1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2668

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Royal Taylor, * [UNPUBLISHED]

*

Defendant - Appellant. *

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Submitted: April 12, 2005

Filed: April 25, 2005

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Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.

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PER CURIAM.

Royal Taylor pled guilty, pursuant to a plea agreement, to a two-count

indictment for sexually exploiting a minor. At sentencing Taylor objected to the

district court’s1

 enhancement of Taylor’s offense level based on a finding that Taylor

had engaged in a “pattern of activity” involving sexual conduct with minors. The

district court overruled the objection and sentenced Taylor to 188 months

imprisonment and three years supervised release. On appeal, Taylor argues the
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district court erred, in violation of Blakely, by enhancing his offense level based on

a finding that he had engaged in a pattern of activity. We find no error and affirm.

I. BACKGROUND

The government charged Taylor in a two-count indictment with sexually

exploiting a minor. Count I charged that between March 1, 2003 and April 15, 2003

Taylor videotaped three minors as they engaged in sexual activity. Count II alleged

that on another occasion during this same period, Taylor videotaped himself and one

of the three minors engaging in sexual activity. In each instance, Taylor used a

camcorder that traveled in interstate commerce. 

Taylor pled guilty to the charges pursuant to a plea agreement. In the plea

agreement, Taylor agreed not to appeal the sentence if it was consistent with the plea

agreement. The presentence investigation report recommended an enhancement to

Taylor’s offense level, because Taylor engaged in a “pattern of activity” involving

sexual conduct with minors. Taylor objected to the presentence investigation report’s

recommendation.

At sentencing, the district court overruled Taylor’s objection, enhanced his

offense level based on the finding that he engaged in a “pattern of activity” involving

sexual conduct with minors, and sentenced him to concurrent sentences of 188

months imprisonment on both counts, to be followed by three years supervised

release. Taylor filed a timely notice of appeal. The government filed a motion to

dismiss the appeal. This court ordered the motion would be taken with the case.
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We do not dismiss the appeal based on Taylor’s appeal waiver in the plea

agreement, because we may address whether Taylor’s sentence was unreasonable.

See United States v. Killgo, 397 F.3d 628, 630 n.4 (8th Cir. 2005) (stating “[w]hile

Killgo’s appeal waiver is sufficient to bar his Sixth Amendment claim, we recognize

that it did not waive the application of a constitutional standard of review on

appeal.”). 

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II. DISCUSSION

We reject the motion to dismiss, notwithstanding the waiver of Taylor’s Sixth

Amendment claim, as we can review the sentence for unreasonableness.2

 United

States v. Booker, __ U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Breyer, J.). 

Here, the statutory maximum for each of Taylor’s charged counts is twenty

years (the statutory minimum for each count is ten years). The district court

sentenced Taylor to fifteen years and eight months for each count and ordered the

sentences to be served concurrently. The district court did not exceed the statutory

maximum, and the district court sentenced Taylor to the middle of the enhanced

guideline range. In addition, Taylor admitted to all of the facts that the district court

used to enhance Taylor’s offense level. We conclude that Taylor’s sentence was not

unreasonable.

III. CONCLUSION

Accordingly, we affirm the judgment of the district court.

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