                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 29, 2007
                             No. 06-14308                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 06-00029-CR-CG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ROBBIE ALLEN MAULDIN,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                             (March 29, 2007)


Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Robbie Allen Mauldin appeals his sentence imposed after he pled guilty to

possession of child pornography. He asserts the district court erred in enhancing

his sentence under U.S.S.G. § 2G2.2(b)(7)(D) for an offense involving 600 or more

images because the court failed to consider whether the images were intentionally

downloaded or were “cached” images automatically written onto his computer

while he was viewing a website. He also contends the district court committed

error under United States v. Booker, 125 S. Ct. 738 (2005), specifically

(1) violating his Fifth and Sixth Amendment rights because he was sentenced

based on a finding there were 600 or more images, a factor he claims was neither

admitted to by him, proven to a jury beyond a reasonable doubt, or charged in the

indictment; and (2) increasing his penalty beyond the statutory maximum sentence

because he claims the statutory maximum is proscribed by facts either admitted by

the defendant or found by the jury. The district court did not err, and we affirm.

                                I. BACKGROUND

      A federal grand jury indicted Mauldin, charging him with knowingly

possessing and attempting to possess images of child pornography that were

mailed, shipped, and transported in interstate commerce by any means, including

by computer, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). At a




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change-of-plea hearing, Mauldin entered a guilty plea without a written plea

agreement.

      The PSI set Mauldin's base offense level at 18, pursuant to U.S.S.G.

§ 2G2.2(a). The PSI then enhanced Mauldin's offense level by 5 levels, pursuant

to 2G2.2(b)(7)(D), on the basis the offense involved 600 or more images of child

pornography. The PSI then applied several additional enhancements and

reductions, resulting in a total offense level of 28. With a criminal history category

of I, the Guidelines range was 78 to 97 months' imprisonment. Mauldin objected

to the 5-level increase for possessing 600 or more images and to the PSI's failure to

recommend a downward departure.

      At the sentencing hearing, Mauldin first addressed his objection regarding

the number of images. He stated that he was not disputing the Government's

assertion that there were over 900 images, but that he was objecting to "the

character of the evidence" because the overwhelming majority were "cached"

images. Mauldin claimed there was a Ninth Circuit case on point discussing the

issue of cached images. Mauldin also proffered the testimony of Barry Langley, a

computer consultant, who testified he had examined the disk provided to him by

the FBI. Langley testified that many of the images were "stacked," meaning there

were multiple images on a single webpage. He also testified that a "cached image"



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was an image that was automatically written onto a hard drive after a person had

visited a website. Langley testified Mauldin could not have purposely downloaded

every single image because he was using a 56k dial-up modem and could not have

done it in the time indicated.

      After Langley's testimony, the district judge asked Mauldin about the Ninth

Circuit opinion discussing cached images. The following exchange occurred:

      The Court: All right. Well, what I understand this opinion to say is
      that the district judge found that or granted a downward departure for
      the case being outside the heartland of child pornography cases
      because these were cached images or in part because they were cached
      images.

      [Defense Counsel]: Yes, Your Honor. And that’s part of my argument
      here.

      The Court: Well, I had understood that you objected to the . . .
      2G2.2(B)(7)(D) finding that there were more than 600 images because
      some of them were cached.

      [Defense Counsel]: Well, and if I didn’t articulate it properly, Your
      Honor, I apologize. What I did out of an abundance of caution was–
      this is a very–this was a–I’m not sure what it is. But granted, we do
      not dispute that the 958 images that were presented on that disk that
      we looked at at the FBI office were on his computer. That is not
      correct. And toward that end, I understand what Your Honor’s
      saying. I guess that the problem–

      The Court: Well, I had understood your argument to be more or less
      because he didn’t have the so-called intent to download them, that he
      thought he was just looking at them on a website, that perhaps that
      enhancement shouldn’t apply.



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      [Defense Counsel]: Well, I think that what you can–no. I think what
      the Court can do in this case–because I really think that, as a matter of
      law, when you’re dealing with cached images you’re outside the
      heartland, because they never contemplated that.

      The Court: Well, but we’ve got two separate issues here.

      [Defense Counsel]: I hear you. You’re correct, Your Honor, you’re
      correct.

