                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4209



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


BRIAN TOD SCHELLENBERGER,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:03-cr-00367-BO)


Submitted:   August 10, 2007              Decided:   September 6, 2007


Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Anthony E. Flanagan, LAW OFFICES OF ANTHONY E. FLANAGAN, P.A.,
Raleigh, North Carolina, for Appellant.     George E.B. Holding,
Acting United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Brian Tod Schellenberger pled guilty by written plea

agreement and was convicted of four counts of sexual exploitation

of a child (Counts 1, 3-5), in violation of 18 U.S.C. § 2251(a)

(2000); possession of child pornography (Count 2), in violation of

18 U.S.C.A. § 2252(a)(4)(B) and (b)(2) (West 2000 & Supp. 2003);

and use of interstate commerce facilities for murder for hire and

aiding and abetting same (Count 6), in violation of 18 U.S.C.

§§   1958(a)     and   2   (2000).      The    district    court     sentenced

Schellenberger to 100 years in prison.              It did so by imposing

consecutive sentences, for the statutory maximum terms, on Counts

1 through 5.

           Schellenberger contends on appeal that: (1) the district

court   erred    in    calculating   his     guideline    sentence    of   life

imprisonment; (2) “stacking” consecutive sentences to impose what

is, in effect, a life sentence was improper; and (3) his 100-year

sentence was not authorized by 18 U.S.C. § 3553(a).                Finding no

error, we affirm.



                                      I.

          In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court held that the mandatory manner in which the federal

sentencing      guidelines   required      courts   to    impose     sentencing

enhancements based on facts found by the court by a preponderance


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of the evidence violated the Sixth Amendment.             Id. at 226-44.          The

Court    remedied    the       constitutional     violation    by   severing      two

statutory provisions, 18 U.S.C. § 3553(b)(1) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C. § 3742(e) (setting forth appellate standards of

review    for    guideline      issues),   thereby    making     the    guidelines

advisory.       Booker, 543 U.S. at 244-65.

            Schellenberger’s           crimes     fall    under        18   U.S.C.

§ 3553(b)(2). Because Booker only excised the mandatory sentencing

provisions under § 3553(b)(1), it left unaddressed whether the

opinion would also apply to the child and sexual crimes described

in § 3553(b)(2).       United States v. Hecht, 470 F.3d 177 (4th Cir.

2006), answers this question in the affirmative.

            After Booker, a district court is no longer bound by the

range    prescribed       by   the   sentencing    guidelines.         However,   in

imposing a sentence post-Booker, courts still must calculate the

applicable guideline range after making the appropriate findings of

fact and consider the range in conjunction with other relevant

factors under the guidelines and § 3553(a).                   United States v.

Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006).       This Court will affirm a post-Booker sentence if it

“is within the statutorily prescribed range and is reasonable.”

Id. at 433 (internal quotation marks omitted).                      “[A] sentence

within   the     proper    advisory    Guidelines     range    is   presumptively


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reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.

2006); see also Rita v. United States, 127 S. Ct. 2456 (2007).*



                                 II.

                                  A.

          Schellenberger    contends    that      the   court    erred   by

improperly enhancing his offense level under the guidelines.              A

presentence     investigation      report         (“PSR”)       established

Schellenberger’s base offense level at 17, and added 29 levels to

account for various sentencing factors.        Three points were then

subtracted for acceptance of responsibility.        This yielded a total

offense level of 43.   Coupled with a criminal history category of

I, Schellenberger’s advisory guideline range was life imprisonment.

          Schellenberger maintains that the court “impermissibl[y]

double-count[ed]”   when   he   received    two     separate     five-level

increases for engaging in a pattern of activity involving the abuse

or exploitation of a minor, see USSG § 2G2.2(b)(4) (2003), and for

engaging in a pattern of prohibited sexual conduct, see id. §

4B1.5(b)(1).   He contends that the same course of conduct netted

two increases for the same reason. As the district court correctly



     *
          At sentencing, Schellenberger unsuccessfully raised
objections based upon Booker. To the extent that Schellenberger
intends to raise Booker challenges on appeal, we find the district
court properly treated the guidelines as advisory and found
sentencing factors by a preponderance of the evidence. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).

