                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4499


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

JOHNNY RAY LEE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00152-D-1)


Argued:   January 29, 2009                  Decided:   March 27, 2009


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.     Judge Shedd wrote a
separate concurring opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.      Ethan A.
Ontjes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.  ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.   George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
Banumathi Rangarajan, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Defendant       Johnny      Ray      Lee       appeals         the    district          court’s

imposition       of     a    420-month       sentence            upon       his    conviction         of

transmitting          child       pornography            and          transporting             obscene

materials over the Internet.                      Lee argues that, in calculating

the    advisory       guidelines         range,       the    district             court   erred       by

applying    a     four-level           enhancement          on    the       ground       that    Lee’s

“offense involved material that portrays sadistic or masochistic

conduct      or         other          depictions           of        violence.”            U.S.S.G.

§   2G2.2(b)(4).            The district court based this enhancement upon

five    images        possessed        by   defendant.            We       conclude       that       the

district court did not commit clear error in its findings that

Exhibit     5,    one       of   the     images        possessed            by    defendant,         was

sexually     explicit            child      pornography               portraying          sadistic,

masochistic, or other violent conduct.                                As such, it qualifies

for the enhancement under any definition.                                We therefore affirm

defendant’s       sentence         without        reaching            defendant’s         arguments

regarding    the       scope     of     section       2G2.2(b)(4)’s               meaning       or   the

section’s constitutionality.



                                                 I.

       In   early       2006,      Lee,      a        resident          of       North    Carolina,

transmitted       child      pornography          images         to   an     undercover         police

officer     in    Keene,         New     Hampshire.              Investigators            in     Keene

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contacted      the   North   Carolina      State    Bureau    of     Investigation,

which began its own investigation.                 An undercover officer made

online contact with Lee, and determined that he was involved in

exchanging      child   pornography.           After   communicating          with   the

officer online, Lee agreed to meet the officer in person for the

purpose of exchanging child pornography images.                     Lee came to the

meeting with disks containing child pornography, and subsequent

searches of several online accounts revealed more image files.

In total, Lee’s collection contained between 275 and 295 child

pornography images.

       A federal grand jury indicted Lee on five counts related to

transmitting and possessing child pornography.                   Lee subsequently

pled guilty to two of the counts: one count of transmitting

child pornography in violation of 18 U.S.C. § 2252(a)(1), and

one count of transporting obscene matters over the internet in

violation of 18 U.S.C. § 1462.             Lee waived his right to appeal a

sentence of 293 months or fewer, but preserved his right to

appeal a longer sentence.

       Lee’s    presentence       report       determined    that       the    advisory

guidelines range for Lee’s offense was 360 to 480 months of

imprisonment on the count for transmission of child pornography.

This   calculation      included     a   four-level     enhancement           resulting

from five images “portray[ing] sadistic or masochistic conduct

or   other     depictions    of   violence.”           U.S.S.G      §    2G2.2(b)(4).

                                           4
Without this enhancement, Lee’s guideline range on the first

count    would    have       been   235   to        293    months.     The     report      also

concluded      that        the    guidelines         advised    the        maximum   penalty

authorized by statute, 60 months of imprisonment, on the count

for transportation of obscene materials over the internet.

       At sentencing, defendant objected to the application of the

enhancement based on the five images.                         First, defendant argued

that    four     of    the       images   did       not    depict     sexually       explicit

content, and that the section can only apply to pornographic

images when used to enhance a guidelines range for the offense

of    transmitting         child    pornography.            Second,    defendant      argued

that    Exhibit       5,    while    sexually        explicit,       did    not   appear     to

depict an individual under 18 years of age, and that the image

was not sadistic, masochistic, or violent.

       The district court rejected defendant’s arguments, holding

that section 2G2.2(b)(4) applies to images that are sadistic,

masochistic, or violent, even if not sexually explicit.                                    The

court made several holdings in the alternative: first, that the

third and fifth images were sexually explicit; second, that the

fifth image alone would support the enhancement, and that the

individual depicted in the image was a minor; and third, that

the    fifth     image      would    support         the    enhancement       even    if   the

individual depicted was an adult.



