                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-4734


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PAUL C. MARLOWE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00406-REP-1)


Submitted:   May 3, 2011                      Decided:   May 19, 2011


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Nia A. Vidal,
Assistant Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Thomas K. Johnstone, IV, Samuel E.
Fishel, IV, Special Assistant United States Attorneys, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Paul     C.    Marlowe       pleaded      guilty       to    two    counts      of

transporting       child       pornography       in     interstate         commerce,        in

violation of 18 U.S.C.A. § 2252A(a)(1) (West Supp. 2010).                                   The

district court sentenced Marlowe to 210 months of imprisonment,

and he now appeals.         Finding no error, we affirm.

            On   appeal,        Marlowe    argues       that    the      district       court

erred in making factual findings supporting an enhancement under

the sentencing Guidelines.                Specifically, Marlowe argues that

the application of the preponderance of the evidence standard

violated his Fifth Amendment right to due process.                                   However,

Marlowe’s    argument      is     foreclosed       by    our    decision        in     United

States v. Grubbs, 585 F.3d 793 (4th Cir. 2009), cert. denied,

130   S.   Ct.   1923     (2010),    in    which      this     court     held        that   the

preponderance       of    the     evidence       standard      is       the    appropriate

standard    of   proof     for    sentencing       purposes.            Id.    at     799-803

(“[T]he    post-[United         States    v.    Booker,      543    U.S.       220    (2005)]

advisory nature of the Guidelines eliminates any due process

argument for a heightened standard of proof at sentencing.”)

(citation omitted).            As we may not overrule this court’s binding

precedent, United States v. Simms, 441 F.3d 313, 318 (4th Cir.

2006) (“[a] decision of a panel of this court becomes the law of

the   circuit      and    is    binding     on     other     panels       unless       it   is

overruled by a subsequent en banc opinion of this court or a

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superseding contrary decision of the Supreme Court” (internal

quotation omitted)), this claim fails.

               Marlowe also argues that, under any standard of proof,

there was insufficient reliable evidence to support the district

court’s factual findings for the enhancement.                                      In reviewing the

district court’s calculations under the Guidelines, this court

“review[s] the district court’s legal conclusions de novo and

its       factual    findings          for        clear       error.”            United        States      v.

Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation

marks and citation omitted).                       We will “find clear error only if,

on the entire evidence, [we are] left with the definite and firm

conviction      that          a    mistake        has       been    committed.”               Id.    at    631

(internal quotation marks and citation omitted).

               The       sentencing      Guidelines                provide       for    a     five       level

enhancement         if    a       defendant       engaged          in    a   pattern        of      activity

involving the sexual abuse or exploitation of a minor.                                              See U.S.

Sentencing Guidelines Manual (“USSG”) § 2G2.2(b)(5) (2010).                                                 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.”            USSG § 2G2.2(b)(5) comment. n.1.                              The sentencing

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Guidelines then define sexual abuse or exploitation as conduct

falling within various enumerated sections of the United States

Code or an offense under state law that would constitute an

offense under the specifically enumerated sections.                     Id.    We

have     thoroughly     reviewed   the    record     and   conclude     that   the

district court’s application of this enhancement was not clearly

erroneous.

             Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately      presented    in   the    materials

before    the   court    and   argument      would   not   aid   the   decisional

process.

                                                                         AFFIRMED




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