     Case: 11-30144     Document: 00511677496         Page: 1     Date Filed: 11/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 28, 2011
                                     No. 11-30144
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SHELTON PETER FRUGE,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CR-241-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Shelton Peter Fruge pleaded guilty to two counts of
production of child pornography.            Fruge was sentenced to the statutory
maximum of 30 years of imprisonment on each count to be served consecutively.
The district court also ordered that Fruge’s federal sentence be served
consecutively to his undischarged state court sentences. On appeal, Fruge


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-30144

argues that the imposed sentence violates the Eighth Amendment and is
unreasonable.
      Fruge asserts that the sentence imposed violates the Eighth Amendment’s
bar against cruel and unusual punishment. Fruge’s Eighth Amendment claim
is conclusional and unsupported by legal analysis. We are not required to search
the record to find the legal basis for an issue. See United States. v. Brace, 145
F.3d 247, 255 (5th Cir. 1998) (en banc). As Fruge is represented before us by
counsel, his brief is not entitled to liberal construction. See Beasley v. McCotter,
798 F.2d 116, 118 (5th Cir. 1986). Issues must be briefed to be preserved. FED.
R. APP. P. 28(a)(9). As this issue is thus not preserved, we shall not consider it.
      Fruge contends that his sentence is procedurally and substantively
unreasonable. Following United States v. Booker, 543 U.S. 220 (2005), preserved
sentencing issues are reviewed for reasonableness in light of the factors in
§ 3553(a).   United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 552 U.S. 38 (2007), we engage in a bifurcated
review process of the sentence imposed by the district court. United States v.
Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether
the district court committed a “significant procedural error.” Id. at 752-53. If
the sentence is procedurally sound, we may proceed to the second step and
review the substantive reasonableness of the sentence imposed for an abuse of
discretion. Id. at 751-53. Additionally, the sentencing court’s findings of fact are
reviewed for clear error and its application of the Sentencing Guidelines are
reviewed de novo. United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008).
      Fruge asserts that his sentence is procedurally unreasonable because the
application of the four-level enhancement under § 2G2.1(b)(4) and the two-level
enhancement under § 2G2.1(b)(2)(A) constitutes impermissible double counting
and because the grouping of his offenses and the application of a multiple-count
adjustment was improper. In view of the definitions of “sexual act” and “sexual
contact” applicable under § 2G2.1(b)(2)(A), we disagree with Fruge’s assertion

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that when § 2G2.1(b)(2)(A) applies, the enhancement under § 2G2.1(b)(4) must
also apply. See § 2G2.1, comment (n.2); United States v. Lyckman, 235 F.3d 234,
240 (5th Cir. 2000).    Further, “[d]ouble counting is prohibited only if the
particular guidelines at issue specifically forbid it.” United States v. Hawkins,
69 F.3d 11, 14 (5th Cir. 1995). Fruge has not pointed to any guideline provision
that forbids application of both a two-level enhancement under § 2G2.1(b)(2)(A)
and a four-level enhancement under § 2G2.1(b)(4). Neither do we find error in
the district court’s application of the grouping rules of the Sentencing
Guidelines. See § 2G2.1, comment (n.5) (stating that “multiple counts involving
the exploitation of different minors are not to be grouped together under § 3D1.2
(Groups of Closely Related Counts)”). It was not error for the district court to
add one level to the higher offense level applicable to Victim #1 to arrive at a
combined offense level of 47. See § 3D1.4(a).
      Fruge asserts that his 720-month sentence is substantively unreasonable,
arguing that (1) the district court unfairly presumed that the statutory
maximum (30 years for each count) was warranted because Fruge’s advisory
sentencing guidelines range of life in prison was so severe, (2) the district court
failed to consider as a mitigating circumstance the fact that Fruge was sexually
abused as a child, (3) the 30-year sentences imposed for Count 1 and Count 2
were ordered to be served consecutively, and (4) the district court ordered
Fruge’s federal sentence of 720 months to be served consecutively to his
undischarged state sentences.
      As previously stated, preserved sentencing issues, such as number (3) set
forth above, are reviewed for reasonableness, and a district court’s interpretation
or application of the Sentencing Guidelines are reviewed de novo. Mares, 402
F.3d at 519-20; Burns, 526 F.3d at 859; see also United States v. Candia, 454
F.3d 468, 473 (5th Cir. 2006) (stating that the court evaluates the imposition of
a consecutive sentence as a part of the substantive reasonableness of a
sentence). Because Fruge did not object to the reasonableness of the sentence

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imposed or to the district court’s order that the federal sentence imposed be
served consecutively to his undischarged state sentences (numbers 1, 2, and 4
set forth above), review of these alleged errors on appeal is for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 360-61 (5th Cir. 2009). To
show plain error, Fruge must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 129
S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion to
correct the error, but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Fruge has not shown that he is entitled to relief. Fruge’s assertions that
(1) the district court felt obligated to impose the statutory maximum sentence
because the advisory guidelines sentence of life was so severe and (2) the district
court did not consider the mitigating fact that Fruge was abused as a child, are
conclusional. Fruge identifies no evidence or anything else in the record to
support these contentions. Neither was it error for the district court to order
that Fruge’s 30-year sentence for Count 1 be served consecutively to his 30-year
sentence for Count 2. See § 5G1.2(d). As for Fruge’s contention that, under
U.S.S.G. § 5G1.3(b), the district court should have ordered that his federal
sentence be served concurrently with his state sentences, the record
demonstrates that the district court considered whether Fruge’s federal sentence
should be imposed to run concurrently with his state sentences, as provided for
in § 5G1.3(b). The district court ultimately determined, however, that the facts
of the case warranted the consecutive running of the federal and state sentences.
Fruge has not shown reversible plain error with regard to this issue.
      The record shows that, in determining Fruge’s sentence, the district court
considered the parties’ arguments, the Sentencing Guidelines, and the factors
set forth in § 3553. Fruge’s sentence is within the statutory maximum for his
offenses and is well supported by the facts and record in the case. Fruge has not


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demonstrated that the sentence imposed by the district court is substantively
unreasonable. See Mondragon-Santiago, 564 F.3d at 364.
     AFFIRMED.




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