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       The district court thus calculated Lee’s advisory guideline

range       to    be     360    to    480   months       of     imprisonment     on    the

transmission of child pornography count, as had the presentence

report.           The    district      court       then,       after    considering    the

sentencing factors enumerated in 18 U.S.C. § 3553(a), sentenced

defendant to a term of imprisonment of 420 months on the first

count of the indictment, to be served concurrently with a term

of 60 months on the second count.                   The court also observed that,

if    the    four-level        enhancement     under       section      2G2.2(b)(4)   were

improperly applied, the court would have sentenced defendant to

the     same       sentence      in    light       of    the     “unique     nature    and

circumstances of this offense, the uniquely troubling history

and characteristics of this defendant, and the unique need to

protect the public from further crime of this defendant.”                             J.A.

114.    Defendant now appeals his sentence on the ground that the

district         court   procedurally       erred       when    computing    defendant’s

advisory guidelines range.



                                            II.

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

federal sentencing guidelines unconstitutional and remedied the

unconstitutionality by declaring them to be merely advisory for

sentencing          judges.           Sentences          are      now     reviewed    for

reasonableness, an inquiry that “includes both procedural and

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substantive components.”                United States v. Abu Ali, 528 F.3d

210,    260    (4th    Cir.     2008).        However,        the    guidelines         are    not

without       legal     significance          after        Booker.         The     sentencing

procedure       mandated       by     the     reasonableness             inquiry        requires

district judges to calculate the proper guidelines range for a

defendant      at     the    outset     of    sentencing.            See   Gall    v.     United

States, 128 S. Ct. 586, 596 (2007).                          “A sentence based on an

improperly          calculated        guidelines            range        will      be      found

unreasonable and vacated.”               Abu Ali, 528 F.3d at 260.

       The advisory guidelines range calculated by the district

court    in    this     case     included      a     four-level          enhancement       under

section 2G2.2(b)(4).             The district court’s first justification

for     applying      the     enhancement           was     that     section      2G2.2(b)(4)

applies to material that is sadistic, masochistic, or violent,

even    if    not     sexually      explicit.             Defendant      argues    that       this

interpretation          is     inconsistent          with      the       text     of     section

2G2.2(b)(4),         which     states        that     “[i]f        the   offense        involved

material that portrays sadistic or masochistic conduct or other

depictions of violence, increase [the base offense level] by 4

levels.”       U.S.S.G. § 2G2.2(b)(4).                    Defendant contends that the

provision’s         text     requires    that       the     sadistic,       masochistic         or

otherwise violent material triggering the enhancement must be

part of “the offense” -- here, transmitting child pornography.

Thus, defendant contends that only sexually explicit images of

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children depicting sadism, masochism, or other violence can be

used to enhance defendant’s sentence under section 2G2.2(b)(4).

In   the   alternative,     defendant          argues       that       that   a   reading    of

section     2G2.2(b)(4)         that        allows     an     enhancement          for    non-

pornographic material that is sadistic, masochistic, or violent

is   unconstitutionally         overbroad,          because       it    would     increase   a

defendant’s advisory guidelines sentencing range for possessing

films and images representing constitutionally protected speech.

      We need not address whether section 2G2.2(b)(4) applies to

material    that     is   not    sexually         explicit,        or     whether    such    a

reading would implicate the First Amendment.                           The district court

provided an alternate ground for its application of the four-

level enhancement: it found that Exhibit 5 depicts a minor, is

sexually explicit, and is sadistic, masochistic, or otherwise

violent.      Both    sides      agree       that    section       2G2.2(b)(4)       can     be

properly triggered by an image that depicts a minor and is both

sexually explicit and that portrays sadism, masochism, or other

violent conduct.          Defendant never contested that Exhibit 5 is

sexually     explicit,      and        on     appeal        now    concedes        that     the

individual depicted therein is a minor.                            Defendant thus only

disputes the district court’s factual finding that the image

“portrays sadistic or masochistic conduct or other depictions of

violence.”     U.S.S.G. § 2G2.2(b)(4).                 While we review a district

court’s legal conclusions de novo, the court’s findings of fact

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at   sentencing       will   be    overturned      only     if   clearly    erroneous.

