     Case: 15-11283      Document: 00513761268         Page: 1    Date Filed: 11/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-11283                                   FILED
                                  Summary Calendar                         November 15, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERIK MILTONHALL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-109-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Erik Miltonhall pleaded guilty to transporting a
visual depiction of a minor engaged in sexually explicit conduct and was
sentenced to the statutory maximum of 240 months. He appeals his sentence
on several grounds.
       Miltonhall first contends that the district court misapplied the
vulnerable victim enhancement under U.S.S.G. § 3A1.1(b). However, even


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-11283

absent the enhancement, Miltonhall’s guidelines range exceeded the statutory
maximum sentence. Further, the district court stated that it would impose the
same sentence without the enhancement. Thus, even if the district court did
err, it was harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 718-19
(5th Cir. 2010).
      Miltonhall also asserts that the district court misapplied the five-level
enhancement under § 2G2.2(b)(7)(A) for an offense involving 600 or more
images. The presentence report (PSR) states that Miltonhall possessed 1,625
images of child pornography at the time he distributed 13 images to another
person.   Moreover, testimony at sentencing revealed that he was actively
searching a large inventory of images when he was chatting with the person
with whom he ultimately transported the 13 images. As it is plausible in light
of the record as a whole that Miltonhall possessed 600 or more images of child
pornography “during the commission” of his acts of transporting child
pornography, the district court did not clearly err by applying the
enhancement. United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).
      Finally, Miltonhall contends that the district court violated his Fifth and
Sixth Amendment rights by considering pending state charges when applying
the pattern-of-activity enhancement under § 2G2.2(b)(5).        The PSR listed
statutory sodomy as a “pending charge” and explained that the charge arose
from allegations that Miltonhall sexually abused his ex-girlfriend’s daughter.
The probation officer gathered information regarding these allegations from
interviews conducted by the Child Advocacy Center of East Alabama and
conversations Miltonhall had with his ex-girlfriend on Facebook. Miltonhall
did not present any evidence (other than a self-serving denial that he ever
touched his ex-girlfriend’s daughter) to demonstrate that the information was
materially untrue, inaccurate, or unreliable. Absent contrary evidence, the



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                                No. 15-11283

district court was entitled to rely on the information in the PSR when
determining Miltonhall’s sentence. See United States v. Zuniga, 720 F.3d 587,
591 (5th Cir. 2013); United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir.
2002). Moreover, we have held that a defendant’s right to confrontation does
not extend to sentencing proceedings. See United States v. Beydoun, 469 F.3d
102, 108 (5th Cir. 2006); United States v. Navarro, 169 F.3d 228, 236 (5th Cir.
1999).
      The judgment of the district court is AFFIRMED.




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