             Case: 15-15554    Date Filed: 08/22/2017   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-15554
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 5:14-cr-00025-MW-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

CHARLES HEATH STEWART,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                               (August 22, 2017)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Charles Heath Stewart appeals his convictions and sentence of 720 months

of imprisonment three counts of producing child pornography. 18 U.S.C.
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§ 2251(a), (e). Stewart challenges the decision to admit into evidence 15 images of

provocatively posed minor girls or women who appeared to be less than 18. See

Fed. R. Evid. 404(b). Stewart also challenges the procedural and substantive

reasonableness of his sentence based on the enhancement of his base offense level

for committing an offense involving a sexual act, see United States Sentencing

Guidelines Manual § 2G2.1(b)(2)(B) (Nov. 2015). We affirm.

      The district court did not abuse its discretion when it admitted the images

discovered on Stewart’s cellular telephone. Evidence of a defendant’s “other

crimes, wrongs, or acts” is admissible to prove intent, plan, knowledge, or absence

of mistake or accident. Fed. R. Evid. 404(b)(2). Stewart was charged for using his

cellular telephone to photograph a minor girl as she performed oral sex on him.

The 15 images introduced by the prosecutor, which represented a miniscule

amount of the images stored on Stewart’s cellular telephone, depicted young girls

posed seductively, some of whom were nude, were topless, or were wearing a

translucent bathing suit. Those images were relevant to prove Stewart’s prurient

interest in minor girls and his motive for producing child pornography. See id.;

United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (“the extrinsic

offense requires the same intent as the charged offense”). Stewart argues “that the

persons depicted in the images were not proven to be under the age of 18,” but the

images were admissible as probative to Stewart’s interest in underdeveloped


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females. See United States v. Kapordelis, 569 F.3d 1291, 1313 (11th Cir. 2009)

(“Rule 404(b) straightforwardly provides for the admission of evidence of ‘other

crimes, wrongs, or acts’ and is not limited to criminal acts.”). The presence of the

15 images on Stewart’s cellular telephone with the photographs of the victim made

it more probable that Stewart created the pornography and countered his defense

that another person planted the photographs of the victim on his telephone. See

United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). “[Stewart’s]

identity and knowledge defense considered, the probative value of the [15 images]

was substantial and outweighed [their] prejudicial effect . . . .” Kapordelis, 569

F.3d at 1313–14.

      Stewart acknowledges that his challenge to the procedural reasonableness of

the enhancement of his sentence based on facts found by the district court is

foreclosed by United States v. Charles, 757 F.3d 1222 (11th Cir. 2014). In Charles,

we held that “a district court may continue to make guidelines calculations based

upon judicial fact findings and may enhance a sentence—so long as its findings do

not increase the statutory maximum or minimum authorized by facts determined in

a guilty plea or jury verdict.” Id. at 1225. Charles’s criminal history category of IV

and total offense level of 40, which included the four-level increase for committing

an offense involving a sexual act, U.S.S.G. § 2G2.1(b)(2)(B), resulted in an




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advisory guideline range of 360 months to life imprisonment, and did not affect his

statutory range of 15 to 30 years of imprisonment, 18 U.S.C. § 2251(c).

      Stewart’s sentence is reasonable. The district court was entitled to consider

Stewart’s abuse of the victim as relevant conduct because it resulted in his

production of child pornography. See U.S.S.G. § 1B1.3; United States v. Hamaker,

455 F.3d 1316, 1336 (11th Cir. 2006). The victim testified that, during the three

years of abuse, Stewart became increasingly violent, kept her silenced by

threatening to kill her and her family, and recorded the episodes of abuse on his

cellular telephone. She recounted accompanying Stewart on a business trip and

being abused for the first time when he returned to their hotel room intoxicated,

drug her to the bed by her hair, and forced her to perform oral sex. She also

recounted one occasion when Stewart thrust into her mouth so violently that she

vomited and then forced her to clean up with a dirty towel and finish the sexual act.

The district court reasonably determined that a sentence to two concurrent terms of

360 months to run consecutively to a third term of 360 months was required to

address the statutory sentencing factors and the severe “aggravating . . . facts . . . in

[Stewart’s] case.” See 18 U.S.C. § 3553(a). We cannot say that the district court

abused its discretion when it imposed the maximum statutory penalty for Stewart’s

crimes.

      We AFFIRM Stewart’s convictions and sentence.


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MARTIN, Circuit Judge, concurring:

      I concur in the majority’s ruling that the District Court committed no

reversible error in admitting fifteen photographs as evidence of “other crimes,

wrongs or acts” under Fed. R. Evid. 404(b)(2). The majority is also correct when it

says that Mr. Stewart has failed to show that his 60 year sentence was either

procedurally or substantively unreasonable, under the definition this Court has

given those terms.




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