United States v. Hampton 441 F.3d 284, 287 (4th Cir. 2006); see

also Gall, 128 S. Ct. at 597.

       We hold that the district court did not clearly err in

finding that Exhibit 5 portrays sadistic, masochistic, or other

violent conduct.          Pornographic images depicting the bondage of

children are sadistic within the meaning of section 2G2.2(b)(4).

See, e.g., United States v. Hoey, 508 F.3d 687, 692 n.3 (1st

Cir. 2007).          Exhibit 5 depicts a boy wearing a leather strap

around    his    torso       and   holding     his       hands   behind     his   back.

Defendant argues that the boy is not bound, and does not appear

to be in pain. However, both the leather strap and the placement

of the boy’s hands behind his back -- an unusual position for

someone to place his unbound hands -- give rise to an inference

that the boy’s hands are bound.                This inference is at the very

least    not    clearly      erroneous.       We     thus    cannot   say    that   the

district court, in finding the image sadistic, masochistic, or

violent, clearly erred.

       Because we conclude that the district court’s finding that

Exhibit 5 was sadistic was not clearly erroneous, and because

defendant concedes that the Exhibit was sexually explicit and

depicted a minor, section 2G2.2(b)(4) clearly applies to it,

even     on    the    interpretation      of       the    guideline    advanced      by

defendant.      The district court therefore calculated the advisory

                                          9
guidelines range correctly.    Thus, there was no procedural error

in defendant’s sentencing. *



                                III.

     Defendant’s sentence is therefore affirmed.

                                                          AFFIRMED




     *
       Defendant does not argue that, if the advisory guidelines
range calculated by the court was in fact correct, the sentence
was nonetheless substantively unreasonable.



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SHEDD, Circuit Judge, concurring:

       I am pleased to concur in the per curiam opinion.                                  I write

separately to note that, in my view, the sentence could also be

affirmed on the alternate reasoning given by the district court.

       The district court calculated Lee’s sentencing guidelines

range and overruled his objection to the four-level enhancement.

The court then sentenced Lee using the enhancement, but it also

explained         why    it    would      sentence         Lee     to    the    same     term     of

imprisonment even if the enhancement does not apply.                                     Although

Lee    argues       on     appeal      that      the       court       erred    in     using     the

enhancement,        he     does     not    argue       that   the       court    committed       any

other error in the guidelines calculation.

       In    imposing         the   alternate          sentence,        the     district       court

followed the reasoning of United States v. Keene, 470 F.3d 1347

(11th Cir. 2006).               In Keene, the district court sentenced the

defendant using a contested sentencing enhancement, but it also

stated      that    even      if    the   enhancement            did    not    apply     it    would

impose      the    same       sentence.          On    appeal,         the    Eleventh    Circuit

affirmed without deciding the enhancement issue because it found

that   the     alternate           sentence      was       reasonable.           As    the     court

explained:         “[I]t       would      make        no   sense        to    set     aside     this

reasonable sentence and send the case back to the district court

since it has already told us that it would impose exactly the



                                                 11
same sentence, a sentence we would be compelled to affirm.”                          Id.

at 1350.

       This    case   is   strikingly    similar     to   Keene.      Even      if    we

agreed      with   Lee   regarding     the    enhancement,    a    remand      to    the

district court would lead to imposition of the same sentence.

In   this     circumstance,     where    we    are   presented     with    a   single

disputed guideline calculation, the question that we could have

addressed in lieu of the propriety of the enhancement is whether

the sentence imposed (without the enhancement) is nonetheless

reasonable.        For the reasons set forth by the district court, I

believe that the alternate sentence is reasonable.                        Therefore,

this   case     could    have   been    affirmed     simply   on   the    alternate

sentence.      See United States v. Shatley, 448 F.3d 264 (4th Cir.

2006) (affirming an alternate sentence that was identical to a

sentence that violated United States v. Booker, 543 U.S. 220

(2005), because the Booker error was harmless).




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