UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 00-40016 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DENNIS TERRY,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-99-CR-219-1) _________________________________________________________________

August 29, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Dennis Terry appeals his sentence for receiving child

pornography. We AFFIRM.

I.

Having been charged with seven counts of receiving child

pornography, Dennis Terry pleaded guilty to the first six. He was

sentenced to 75 months imprisonment and fined $1,000.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. II.

Terry maintains: he received ineffective assistance of

counsel; and his sentence was calculated erroneously under the

Guidelines.

A.

The claimed ineffective assistance is based on an unsuccessful

motion to suppress, claimed to have prompted a more serious

superseding indictment and a less beneficial plea agreement. “A

voluntary guilty plea waives all nonjurisdictional defects in the

proceedings against the defendant ... includ[ing] claims of

ineffective assistance of counsel except insofar as the

ineffectiveness is alleged to have rendered the guilty plea

involuntary.” United States v. Glinsey,

(5th

Cir. 2000). Terry does not contend that the alleged

ineffectiveness rendered his guilty plea involuntary. Accordingly,

by pleading guilty, he waived this ineffective assistance claim.

B.

We review the district court’s application and interpretation

of the Guidelines de novo, and its factual findings for clear

error. E.g., United States v. Yanez-Huerta,

(5th

Cir. 2000).

1.

Terry claims the district court erroneously used the higher

2 base offense level found in U.S.S.G. § 2G2.2 (for “receiving” child

pornography), rather than the lower level found in § 2G2.4 (for

“possession” of such pornography). He maintains it is irrational

to punish the receipt of such pornography more severely than its

possession, because one cannot possess the material without first

receiving it. Because Terry pleaded guilty to “receiving” child

pornography, his contention is without merit. See United States v.

Canada,

(5th Cir.) (rejecting similar

contention), cert. denied,

(1997).

2.

Terry also contests his offense level being increased under

U.S.S.G. § 2G2.2(b)(3) (four-level increase if offense conduct

“involved material that portrays sadistic or masochistic conduct or

other depictions of violence”).

In the presentence report (PSR), the probation officer

concluded that the images forming the bases for counts 1 and 2

warranted the § 2G2.2(b)(3) four-level increase. The image in

count 1 depicts a nude female minor, hanging upside down while

engaging in oral sex with two adult males; in count 2, sexual

intercourse with a nude adult male. Over Terry’s objections, the

district court adopted the PSR’s findings and conclusions. The

court reasoned that the penetration of a child amounted to torture,

as well as sadistic and masochistic conduct.

Terry claims the § 2G2.2(b)(3) increase was not warranted,

3 absent evidence the children were being tortured or otherwise made

to suffer pain. The district court did not clearly err in finding

that the photographs — depicting penetration of the orifices of

prepubescent children — portray sexual violence and sadistic and

masochistic conduct.

The contention that application of the enhancement constitutes

“double enhancement”, because the depiction of “prepubescent

children engaged in sexual acts with adult males is what made the

photographs pornographic in the first place”, is without merit.

Obviously, child pornography can depict sexually explicit conduct

without also depicting sexual penetration.

3.

Although not raised as a separate issue, Terry asserts that

the purported sentencing errors were “made more egregious by the

prosecutor arguing for a midrange sentence when the plea agreement

called for a low range sentence”. This contention is not

adequately briefed. Moreover, Terry does not claim a breach of the

plea agreement or seek remedies therefor. See FED. R. APP. P. 28

(a)(9)(A) (argument must contain “appellant’s contentions and the

reasons for them, with citations to the authorities and parts of

the record on which the appellant relies”); United States v.

Cyprian,

(5th Cir. 1999) (“points on appeal are

abandoned if not briefed adequately” (emphasis in original)).

III.

4 For the foregoing reasons, the judgment is

AFFIRMED.

5