                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-4867


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FREDERICK MASON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:11-cr-00168-FL-1)


Submitted:   June 5, 2013                  Decided:   July 15, 2013


Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina;   James A. Martin, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, North
Carolina, for Appellant.       Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       This appeal presents a challenge to a jury verdict finding

defendant,    Frederick      Mason,       guilty    on     fourteen      counts    of

transportation,      receipt,      and    possession     of   child     pornography.

Mason was sentenced to concurrent terms of 480 and 240 months.

For the reasons stated below, we reject Mason’s contentions and

affirm his convictions and sentence.



                                          I.

       In 2010, Detective McLaughlin, a New Hampshire undercover

investigator, initiated a dialogue with Mason via an online chat

service.     After    an    initial       conversation,        Mason     transmitted

several pornographic files to McLaughlin. McLaughlin traced the

source of the files to Mason’s residence in North Carolina. He

then   transferred    the    case    to    the   North    Carolina      police,    who

obtained a warrant to search Mason’s home.

       Mason was present at his residence when the warrant was

executed. After voluntarily agreeing to speak with the officers

conducting the search, Mason admitted to downloading, storing,

and transmitting child pornography files. An extensive search of

Mason’s    computer   and    the    various      storage      devices    located    in

Mason’s    home   revealed    approximately        10,000      child    pornography

files.



                                           2
      The government obtained an indictment charging Mason with

the   transportation   (Counts   1-3),    receipt   (Counts   4-13),   and

possession (Count 14) of child pornography in violation of 18

U.S.C § 2252. After a jury verdict of guilty on all 14 counts,

Mason was sentenced to concurrent terms of 480 months for Counts

1-13 and 240 months for Count 14. This appeal followed.



                                    II.

      Two   of   the   challenges    raised    by   Mason     arise    from

typographical errors present in the indictment. Both of these

challenges are properly analyzed under variance doctrine. For

the following reasons, both are meritless.

                                    A.

      Mason’s primary variance argument is premised on an error

contained in the name of a computer file listed as evidence

under Count One. The file at issue is listed in the indictment

under the name “Chandler.CIMP1989.AVI;” the government’s proof

at trial, however, indicated that the correct file name for this

item is actually “Chandler.CIMG1989.AVI.”

      Mason contends that the divergence between the indictment

and the government’s proof generated by this error constitutes a

“fatal variance.” A fatal variance occurs “when the indictment

is altered to change the elements of the offense charged, such

that the defendant is actually convicted of a crime other than

                                     3
that charged in the indictment.” United States v. Allmendinger,

706    F.3d    330,   339    (4th    Cir.      2013)        (internal       quotation      marks

omitted).

       Not     all    variances,          however,           are     fatal.        “When     the

government’s proof diverges to some degree from the indictment

but does not change the crime charged in the indictment, a mere

variance       occurs.”     Id.     “A    mere      variance        does    not    violate     a

defendant's       constitutional          rights           unless    it     prejudices       the

defendant either by surprising him at trial and hindering the

preparation of his defense, or by exposing him to the danger of

a second prosecution for the same offense.” United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999).

       The divergence between the proof and indictment in this

case    does    not   warrant       reversal          of    Mason’s       convictions.       The

variance was non-fatal because the proof offered at trial by the

government did not alter the crime charged in the indictment.

Furthermore, the variance did not prejudice Mason in either of

the    respects       identified          by       Randall.         Apart     from    Mason’s

conclusory      assertions,         there      is     no    evidence        that   the     error

surprised      him    at    trial    or     hindered         the     preparation      of     his

defense in any way.

       Furthermore, the error does not expose Mason to the threat

of a second prosecution for the same offense. The government

openly    admitted     the    existence          of    the     typographical         error    at

                                               4
trial     and      supplied      the    proper      file       name     in        testimony.

Consequently, “the record depicts the offenses in such unique

detail that [Mason] is protected from subsequent prosecutions

for the same crimes.” United States v. Quicksey, 525 F.2d 337,

341 (4th Cir. 1975).

                                            B.

        Mason’s      second      variance        argument        pertains          to     the

indictment’s specification of an incorrect date in Count Ten,

which     charged     Mason      with     receipt      of     child    pornography        on

December 7, 2010. Testimony by a government witness established

that the actual date on which this offense allegedly occurred

was December 7, 2009. Mason was in custody on the date specified

by the indictment; accordingly, he now argues that he could not

possibly have received illegal materials on that date.

        Although     Mason       characterizes         this     issue        as     one   of

insufficiency        of    the     evidence,        variance      doctrine          instead

provides the appropriate framework for analysis. Mason does not

contend that a conviction for receipt of child pornography on

December 7, 2009 (the date alleged at trial) would be factually

unsupportable;        to   the    contrary,       he    merely        argues      that    the

government’s        evidence      fails    to    establish        that       he     received

prohibited materials on the (incorrect) date specified in the

indictment. Thus, Mason’s objection is fundamentally grounded in



                                            5
the divergence between the indictment and the proof presented at

trial.

