United States Court of Appeals

For the Eighth Circuit

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No. 14-3689

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Randy Bise

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: July 22, 2015

 Filed: July 27, 2015

[Unpublished]

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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges. 

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PER CURIAM.

Randy Bise directly appeals the sentence imposed by the district court after he 1

pleaded guilty to two counts of producing child pornography, in violation of 18

The Honorable Timothy L. Brooks, United States District Judge for the

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Western District of Arkansas.
U.S.C. § 2251(a). The district court sentenced Bise to 360 months in prison followed

by 25 years of supervised release, which included a special condition limiting his

internet access.

On appeal, counsel moved to withdraw and filed a brief under Anders v.

California, 386 U.S. 738 (1967), arguing that the sentence was substantively

unreasonable because the court erred in weighing the 18 U.S.C. § 3553(a) factors; and

that the court erred in imposing the special supervised-release condition. We denied

counsel’s withdrawal motion and ordered supplemental briefing addressing whether

the district court’s application of a 2-level sentencing enhancement under U.S.S.G.

§§ 3D1.2, 3D1.4 (grouping of offenses), and a 5-level enhancement under U.S.S.G.

§ 4B1.5(b) (increase for pattern of activity involving prohibited sexual conduct with

a minor), resulted in impermissible double counting, as both enhancements appeared

to be based on evidence that prohibited conduct occurred on two separate occasions

with the same victim.

Upon reviewing the supplemental briefs, we conclude that application of both

enhancements did not constitute impermissible double-counting. See United States

v. Clark, 780 F.3d 896, 898 (8th Cir. 2015) (per curiam) (de novo review). 

Specifically, the district court properly declined to group the counts under section

3D1.2, see U.S.S.G. § 3D1.2, comment. (n.4) (provision authorizes grouping of

offenses only when they represent one composite harm; for example, robberies of

same victim on different occasions are not grouped); United States v. Kiel, 454 F.3d

819, 822 (8th Cir. 2006) (district court properly refused to group three counts of

producing child pornography involving same victim under § 3D1.2, because

defendant inflicted distinct harm each time he molested the victim), which resulted

in a 2-level increase; and we find nothing in the Guidelines preventing use of the

same conduct for the Chapter Four enhancement, see U.S.S.G. § 1B1.1, comment.

(n.4(B)) (Guidelines Chapters Two, Three, and Four are to be applied cumulatively

and, in some cases, may be triggered by same conduct); U.S.S.G. § 4B1.5(b)(1)

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(offense level shall be 5 plus offense level determined under Chapters Two and

Three); United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013) (double counting

is prohibited only if Guidelines at issue specifically forbid it); United States v. Von

Loh, 417 F.3d 710, 714-15 (7th Cir. 2005) (rejecting double-counting argument

where district court did not group offenses under § 3D1.2 and applied 5-level increase

under § 4B1.5(b) for same conduct, as process for determining base offense level

under Chapters Two and Three is unrelated to process for calculating enhancements

under Chapter Four).

As to the contentions in counsel’s Anders brief, we conclude the district court’s

below-Guidelines sentence was not substantively unreasonable. See United States

v. Salazar-Aleman, 741 F.3d 878, 881 (8th Cir. 2013) (under substantive review,

district court abuses its discretion if it fails to consider relevant factor, gives

significant weight to improper orirrelevant factor, or commits clear error ofjudgment

in weighing factors); United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)

(when district court varies downward from presumptively reasonable Guidelines

recommendation, it is “nearly inconceivable” that court abused its discretion by not

varying downward further). We review for plain error the challenge to the special

supervised release condition, as Bise did not object to the condition atsentencing, see

Fed. R. Crim. P. 52(b); United States v. Simons, 614 F.3d 475, 478 (8th Cir. 2010)

(when defendant fails to object to supervised release condition at sentencing, review

isfor plain error), and we find no such error, see 18 U.S.C. § 3583(d) (condition must

be reasonably related to certain § 3553(a) factors, involve no greater deprivation of

liberty than reasonably necessary, and be consistent with Sentencing Commission

policy statements); cf. U.S.S.G. § 5D1.3(d)(7)(B) (recommending special condition

limiting use of computer or interactive computer service in sex offense case in which

defendant used such items).

Finally, we conclude Bise’s additional pro se assertion that the evidence

against him may have been tainted by police misconduct fails, as he stipulated to the

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government’s factual basis during the plea hearing. See United States v. Limley, 510

F.3d 825, 827 (8th Cir. 2007) (valid guilty plea is admission of guilt that waives all

non-jurisdictional defects and defenses).

The judgment is affirmed.

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