14-4566
United States v. Schliebener

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 27th day of
January, two thousand sixteen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         DENNIS JACOBS,
         RICHARD C. WESLEY,
               Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                       v.                                           No. 14-4566

WILLIAM SCHLIEBENER, JR.,

         Defendant-Appellant.
________________________________________________

For Appellee:                            JOSEPH J. KARASZEWSKI, Assistant United States
                                         Attorney, for William J. Hochul, Jr., United States


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                                          Attorney for the Western District of New York,
                                          Buffalo, New York.

For Defendant-Appellant:                  JEFFREY L. CICCONE, Jay S. Ovsiovitch, Federal Public
                                          Defender’s Office for the Western District of New
                                          York, Rochester, New York.


        Appeal from the United States District Court for the Western District of New York

(Geraci, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-appellant William Schliebener, Jr., appeals a judgment of conviction and

sentence entered by the United States District Court for the Western District of New York

(Geraci, J.) on December 3, 2014. Following Schliebener’s plea of guilty to one count of

transporting a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. §

2423(a) and three counts of knowingly producing child pornography in violation of 18 U.S.C. §§

2251(a), (e), the district court sentenced him to 300 months’ imprisonment and 15 years of

supervised release. We assume the parties’ familiarity with the facts and the procedural history

of this case.

        “A sentencing court’s legal application of the Guidelines is reviewed de novo, while the

court’s underlying factual findings with respect to sentencing, established by a ‘preponderance of

the evidence,’ are reviewed for clear error.” United States v. Cossey, 632 F.3d 82, 86 (2d Cir.

2011) (quoting United States v. Gaskin, 364 F.3d 438, 464 (2d Cir. 2004)).




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       Schliebener argues first that the district court’s application of the “one-book rule” when

calculating Schliebener’s Guidelines range violated his rights under the Ex Post Facto Clause.

The one-book rule instructs that, “[i]f the defendant is convicted of two offenses, the first

committed before, and the second after, a revised edition of the Guidelines Manual became

effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” U.S.

Sentencing Guidelines Manual § 1B1.11(b)(3) (2015). In this case, the revised edition of the

Guidelines Manual in effect at the time Schliebener committed his fourth offense (the

transportation count) contained additional enhancements applicable to his three earlier offenses

(the production counts) that did not exist at the time Schliebener committed those earlier

offenses. Application of the one-book rule resulted in the district court calculating a Guidelines

range of 324 to 405 months’ imprisonment instead of a range of 168 to 210 months’

imprisonment.

       Schliebener’s argument is foreclosed by our decision in United States v. Kumar, 617 F.3d

612 (2d Cir. 2010). There, we explained that “[t]he existence of an ex post facto violation turns

on whether an individual was deprived of fair notice . . . .” Id. at 628. Accordingly, because the

“adoption of the one-book rule prior to the commission of the [defendant’s first] offense . . .

place[s] [the defendant] on notice of the consequences of committing [a] second offense,” there

is no violation of the Ex Post Facto Clause when the rule is applied. Id. Schliebener claims that,

notwithstanding Kumar’s general rule, he lacked notice here because the offense conduct

underlying the production counts took place in North Carolina and those counts were included in

his plea agreement in the District Court for the Western District of New York only as a result of



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his agreement to waive any objection based on venue. However, although Schliebener is correct

that his waiver facilitated his prosecution in the Western District of New York, it is undisputed

that no waiver was needed for the government to prosecute all counts, including the

transportation count, in a single district in North Carolina. See 18 U.S.C. § 3237(a). Schliebener

was therefore on notice that he could be sentenced for all offenses in a single proceeding and

that, as a result, the commission of the transportation count would result in increased penalties

for the production counts. Because such notice is all that is required, Kumar, 617 F.3d at 628,

the location in which (on his consent) Schliebener was ultimately convicted and sentenced is

irrelevant to our analysis of his ex post facto claim.

       We also reject as meritless Schliebener’s contention that the district court clearly erred in

applying an enhancement for the commission of a sex act in connection with the transportation

count. See U.S. Sentencing Guidelines Manual § 2G1.3(b)(4) (2013). The district court received

evidence that Schliebener’s minor victim in the transportation offense told authorities that

Schliebener had intercourse with her and performed oral sex on her, both of which are sex acts.

See 18 U.S.C. § 2246(2); U.S. Sentencing Guidelines Manual § 2G1.3 cmt. n.1 (2013).

Although, as Schliebener observes, an analysis of a rape kit test produced no evidence of semen

or saliva, the victim also stated that Schliebener had condoms and that she showered before the

rape kit test was performed. Given the undisputed evidence in the record that Schliebener

committed sex acts on other minors, it was not clear error for the district court to credit the

victim’s statements and to view them as explaining the seemingly inconsistent rape kit results.




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       We have considered all of Schliebener’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                         FOR THE COURT:
                                         CATHERINE O’HAGAN WOLFE, CLERK




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