IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30144

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SHELTON PETER FRUGE,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:10-CR-241-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Shelton Peter Fruge pleaded guilty to two counts of

production of child pornography. Fruge was sentenced to the statutory

maximum of 30 years of imprisonment on each count to be served consecutively. 

The district court also ordered that Fruge’s federal sentence be served

consecutively to his undischarged state court sentences. On appeal, Fruge

United States Court of Appeals

Fifth Circuit

F I L E D

November 28, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-30144 Document: 00511677496 Page: 1 Date Filed: 11/28/2011
No. 11-30144

argues that the imposed sentence violates the Eighth Amendment and is

unreasonable.

Fruge asserts that the sentence imposed violates the Eighth Amendment’s

bar against cruel and unusual punishment. Fruge’s Eighth Amendment claim

is conclusional and unsupported by legal analysis. We are not required to search

the record to find the legal basis for an issue. See United States. v. Brace, 145

F.3d 247, 255 (5th Cir. 1998) (en banc). As Fruge is represented before us by

counsel, his brief is not entitled to liberal construction. See Beasley v. McCotter,

798 F.2d 116, 118 (5th Cir. 1986). Issues must be briefed to be preserved. FED.

R. APP. P. 28(a)(9). As this issue is thus not preserved, we shall not consider it.

Fruge contends that his sentence is procedurally and substantively

unreasonable. Following United States v. Booker, 543 U.S. 220 (2005), preserved

sentencing issues are reviewed for reasonableness in light of the factors in

§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). 

Pursuant to Gall v. United States, 552 U.S. 38 (2007), we engage in a bifurcated

review process of the sentence imposed by the district court. United States v.

Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether

the district court committed a “significant procedural error.” Id. at 752-53. If

the sentence is procedurally sound, we may proceed to the second step and

review the substantive reasonableness of the sentence imposed for an abuse of

discretion. Id. at 751-53. Additionally, the sentencing court’s findings of fact are

reviewed for clear error and its application of the Sentencing Guidelines are

reviewed de novo. United States v. Burns, 526 F.3d 852, 859 (5th Cir. 2008).

Fruge asserts that his sentence is procedurally unreasonable because the

application of the four-level enhancement under § 2G2.1(b)(4) and the two-level

enhancement under § 2G2.1(b)(2)(A) constitutes impermissible double counting

and because the grouping of his offenses and the application of a multiple-count

adjustment was improper. In view of the definitions of “sexual act” and “sexual

contact” applicable under § 2G2.1(b)(2)(A), we disagree with Fruge’s assertion

2

Case: 11-30144 Document: 00511677496 Page: 2 Date Filed: 11/28/2011
No. 11-30144

that when § 2G2.1(b)(2)(A) applies, the enhancement under § 2G2.1(b)(4) must

also apply. See § 2G2.1, comment (n.2); United States v. Lyckman, 235 F.3d 234,

240 (5th Cir. 2000). Further, “[d]ouble counting is prohibited only if the

particular guidelines at issue specifically forbid it.” United States v. Hawkins,

69 F.3d 11, 14 (5th Cir. 1995). Fruge has not pointed to any guideline provision

that forbids application of both a two-level enhancement under § 2G2.1(b)(2)(A)

and a four-level enhancement under § 2G2.1(b)(4). Neither do we find error in

the district court’s application of the grouping rules of the Sentencing

Guidelines. See § 2G2.1, comment (n.5) (stating that “multiple counts involving

the exploitation of different minors are not to be grouped together under § 3D1.2

(Groups of Closely Related Counts)”). It was not error for the district court to

add one level to the higher offense level applicable to Victim #1 to arrive at a

combined offense level of 47. See § 3D1.4(a).

Fruge asserts that his 720-month sentence is substantively unreasonable,

arguing that (1) the district court unfairly presumed that the statutory

maximum (30 years for each count) was warranted because Fruge’s advisory

sentencing guidelines range of life in prison was so severe, (2) the district court

failed to consider as a mitigating circumstance the fact that Fruge was sexually

abused as a child, (3) the 30-year sentences imposed for Count 1 and Count 2

were ordered to be served consecutively, and (4) the district court ordered

Fruge’s federal sentence of 720 months to be served consecutively to his

undischarged state sentences.

As previously stated, preserved sentencing issues, such as number (3) set

forth above, are reviewed for reasonableness, and a district court’s interpretation

or application of the Sentencing Guidelines are reviewed de novo. Mares, 402

F.3d at 519-20; Burns, 526 F.3d at 859; see also United States v. Candia, 454

F.3d 468, 473 (5th Cir. 2006) (stating that the court evaluates the imposition of

a consecutive sentence as a part of the substantive reasonableness of a

sentence). Because Fruge did not object to the reasonableness of the sentence

3

Case: 11-30144 Document: 00511677496 Page: 3 Date Filed: 11/28/2011
No. 11-30144

imposed or to the district court’s order that the federal sentence imposed be

served consecutively to his undischarged state sentences (numbers 1, 2, and 4

set forth above), review of these alleged errors on appeal is for plain error. See

United States v. Mondragon-Santiago, 564 F.3d 357, 360-61 (5th Cir. 2009). To

show plain error, Fruge must show a forfeited error that is clear or obvious and

that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 129

S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion to

correct the error, but only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

Fruge has not shown that he is entitled to relief. Fruge’s assertions that

(1) the district court felt obligated to impose the statutory maximum sentence

because the advisory guidelines sentence of life was so severe and (2) the district

court did not consider the mitigating fact that Fruge was abused as a child, are

conclusional. Fruge identifies no evidence or anything else in the record to

support these contentions. Neither was it error for the district court to order

that Fruge’s 30-year sentence for Count 1 be served consecutively to his 30-year

sentence for Count 2. See § 5G1.2(d). As for Fruge’s contention that, under

U.S.S.G. § 5G1.3(b), the district court should have ordered that his federal

sentence be served concurrently with his state sentences, the record

demonstrates that the district court considered whetherFruge’s federal sentence

should be imposed to run concurrently with his state sentences, as provided for

in § 5G1.3(b). The district court ultimately determined, however, that the facts

of the case warranted the consecutive running of the federal and state sentences. 

Fruge has not shown reversible plain error with regard to this issue.

The record shows that, in determining Fruge’s sentence, the district court

considered the parties’ arguments, the Sentencing Guidelines, and the factors

set forth in § 3553. Fruge’s sentence is within the statutory maximum for his

offenses and is well supported by the facts and record in the case. Fruge has not

4

Case: 11-30144 Document: 00511677496 Page: 4 Date Filed: 11/28/2011
No. 11-30144

demonstrated that the sentence imposed by the district court is substantively

unreasonable. See Mondragon-Santiago, 564 F.3d at 364.

AFFIRMED.

5

Case: 11-30144 Document: 00511677496 Page: 5 Date Filed: 11/28/2011