     Case: 10-60554 Document: 00511503807 Page: 1 Date Filed: 06/09/2011




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

                                                 FILED
                                                                             June 9, 2011

                                       No. 10-60554                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

ADAM LYNDE,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:09-CR-108-1


Before KING, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Adam Lynde pleaded guilty to possession of child pornography under 18
U.S.C. § 2252A(a)(5)(B). Adopting the presentence report (PSR), the district
court sentenced him to 46 months’ imprisonment. Lynde appeals the district
court’s application of the Sentencing Guidelines. Finding no error, we AFFIRM.
I.     FACTS
       Lynde was charged with a single count of knowingly possessing “a USB
storage device and a computer containing graphic computer image files of child

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60554 Document: 00511503807 Page: 2 Date Filed: 06/09/2011



                                   No. 10-60554

pornography, that had been shipped and transported in interstate and foreign
commerce . . . in violation of [18 U.S.C. § 2252A(a)(5)(B)].” He pleaded guilty to
the sole count pursuant to a written plea agreement that did not contain a
waiver-of-appeal provision.
       After Lynde’s guilty plea, a probation officer prepared a PSR calculating
a recommended sentencing range under the Sentencing Guideines. Lynde’s PSR
recommended a base offense level for Lynde of 18, pursuant to USSG
§ 2G2.2(a)(1). It also recommended: (1) a two-level enhancement under USSG
§ 2G2.2(b)(2) because the child pornography involved minors under 12; (2) a two-
level enhancement under USSG § 2G2.2(b)(6) because the offense involved the
use of a computer; and (3) a four-level enhancement under USSG
§ 2G2.2(b)(7)(C) because the offense involved between 300 and 600 images of
child pornography.     The PSR also recommended a three-level reduction in
offense level for acceptance of responsibility, resulting in a total offense level of
23.   Combined with his criminal history category of I, Lynde’s Guidelines
sentencing range was 46 to 57 months.
       Prior to sentencing, Lynde raised several objections to the PSR’s suggested
enhancements, including arguments that the evidence did not support
enhancements under § 2G2.2(b)(2) and § 2G2.2(b)(7)(C). At the sentencing
hearing, however, Lynde’s counsel stated: “I’ve withdrawn all of my objections,”
with the exception of his objection to the PSR’s recommendation of a two-level
enhancement for using a computer in the offense.           Lynde argued that the
Government was “double-dipping” by first charging him with possessing a
computer with child pornography and then seeking an enhancement based on
the use of the computer in the offense. The district court rejected Lynde’s
objection, adopted the PSR, including the three recommended enhancements,
and sentenced Lynde to a within-Guidelines 46-month term of imprisonment.
Lynde timely filed a notice of appeal.

                                         2
     Case: 10-60554 Document: 00511503807 Page: 3 Date Filed: 06/09/2011



                                   No. 10-60554

II. DISCUSSION
      Lynde raises three arguments on appeal. He first argues that the district
court “constructively amended” his indictment by applying the § 2G2.2(b)(2) and
§ 2G2.2(b)(7)(C) enhancements because the indictment did not allege that he
possessed 300 to 600 images of alleged minors under the age of 12. Lynde did
not make this argument below, so we review it for plain error. See United States
v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994). Lynde’s argument fails
under any standard of review, however, because he cannot show an error.
      “A constructive amendment occurs when the government changes its
theory during trial so as to urge the jury to convict on a basis broader than that
charged in the indictment, or when the government is allowed to prove an
essential element of the crime on an alternative basis permitted by the statute
but not charged in the indictment.” United States v. Robles-Vertiz, 155 F.3d 725,
728 (5th Cir. 1998) (emphasis added) (quotation marks and citation omitted).
18 U.S.C. § 2252A(a)(5)(B) criminalizes “knowingly possess[ing] . . . any book,
magazine, periodical, film, videotape, computer disk, or any other material that
contains an image of child pornography” that has been transported in interstate
commerce. Lynde was indicted for possessing “a USB storage device and a
computer containing graphic computer image files of child pornography” that
had been transported in interstate commerce. During his plea colloquy, Lynde
agreed with the Government’s factual basis, which stated: (1) that Lynde had
possessed a USB flash drive and a computer containing images of child
pornography and (2) that the USB flash drive and computer had traveled in
interstate commerce. Because Lynde’s guilty plea was based on his indictment,
his indictment was not constructively amended.
      Lynde’s constructive amendment argument is actually an argument that
it was improper for the district court to base his sentence “upon a set of facts that
differ dramatically for those ple[aded] to by the appellant.” This argument is

