements are premised upon the
same conduct—namely, his sexual exploitation of each of the three minor children.
Peck’s characterization of the targeted harm is too broad.

       The application of § 2G2.1(d)(1) punished Peck for exploiting three different
minors, while the § 4B1.5(b)(1) enhancement punished him for exploiting those
minors on multiple occasions. See United States v. Schmeilski, 408 F.3d 917, 920 (7th
Cir. 2005) (holding that the application of both § 2G2.1(d)(1) and § 4B1.5(b)(1) does
not constitute impermissible double counting). As such, the separate enhancements
for the number of minors Peck exploited and for the fact that Peck exploited the
minors on multiple occasions are not premised on the same harm. See id. (noting that
for a defendant who had on only one occasion photographed three minor children
engaging in sexually explicit conduct, § 2G2.1(d)(1) would apply because more than
one minor was exploited but § 4B1.5(b)(1) would not because prohibited sexual
conduct did not occur on at least two separate occasions). Therefore, because
§ 2G2.1(d)(1) and § 4B1.5(b)(1) do not address the same kind of harm, the application
of both in calculating Peck’s sentence did not constitute double counting under these
circumstances.

      C.     Peck’s Sentence

       “We review appellant’s sentence for reasonableness.” United States v. Cadenas,
445 F.3d 1091, 1094 (8th Cir. 2006). “In doing so we, like the district court, begin
with the applicable guidelines sentencing range.” Id. The Supreme Court recently
held that “a court of appeals may apply a presumption of reasonableness to a district
court sentence that reflects a proper application of the Sentencing Guidelines.” Rita
v. United States, --- U.S. ---, 127 S. Ct. 2456, 2462 (2007). Because the district court
properly calculated the advisory sentencing guidelines range for Peck, and because it
sentenced Peck within that range, Peck’s sentence is cloaked in a presumption of
reasonableness. See id.

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       However, this presumption may be rebutted by reference to the factors listed
in 18 U.S.C. § 3553(a). Cadenas, 445 F.3d at 1094, see also United States v. Harris,
--- F.3d ---, No. 06-2892, slip op. at 6 (8th Cir. July 9, 2007). In other words, Peck
must show that the “district court failed to consider a relevant factor that should have
received significant weight, gave significant weight to an improper or irrelevant
factor, or considered only appropriate factors but nevertheless committed a clear error
of judgment,” in order for his sentence within the guidelines range to be considered
unreasonable. Cadenas, 445 F.3d at 1094. “[W]hile we do not require the district
court to mechanically recite each of the § 3553(a) factors, it must be clear from the
record that it actually considered them in determining the appropriate sentence.” Id.

       Peck concedes that the facts considered by the district court in reaching his
sentence were “doubtless ‘relevant’ under 18 U.S.C. § 3553(a),” and he instead argues
that “[g]iven the maximum sentence permitted by law on the most serious count,
[sexual exploitation of a minor], is thirty years, it is reasonable to conclude that a
sentence at the bottom of the 360 to life range might be appropriate.” While this
argument may explain why a different sentence would be reasonable, it fails to explain
why the within-guidelines-range sentence he received is unreasonable. See United
States v. Bryant, 446 F.3d 1317, 1319 (8th Cir. 2006) (noting that “there is a range of
reasonableness available to the district court in any given case”). Further, to the
extent that this argument suggests that the district court should have run his sentence
on the possession of child pornography charge concurrently rather than consecutively,
we find it to be without merit. The district court’s decision to run Peck’s sentences
consecutively is authorized under the guidelines and is proper under this circuit’s case
law. See U.S.S.G. § 5G1.2(d) (“If the sentence imposed on the count carrying the
highest statutory maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively, but only to the
extent necessary to produce a combined sentence equal to the total punishment.”);
United States v. Thomas, 484 F.3d 542, 546 (8th Cir. 2007).




                                         -10-
       Peck argues that because each minor “apparently may have even thought of
[Peck] as their boyfriend,” there was no evidence to support the district court’s
conclusion that Peck “preyed upon” teenage girls for sexual relations. We reject
Peck’s argument and note that the district court’s conclusion regarding Peck’s conduct
is supported by our cases. See, e.g., United States v. Abad, 350 F.3d 793, 798 (8th
Cir. 2003) (“[W]hen sexual assaults are committed upon children . . . , consent is not
a defense. The reason is that the victims in these cases, because of ignorance or
deceit, do not understand what is happening to them. Therefore their ‘consent’ is of
no significance.”) (quotation omitted).

       Peck also contends that the district court did not consider facts in his
background that call for leniency, such as the death of his girlfriend and letters
submitted to the district court on his behalf. First, the girl Peck claims was his
“girlfriend” was actually one of the minor victims he sexually exploited. Her death,
though tragic, does not call for leniency vis-a-vis Peck. Second, the record reveals
that the district court did consider the letters submitted on Peck’s behalf, and nothing
in the record demonstrates that they were given inappropriate weight.

       Peck’s arguments are without merit in that they fail to demonstrate that the
district court’s sentence was unreasonable. The district court made a clear record of
the sentencing factors relevant under § 3553(a), and our review of it shows that the
district court considered them, weighed them properly and did not commit a clear
error of judgment in arriving at Peck’s sentence, which was within the range of choice
dictated by the facts of the case. Accordingly, Peck’s sentence was not unreasonable.
See Harris, slip op. at 6-7; Cadenas, 445 F.3d at 1094.

III.   CONCLUSION

       For the foregoing reasons, we affirm Peck’s sentence.

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