                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 29, 2006
                             No. 05-14897                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 03-00219-CR-F-S

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KEVIN W. TURNER,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 29, 2006)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
       Kevin Turner appeals his 360-month sentence imposed after he pled guilty

to various counts of distributing, producing and possessing child pornography. He

raises three grounds on appeal. First, he asserts the district court erred in imposing

a 5-level enhancement under U.S.S.G. § 2G2.2(b)(2)1 because the crimes involved

distribution of child pornography absent pecuniary gain. Second, he contends the

district court abused its discretion by upwardly departing by 8 levels under

U.S.S.G. §§ 5K2.0 and 5K2.8. Third, he claims his sentence is unreasonable

pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We affirm Turner’s

sentence.

                                      I. DISCUSSION

A. U.S.S.G. § 2G2.2(b)(2)

       We have held pre-Booker standards of review concerning the district court’s

application of the sentencing Guidelines still apply post-Booker. United States v.

Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). We review a sentencing court’s

application of the Guidelines to the facts de novo and its findings of fact for clear

error. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).

       Turner’s base offense level is 17, pursuant to U.S.S.G. § 2G2.2–entitled

“Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving,


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           Turner was sentenced under the 1998 version of the Sentencing Guidelines. Thus, all
citations to the Sentencing Guidelines are to the 1998 version.

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Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation

of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with

Intent to Traffic.” Under “Specific Offense Characteristics,” U.S.S.G.

§ 2G2.2(b)(2) provides as follows: “If the offense involved distribution, increase

by the number of levels from the table in § 2F1.1 corresponding to the retail value

of the material, but in no event by less than 5 levels.” (emphasis added). The table

in § 2F1.1 provides for increased offense levels dependent on the loss due to fraud.

      For purposes of § 2G2.2, “‘[d]istribution’ includes any act related to

distribution for pecuniary gain, including production, transportation, and

possession with intent to distribute.” U.S.S.G. § 2G2.2, comment. (n.1) (emphasis

added). The general application principles of the Guidelines provides: “The term

‘includes’ is not exhaustive.” U.S.S.G. § 1B1.1, comment. (n.2). Thus, we held

the term “distribution” in this respect does not require a showing of pecuniary or

other benefit. United States v. Probel, 214 F.3d 1285, 1288-89 (11th Cir. 2000).

Rather, we determined “[t]he reference to the fraud table does not limit the

application of the enhancement to individuals who receive a pecuniary benefit

from the distribution of child pornography.” Id. at 1290. “The threshold five-level

enhancement is appropriate” where “[a]ny distribution of child pornography,




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gratuitously or for profit, results in the continued exploitation of the victims

depicted in the images.” Id. at 1291.

      We are bound to follow our decision in Probel. United States v. Smith, 934

F.2d 270, 274 (11th Cir. 1991) (noting “a panel of this court cannot overrule

binding precedent issued by a prior panel”). Turner pled guilty to three counts of

distribution of child pornography, and did not dispute the facts supporting those

charges, including that he posted images of the victim on the internet which he

used to blackmail the victim into continuing sexual contact with him. Accordingly,

the district court did not err in determining no pecuniary gain was required when

Turner distributed the child pornography with the intent to force the victim to

return to the sexual relationship.

B. Upward Departure

      We review a district court’s decision to depart from the Guidelines for an

abuse of discretion, giving the district court’s determination “substantial

deference.” United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir. 1999). A

district court may depart upward from the Guidelines if it determines “‘there exists

an aggravating or mitigating circumstance of a kind or to a degree, not adequately

taken into consideration by the Sentencing Commission in formulating the

guidelines that should result in a sentence different from that described.’” Id.



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(citation omitted). “Whether a case is unusual enough to fall outside the heartland

is determined in large part by comparison with other Guidelines cases.” Id.

      The extent of a district court’s departure from the Guidelines must be

reasonable. Id. at 1322. The reasonableness of the departure is evaluated in light

of the factors to be considered in imposing the sentence and the reasons the district

court provided for departing. Id. at 1322-23. “Among the factors a sentencing

court must consider are the nature and circumstances of the offense, and the need

for the sentence to reflect the seriousness of the offense, promote respect for the

law, and to provide just punishment for the offense.” United States v. Blas, 360

F.3d 1268, 1273-74 (11th Cir. 1993).

