          Case: 14-11883   Date Filed: 04/14/2015   Page: 1 of 16


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11883
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:13-cr-00204-EAK-TBM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                versus

MICHAEL J. CHARNIAK,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 14, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Michael Charniak appeals his 262-month total sentence, imposed after

pleading guilty to one count of transporting child pornography, in violation of 18

U.S.C. § 2252(a)(1), (b)(1), and one count of receiving child pornography, in

violation of 18 U.S.C. § 2552(a)(2).

      On appeal, Charniak argues that the district court erred in counting his prior

state conviction of sexually abusing his daughter toward his criminal history points

and criminal history category, because the state offense was inextricably

intertwined with the federal offenses. He argues that the district court erred in

applying enhancements under both U.S.S.G. § 2G2.2(b)(2) and (b)(4), resulting in

impermissible double-counting. In addition, he argues that the district court

committed procedural error by running his federal sentences consecutively to his

state sentence, contrary to U.S.S.G. § 5G1.3(b)(2). Charniak argues that the

district court imposed a substantively unreasonable sentence. Finally, he argues

that the district court plainly erred in imposing two consecutive life terms of

supervised release.

                                          I.

      We review the district court’s interpretation of the sentencing guidelines de

novo. United States v. Coe, 79 F.3d 126, 127 (11th Cir. 1996). The district court’s

fact findings, including the finding that two cases are not related, are reviewed for

clear error. See United States v. Query, 928 F.2d 383, 385 (11th Cir. 1991).


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      Section 4A1.1(a) provides that, when calculating a defendant’s criminal

history, the sentencing court should add three points for each prior sentence of

imprisonment exceeding one year and one month. U.S.S.G. § 4A1.1(a). Section

4A1.2(a)(1) defines “prior sentence” as “any sentence previously imposed upon

adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for

conduct not part of the instant offense.” Id. § 4A1.2(a)(1). Conduct is part of the

instant offense if it is relevant conduct to the instant offense. Id. § 4A1.2,

comment. (n.1). Relevant conduct includes all acts and omissions committed by

the defendant during the commission of the instant offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense. Id. § 1B1.3(a)(1)(A).

      Section 2G2.2(b)(5) provides that “[i]f the defendant engaged in a pattern of

activity involving the sexual abuse or exploitation of a minor,” the district could

should increase the offense level by five levels. Id. § 2G2.2(b)(5). A pattern of

activity involving the sexual abuse or exploitation of a minor is defined as:

      any combination of two or more separate instances of the sexual abuse
      or sexual exploitation of a minor by the defendant, whether or not the
      abuse or exploitation (A) occurred during the course of the offense;
      (B) involved the same minor; or (C) resulted in a conviction for such
      conduct.




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Id. § 2G2.2, comment. (n.1). Furthermore, a conviction considered under

§ 2G2.2(b)(5) is not excluded from consideration when calculating criminal history

points. Id. § 2G2.2, comment. (n.3).



      The district court did not err in counting Charniak’s state conviction toward

his criminal history points because that offense met the definition of “prior

sentence” under U.S.S.G. § 4A1.2(a)(1). Charniak’s state sentence for abusing his

daughter was imposed prior to his conviction for the instant federal offenses. See

U.S.S.G. § 4A1.2(a)(1). The state offense was not part of the instant offenses

because it was not relevant conduct. See U.S.S.G. § 4A1.2, comment. (n.1).

Charniak did not abuse his daughter during the commission of his child

pornography offenses, in preparation for them, or in the course of attempting to

avoid detection or responsibility for them. See id. § 1B1.3(a)(1)(A). Even though

the state and federal offenses occurred during the same time period, they involved

different victims and different conduct – receiving and distributing media on one

hand and sexually abusing an individual on the other. The fact that agents

discovered Charniak’s abuse of his daughter during an interview about his child

pornography offenses does not alone make that offense relevant conduct. Neither

does the inclusion of facts regarding the state offense in the “Offense Conduct”

section of the presentence investigation report (“PSI”) make it relevant conduct,


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because these facts were necessary to include in order to apply the five-level

increase under U.S.S.G. § 2G2.2(b)(5).

       In addition, Charniak’s argument that the state offense was relevant conduct

as a result of the application of the five-level increase under U.S.S.G.

