IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10995 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT BEAM RUNYAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:99-CR-47-1-C -------------------- March 7, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Robert Runyan appeals the sentence imposed

by the district court following our second remand. See United

States v. Runyan,

(5th Cir. 2002), cert.

denied,

(2002). In Runyan’s last appeal, we

reversed his Count 3 conviction for distribution of child

pornography and determined that his Count 1 conviction for sexual

exploitation of a minor should have been grouped with his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. convictions on Count 4 for receipt, and Count 5 for possession, of

child pornography. Id. On remand, the district court grouped

Runyan’s Counts 1, 4, and 5 convictions and calculated Runyan’s

offense level under U.S.S.G. § 2G2.2, the section of the Sentencing

Guidelines that produced the highest offense level. This resulted

in a sentence of 240 months’ imprisonment on Count 1, and 180

months each on Counts 4 and 5, to run concurrently with Count 1’s

240 months.

Runyan contends that the sentencing court’s application of §

2G2.2 was based on an erroneous finding that he possessed child

pornography with intent to traffic. He argues that (1) if § 2G2.2

was applied based on his conviction for receipt of child

pornography, it was error, because § 2G2.4, not § 2G2.2, should

apply to receipt of child pornography convictions; (2) his sentence

of 180 months’ imprisonment for possession of child pornography

(Count 5) was above the statutory maximum of five years; and (3)

the enhancement of his offense level under § 2G2.2(b)(2) and (5)

for distributing child pornography and use of a computer, was

error. We disagree as to all contentions.

The district court correctly determined that Runyan’s receipt

conviction warranted calculating his offense level under § 2G2.2.

See United States v. Canada,

(5th Cir. 1997).

His sentence of 180 months’ imprisonment for possession of child

pornography did exceed the five year maximum term for the offense,

see 18 U.S.C. § 2252A(a)(5)(B) and (b)(2); but Runyan raises the

2 issue for the first time in his instant appeal, and issues are

waived if they could have been raised in a prior appeal but were

not. United States v. Becerra,

(5th Cir. 1998);

United States v. Fitzhugh,

, 145 n.3 (5th Cir. 1993).

Furthermore, even if we were to address this claim, we would reject

it: Runyan has not shown that reducing his sentence for Count 5 to

the statutory maximum would affect the length of his term of

imprisonment, given his concurrent sentences of 240 months’ and 180

months’ imprisonment for Counts 1 and 4. Neither has he

demonstrated that unfavorable collateral consequences could result

if his Count 5 sentence is not corrected. See United States v.

Meshack,

(5th Cir. 2000), amended on reh’g,

(5th Cir.), cert. denied,

(2001), overruled

on other grounds, United States v. Cotton,

(2002).

Even if it were not waived, this error would not warrant vacating

his sentence and remanding for resentencing.

We perceive no merit in Runyan’s assertion that his sentence

for distribution of child pornography should not be enhanced

because his intent to distribute was associated with his Count 1

offense and not his offenses for Counts 4 or 5. See United States

v. Myers,

(5th Cir. 1999); U.S.S.G. § 3D1.3

comment.(n.3). Like his claim regarding the Count 5 sentence’s

exceeding the statutory maximum, Runyan’s claim that his offense-

level enhancement for use of the computer should not apply because

he did not transmit (but only received) child pornography through

3 use of a computer is not subject to review. He waived the claim

when he failed to assert it in his prior appeal. See Becerra,

. Besides, the argument is without merit. See United

States v. Richardson,

(7th Cir. 2001).

The sentence imposed on Runyan by district court at

resentencing is, in all respects,

AFFIRMED.

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