       A fatal variance claim in this instance fails for reasons

similar to those identified above. First, under Allmendinger,

706 F.3d at 339, the variance here is non-fatal because it does

not alter the elements of the crime charged in the indictment.

“Where a particular date is not a substantive element of the

crime charged, strict chronological specificity or accuracy is

not required.” United States v. Kimberlin, 18 F.3d 1156, 1159

(4th Cir. 1994) (internal quotation marks omitted).

       Second,     Mason’s    claim    also        fails      under   the     prejudice

standard articulated in Randall, 171 F.3d at 203.                            Mason does

not allege that the indictment’s specification of an incorrect

date     caused     unfair     surprise       or       improperly       hampered     the

preparation of his defense; indeed, it appears that the error

was not even recognized until this appeal. See United States v.

Barsanti,    943    F.2d     428,   438-39      (4th    Cir.    1991)    (finding     no

prejudice and thus no fatal variance where government’s proof

indicated    that    crime    occurred     on      a   date    different     than   that

listed in the indictment). Furthermore, under Quicksey, 525 F.2d

at 341, the fact that the government identified the correct date

at   trial   effectively       precludes      any      possibility      of    a   second

prosecution for the same offense. We therefore reject Mason’s



                                          6
assertion   that    the   government        committed     a   fatal    variance    at

trial.



                                       III.

     Mason’s second contention is that Counts 4-13 and Count 14

of the indictment were multiplicitous.                   This objection to the

indictment could and should have been raised before trial or, at

the latest, during the course of the trial. It therefore comes

before us on the well-recognized plain error standard, set forth

in United States v. Olano, 507 U.S. 725, 732 (1993).

     Multiplicity      “is     the   charging       of   a    single   offense     in

several counts. The signal danger in multiplicitous indictments

is that the defendant may be given multiple sentences for the

same offense.” United States v. Burns, 990 F.2d 1426, 1438 (4th

Cir. 1993) (internal quotation marks and citations omitted). The

prohibition    on    multiplicity      is     not    violated,     however,      when

multiple convictions are predicated on multiple discrete acts.

United States v. Benoit, 713 F.3d 1, 16 (10th Cir. 2013).

     Counts 4-13 of the indictment charge Mason with receipt of

child pornography; Count 14 charges him with possession of child

pornography.        Although    each   receipt       charge     identifies    as   a

predicate a particular pornographic file, the possession charge

includes merely a general reference to “computer hard drives and

computer media containing digital and computer images.” As a

                                        7
result of the indictment’s failure to identify a distinct file

as the basis of the possession charge, Mason contends that the

jury       theoretically         could        have       voted        to     convict     for     both

possession and receipt on the basis of identical pornographic

material.         Insofar        as     possession          in        this    context      may    be

considered a lesser-included offense of receipt, Mason argues

that conviction for the two offenses on the basis of the same

acts would violate the prohibition on multiplicity. *

       Here,       “the       prosecutor's          statements         and    the     evidence    at

trial” indicate that the possession and receipt charges were

predicated on distinct conduct. United States v. Halliday, 672

F.3d       462,        471    (7th      Cir.      2012).         As     noted,        Counts     4-13

collectively identify ten specific files that form the basis of

the    receipt          allegations.         At     trial,       however,       the     government

presented         evidence       that       Mason       possessed       approximately          10,000

pornographic            images        and     videos.        Moreover,          the     prosecutor

commented in his opening statement that the possession charge

was    founded         on    Mason’s     “entire         collection.”         The     government’s

proof      as     to    the    possession         count     vastly         exceeded     the    files

listed by name in the receipt portions of the indictment. See

       *
       Although our circuit has not formally decided whether
possession is a lesser-included offense, see United States v.
Brown, 701 F.3d 120, 125 n.6 (4th Cir. 2012), we need not do so
here because we find that the relevant counts in Mason’s
indictment were in fact based on distinct conduct.



                                                    8
United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009)

(rejecting multiplicity claim in a similar case). Mason raised

no multiplicity objection to the government’s case at trial, and

his   multiplicity     argument       therefore      fails     under    the     Olano

standard.



                                         IV.

      Mason    next    argues     that    the     district      court      erred    in

admitting documents and testimony under Federal Rule of Evidence

414(a), which provides that “[i]n a criminal case in which a

defendant is accused of child molestation, the court may admit

evidence      that    the   defendant          committed      any     other     child

molestation. The evidence may be considered on any matter to

which it is relevant.”

