United States v. Terrence Sundsmo

Court Case Details
Court Case Opinion

FILED

OCT 02 2013

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS

U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 11-30356

Plaintiff - Appellee,

D.C. No. 3:10-cr-00085-RE

v.

*

MEMORANDUM

TERRENCE LEE SUNDSMO,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Oregon

Robert E. Jones, District Judge, Presiding

**

Submitted September 24, 2013

Before:

RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

Terrence Lee Sundsmo appeals from the district court’s judgment and

challenges the 188-month sentence imposed following his guilty-plea conviction

for possession of child pornography with previous conviction for sexual abuse of a

minor, in violation of 18 U.S.C. § 2252A(a)(5)(B), as enhanced by § 2252A(b)(2).

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Sundsmo argues that the district court erred by imposing a five-level

enhancement under U.S.S.G. § 2G2.2(b)(5) because his 1996 convictions for

sexually abusing a minor do not qualify as relevant conduct or expanded relevant

conduct under U.S.S.G. § 1B1.3(a). We review de novo, United States v. Garner,

490 F.3d 739, 742 (9th Cir. 2007), and conclude that the enhancement under

section 2G2.2(b)(5) was properly imposed. See U.S.S.G. § 2G2.2(b)(5) & cmt.

n.1; U.S.S.G. Manual app. C., amend. 537 (1996) (“pattern of activity”

enhancement applies to “past sexual abuse or exploitation unrelated to the offense

of conviction” and, thus, reaches more “broad[ly] than the scope of relevant

conduct typically considered under §1B1.3”); Garner, 490 F.3d at 743 (“The plain

language of the Commentary to § 2G2.2 eliminates the need for any temporal or

factual nexus between the offense of conviction and any prior act of sexual abuse

or exploitation; the provision obviously intends to cast a wide net to draw in any

conceivable history of sexual abuse or exploitation of children.”). Sundsmo’s

various arguments for a narrower interpretation of section 2G2.2(b)(5) are

unavailing.

AFFIRMED.

2

11-30356

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