     Case: 18-10366      Document: 00514881360         Page: 1    Date Filed: 03/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 18-10366                            FILED
                                  Summary Calendar                    March 20, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TIMOTHY PAUL MALONE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-179-1


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
       Timothy Paul Malone pleaded guilty to two counts of sexual exploitation
of a child and one count of attempted sexual exploitation of a child, in violation
of 18 U.S.C. § 2251(a) and (e). He was sentenced to 1,080 months in prison.
       Malone asserts that the district court erred by not treating his counts of
convictions as a single group for purposes of calculating his base offense level.
He maintains that the district court should have grouped the counts together


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-10366     Document: 00514881360      Page: 2    Date Filed: 03/20/2019


                                  No. 18-10366

under U.S.S.G. § 3D1.2(c) because the counts embodied conduct that was used
to adjust his offense level. Because Malone did not raise this argument in the
district court, we review for plain error only. See United States v. Castaneda,
740 F.3d 169, 171 (5th Cir. 2013).
      The district court properly determined that U.S.S.G. § 2G2.1 applied to
each count of conviction. See § 2G2.1. Importantly, § 2G2.1 contains a special
instruction, which states that, if the “offense involved the exploitation of more
than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as
if the exploitation of each minor had been contained in a separate count of
conviction.” § 2G2.1(d)(1). The commentary further clarifies that, for purposes
of Chapter Three, Part D, each minor exploited is to be treated as a separate
minor and that multiple counts involving the exploitation of different minors
are not “grouped together under § 3D1.2 (Groups of Closely Related Counts).”
§ 2G2.1, comment. (n.7).
      In this case, each count of conviction concerned a different minor victim.
Thus, pursuant to § 2G2.1(d)(1), the counts were precluded from being grouped
together for purposes of sentencing and, instead, each count had to be treated
distinctly when calculating the offense level under Chapter Three, Part D. See
§ 2G2.1(d)(1) & comment. (n.7). Section 3D1.2(c) is not implicated; repetition
of sexual exploitation of a minor is neither a specific offense characteristic nor
a basis for an adjustment for the counts of conviction. See § 3D1.2(c). Further,
while the district court imposed an enhancement under U.S.S.G. § 4B1.5(b)(1)
because Malone was a repeat and dangerous sex offender against minors, that
enhancement was irrelevant to the decision to treat his offenses as separate
harms that were not grouped under § 3D1.2(c). See § 4B1.5(b)(1). Thus, the
district court did not err, plainly or otherwise, in its application of the grouping
guidelines. See Castaneda, 740 F.3d at 171.



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                                       No. 18-10366

       Malone argues that the district court erred in its guidelines calculations
because it applied the three-level reduction for acceptance of responsibility to
his adjusted offense level of 48. He asserts that, because offense level 43 is the
highest level permitted by the Sentencing Guidelines, the district court should
have deducted three levels from 43 rather than from 48. We review his claim,
which he raised in the district court, de novo. See United States v. Conner, 537
F.3d 480, 489 (5th Cir. 2008).
       As Malone concedes, his argument is foreclosed by our decision in United
States v. Wood, No. 94-10217, 1995 WL 84100, at *6-*7 (5th Cir. Feb. 8, 1995)
(unpublished). 1 While he suggests that Wood was erroneously decided, we
must follow our precedent absent en banc reconsideration or a superseding
Supreme Court decision. See United States v. Lipscomb, 299 F.3d 303, 313
n.34 (5th Cir. 2002).
       AFFIRMED.




       1 While unpublished, Wood is binding precedent because it was issued before January
1, 1996. 5TH CIR. R. 47.5.3; Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 854 n.4 (5th
Cir. 1999).


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