§ 2G2.2(b)(5) fails. This section specifically allows the district court to consider

offenses not determined to be relevant conduct and provides that these offenses are

not excluded from the calculation of criminal history points. See id. § 2G2.2,

comment. (n.1); id. § 2G2.2, comment. (n.3). The use of Charniak’s state offense

to apply this five-level increase does not preclude the district court from

considering the offense when calculating his criminal history points.

                                            II.

       We review de novo a claim of double-counting under the Guidelines. United

States v. Suarez, 601 F.3d 1202, 1220 (11th Cir. 2010). However, if a party fails to

raise an argument before the district court, we review the issue for plain error.

United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). Plain error occurs

when there is (1) an error, (2) that is plain, and (3) that affects substantial rights. Id.

If the first three conditions are met, then we “may exercise discretion to correct a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

pubic reputation of judicial proceedings.” Id. (quotations omitted). “An error is

‘plain’ if controlling precedent from the Supreme Court or the Eleventh Circuit


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establishes that an error has occurred.” United States v. Ramirez-Flores, 743 F.3d

816, 822 (11th Cir. 2014), cert. denied (No. 14-6502) (U.S. Jan. 12, 2015). An

error is also plain if it is clear or obvious. United States v. Joseph, 709 F.3d 1082,

1095-96 (11th Cir. 2013), cert. denied, 134 S.Ct. 1273 (2014).

      “Impermissible double counting occurs only when one part of the guidelines

is applied to increase a defendant’s sentence on account of a kind of harm that has

already been fully accounted for by application of a different part of the

guidelines.” Suarez, 601 F.3d at 1220 (quotation omitted). Further, “[d]ouble

counting a factor during sentencing is permissible if the Sentencing Commission

intended the result, and if the result is permissible because each section concerns

conceptually separate notions related to sentencing.” Id. (quotation omitted). We

“presume[] the Sentencing Commission intended to apply separate guideline

sections cumulatively, unless specifically directed otherwise.” United States v.

Rodriguez-Matos, 188 F.3d 1300, 1310 (11th Cir. 1999).

      Under § 2G2.2(b)(2), the district court applies a two-level increase to the

defendant’s offense level “[i]f the material involved a prepubescent minor or a

minor who had not attained the age of 12 years.” U.S.S.G. § 2G2.2(b)(2). If the

material portrays “sadistic or masochistic conduct or other depictions of violence,”

the district court applies a four-level increase. Id. § 2G2.2(b)(4). We have held

that § 2G2.2(b)(4) is appropriately applied when a district court determines that


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“(1) the minor in the image is a young child and (2) the image portrays vaginal or

anal penetration of a young child by an adult male” because this act is necessarily

painful. United States v. Hall, 312 F.3d 1250, 1263 (11th Cir. 2002).



      The district court did not plainly err by applying both enhancements. First,

Charniak points to no binding precedent holding that applying both the

§ 2G2.2(b)(2) and (b)(4) enhancements represents double-counting, so even if

there was error, it is not plain. See Ramirez-Flores, 743 F.3d at 822. Furthermore,

there is no error at all, because the harm encompassed by § 2G2.2(b)(4) is not fully

accounted for by § 2G2.2(b)(2), and each of the guideline sections represents

conceptually different notions related to sentencing. See Suarez, 601 F.3d at 1220.

An individual may receive or distribute child pornography images involving

simulated intercourse or the lascivious exhibition of a prepubescent child’s

genitals, either of which would result in the application of § 2G2.2(b)(2) based on

the age of the child but not § 2G2.2(b)(4). While the age of the child is part of the

analysis articulated in Hall as to whether § 2G2.2(b)(4) applies, the image must

also portray vaginal or anal penetration of the young child by an adult male. See

Hall, 312 F.3d at 1263. The fact that the child is prepubescent is only one part of

the analysis of whether the image necessarily depicts violence. See id. In addition,

the application of both enhancements would not impact Charniak’s substantial


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rights, because he possessed and distributed images of children tied up, which

would result in the application of § 2G2.2(b)(4) even if the images of adults having

sex with very young children did not. See McNair, 605 F.3d at 1222.

                                          III.

      We review the imposition of a consecutive sentence for abuse of discretion,

and the resulting sentence must be reasonable. United States v. Covington, 565

F.3d 1336, 1346-47 (11th Cir. 2009). We review the application of U.S.S.G. §

5G1.3 de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th Cir. 2004).

