                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                       APRIL 25, 2008
                                                    THOMAS K. KAHN
                              No. 07-13474
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 06-00471-CR-01-ODE-1

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                   versus

JAMES EDWARD SOMMERVILLE,
a.k.a. Jim Sommerville,

                                                    Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (April 25, 2008)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     James Edward Sommerville appeals his sentence of imprisonment for 195
months for distribution of child pornography, 18 U.S.C. § 2252A(a)(2)(A), (b)(1),

and possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), (b)(2).

Sommerville challenges for the first time the reliability of the evidence submitted

to the district court to support a five-level enhancement for a pattern of activity

involving the exploitation of a minor. U.S.S.G. § 2G2.2(b)(5). We affirm.

      Sommerville contests the reliability of the evidence regarding the

enhancement in three respects. First, Sommerville argues that the governement

failed to establish that the instant messages and chats relied on by the district court

involved a minor. Although a participant in one of the chats mentioned an age of

10 years old, Sommerville argues that the agent did not provide any testimony

about the ages of the other profiles beyond stating “young female” or “younger

teenage female, teenage or younger.” Second, Sommerville argues that “[t]he

evidence was hearsay from partial conversations, which failed to satisfactorily

prove ‘sexual abuse or exploitation.’” Third, Sommerville argues that the district

court failed to make findings as to the reliability or credibility of the evidence.

      Sommerville’s arguments on appeal are different from his earlier objections

regarding the enhancement. In the presentencing report, Sommerville’s written

objection to the application of the enhancement was that he never tried to travel or

meet with anyone. During the sentencing hearing, Sommerville explained that his



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objection to the enhancement was based on the email chats being part of the same

transaction and not a pattern of activity. Sommerville renewed that objection to the

enhancement at the end of the sentencing hearing.

      We review issues raised for the first time on appeal for plain error. United

States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Under that standard,

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

We may then exercise our discretion to correct the error if it seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. United States v.

Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). “To preserve an issue for

appeal, ‘one must raise an objection that is sufficient to apprise the trial court and

the opposing party of the particular grounds upon which appellate relief will later

be sought.’ The objection must be raised ‘in such clear and simple language that

the trial court may not misunderstand it.’” United States v. Straub, 508 F.3d 1003,

1011 (11th Cir. 2007) (internal citation marks omitted). Because Sommerville

raised no objection to the reliability of the evidence he now challenges, we review

these issues for plain error. Id.

      Section 2G2.2(b)(5) of the United States Sentencing Guidelines provides for

a five-level enhancement “[i]f the defendant engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor.” The application notes



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explain that the enhancement applies for “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.” Id. § 2G2.2(b)(5) cmt. n.1. “Minor” is defined as follows:

      (A) an individual who had not attained the age of 18 years; (B) an
      individual, whether fictitious or not, who a law enforcement officer
      represented to a participant (i) had not attained the age of 18 years,
      and (ii) could be provided for the purposes of engaging in sexually
      explicit conduct; or (C) an undercover law enforcement officer who
      represented to a participant that the officer had not attained the age of
      18 years.

Id.

      “Sexual abuse or exploitation” is defined as conduct prohibited under

various criminal statutes or the attempt to commit such an offense, but excludes

“possession, receipt, or trafficking in material relat[ed] to the sexual abuse or

exploitation of a minor.” Id. One of those statutes makes it illegal to “employ[],

use[], persuade[], induce[], entice[], or coerce[] any minor to engage in . . . any

sexually explicit conduct for the purpose of producing any visual depiction of such

conduct. . . .” 18 U.S.C. § 2251(a). An attempt to violate section 2251 is

proscribed by subsection (e) of that section. Id. § 2251(e). Another of the statutes

makes it illegal to persuade, induce, or entice any individual to travel in interstate



                                            4
commerce to engage in any sexual activity for which any person can be charged

with a criminal offense, or to attempt to do so. 18 U.S.C. § 2422(a). Section

2422(b) also makes it illegal for any person to persuade, induce, or entice, a person

who has not attained the age of 18 years to engage in sexual activity for which any

person can be charged with a criminal offense, or to attempt to do so. Id.

§ 2422(b).

      Sommerville’s arguments fail. The district court did not plainly err when it

found that Sommerville’s chats involved minors and relied on the representations

of “Jessica” that she was 14 years old and “Kathy” that she was 10 years old. The

online chats with Agents Yoder and Sutherland, who posed as mothers of minor

children, also supported the enhancement. U.S.S.G. § 2G2.2(b)(5). The

presentence investigation report established that Sommerville had nine

conversations with the agents and sent them eight images of child pornography and

one video of child pornography. Sommerville proposed meeting to have sex with

the mothers and their minor children. 18 U.S.C. § 2422(a). Sommerville cannot

now complain that the district court failed to make any findings about the

reliability of this evidence when Sommerville failed to object and there is nothing

in the record to suggest that the evidence is unreliable.

      Sommerville’s sentence is AFFIRMED.



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