UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4121

JOSEPH EDWARD STEPHENS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-97-121)

Submitted: September 8, 1998

Decided: September 21, 1998

Before MURNAGHAN and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles R. Brewer, Asheville, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Thomas R. Ascik, Assistant United

States Attorney, Asheville, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Joseph Edward Stephens pled guilty without benefit of a plea

agreement to one count of receiving through the mail videotapes

depicting minors engaged in sexually explicit conduct in violation of

18 U.S.C.A. § 2252(a)(2) (West Supp. 1998). He appeals the fortytwo month sentence imposed by the district court, asserting that the

district court erred in applying USSG § 2G2.2* (trafficking in, receiving, transporting, or advertising material involving sexual exploitation

of minors, and possession of such materials with intent to traffic)

rather than USSG § 2G2.4 (possession of materials depicting a minor

engaged in sexually explicit conduct). Application of USSG § 2G2.4

would have resulted in a lower sentence because it lacks a specific

offense characteristic contained in USSG § 2G2.2 that applied in Stephens' case. Finding no error, we affirm.

Stephens responded to a notice placed on the Internet by an undercover police officer who indicated that he was interested in trading

videos. Stephens offered to trade videos, explained what he wanted,

and listed the titles of a number of videos he had available. The officer sent Stephens detailed descriptions of five videos depicting

minors involved in sexually explicit conduct; four involved minors

under the age of twelve. Stephens mailed the officer a package containing payment for all five videos and fourteen videos of his own

which he offered to trade for additional videos. The five videos Stephens ordered were delivered to his post office box and he was

arrested after he picked up the package.

The commentary to USSG § 2G2.2 provides that it applies to convictions under 18 U.S.C.A. § 2252(a)(2), which criminalizes (1) transportation of materials depicting minors engaging in sexually explicit

conduct, (2) receipt or distribution of such materials, and (3) sale or

possession with intent to sell of such materials. The commentary to

USSG § 2G2.4 provides that it applies to convictions under 18

U.S.C.A. § 2252(a)(4), which criminalizes possession of three or

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*U.S. Sentencing Guidelines Manual (1997).

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more materials depicting minors engaging in sexually explicit conduct. Although Stephens pled guilty to a violation of § 2252(a)(2), he

argued at sentencing that the court should apply USSG § 2G2.4. He

asserted that he had not been charged with intent to traffic in child

pornography and that, therefore, the guideline applicable to possession of child pornography should be applied. He argued that it is significant that USSG § 2G2.4 contains a cross-reference to USSG

§ 2G2.2 to be applied if the offense involved receipt of pornographic

materials involving minors with intent to traffic. From this, he argued

that USSG § 2G2.2 only applies to receiving such materials with

intent to traffic in them.

The district court determined without comment that the applicable

guideline was USSG § 2G2.2. We agree. Stephens was convicted of

receiving materials depicting minors engaging in sexually explicit

conduct, an offense which falls squarely within USSG§ 2G2.2. Consequently, USSG § 2G2.2 was the guideline which was "most applicable to the offense of conviction." See USSG § 1B1.2(a).

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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