                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 05-1586
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Arkansas.
Jimmy Dwayne Morell,                     *
                                         *
            Appellant.                   *

                               ________________

                            Submitted: October 11, 2005
                                Filed: December 1, 2005
                               ________________

Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
                            ________________

GRUENDER, Circuit Judge.

      Jimmy D. Morell pleaded guilty to one count of possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2) and 2256(2), (8)(A).
The district court1 sentenced Morell to 92 months’ imprisonment. Morell appeals the
sentence. For the reasons discussed below, we affirm.




      1
      The Honorable Jimm Larry Hendren, Chief Judge, United States District for
the Western District of Arkansas.
I.    Background

      Morell pleaded guilty after United States Customs agents searched his residence
and seized computer equipment on which child pornography was stored. At
sentencing, Morell objected generally to any increase in his sentence that was based
on judicial fact-findings, arguing that United States v. Booker, 125 S.Ct. 738 (2005),
proscribes increasing a sentence based on facts not found by a jury or admitted by the
defendant. Morell also objected to the district court calculating his base offense level
according to the image trafficking provision of the United States Sentencing
Guidelines rather than the image possession provision. In addition, Morell
unsuccessfully argued that his criminal history warranted a downward departure.
Using the 2003 edition of the guidelines manual, the district court determined that
Morell’s offense level was 26 and his criminal history category was IV, providing an
advisory guidelines range of 92-115 months. The district court sentenced Morell to
92 months’ imprisonment. On appeal, Morell argues the district court erred on
several issues of law and in its application of the guidelines.

II.   Discussion

       Morell argues that the district court erred in holding that a sentence within the
applicable guidelines range is prima facie reasonable. We review the district court’s
conclusions of law de novo. United States v. Mashek, 406 F.3d 1012, 1016 (8th Cir.
2005). Morell’s argument mischaracterizes what the district court reasoned. The
district court opined:

             I think there’s some merit to the [n]otion that at least it
             might be argued that it would be prima facie reasonable, if
             I may use that term, to start there with the guidelines, and
             then consider whether there are features and arguments that
             . . . would persuade the Court to go away from or to find a



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             different level or a different area of the range of sentence
             that’s available under the statute to fix the sentence.

In other words, the district court stated that it might be appropriate to begin with the
guidelines when making a sentencing determination. This approach is consistent with
Booker and is not error. Booker, 125 S.Ct. at 767 (holding that “[t]he district courts,
while not bound to apply the Guidelines, must consult those Guidelines and take them
into account when sentencing”); Mashek, 406 F.3d at 1016 n.4 (collecting cases and
holding that “[t]he appropriate guidelines range, though now calculated under an
advisory system, remains the critical starting point for the imposition of a sentence
under § 3553(a)”).

        Morell next argues that the district court erred under Booker by making findings
of fact when applying the guidelines. Judicial fact-finding is permitted provided that
it is done with the understanding that the guidelines are to be applied in an advisory
fashion. United States v. Ameri, 412 F.3d 893, 899 (8th Cir. 2005) (citing United
States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005)). Because the record establishes
that the guidelines were applied in an advisory manner, the district court did not err
in finding facts that enhanced the advisory guidelines sentence.

       Morell also claims the district court erred by enhancing his sentence based on
his prior convictions. According to Morell, Shepard v. United States, 125 S.Ct. 1254
(2005), implicitly overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998),
thereby making it error to enhance a sentence based on prior convictions. This Court
has held that it remains “bound by Almendarez-Torres until the Supreme Court
explicitly overrules it.” United States v. Torres-Alvarado, 416 F.3d 808, 810 (8th Cir.
2005). Accordingly, the district court did not err by enhancing the sentence based on
Morell’s prior convictions.

      Lastly, Morell argues that the district court erred in its application of the
guidelines in two ways: first, by incorrectly calculating the base offense level; and

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second, by refusing to depart downward based on a criminal history category that
Morell claims overstated the seriousness of his prior criminal conduct. Morell
incorrectly cites reasonableness as the standard of review for these issues.2 We have
held that questions involving the application of the guidelines are reviewed de novo.
United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).

       Morell’s argument regarding the calculation of his base offense level is
meritless. He argues that because he pleaded guilty only to possessing, but not to
trafficking in, child pornography, a base offense level of 15 was required pursuant to
U.S.S.G. § 2G2.4, the guidelines provision setting the base offense level for image
possession. However, the Presentence Investigation Report (“PSR”), to which Morell
did not object, supports the district court’s determination that Morell did, in fact,
traffic in child pornography. Because Morell did not object to the specific facts set
forth in the PSR, the district court did not err in relying on them. United States v.
Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir. 2004). Thus, the district court correctly
determined a base offense level of 17 pursuant to U.S.S.G. § 2G2.2, the guidelines
provision setting the base offense level for image trafficking.

       The argument that the district court improperly refused to depart downward
pursuant to U.S.S.G. § 4A1.3 based on Morell’s claim that his criminal history
category over-represented the seriousness of his criminal conduct also fails. The
decision not to depart downward is not reviewable under 18 U.S.C. § 3742. United
States v. Frokjer, 415 F.3d 865, 875 (8th Cir. 2005) (holding that “we see no reason
why Booker –which left intact §§ 3742(a) and (b)–should alter our rule that a district
court’s discretionary decision not to depart downward is unreviewable”). We thus
decline further review on this issue.




      2
        Morell does not argue that his sentence is unreasonable. The argument in his
brief is framed solely as a challenge to the application of the guidelines.
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III.   Conclusion


       Accordingly, we affirm the sentence of the district court.
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