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determined, this double-counting was permitted, as it was not

expressly prohibited by the guidelines.              See United States v.

Wilson, 198 F.3d 467, 472 (4th Cir. 1999).           Each guideline applies

because   Schellenberger’s     conduct       fell    squarely   within       its

definition.     Moreover, § 4B1.5(b)(1) states that the five-level

enhancement is to be added to the offense levels determined under

Chapters Two and Three. Thus, the guidelines intend the cumulative

application of these enhancements.           We accordingly conclude that

Schellenberger’s claim fails.

          Schellenberger      also     appeals      the   district        court’s

application of a two-level enhancement under USSG § 3B1.1(c)

(2003), arguing that the court erred by finding he was a leader or

organizer in using interstate commerce facilities in the plot to

kill his wife.     Section 3B1.1(c) applies if the defendant was an

organizer, leader, manager, or supervisor in any criminal activity

involving fewer than five participants.            Schellenberger solicited

four people over the Internet to kill his wife, and offered to pay

for   driving    lessons,   sent     money   and    pornography      to     these

individuals, and offered his own sons to be raped, killed or sold

into sex slavery as compensation.            Also in furtherance of the

murder plot, Schellenberger sent his wife’s schedule, drawings of

his home and aerial photography to an individual who had agreed to

brutalize and murder Schellenberger’s wife, and placed materials

under the house to aid that individual in the torture and killing.


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All    arrangements     were   made   through       the   Internet.       Because

Schellenberger clearly was the organizer of the plot to kill his

wife, we conclude the district court properly enhanced his sentence

based upon § 3B1.1(c).

                                       B.

             Schellenberger next argues that the district court erred

when    it   stacked    his    sentences    consecutively      to     attain   the

applicable guideline range of life imprisonment.                Schellenberger

contends that his 100-year sentence is the functional equivalent of

life imprisonment, which exceeds the statutory maximum sentence for

each of his convictions, and is thus illegal.

             Although   Schellenberger        is   correct   that   the   highest

statutory maximum for any of the six counts to which he pled guilty

is thirty years of imprisonment, “[i]n the case of multiple counts

of conviction, the guidelines instruct that if the total punishment

mandated by the guidelines exceeds the highest statutory maximum,

the district court must impose consecutive terms of imprisonment to

the extent necessary to achieve the total punishment.”                     United

States v. White, 238 F.3d 537, 543 (4th Cir. 2001) (citing USSG §

5G1.2(d)).     Accordingly, we find no error in the district court’s

decision to “stack” sentences to satisfy Schellenberger’s guideline

sentence.

                                       C.




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            Finally,    Schellenberger      claims    his    sentence     was   not

authorized by § 3553(a) because his sentence is greater than

necessary to comply with the purposes of sentencing.                     He argues

that as a forty-three-year-old man, his 100-year sentence exceeds

the term needed to ensure that he remains imprisoned for life.

            Because Schellenberger’s 100-year sentence is essentially

a life sentence (and not more than a life sentence), it is within

the applicable guideline range and, thus, presumptively reasonable.

The district court appropriately treated the guidelines as advisory

and properly calculated and considered the guideline range as well

as the relevant factors under 18 U.S.C. § 3553(a).                    The court

accepted the facts found in the PSR, and the testimony of the

witnesses about the conduct, and found no reason to depart from the

guideline     range.     Although   the   court      did    not   discuss    every

§ 3553(a) factor, it was not required to do so.              Cf. United States

v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006) (“The district court need not discuss each factor set

forth in § 3553(a) in checklist fashion; it is enough to calculate

the range accurately and explain why (if the sentence lies outside

it) this defendant deserves more or less.” (internal quotation

marks omitted)).       Implicit in the court’s ruling was the serious

nature of Schellenberger’s offenses against his wife and children.

While   his    sentence    is   lengthy,     we      conclude     that     neither

Schellenberger nor the record suggests any information sufficiently


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compelling to rebut the presumption that a sentence within the

properly calculated guideline range is reasonable.



                               III.

          Accordingly, we affirm Schellenberger’s sentence.     We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          AFFIRMED




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