      Under U.S.S.G. § 5K2.8, entitled “Extreme Conduct,” “[i]f the defendant’s

conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court

may increase the sentence above the guideline range to reflect the nature of the

conduct.” U.S.S.G. § 5K2.8. “Examples of extreme conduct include torture of a

victim, gratuitous infliction of injury, or prolonging of pain or humiliation.” Id.

      In Blas, we held the district court did not abuse its discretion by imposing a

7-level upward departure under § 5K2.8, on the basis the defendant knowingly

exposed his minor victim to HIV through sexual acts. Blas, 360 F.2d at 1273-74.

We noted “Blas’s actions with regard to his young victim were incredibly risky and



                                           5
dangerous, and presented circumstances that clearly were not taken into

consideration in formulating the applicable guidelines.” Id. at 1274.

       In United States v. Hersh, 297 F.3d 1233, 1251 (11th Cir. 2002), we held a

10-level upward “prophylactic”2 departure was not an abuse of discretion. The

district court based the departure on a finding the appellant had engaged in

prolonged sexual exploitation of minors, the victims (children from Third World

countries) were “extraordinarily vulnerable,” and the appellant had a 20-year

history of committing sexual abuse, which we determined was an adequate basis

upon which to find the “alternative sentence” was appropriate. Id. at 1251-53.

       Here, the district court based its departure upon the determination Turner’s

conduct was manipulative, extreme, and heinous. Specifically, it noted the “crime

of sex and violence” took place over a 20-month period, Turner created a

“atmosphere of fear” in the area, he had a prior conviction for a similar crime, and

he began to engage in another similar relationship after the victim in the present

case reported the situation to the FBI. The court also determined Turner’s actions

of blackmailing the victim to continuing a sexual relationship, including




       2
         Specifically, the district court had noted in a sentencing order that if we reversed as to a
certain sentencing computation, it “would still achieve the same sentence by granting an upward
departure” of 10 levels. See Hersh, 297 F.3d at 1251.

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videotaping the victim without his knowledge and posting the images on the

internet, constituted extreme conduct.

      The facts adopted by the district court and undisputed by Turner include that

he solicited sex from the victim, a minor, paid the victim to perform sexual acts

and expected the victim to engage in sexual acts as payment for computer

equipment. It is similarly undisputed he blackmailed the victim into continuing to

engage in sexual contact, in part, by videotaping the acts without the victim’s

knowledge and posting them on the internet. In light of these facts, the departure

did not constitute an abuse of discretion. Further, the 8-level departure is not

unreasonable in light of the grounds set forth by the district court.

C. Reasonableness

      In light of Booker, we review a final sentence under the advisory Guidelines

for reasonableness. Crawford, 407 F.3d at 1178-79. The district court must first

accurately calculate the Guideline range, and then it “may impose a more severe or

more lenient sentence” after considering the § 3553(a) factors. Id. Factors include

the available sentences, the applicable Guideline range, the nature and

circumstances of the offense, and the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, and provide just

punishment for the offense. 18 U.S.C. § 3553(a). We have clarified the district



                                           7
court is not obligated to specifically address and analyze on the record every

§ 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      Here, the district court correctly calculated the applicable advisory range

under the Guidelines. The court then specified Turner’s case was aggravated by

his criminal history, the nature and seriousness of the crime, and the need to

promote respect for the law, encourage deterrence, and protect to the public, before

imposing a sentence at the high end of the Guidelines range of 360 months. See 18

U.S.C. § 3553(a). We conclude Turner’s ultimate sentence is reasonable.

                                III. CONCLUSION

      The district court did not err in enhancing Turner’s sentence under U.S.S.G.

§ 2G2.2(b)(2) or abuse its discretion by upwardly departing 8 levels under

U.S.S.G. §§ 5K2.0 and 5K2.8. Further, Turner’s ultimate sentence is reasonable.

      AFFIRMED.




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