                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4331


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

HOWARD    JAMES    CLEM,       IV,      a/k/a      Jamie,       a/k/a
h.clemiv81@yahoo.com,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:14-cr-00405-MJG-2)


Submitted:   March 31, 2016                     Decided:     April 8, 2016


Before KING and    DUNCAN,    Circuit    Judges,    and     DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Warren E. Gorman, Rockville, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Judson T. Mihok, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Howard James Clem, IV, appeals from his convictions and

108-month sentence entered following a jury verdict finding him

guilty     of      conspiracy       to     distribute         and     receive          child

pornography,       receipt     of   child       pornography        (two   counts),       and

possession      of    child    pornography.             On   appeal,       Clem      raises

numerous claims.        We affirm.

                                           I.

     Clem first asserts that insufficient evidence supported his

convictions.         However, the only element that Clem contests on

appeal is whether or not he knew that the charged depictions

involved a minor engaging in sexually explicit conduct.                                 Clem

asserts that he received blurry, postage-stamp sized images on

his phone and that there is no evidence that he ever opened the

pictures.       Because 18 U.S.C. §§ 2252(a), 2252A (2012) do not

criminalize        inadvertent      receipt        or    possession        of        illicit

materials,      the    Government        must     present     proof       of    at     least

circumstantial evidence of the requisite knowledge.                            See United

States v. Ramos, 685 F.3d 120, 130-31 (2d Cir. 2012) (collecting

cases).

     In    determining        whether    there     was   sufficient        evidence       to

support the verdict, we review both direct and circumstantial

evidence     and      permit    “the      government         the    benefit       of    all

reasonable inferences from the facts proven to those sought to

                                            2
be established.”     United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982).      Circumstantial evidence may be sufficient to

support    a   conviction    even   if    it    does       not   exclude      every

reasonable     hypothesis    consistent        with    innocence.          United

States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989); see also

United States v. Burgos, 94 F.3d 849, 857-58 (4th Cir. 1996) (en

banc) (holding that circumstantial evidence alone is sufficient

to support a cocaine conspiracy conviction).

       Here, the Government produced evidence that Clem repeatedly

commented on the images of child pornography that were sent to

him and that he requested sexually explicit images of a specific

child on numerous occasions.        While Clem testified that he only

guessed at the content of the images, the jury rejected his

testimony.     Witness credibility is within the sole province of

the jury, and we will not reassess the credibility of testimony.

United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).                     We

find    that   the   circumstantial       evidence         presented    by      the

Government was more than sufficient to show that Clem opened the

files at issue and, thus, that his violation of the statute was

knowing.

                                    II.

       Clem next argues that the admission of the pornographic

pictures by the Government violated his rights to due process

and    equal   protection.     Specifically,          he    asserts    that    the

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pictures presented by the Government were larger and clearer

than       how        he    received   them    and       that    this     admission          was

fundamentally              unfair.     The    Supreme      Court    has    held       that    a

defendant’s due process rights are not violated by the admission

of   relevant          evidence.       Estelle     v.    McGuire,   502    U.S.       62,     70

(1991); see also Dowling v. United States, 493 U.S. 342, 353-54

(1990) (holding that admission of evidence must be fundamentally

unfair to constitute a due process violation). 1

       Clem essentially complains that he was not permitted to

show the blurred state in which he received the images and that

the Government was improperly hiding behind 18 U.S.C. § 3509(m)

(2012).          Section 3509(m) requires that child pornography images

involved         in    a   criminal    proceeding        must   remain    in    the    “care,

custody, and control” of the Government or the district court.

Accordingly, the Government was clearly barred from doing what

Clem       requested:          transmitting        the    images    from       Maryland      to




       1The Equal Protection Clause is “essentially a direction
that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985).    Clem does not argue that he was treated differently
than any other similarly situated defendant, and he cites no
cases applying the Equal Protection Clause to the admission of
evidence.



                                               4
servers in California via Skout, 2 and then back to a cellular

telephone in Maryland.

       Instead, the Government produced testimony that images from

Skout would initially be received in a blurred state and that

the receiver could tap once to view a 160 pixel version and tap

twice to view a 320 pixel version.                      The Government then provided

a demonstration with a benign image of the blurred effect, as

well as the 160 pixel and 320 pixel versions.                              The Government

then submitted the unblurred pornographic images at 160 and 320

pixels.          Clem, for his part, was permitted to introduce exhibits

of     (adult)          pornographic        images        and       a    live,    in-court

demonstration of how those images looked when received on his

phone.           We   find   that    the   record       does    not     reflect   that   the

admission of evidence was confusing or misleading.                                As such,

Clem       was    not   deprived     of    due       process   or   otherwise     denied   a

meaningful opportunity to present a complete defense.

                                             III.

       Clem       asserts     that    a    conversation         between     him   and    his

coconspirator regarding a child (the coconspirator’s daughter)

was improperly admitted in violation of Fed. R. Evid. 404(b).

