UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-4121 JOSEPH EDWARD STEPHENS, Defendant-Appellant.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.

_________________________________________________________________ Affirmed by unpublished per curiam opinion.

_________________________________________________________________ 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.

_________________________________________________________________ Unpublished opinions are not binding pr ecedent in this circuit.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 r eceiving through the mail videotapes depicting minors engaged in sexually explicit conduct in violation of18 U.S.C.A. § 2252(a)(2) (West Supp. 1998). He appeals the fortytwo month sentence imposed by the district court, asserting that thedistrict 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 specificoffense characteristic contained in USSG § 2G2.2 that applied in Stephens' case. Finding no error, we affirm. Stephens responded to a notice pl aced 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 minorsunder the age of twelve. Stephens mailed the officer a package containing payment for all five videos and fourteen videos of his ownwhich 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) r eceipt 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

_________________________________________________________________ *U.S. Sentencing Guidelines Manual (1997).
2more 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 childpornography 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 explicitconduct, 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 presentedin the materials before the court and argument would not aid the decisional process.
AFFIRMED
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