                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0072n.06

                                           No. 12-6355
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Jan 28, 2014
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
JOHN DENNIS CLARK,                                   )       DISTRICT OF KENTUCKY
                                                     )
       Defendant-Appellant.                          )
                                                     )



       BEFORE: COOK and STRANCH, Circuit Judges; CARR, District Judge.*


       PER CURIAM. John Dennis Clark appeals the district court’s judgment of conviction and

sentence.

       Clark pleaded guilty to possessing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B), and receiving and distributing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2). The district court determined that Clark’s base offense level was 22. It applied

several enhancements, including a two-level increase under USSG § 2G2.2(b)(3)(F) because the

offenses involved distribution and a five-level increase under § 2G2.2(b)(5) because Clark engaged

in a pattern of activity involving the sexual exploitation of a minor. Based on Clark’s total offense

level of 40 and his criminal history category of I, his guidelines range of imprisonment was 292 to

365 months. The district court sentenced him to 262 months in prison, consisting of a 22-month




       *
        The Honorable James G. Carr, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-6355
United States v. Clark

term for the distribution conviction, to be served consecutively to concurrent terms of 240 months

for the receipt conviction and 120 months for the possession conviction.

       On appeal, Clark makes two arguments:            (1) the district court’s application of the

enhancement under § 2G2.2(b)(3)(F) resulted in improper double counting because the fact that he

had distributed child pornography was taken into account by his conviction under § 2252A(a)(2);

and (2) the district court erred by applying the enhancement under § 2G2.2(b)(5) because there was

insufficient evidence to demonstrate that his prior alleged sexual abuse of a minor constituted a state

or federal offense. We review the district court’s application of the Sentencing Guidelines de novo

and its findings of fact for clear error. United States v. Bolton, 669 F.3d 780, 782 (6th Cir.), cert.

denied, 133 S. Ct. 230 (2012).

       Despite Clark’s argument to the contrary, the district court’s application of the enhancement

under § 2G2.2(b)(3)(F) did not result in improper double counting. See United States v. Reingold,

731 F.3d 204, 227-28 (2d Cir. 2013); United States v. Chiaradio, 684 F.3d 265, 282-83 (1st Cir.),

cert. denied, 133 S. Ct. 589 (2012).1 The district court also properly applied the enhancement under

§ 2G2.2(b)(5). That enhancement is applicable where “the defendant engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor.” USSG § 2G2.2(b)(5). “Sexual abuse or

exploitation” means, among other things, an offense under state law that would have been an offense

under certain sections of federal law, including 18 U.S.C. § 2243, if the offense had occurred within


       1
         Clark’s double-counting argument also appears to challenge the sufficiency of the evidence
for the distribution enhancement, an issue that must rise to the level of plain error because he failed
to present it to the district court. E.g., United States v. Yancy, 725 F.3d 596, 600–01 (6th Cir.
2013); United States v. Maye, 582 F.3d 622, 627 (6th Cir. 2009). In the absence of plain-error
argument, we find none. See United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
Moreover, his guilty-plea admission of distribution and his below-guidelines sentence belie that
position.

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United States v. Clark

a federal jurisdiction. USSG § 2G2.2(b)(5) cmt. n.1; United States v. Wright, 464 F. App’x 475, 482

(6th Cir.), cert. denied, 133 S. Ct. 173 (2012). The testimony at the sentencing hearing that Clark,

while in his twenties, engaged in sex acts with a twelve-year-old boy was sufficient to establish that

Clark committed an offense under Kentucky law that would have been an offense under § 2243 if

it had occurred within a federal jurisdiction.         See 18 U.S.C. § 2243(a); Ky. Rev. Stat.

§§ 510.110(1)(c)(1), 510.120(1)(b); Wright, 464 F. App’x at 483.

       Accordingly, we affirm the district court’s judgment.




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United States v. Clark

       JANE B. STRANCH, concurring. Although I join the majority opinion to affirm, I am

compelled to note that the government bears the burden to prove, by a preponderance of the

evidence, the applicability of the two-level sentencing enhancement for distribution of child

pornography under USSG § 2G2.2(b)(3)(F). See United States v. Williams, 709 F.3d 1183, 1186

(6th Cir. 2013). In United States v. Conner, 521 F. App’x 493 (6th Cir. 2013), and United States

v. Darway, 255 F. App’x 68 (6th Cir. 2007), we upheld similar sentencing enhancements because

the proof demonstrated that the defendants knowingly used peer-to-peer file-sharing programs such

as LimeWire to distribute child pornography images on the internet. Here, the government’s

evidence that Clark knowingly used Flickr to distribute child pornography was very thin, but the

enhancement is warranted because Clark admitted distribution at his guilty plea hearing.

Accordingly, I concur.




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