United States v. Christopher Edward Persall

U.S. Court of Appeals for the Eleventh Circuit
United States v. Christopher Edward Persall, 176 F. App'x 1 (11th Cir. 2006)
Anderson, Birch, Hill, Per Curiam

United States v. Christopher Edward Persall

Opinion

PER CURIAM:

Christopher Edward Persall appeals his seventy (70) month sentence for possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(A), and possession of child pornography under Section 2252A(a)(5)(B)(as amended). 1 The sole issue raised on appeal by Persall is a Booker issue, i.e., that the district court erred by enhancing his sentence in excess of the guidelines range for his crime by using facts not admitted to by him and not found by a jury. U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

This issue is entirely without merit as Persall was sentenced on April 21, 2005, under the post-Booker advisory guidelines and not the pre-Booker mandatory guidelines system. 2 After Booker, “the use of extra-verdict enhancements in an advisory guidelines system is not unconstitutional.” United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005).

Therefore, Persall’s argument fails under the precedent of this circuit. See also United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005). Finding no error, the sentencing judgment of the district court as to Persall is affirmed.

AFFIRMED.

1

. Although counts one and two addressed the same crime under Section 2252A(a)(5)(B), Persall’s possession occurred both before and after a statutory amendment that lengthened the maximum statutory penalty for the crime.

2

. In sentencing him, the district court expressly stated that sentence was imposed under the Sentencing Reform Act of 1984, as modified by the Supreme Court decision in Booker. R6-16.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Christopher Edward PERSALL, A/K/A Christopher Persall, Defendant-Appellant
Status
Unpublished