                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-12835                ELEVENTH CIRCUIT
                                                            JUNE 10, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

               D. C. Docket No. 08-00252-CR-4-IPJ-PWG


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MARTIN TRACY MCBURNETTE,

                                                        Defendant-Appellant.


                      ________________________

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

                             (June 10, 2010)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:



       Martin Tracy McBurnette appeals his conviction and sentence for sexual

exploitation of a child, in violation of 18 U.S.C. § 2251(a).1 No reversible error

has been shown; we affirm.

       McBurnette argues that the government rendered his indictment duplicitous

by introducing multiple videos of the sexually explicit conduct at trial. He

contends that the indictment’s reference to “a” visual depiction necessarily meant

the original video and that the statute did not include later copies of the original

video. We review de novo allegations of duplicity. See United States v. Hassoun,

476 F.3d 1181, 1185 (11th Cir. 2007). An indictment is duplicitous where it

“charges two or more separate and distinct crimes in a single count.” United States

v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989).

       Here, contrary to McBurnette’s argument, section 2251(a) does not require

that a defendant can be prosecuted based upon only the original visual depiction.

Instead, the statute criminalizes using, persuading, inducing, enticing, or coercing

any minor to engage in “any sexually explicit conduct for the purpose of producing



       1
       The victim in this case was McBurnette’s neighbor, a seven-year-old female. The child
would go to McBurnette’s home to visit her dog, which McBurnette kept for the victim’s family.
On many occasions, McBurnette sexually abused the child and filmed the sexual contact.

                                              2
any visual depiction of such conduct.” 18 U.S.C. § 2251(a) (emphasis added).

Thus, by the plain language of the statute, any of the five video recordings the

government introduced at trial, whether the original or a later copy, could fulfill the

elements of a section 2251(a) violation. By introducing the videos, the

government simply explained that McBurnette could violate the statute in multiple

ways; and an indictment is permitted to charge a defendant with violating a statute

in more than one way in a single count. See Burton, 871 F.2d at 1573-74 (in the

context of an 18 U.S.C. § 641 violation, explaining that acts of embezzling and

converting government property simply constituted two separate ways that a

section 641 violation could occur, not separate crimes). We conclude that the

indictment was not duplicitous.2

       McBurnette argues that the district court erred in denying his motion to

suppress because the warrant was based on stale information: the last incident of

alleged sexual contact had occurred almost two years before and, thus, no factual

basis existed for believing that the items to be seized still were present at his

residence. In reviewing the denial of a motion to suppress, we review “the findings

of fact for clear error and the application of law to those facts de novo.” United



       2
        Also contrary to McBurnette’s argument, section 2251(a) does not require that the jury
agree on which visual representation, if there is more than one, satisfied the elements because the
creation of “any” visual depiction is sufficient to violate the statute.

                                                 3
States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008), cert. denied, 129 S.Ct.

954 (2009). And we construe all facts in the light most favorable to the prevailing

party -- here, the government. Id. at 1074.

      The staleness doctrine “requires that the information supporting the

government’s application for a warrant must show that probable cause exists at the

time the warrant issues.” United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir.

2000). “Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding

contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999). Whether information is stale is determined “on

the peculiar facts of each case.” Bervaldi, 226 F.3d at 1265.

      We conclude that the information in the warrant affidavit was not stale.

Here, the victim spoke to police officers almost two years after the alleged sexual

contact with McBurnette ended; and she detailed the incidents that had occurred,

including that McBurnette had made her watch child pornography with him. The

officer who made the warrant affidavit (which provided for the seizure of

videotapes) told the warrant-issuing court that pedophiles never dispose of their

child pornography; therefore, she had reason to believe that the pornography still

would be in McBurnette’s house even though the sexual abuse had occurred almost



                                          4
two years before. This statement directly relates to the habits of the accused and

the character of the items sought, appropriate factors in the staleness determination.

