* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 3 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROBERT ALAN THOMAS, Defendant-Appellant. No. 96-4099 (D.C. No. 94-CR-107) (D. Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, LOGAN and KELLY, Circuit Judges.

Robert Alan Thomas owned and operated a California- based computer bulletin board system from which users could downlo ad graphic files from among thousands of pornographic images on the system. Mr . Thomas was arrested in February 1994, convicted on July 28, 1994 by a juryin the Western District of Tennessee of several counts of distributing obsceni ty via his bulletin board in-2-

violation of 18 U.S.C. § 1465, and sentenced to 37 months in prison. On July 20, 1994, Mr. Thomas was indicted in the District of Ut ah for several counts relating to the distribution of child pornography via his bu lletin board in violation of 18 U.S.C. §§ 2252(a)(1) and 2. Mr. Thomas moved to di smiss the Utah indictment on the grounds of collateral estoppel and double je opardy arising out of his Tennessee prosecution and sentencing, and on the gr ounds that the government’s previous return of the pornographic materials to Mr . Thomas made the subsequent prosecution an entrapment by estoppel. After the d enial of his several motions to dismiss, Mr. Thomas entered a conditional guilty pl ea on one of the counts in the indictment and was sentenced to 26 months in prisonto run concurrently with his Tennessee sentence. Mr. Thomas now appeals, reasse rting his various claims of preclusion and also asserting the district court er red in not departing downward at sentencing. The district court order denying Mr. Thomas’ motionto dismiss for collateral estoppel and double jeopardy is thorough and well-reasoned. Applying the standard for collateral estoppel laid out in Un ited States v. Rogers , 960 F.2d 1501, 1507-08 (10th Cir. 1992), the district court noted that none of the images which form the basis of the Utah indictment were th e basis of the Tennessee charges, and that the Tennessee jury made no findin gs regarding child pornography on the bulletin board. The district co urt determined that the1 As the district court observed, the discussion of c hild pornography in the

Tennessee sentencing appears to concern Mr. Thomas’ receipt of magazines containing child pornography, a count on which the jury acquitted him.

2 Mr. Thomas also asserts that the Utah prosecution c onstitutes entrapment by estoppel. The defense of entrapment by estoppel is implicated where an agent of the government affirmatively misleads a party as to the state of the law and that party proceeds to act on the misrepres entation so that criminal prosecution of the actor implicates due pr ocess concerns under the Fifth and Fourteenth amendments. United States v. Nichols , 21 F.3d 1016, 1018 (10th Cir. 1994). The governm ent contends Mr. Thomas’ entrapment argument is not pro perly before this court because it was not one of the issues preserved in h is conditional plea, and thus is waived. Both the plea transcript, aplt.’s app. at 301, and the Statement by Defendant in Advance of Plea of Guilty, aplee.’s ap p. at 4, reflect Mr. Thomas reserved the right to appeal only the rulings on do uble jeopardy and collateral estoppel. In any event, we are not persuaded thatthe government’s prior actions in returning to Mr. Thomas the material forming the basis for the prosecution rise to the affirmative misrepresentation required to es tablish entrapment by estoppel. -3- Tennessee sentencing judge made no findings with re gard to child pornography on Mr. Thomas’ bulletin board, and concluded that the forfeiture of his equipment was similarly not based on any findings with regardto child pornography on the bulletin board. 1 We adopt the reasoning of the district court to h old that collateral estoppel and double jeopardy arising out of the Ten nessee proceedings are not implicated in the Utah prosecution. 2 Mr. Thomas also argues he was entitled to a downwar d departure at sentencing so that the combined imprisonment for th e Tennessee and Utah convictions would approximate the sentence he wouldhave gotten if he had been sentenced for both convictions at the same time (“c oterminously”). The Utah3 In practical effect, a sentence calculated cotermin ously would mean Mr.

Thomas would be released upon the conclusion of the undischarged Tennessee sentence. Instead, the Utah sentence runs concurre ntly with the Tennessee sentence from the date of the Utah sentencing , and Mr. Thomas thereafter would remain in custody for the undischarged portion of t he Utah sentence. -4- court instead sentenced Mr. Thomas concurrently wit h the Tennessee sentence. 3 The imposition of sentence is committed to the soun d discretion of the sentencing court. Generally, we lack jurisdiction to review t he sentencing court’s discretionary refusal to downward depart. United S tates v. Bromberg , 933 F.2d 895, 896 (10th Cir. 1991). However, we do review t he sentencing court’s decision to ensure that the sentence imposed is notthe result of an incorrect application of the guidelines or otherwise in violation of the law. Id. at 897. In particular, we review the decision not to depart to ensure that the decision was not based on the district court’s erroneous belief thatit lacked the legal power to depart. United States v. Davis , 900 F.2d 1524, 1530 n.7 (10th Cir. 1990). After review of the sentencing transcript, we are p ersuaded that the district court recognized its power to depart downward in th is case. The court did in fact depart downward one month to credit Mr. Thomas for delays associated with the sentencing process. The court was simply unconvinc ed that the prior undischarged sentence was a sufficient factor to re move the case from the heartland of the Guidelines. In addition, the impo sition of a concurrent sentence does not violate any specific guideline provision. Mr. Thomas relies on U.S.S.G.4 Mr. Thomas’ argument appears to be premised on the application notes to

the former version of § 5G1.3(c), in effect before November 1, 1995, which stated that, “a reasonable incremental penalty [is] a sent ence for the instant offense that results in a combined sentence of imprisonment thatapproximates the total punishment that would have been imposed . . . had a ll the offenses been federal offenses for which sentences were being imposed at the same time.” U.S.S.G. § 5G1.3 app. note 3 (1994). Although the same note s tates that no departure is required, if the old guideline applied to Mr. Thomas, it is arguable that the district court may have erred in failing to conside r the coterminous methodology to determine if a downward departure was warranted. Cf. United States v. Johnson , 40 F.3d 1079, 1083-84 (10th Cir. 1994). The appl icable version of the guideline, however, omits reference to the cotermin ous methodology. -5- § 5G1.3(c) (policy statement) (effective Nov. 1, 19 95), which states that “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undisch arged term of imprisonment to achieve a reasonable punishment for the instant off ense.” Neither the text nor the commentary to this provision suggest that the sente nces are to be calculated coterminously, or that a downward departure is eith er required or encouraged to achieve such a coterminous sentence. 4 The decision not to depart downward is not premised on an error of law, and is otherwise u nreviewable.
We AFFIRM

.

ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge