                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           April 1, 2009
                       UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                                                                           Clerk of Court
                                  TENTH CIRCUIT
                             __________________________

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 07-8096
                                                               (D. Wyo.)
 STEPHEN JAMES MILLER,                             (D.Ct. No. 2:07-CR-00124-ABJ-1)

           Defendant - Appellant.
                          ____________________________

                               ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       This case concerns only sentencing guideline computations. Stephen Miller

violated 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1), interstate distribution of child

pornography, and was sentenced to 135 months incarceration. The district court

       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
imposed a 2-level enhancement for the use of a computer in committing the

offense and a 5-level enhancement for distribution of child pornography for a

thing of value. Miller claims the application of the enhancements was

impermissible double counting. He is wrong; we affirm.

                                   I. BACKGROUND

      Starting on April 6, 2007, and continuing through at least April 26, 2007,

Miller exchanged emails with an undercover federal officer to obtain DVDs

advertised to contain child pornography. He emailed the officer a number of

images hoping to obtain the DVDs in exchange. Some of the images he sent

contained child pornography. He later admitted these actions to investigating

officers and told them they would likely find images of child pornography on the

computer and other storage media in his home. Approximately 200 images of

child pornography were eventually discovered on his computer.

      Miller was indicted and pled guilty. At sentencing, the district court

correctly noted 18 U.S.C. § 2252A(a)(2)(A) and the base offense level under

USSG § 2G2.2(a)(2) 1 did not account for Miller’s use of a computer in his

distribution or receipt of child pornography, nor did it account for his expectation

of receiving a thing of value (although not for pecuniary gain) in making the

distribution. The court assessed two enhancements under USSG §§ 2G2.2(b)(6)


      1
         All references to the United States Code and United States Sentencing Guidelines
are to the 2006 version unless otherwise stated.

                                           -2-
and (b)(3)(B), respectively, to account for these aggravating aspects of the crime.

Miller objected, claiming the conduct supporting the enhancements was embodied

within the elements of the offense and their application was impermissible double

counting. 2 The court overruled his objections.

                                  II. DISCUSSION

      We review de novo the district court’s application and interpretation of the

sentencing guidelines. United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039

(10th Cir. 1999)

      Miller summarizes his arguments as follows:

      Appellant argues that certain sentencing enhancements are
      constitutionally infirm and unreasonable, specifically the 5 level
      enhancement for exchange of a thing [of] value and a 2 level bump
      for use of a computer. Appellant argues that the enhancements
      amount to double counting in violation of the Eighth Amendment
      to the United States Constitution and the law governing the
      Sentencing Commission. Objection is based on double counting as
      the use of a computer is inherent in the elements of the statute and
      in violation of the principles of the Sentencing Guidelines.

(Appellant’s Opening Br. at 10-11.) The constitutional assertion is unsupported

by any effort to develop or explain it. Nor does Miller develop what we take to

be a claim the sentence is substantively unreasonable. Appellate review is

deemed waived for token allegations of error. See Fed. R. App. P. 28(a)(9)(A)

      2
        The district court also applied a 2-level enhancement pursuant to USSG
§2G2.2(b)(2) because the images Miller sent involved a prepubescent minor or a minor
who had not attained the age of 12 years and a 3-level enhancement pursuant to USSG
§2G2.2(b)(7)(B) because the offense involved at least 150 but fewer than 300 images.
Miller did not object to these enhancements and does not appeal from their application.

                                           -3-
(requiring appellant’s brief contain his “ contentions and the reasons for them,

with citations to the authorities . . . on which appellant relies”); see also Jordan v.

Bowen, 808 F.2d 733, 736 (10th Cir. 1987) (“Appellants who fail to argue [an]

issue in their brief are deemed to have waived [that] contention on appeal.”).

      The only issue developed by argument is summarized as follows: “Mr.

Miller argues that the enhancements were improperly double-counted in the

sentencing process here, because the use of the computer as well as the

distribution of a thing of value are inherently embodied in the underlying statute

(18 U.S.C. § 2252[A](a)(2)(A)).” (Appellant’s Opening Br. at 13.) He discusses

double counting in general, citing cases, but ultimately concedes, as he must, the

result here is controlled by United States v. Duran, 127 F.3d 911, 918 (10th Cir.

1997). In Duran, we said if a defendant can possibly: “‘be sentenced under a

particular offense guideline without having engaged in a certain sort of behavior,

such behavior may be used to enhance the offense level . . . the guideline’s base

offense level will not necessarily have been set to capture the full extent of the

wrongfulness.’” Id. at 919 (quoting United States v. Reese, 2 F.3d 870, 895 (9th

Cir. 1993)). Miller could have been sentenced under §2G2.2(a)(2) without

having used a computer or distributing child pornography for a thing of value. He

was sentenced under this guideline for his violation of 18 U.S.C.

§ 2252A(a)(2)(A), which provides:

      “(a) Any person who--

                                          -4-
      ....
              (2) knowingly receives or distributes--

                   (A) any child pornography that has been mailed, or
                   shipped or transported in interstate or foreign commerce
                   by any means, including by computer . . . .
      ....
      shall be punished as provided in subsection (b).”

The statutory language “including by computer” obviously does not require

computer use to violate the statute. Accordingly, enhancing punishment for that

specific and additional conduct is not prohibited. The same is true for

distribution of child pornography for a thing of value, which is nowhere

mentioned in the statute. Applying enhancements to account for these actions

was permissible because the base offense level did not capture the full extent of

the wrongfulness in Miller’s behavior.

      The Sentencing Commission plainly understands the concept of double

counting, and expressly forbids it where it is not intended. Duran, 127 F.3d at

918. Here, the guidelines specifically provide for separate enhancements. The

base offense level for a violation of 18 U.S.C. § 2552A(a) is enhanced by 5 if the

offense involved “[d]istribution for the receipt, or expectation of receipt, of a

thing value, but not for pecuniary gain,” see USSG §2G2.2(b)(3)(B), and by 2

“[i]f the offense involved the use of a computer . . . for the possession,

transmission, receipt, or distribution of the material,” see USSG §2G2.2(b)(6).

Use of a computer does not overlap distribution in exchange for or expectation of


                                         -5-
a thing of value. There is no double counting.

      AFFIRMED.

                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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