                                         3
     Case: 10-60554 Document: 00511503807 Page: 4 Date Filed: 06/09/2011



                                       No. 10-60554

also without merit. “Elements of a crime must be charged in an indictment and
proved to a jury beyond a reasonable doubt. Sentencing factors, on the other
hand, can be proved to a judge at sentencing by a preponderance of the
evidence.”    United States v. O’Brien, 130 S.Ct. 2169, 2174 (2010) (internal
citations omitted). The district court did not err by basing Lynde’s sentence on
facts contained in the PSR but not in the indictment.
       Lynde next argues that his sentence was procedurally unreasonable
because the § 2G2.2(b)(2) and § 2G2.2(b)(7)(C) enhancements were “totally
unsupported” by any evidence.1 We review the reasonableness of a sentence for
abuse of discretion. United States v. Hernandez, 633 F.3d 370, 375 (5th Cir.
2011).     A sentence is procedurally unreasonable if it is based on clearly
erroneous facts.      Id.   But Lynde expressly withdrew his objections to the
evidentiary support for the PSR’s recommended enhancements. A defendant’s
withdrawal of an objection constitutes the waiver of that objection. United
States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). “Waived errors are entirely
unreviewable, unlike forfeited errors, which are reviewable for plain error.” Id.
Lynde’s waiver renders his argument unreviewable on appeal. But we note that,
even if Lynde’s argument was not waived, Lynde expressly agreed during his
plea colloquy with the Government’s assertion that he had possessed a total of
67 images and four video files of child pornography and that many of these
images were of children who, in the opinion of the examiner of Lynde’s computer,
appeared to be under the age of twelve. According to the Guidelines, each video
file containing child pornography is the equivalent of 75 images. USSG § 2G2.2



       1
         Lynde also briefly argues that the district court failed to make proper findings as to
why he was not eligible for a two-level reduction under USSG § 2G2.2(b)(1)(C) for inadvertent
trafficking in child pornography. Lynde failed to raise this argument below and adequately
brief the issue on appeal, so it is waived. See United States v. Thames, 214 F.3d 608, 612 n.3
(5th Cir. 2000). In any case, USSG § 2G2.2(b)(1)(C) would not apply to Lynde because he was
charged with possessing, not trafficking or distributing, child pornography.

                                              4
       Case: 10-60554 Document: 00511503807 Page: 5 Date Filed: 06/09/2011



                                      No. 10-60554

App. Note 4(B)(ii). Thus, Lynde admitted to possessing 367 images of child
pornography. The district court’s factual findings that Lynde had possessed 300
to 600 images of child pornography and that the images involved children under
12 were not clearly erroneous, and Lynde’s sentence was not procedurally
unreasonable.2
        Lynde finally challenges the district court’s application of a two-level
enhancement under USSG § 2G2.2(b)(6) for using a computer during the offense.
He argues that the enhancement represented “unauthorized double counting”
of the computer because his indictment alleged that he possessed the computer
containing child pornography and therefore the computer was already included
in his base offense level under USSG § 2G2.2(a)(1). But we have recognized that
the Guidelines do not contain a general prohibition against double-counting.
United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Instead,
double-counting is prohibited only if it is specifically forbidden by the particular
Guideline at issue. Id. “The prohibition must be in express language.” Id. Even
assuming for the sake of argument that the application of USSG § 2G2.2(b)(6)
double-counts Lynde’s computer use, USSG § 2G2.2(b)(6) does not expressly
prohibit double-counting.          The district court did not err in applying
§ 2G2.2(b)(6)’s two-level enhancement in calculating Lynde’s sentence.
III.    CONCLUSION
        For the foregoing reasons, Lynde’s sentence is AFFIRMED.




        2
       Lynde also argues that the district court should have applied USSG § 2G2.4(b)(2), but
USSG § 2G2.4 was deleted in 2004.

                                             5
