UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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Nos. 97-40327 & 97-40617 Summary Calendar ____________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT JAY TASHBOOK,

Defendant-Appellant.

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Appeal from the United States District Court for the Eastern District of Texas (6:96-CR-32-1) _________________________________________________________________

March 20, 1998 Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Tashbook, who pleaded guilty to one count of

traveling in interstate commerce for the purpose of engaging in sexual

acts with a minor and also to possessing three or more visual depictions

transported by computer in interstate commerce of minors engaging in

sexually explicit conduct, appeals one issue in his sentencing. He

contends that U.S.S.G. § 2G2.4, as effective in 1995, did not explain

how its enhancement for “possessing ten or more . . . items, containing

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. a visual depiction involving the sexual exploitation of a minor” applies

to depictions stored on a computer. Finding no error in the trial

court’s sentencing decision, we affirm.

Tashbook contends that the 20-30 graphic images that were

contained on his computer and depicted minors engaged in sexually

explicit activities were stored in one directory and were therefore like

images contained in one magazine, which would be counted as one item for

purposes of this sentencing enhancement. This legal argument is

foreclosed by Tashbook’s guilty plea. First, Tashbook pled guilty to

the crime of possessing “three or more visual depictions transported by

computer” (emphasis added), a plea utterly inconsistent with the

contention that for sentencing purposes, he possessed only one offending

item. Second, his guilty plea agreement specifically states that he

“possessed ten (10) or more items containing a visual depiction

involving the sexual exploitation of a minor as referenced in the

specific offense characteristics of U.S.S.G. § 2G2.4.” (emphasis added).

Having stipulated to the precise facts that undergird

application of this sentencing enhancement, Tashbook cannot now turn

around on appeal and assert that possessing more than three items, and

ten or more items of computer-transmitted visual depictions of sexual

exploitation of a minor are in fact only one such depiction for criminal

purposes. Even if Tashbook had not foreclosed this argument by his own

agreement, however, we would be skeptical of the contention that

transmission of these images over the Internet could result in a finding

that only one offending item existed based solely on the way in which

defendant chose to store the images in his computer.

2 The sentence imposed by the trial court is AFFIRMED.

3