See id. (when determining staleness, courts should consider the length of time,

“nature of the suspected crime (discrete crimes or ongoing conspiracy), habits of

the accused, character of the items sought, and nature and function of the premises

to be searched”). And the affidavit indicated that the sexual abuse occurred

multiple times and was not an isolated event, so the time between the cessation of

the conduct and obtaining the warrant was “of less significance.” See id. (in the

staleness inquiry, “[i]f an affidavit recites activity indicating protracted or

continuous conduct, time is of less significance” than in the case of an isolated

incident).

       We now address McBurnette’s sentencing challenges. We review a district

court’s interpretation of the Sentencing Guidelines de novo and its findings of fact

for clear error. United States v. Bohannon, 476 F.3d 1246, 1248 (11th Cir. 2007).

McBurnette argues that he was entitled to a reduction for acceptance of

responsibility, U.S.S.G. § 3E1.1(a), because, before trial, he offered to stipulate

that he had sexual contact with the victim, but the government would not accept his

stipulation.

       A defendant who exercises his constitutional right to trial may receive an



                                            5
acceptance-of-responsibility reduction in “rare situations,” such as “where a

defendant goes to trial to assert and preserve issues” unrelated to factual guilt, such

as a constitutional challenge to a statute. U.S.S.G. § 3E1.1(a), comment. (n.2).

But here -- contrary to his argument that he contested only constitutional and

jurisdictional issues -- McBurnette challenged issues about his factual guilt. He

failed to admit that the videotapes were produced using materials that had traveled

in interstate commerce, which was an essential element for the government to

prove. So, the court was entitled to deny McBurnette an acceptance- of-

responsibility reduction because he “falsely denie[d] . . . conduct for which he

[was] accountable.” See United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir.

1997). And the district court denied the reduction after considering a pre-trial

psychological evaluation that McBurnette introduced as evidence, which indicated

that McBurnette had not come to terms with his acts. See U.S.S.G. § 3E1.1(a),

comment. (n.2) (where a defendant proceeds to trial, a district court should make

its acceptance of responsibility determination based mainly on pre-trial statements

and conduct). McBurnette has failed to show that the district court’s denial of an

acceptance-of-responsibility reduction was clearly erroneous.

      McBurnette also argues that the district court erred in enhancing his sentence

based on its conclusion that McBurnette had care, custody or supervisory control



                                           6
over the victim, U.S.S.G. § 2G2.1(b)(5). Section 2G2.1(b)(5) provides for a two-

level increase to a defendant’s base offense level if the defendant “was a parent,

relative, or legal guardian of the minor involved in the offense, or if the minor was

otherwise in the custody, care, or supervisory control of the defendant.” This

enhancement “is intended to have a broad application and includes offenses

involving a minor entrusted to a defendant, whether temporarily or permanently.”

Id., comment. (n.3(A)).

       The district court committed no clear error in assessing this enhancement.

When the victim visited McBurnette, he instructed her not to bring the dog into his

house and told her not to tell anyone about the sexual abuse. And the victim’s

mother would call McBurnette when it was time for the victim to return home.

These acts indicate that McBurnette had temporary supervisory control over the

victim.

       AFFIRMED.3



       3
         We reject McBurnette’s argument that section 2251 violates the Commerce Clause
because the conduct it prohibits does not affect interstate commerce and because no evidence
showed that he sold or delivered visual depictions of the sexual conduct in interstate commerce.
These arguments are foreclosed by Circuit precedent. See United States v. Smith, 459 F.3d
1276, 1284-86 (11th Cir. 2006) (upholding the application of section 2251(a) to a defendant who
produced intrastate pornographic photographs, but used materials that had traveled in interstate
commerce); United States v. Maxwell, 446 F.3d 1210, 1218 (11th Cir. 2006) (concluding that “it
is within Congress’s authority to regulate all intrastate possession of child pornography, not just
that which has traveled in interstate commerce or has been produced using materials
that have traveled in interstate commerce”).

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