      The Government then proffered the testimony of Barbara Wardriski, an

information specialist forensic examiner for the FBI. She testified there were over

800 images recovered in various computer folders. The Government also proffered

the testimony of Angela Tobon, a special agent for the FBI. She testified that

images of child pornography were viewed on numerous occasions between May

and July before “the system was wiped clean.” She also identified four images of

child pornography she had reviewed and described them for the court. On cross-

examination, Tobon testified she was informed there were 900-plus images of child

pornography on the hard drive.

      After Tobon finished testifying, the district judge asked, “Now, where are

we in terms of any objection to the actual calculation of the guidelines?” Mauldin

replied, “I think Your Honor has properly characterized that the calculations for the

number of images found on that computer are 985.” The district judge then found

the total offense level to be 28 with a criminal history category of I. The district



                                           5
judge inquired if there were any objections, to which Mauldin replied, “No, Your

Honor.”

      Mauldin then argued this case was outside the heartland of child

pornography cases because (1) there was evidence that it was his computer that

was downloading images onto his hard drive, and (2) unlike the majority of

individuals engaged in this conduct, he never organized these images into

computer files or traded them via e-mail. The district judge rejected Mauldin’s

argument, finding this type of case was not outside the heartland.

      The district judge sentenced Mauldin to the low-end guideline sentence of

78 months’ imprisonment to be followed by a life term of supervised release.

After imposing sentence, the district judge inquired if there were any objections.

Mauldin replied he was restating his objection that he was entitled, as a matter of

law, to consideration of a downward departure. The district judge noted he had

considered and rejected Mauldin’s argument for a downward departure.

                                 II. DISCUSSION

A. U.S.S.G. § 2G2.2(b)(7)(D)

      Mauldin asserts the district court erred in enhancing his sentence under

U.S.S.G. § 2G2.2(b)(7)(D) for an offense involving 600 or more images because

the court failed to consider whether the images were intentionally downloaded or



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were “cached” images automatically written onto his computer while he was

viewing a website. “Post-Booker, we continue to review the district court’s

application of the Guidelines just as we did pre-Booker: The district court’s

interpretation of the sentencing guidelines is subject to de novo review on appeal,

while its factual findings must be accepted unless clearly erroneous.” United

States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005) (quotation omitted). Pursuant

to U.S.S.G. § 2G2.2(b)(7)(D), the district court shall increase a defendant’s offense

level by 5 levels if the offense involved 600 or more images.

      The district court did not clearly err in imposing the enhancement.

Mauldin conceded at sentencing that there were over 900 images of child

pornography stored on his computer. Additionally, in the middle of his sentencing

hearing, Mauldin abandoned his argument that not all images should count toward

the enhancement because they were “cached” in favor of arguing for a downward

departure on the basis the cached images took the case outside the heartland of

child pornography cases.1

B. Booker

      Mauldin contends the district court committed error under Booker,

specifically (1) violating his Fifth and Sixth Amendment rights because he was



      1
          Mauldin does not appeal the district court's denial of downward departure.

                                                7
sentenced based on a finding there were 600 or more images, a factor he claims

was neither admitted to by him, proven to a jury beyond a reasonable doubt, or

charged in the indictment; and (2) increasing his penalty beyond the statutory

maximum sentence because he claims the statutory maximum is proscribed by

facts either admitted by the defendant or found by the jury.

      Contrary to Mauldin’s assertion, district courts are permitted under the

advisory Guidelines to apply extra-verdict enhancements based solely on judicial

factfinding. See United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005)

(explaining as long as the district court employs the Guidelines in an advisory

manner, the use of extra-verdict enhancements is not unconstitutional). Mauldin

admitted there were over 900 images stored on his computer, and the district court

heard expert testimony that over 800 images of child pornography were recovered

from Mauldin’s computer. Based on the admission and testimony, the district

court did not err in finding by a preponderance of the evidence that more than 600

images were involved. Additionally, Mauldin’s assertion the district court’s

sentence exceeded the statutory maximum is without merit. Under the advisory

Guidelines, the statutory maximum sentence is defined solely by the U.S. Code.

See United States v. Duncan, 400 F.3d 1297, 1303-05 (11th Cir.), cert. denied, 126

S. Ct. 432 (2005). Mauldin's low-end Guidelines sentence of 78 months’



                                          8
imprisonment was well below the statutory maximum sentence of 120 months’

imprisonment found in 18 U.S.C. § 2252A(b)(2).

                                II. CONCLUSION

      The district court did not clearly err in imposing a U.S.S.G.

§ 2G2.2(b)(7)(D) enhancement. Additionally, the district court did not commit any

error under Booker.

      AFFIRMED.




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