However, as the Government points out, the Rule 404(b) motion



       2
       Skout is a social networking site, through which Clem
received the images in question.



                                                 5
concerned       conversations      Clem       had      with    other    users    (not     his

coconspirator) on Skout that explored common themes of sex with

minor females and mother-daughter incest.                        Conversations with a

coconspirator would not be Rule 404(b) evidence as they were

intrinsic to the charged conduct, particularly the conspiracy.

Clem does not dispute the Government’s position in his reply

brief.    Accordingly, Clem’s argument is rejected as frivolous.

                                          IV.

       Clem contends that telephone records were improperly turned

over to him in an untimely manner in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 16.                                Under

Brady,    due    process    is   violated         if    the    evidence    in    question:

(1) is    favorable        to    the   defendant,             because    it     is   either

exculpatory or impeaching; (2) was suppressed by the government;

and (3) is material.            Strickler v. Greene, 527 U.S. 263, 281-82

(1999).       Undisclosed evidence is material when its cumulative

effect is such that “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.”                         Kyles v. Whitley, 514

U.S.   419,     433-34     (1995).        A       reasonable     probability         is   one

sufficient to undermine confidence in the outcome.                        Id. at 434.

       We find that none of these requirements are met regarding

the evidence at issue.            The disputed records showing telephone

conversations       between       Clem        and       his     coconspirator,        which

                                              6
corroborated the coconspirator’s testimony, are not favorable to

Clem.     The records were turned over when received and, thus,

were    not    suppressed.           Finally,       whether       or    not    Clem      and    his

coconspirator        spoke    on     the    phone       was     not    material      to    Clem’s

defense       that    his    relationship           with        his     coconspirator           was

strictly role playing and that he did not want his coconspirator

to send him child pornography.

       Without providing any citations to the record, Clem claims

that, if he had proper time to analyze the phone records, he

could have shown that he and his coconspirator did not have any

communication        between        June     28,        2012,     and    March        7,    2013.

However, even if there was no communication during a certain

period,       Clem   fails     to    show    how        this     impacts      the     proof      of

communications outside this time period.                         Moreover, Clem’s claim

ignores the frequent Skout conversations during the cited time

period.        Because      the     evidence       at    issue    was    not       material      or

favorable, there was no Brady violation in the timing of the

production.

       Rule    16(a)(1)(E)          requires       the    Government          to   permit       the

defendant      to    inspect       documents       and    objects        that      are     in   the

Government’s possession, custody, or control, and (i) material

to the defense, (ii) intended to be used in the Government’s

case-in-chief,        or     (iii)     obtained          from    the     defendant.             The

records did not belong to Clem, and the Government did not use

                                               7
them in its case-in-chief.               Thus, in order for the records to be

discoverable under Rule 16, Clem must show that the records were

“material” to his defense.                As discussed above, the fact that

Clem and his coconspirator spoke on the phone was not material,

given the wealth of evidence against Clem.                    Accordingly, there

was no discovery violation.

                                            V.

     Finally,       Clem     argues       that     his   108-month      sentence   is

substantively       unreasonable.           When    reviewing     the    substantive

reasonableness of a sentence, we consider “the totality of the

circumstances” under an abuse of discretion standard.                       Gall v.

United    States,     552    U.S.    38,    51   (2007).     In    evaluating      the

sentence for an abuse of discretion, this court “give[s] due

deference to the [d]istrict [c]ourt’s reasoned and reasonable

decision that the § 3553(a) factors, on the whole, justified the

sentence.”      Id. at 59-60.            We presume that a sentence within or

below a properly calculated Guidelines range is substantively

reasonable.      United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).                  The defendant bears

the burden of rebutting this presumption “by showing that the

sentence is unreasonable when measured against” the sentencing

factors set forth in 18 U.S.C. § 3553(a) (2012).                  Id.

     Clem’s     claim       of   substantive        unreasonableness       is   based

largely    on   the    length       of    his    coconspirator’s     sentence      (84

                                            8
months) compared to his, given that the coconspirator is the one

who   took      pictures       of    her    daughter        and    sent   them     to    Clem.

However,     some      disparity       is   reasonably        expected      based       on   the

coconspirator’s cooperation.                   Moreover, because Clem’s sentence

is within the Guidelines range, it is presumed reasonable, and

we find that Clem fails to rebut this presumption.                              The district

court    primarily       relied       on    the      need   for    deterrence       and      its

findings that the coconspirator was vulnerable and malleable,

that Clem had not been truthful at trial, and that Clem was

aware of the identity of the victim.                         Clem does not show that

these findings are clearly erroneous and has not provided any

other basis to rebut the presumption of reasonableness attached

to his sentence.          Accordingly, Clem’s sentence was substantively

reasonable.

                                               VI.

        Thus,    we     affirm       Clem’s    convictions         and    sentence.           We

dispense        with    oral        argument      because        the    facts    and     legal

contentions       are    adequately         presented       in    the    materials      before

this court and argument would not aid the decisional process.



                                                                                    AFFIRMED




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