UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4734

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PAUL C. MARLOWE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:09-cr-00406-REP-1)

Submitted: May 3, 2011 Decided: May 19, 2011

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Nia A. Vidal, 

Assistant Federal Public Defender, Patrick L. Bryant, Appellate 

Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, 

United States Attorney, Thomas K. Johnstone, IV, Samuel E. 

Fishel, IV, Special Assistant United States Attorneys, Richmond, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Paul C. Marlowe pleaded guilty to two counts of 

transporting child pornography in interstate commerce, in 

violation of 18 U.S.C.A. § 2252A(a)(1) (West Supp. 2010). The 

district court sentenced Marlowe to 210 months of imprisonment, 

and he now appeals. Finding no error, we affirm.

On appeal, Marlowe argues that the district court 

erred in making factual findings supporting an enhancement under 

the sentencing Guidelines. Specifically, Marlowe argues that 

the application of the preponderance of the evidence standard 

violated his Fifth Amendment right to due process. However, 

Marlowe’s argument is foreclosed by our decision in United 

States v. Grubbs, 585 F.3d 793 (4th Cir. 2009), cert. denied, 

130 S. Ct. 1923 (2010), in which this court held that the 

preponderance of the evidence standard is the appropriate 

standard of proof for sentencing purposes. Id. at 799-803 

(“[T]he post-[United States v. Booker, 543 U.S. 220 (2005)] 

advisory nature of the Guidelines eliminates any due process 

argument for a heightened standard of proof at sentencing.”) 

(citation omitted). As we may not overrule this court’s binding

precedent, United States v. Simms, 441 F.3d 313, 318 (4th Cir. 

2006) (“[a] decision of a panel of this court becomes the law of 

the circuit and is binding on other panels unless it is 

overruled by a subsequent en banc opinion of this court or a 
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superseding contrary decision of the Supreme Court” (internal 

quotation omitted)), this claim fails.

Marlowe also argues that, under any standard of proof, 

there was insufficient reliable evidence to support the district 

court’s factual findings for the enhancement. In reviewing the 

district court’s calculations under the Guidelines, this court 

“review[s] the district court’s legal conclusions de novo and 

its factual findings for clear error.” United States v. 

Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation 

marks and citation omitted). We will “find clear error only if, 

on the entire evidence, [we are] left with the definite and firm 

conviction that a mistake has been committed.” Id. at 631 

(internal quotation marks and citation omitted). 

The sentencing Guidelines provide for a five level 

enhancement if a defendant engaged in a pattern of activity 

involving the sexual abuse or exploitation of a minor. See U.S. 

Sentencing Guidelines Manual (“USSG”) § 2G2.2(b)(5) (2010). A 

“pattern of activity involving the sexual abuse or exploitation 

of a minor” is defined as “any combination of two or more 

separate instances of the sexual abuse or sexual exploitation of 

a minor by the defendant, whether or not the abuse or 

exploitation (A) occurred during the course of the offense; 

(B) involved the same minor; or (C) resulted in a conviction for 

such conduct.” USSG § 2G2.2(b)(5) comment. n.1. The sentencing 
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Guidelines then define sexual abuse or exploitation as conduct 

falling within various enumerated sections of the United States 

Code or an offense under state law that would constitute an 

offense under the specifically enumerated sections. Id. We 

have thoroughly reviewed the record and conclude that the 

district court’s application of this enhancement was not clearly 

erroneous.

Accordingly, we affirm the judgment of the district 

court. 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