      When a sentence is imposed on a defendant who is already subject to an

undischarged term of imprisonment, the district court may elect to run the terms

concurrently or consecutively. 18 U.S.C. § 3584(a). Terms imposed at different

times run consecutively unless the court orders them to run concurrently. Id.

Regardless of how the district court determines to run the terms, it must make the

decision in consideration of the factors set forth in § 3553(a). Id. § 3584(b).

Echoing the statute, the Sentencing Guidelines state that when imposing a sentence

on a defendant already subject to an undischarged sentence, the sentence for the

instant offense may run concurrent, partially concurrent, or consecutive to the prior

sentence. U.S.S.G. § 5G1.3(c) (Nov. 2013). The application notes provide that the

district court should consider the following factors in determining whether to

impose consecutive or concurrent terms of imprisonment: (1) the factors set out in


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§ 3584 (which references § 3553(a)); (2) the type (meaning, e.g., determinate or

indeterminate/parolable) and length of the prior undischarged sentence; (3) the

time served on the undischarged sentence and the time likely to be served before

release; (4) whether the prior undischarged sentence was imposed in state or

federal court, or at a different time before the same or different federal court; and

(5) “[a]ny other circumstance relevant to the determination of an appropriate

sentence for the instant offense.” Id. § 5G1.3(c) comment. (n.3(A)). This Court

has recognized that § 3584 and § 5G1.3 evince a preference for consecutive terms

of imprisonment when the sentences are imposed at different times. Ballard, 6 F.3d

at 1506.

      However, U.S.S.G. § 5G1.3(b) provides that if the instant offense was not

committed while the defendant was serving a term of imprisonment, a term of

imprisonment resulted from another offense that is relevant conduct to the instant

offense of conviction, and that offense was the basis for an increase in the offense

level for the instant offense under Chapter Two or Three of the Guidelines, the

sentence shall be imposed concurrently to the remainder of the undischarged term

of imprisonment. U.S.S.G. § 5G1.3(b)(2) (Nov. 2013). Before imposing the

sentence, the district court shall adjust the sentence for any period of imprisonment

already served on the undischarged term if the court determines the Bureau of




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Prisons will not credit the time already served to the federal sentence. Id.

§ 5G1.3(b)(1).

      The district court did not err when it imposed Charniak’s federal sentences

to run consecutive to his state sentence. Charniak fails to show that his state

offense met the requirements under U.S.S.G. § 5G1.3(b)(2) to require the district

court to impose concurrent sentences. As explained previously, Charniak’s state

conviction for sexually abusing his daughter was not relevant conduct for his

federal offenses of child pornography and the application of the five-level increase

did not cause the offense to be deemed relevant conduct. Because the state offense

was not relevant conduct, the district court had the discretion to impose concurrent,

partially concurrent, or consecutive sentences. See U.S.S.G. § 5G1.3(c). The

district court discussed the seriousness of child pornography and the need to be fair

to both the victims and the community in determining whether to impose the

sentences consecutively. The district court’s decision to impose Charniak’s

sentences to run consecutively to his state sentence was within the court’s

discretion and did not constitute error. See U.S.S.G. § 5G1.3(c); Covington, 565

F.3d at 1346. In addition, the judge’s comment stating that she did not have a

choice, when considered in context, was not an expression of her belief that she

was bound by the guidelines to impose consecutive sentences, but rather an

expression of her belief that the circumstances surrounding the offenses compelled


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her to exercise her discretion to impose consecutive sentences. Finally, the

resulting sentence was reasonable, as described below. See Covington, 565 F.3d at

1347.

                                           IV.

        We review the reasonableness of a sentence using a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169

L.Ed.2d 445 (2007). We examine the sentence’s substantive reasonableness under

the totality of the circumstances. United States v. Shaw, 560 F.3d 1230, 1237 (11th

Cir. 2009). The burden of establishing unreasonableness lies with the party

challenging the sentence. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

2010).

        The district court is required to impose a sentence “sufficient, but not greater

than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),

including the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2).

In imposing a particular sentence, the court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted


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sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7).

      A district court abuses its discretion and imposes a substantively

unreasonable sentence when it fails to afford consideration to relevant factors that

were due significant weight, gives significant weight to an improper or irrelevant

factor, or commits a clear error of judgment in considering the proper factors.

