     Case: 09-30295     Document: 00511000601          Page: 1    Date Filed: 01/11/2010



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

                                                                             FILED
                                                                          January 11, 2010
                                     No. 09-30295
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BILLY SLAYDON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:08-CR-172-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Billy Slaydon pleaded guilty to one count of production of child
pornography and to one count of possession of child pornography. Slaydon was
sentenced to a 30-year sentence of imprisonment on the production count and to
a consecutive 10-year term of imprisonment on the possession count.                            The
district court ordered that Slaydon’s federal sentence would run consecutively
to any sentence imposed in state court.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30295    Document: 00511000601 Page: 2         Date Filed: 01/11/2010
                                 No. 09-30295

      Slaydon raises a number of procedural challenges to his sentencing. In
view of statements made by Victim #1, and evidence presented by Dr. Thomas
Griffin regarding the age of Victim #1 in pornographic images, Slaydon has not
shown that the district court clearly erred in finding that his offense as to Victim
#1 involved a minor who had not attained the age of 12 years. See United States
v. Williams, 520 F.3d 414, 422 (5th Cir. 2008). To the extent that Slaydon
contends that a letter prepared by Dr. Griffin concerning the age of Victim #1
should not have been considered because it was inadmissible and because he had
no opportunity to cross examine Dr. Griffin, Slaydon has not shown error. See
United States v. Ramirez, 271 F.3d 611, 613 (5th Cir. 2001); United States v.
Navarro, 169 F.3d 228, 236 (5th Cir. 1999).
      Slaydon contends that the application of a two-level enhancement under
U.S.S.G. § 2G2.1(b)(2)(A) and a four-level enhancement under § 2G2.1(b)(4)
constituted impermissible double counting. In view of the definitions of “sexual
act” and “sexual contact” applicable under § 2G2.1(b)(2)(A), we disagree with
Slaydon’s assertion that where § 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). Slaydon 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).
      It was not error for the district court to consider conduct charged in a
count that was dismissed in determining Slaydon’s offense level. See United
States v. Wall, 180 F.3d 641, 643-45 (5th Cir. 1999); United States v. Vital, 68
F.3d 114, 118 (5th Cir. 1995). We likewise find no 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

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                                 No. 09-30295

Related Counts).”). It was not error for the district court to add two levels to the
higher offense level applicable to Victim #1 to arrive at a combined offense level
of 46. See § 3D1.4(a). Nor did the district court err in ordering that the 10-year
sentence on the possession count would run consecutively to the 30-year
sentence on the production count. See § 5G1.2(d).
      Slaydon’s challenge to the reasonableness of his sentence is unavailing.
The district court stated explicitly that it had taken into account the Sentencing
Guidelines and the factors set forth in 18 U.S.C. § 3553 in determining Slaydon’s
sentence. The district court also considered the fact that Slaydon was abused as
a child, but it determined that his history of being a victim of abuse was
overwhelmed by the crimes Slaydon had committed.               The district court
adequately explained its reasons for the sentence imposed on Slaydon. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The sentence of
imprisonment imposed by the district court was within the advisory guideline
range and thus enjoys a rebuttable presumption of reasonableness, which
Slaydon has failed to overcome. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006).
      Finally, Slaydon argues that the district court erred in ordering his federal
sentence of imprisonment to run consecutively to any sentence he might receive
in state court. Slaydon’s argument is foreclosed by United States v. Brown, 920
F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds, United States
v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). In Brown, this court held that
a district court may order a federal sentence to run consecutively to a state
sentence that has not yet been imposed. Brown, 920 F.2d at 1217. Brown is the
law of this circuit and one panel of this court may not overrule the decision of a
prior panel in the absence of en banc consideration or a superseding Supreme
Court decision. See United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir.
2002).
      AFFIRMED.

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