The HONORABLE JIMM LARRY HENDREN, Chief Judge, United State s 1 District Court for the Western District of Arkansas.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2806

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Guy Wesley Hamilton, * * [UNPUBLISHED] Appellant. *

___________ Submitted: January 15, 1999 Filed: February 2, 1999

___________ Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.

___________ PER CURIAM. Guy Wesley Hamilton pleaded guilty to transportation and possession of child pornogra phy in violation of 18 U.S.C. § 2252(a)(1) and (a)(4)(B). The district court 1 sentenced hi m to 51 months in prison and 3 years of supervised release. Hamilto n appeals this sentence, challenging his five-level enhancement for “engag[ing] in a pattern of activity involving the sexual abuse or exploitat ion of a minor.” See U.S.S.G. § 2G2.2(b)(4). We affirm.-2-

While investigating reports that Hamilton had sexually abused the seven-yearold daugh ter of his live-in girlfriend, investigators uncovered a box of pornographi c videos and photographs and evidence Hamilton had downloaded child pornograph y off the Int ernet onto his computer hard drive, back-up tapes, and diskettes. Hamilton pleaded guilty to transporting and possessing the child pornography. The five-leve l enhancement was imposed ba sed upon the district court’s finding that he had sexually abused the seven-year-old girl at least twice. Application Note 1 to § 2G2.2(b)(4) w as amended in 1996 to expressly provide that the five-level enhancement applies “whether or not the abuse or exploitation (A) o c curred during the course of the offense, (B) involved the same or different victims, or (C) re sulted in a conviction for such conduct.” In adopting this amendment, th e Sentencing Commission noted the enhancement therefore “is broader than the scop e of relevant conduct typically considered under § 1B1.3 (Relev ant Conduct).” U.S.S.G. App. C, amendment 537, effective Nov. 1, 1996; see United States v. Anderton , 136 F.3d 747, 750-51 (11th Cir. 1998). Hamilton first argues the amendment i s unconstitutional because it allows unrelated behavior to be used to enhance a sentence. However, the enhancement is expressly auth orized by § 2G2.2(b)(4), as amended, and does n ot exceed the very broad constitutional power to legislatively define relevan t factors at sentencing. See United States v. Galloway , 976 F.2d 414, 422-27 (8th Cir.1992), cert. denied , 507 U.S. 974 (1993).
Hamilton next argues the district court clearly erred in finding sufficien t evidence that he warranted a § 2G2.2(b)(4) enhancement. We disagree. Th e presentence report stated that the daughter told her mother Hamilton had “touched” her on a t least two occasions, the daughter & s school counselor “confirmed” the girl ha d b e en sexually abused, and rape and sexual exploitation charges were brought against Hamilton following his statement to investigators. Hamilton did not object to thos e factual allegations. Moreover, at sentencing Hamilton denied he had inappropriately touched t he young girl but conceded his excessive drinking during this period may-3-

have cau sed him to forget such incidents. Hamilton also admitted sending a message over t he Internet stating he was sexually involved with a seven-year-old girl. Thus , there was ample evide nce supporting the district court’s finding the enhancement was warranted. The judgment of the district court is affirmed. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.