           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                                       No. 05-20889                        August 17, 2007

                                                                       Charles R. Fulbruge III
UNITED STATES OF AMERICA,                                                      Clerk

                                                  Plaintiff-Appellee,
v.

ROBERT WARREN CHAPMAN,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                          (USDC No. 4:03-CR-357-ALL)


Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
       Robert Warren Chapman appeals his sentence following his conviction of
one count of possession of child pornography in violation of 18 U.S.C. § 2252A.
To avoid ex post facto issues, the district court calculated Chapman’s guideline
range using the 2002 U.S. Sentencing Guidelines Manual and the April 30, 2003
Supplement. The district court enhanced Chapman’s offense level by two levels
under U.S.S.G. § 2G2.4(b)(2) because Chapman possessed ten or more computer
files containing a visual depiction involving sexual exploitation of a minor and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 05-20889

by two levels under § 2G2.4(b)(5)(A) because the offense involved at least 10, but
fewer than 150 images. Under United States v. Gonzalez, 445 F.3d 815, 818 (5th
Cir. 2006), this double-counting was error, and the Government concedes that
the error requires re-sentencing. We vacate the sentence but add that the
court’s assessment of a life term of supervised release was consistent with the
guidelines and reasonable under the circumstances.


SENTENCE VACATED; REMANDED FOR RE-SENTENCING.




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