      Under    this    rule,      the     district      court       permitted       the

introduction    of    certified      documents     relating     to    Mason’s      past

convictions    for    taking    indecent       liberties     with    children.     The

culpable conduct, which involved the repeated sexual molestation

of two boys aged 9 and 11, occurred from 1996-97. In addition to

documentary     evidence,      the   government        was   also    permitted      to

introduce testimony from an investigator identifying the age and

gender of the victims.

      Mason    does   not   contest      that   this    evidence     was    facially

admissible under Rule 414. Evidence admitted under Rule 414,

                                          9
however, remains subject to the balancing test imposed by Rule

403, which requires that evidence “‘be excluded if its probative

value   is     substantially     outweighed        by    the    danger           of    unfair

prejudice’ to the defendant.” United States v. Kelly, 510 F.3d

433, 437 (4th Cir. 2007) (quoting Fed. R. Evid. 403). We review

a   district    court’s      decision   to      admit     a    particular             item    of

evidence for abuse of discretion. United States v. Young, 248

F.3d 260, 266 (4th Cir. 2001).

      We have previously determined that in applying Rule 403’s

balancing test to Rule 414 evidence, a court should consider

several    factors,     including:      “(i)      the    similarity         between          the

previous      offense   and    the    charged      crime,      (ii)     the           temporal

proximity between the two crimes, (iii) the frequency of the

prior   acts,    (iv)   the    presence    or     absence      of     any    intervening

acts,   and    (v)   the    reliability      of    the    evidence          of    the    past

offense.” Kelly, 510 F.3d at 437.

      Under     these      factors,   it     is    plain       that     no       abuse        of

discretion occurred here. Mason’s present and past convictions

were similar insofar as they both involved the exploitation of

children. Although the earlier convictions were imposed 12 years

prior to the instant indictment, that interval is still much

shorter than the 22 year intervening period deemed acceptable in

our Kelly decision. Id.



                                        10
       Furthermore, the acts underlying the prior convictions were

frequent: Mason repeatedly molested his victims over the course

of several months. The evidence demonstrating this conduct was

also     eminently          reliable:        the     prosecution         introduced        both

certified          documents        and      testimony         from      an     investigator

personally         involved    in     the    earlier         case.    Mason’s    evidentiary

objection therefore fails to establish an abuse of discretion on

the part of the trial court.



                                                V.

       Finally, Mason argues that the 480-month sentence imposed

by the district court is both procedurally and substantively

unreasonable. Sentencing decisions are reviewed deferentially on

appeal       for    abuse     of    discretion.         United        States    v.    Mendoza-

Mendoza,       597    F.3d     212,       216    (4th    Cir.        2010).    This   inquiry

includes both a substantive and a procedural component. Gall v.

United States, 552 U.S. 38, 51 (2007).

                                                A.

       The     procedural          prong        of    the      reasonableness          inquiry

requires,      as     a   threshold         matter,      that    the     sentencing        court

correctly calculate the applicable Guidelines range. Gall, 552

U.S. at 49. The district judge must then give “both parties an

opportunity          to     argue      for       whatever        sentence        they      deem

appropriate,”         before        proceeding          to     “consider       all    of     the

                                                11
§ 3553(a) factors to determine whether they support the sentence

requested by a party.” Id. at 49-50. The judge is required to

“make     an     individualized            assessment         based     on       the     facts

presented.”       Id.    at     50.    “After      settling      on     the     appropriate

sentence, he must adequately explain the chosen sentence....”

Id.

       Mason    does     not    contest      that       the   Guideline         ranges    were

correctly calculated, nor does he deny that the court engaged in

an extended sentencing dialogue with both parties, permitting

them    to     voice    their     concerns        and    responding        to    particular

arguments. In the course of this dialogue, the district court

expressly tailored its decision to the specific facts of the

case, noting, among other things, Mason’s history of criminal

activity and the extreme breadth of his pornography trafficking

activities.      It     connected      these      observations        to      the   criteria

enumerated in 18 U.S.C. § 3553. The sentence imposed here thus

satisfies the procedural requirements outlined in Gall.

                                             B.

       Mason’s sentence is also substantively reasonable. The term

of    imprisonment      imposed       by   the    district      court      is    within   the

Guidelines range and is therefore entitled to a presumption of

reasonableness on appeal. United States v. Montes-Pineda, 445

F.3d 375, 379 (4th Cir. 2006). Mason’s sentence is supported

both by the temporal and quantitative scope of his misconduct.

                                             12
With respect to his contention that the Guidelines themselves

are unreasonable, “the proper forum in which to raise this issue

is Congress or the Sentencing Commission, not a federal court.”

United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006).

Mason has thus failed to demonstrate that the district court’s

sentencing ruling was substantively unreasonable.



                                  VI.

     For   the   foregoing   reasons,   we   reject   each   of   Mason’s

arguments.   His convictions and sentence are affirmed.

                                                                  AFFIRMED




                                  13