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). We will

remand only when “left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(quotations omitted). A sentence well below the statutory maximum penalty is one

indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008).

      Charniak has not met his burden of establishing that his sentence is

substantively unreasonable in light of the totality of the circumstances and the

§ 3553(a) factors. See Tome, 611 F.3d at 1378. Although Charniak does not have

an extensive criminal history, his recent offenses were for the extremely serious

crimes of child pornography and sexually abusing his daughter over a period of

years. Charniak’s sentence reflects both the seriousness of his child pornography


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offenses and the concerns for public safety, particularly the safety of children.

Furthermore, Charniak continued to obtain and trade child pornography after his

initial interview with agents. His actions show that he is likely to engage in the

offenses again and show a need for adequate deterrence. Under the circumstances,

Charniak’s sentence accomplished the needs for the sentence to reflect the

seriousness of the offenses, protect the public, and provide deterrence. See 18

U.S.C. § 3553(a)(2). His sentence was within the range of reasonable sentences

dictated by the facts. See Pugh, 515 F.3d at 1191.

      Charniak’s specific arguments also fail. First, the 262-month total sentence

is significantly below the 480-month maximum statutory sentence Charniak could

receive with his sentences imposed consecutively. The federal sentence does not

punish Charniak twice for conduct related to the federal offenses, because the state

and federal offenses are separate and unrelated. The district court judge’s

comments regarding her experience served to place Charniak’s offenses within the

context of her knowledge regarding sex crimes against minors. Finally, the district

court did not apply the “market thesis theory” to its determination of Charniak’s

sentence. The district court did not discuss the nature of child pornography in

relation to the theory that consumers of child pornography increase the harm to

future children by increasing the demand for child pornography, as described in the

market thesis theory. Instead, the district court spoke about the harm to children


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who are already victims of child pornography when new consumers continue to

view and transfer that child pornography long after it was made.

                                             V.

       We generally review questions of statutory interpretation and the district

court’s application of the Sentencing Guidelines de novo. See United States v.

Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011) (Sentencing Guidelines); United

States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009) (statutory interpretation).

If a party fails to raise an argument before the district court, we review the issue for

plain error. McNair, 605 F.3d at 1222. Plain error occurs when there is (1) an

error, (2) that is plain, and (3) that affects substantial rights. Id. If the first three

conditions are met, then this Court “may exercise discretion to correct a forfeited

error, but only if (4) the error seriously affects the fairness, integrity, or pubic

reputation of judicial proceedings.” Id. (quotations omitted). To show that an error

affected a defendant’s substantial rights, the defendant must establish a reasonable

probability that the result would have been different but for the error. See United

States v. Cartwright, 413 F.3d 1295, 1300-01 (11th Cir. 2005). An error that

seriously affected the fairness of the judicial proceedings is one that is “particularly

egregious,” and, if left uncorrected, would result in a miscarriage of justice. See

United States v. Puche, 350 F.3d 1137, 1151 (11th Cir. 2003).




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      Terms of supervised release must run concurrently. 18 U.S.C. § 3624(e)

(providing that a term of supervised release “runs concurrently with any Federal,

State, or local term of probation or supervised release or parole for another offense

to which the person is subject or becomes subject during the term of supervised

release”); U.S.S.G. § 5G1.2, comment. (n.2(C)).

      Here, the district court committed an error that was plain when it imposed

consecutive supervised release terms. See U.S.C. § 3624(e); U.S.S.G. § 5G1.2,

comment. (n.2(C)). However, the error did not affect Charniak’s substantial rights

because, even absent the error, his total term of supervised release – life – would

remain the same. See Cartwright, 413 F.3d at 1300-01. Charniak’s arguments

concerning the possible impact of a court reducing one of the supervised release

terms in the future does not show an effect on his substantial rights, because

Charniak would still have to serve his other life term even if that term was

concurrent. Because Charniak does not meet the first three conditions to show

plain error, this Court need not determine whether the error seriously affects the

fairness of the judicial proceedings. See McNair, 605 F.3d at 1222. Even if the

Court considered this fourth factor, Charniak does not show the error would result

in a miscarriage of justice if left uncorrected, because the error will not cause him

to be subjected to any punishment beyond that which would have applied absent

the error. See Puche, 350 F.3d at 1151.


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AFFIRMED.




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