FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15704

Non-Argument Calendar

________________________

D. C. Docket No. 07-00030-CR-HL-7

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FERRELL WALKER, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(August 20, 2008)

Before TJOFLAT, CARNES and BARKETT, Circuit Judges. 

PER CURIAM:

Appellant pled guilty pursuant to a plea agreement to an Information that
 “It is the law of this circuit that a failure to object to allegations of fact in a 1

[presentence investigation report] admits those facts for sentencing purposes” and precludes the

argument that such facts contained error. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.

2006). “Challenges to the [report] must be asserted with specificity and clarity . . . [o]therwise

the objection is waived. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). 

2

charged him with possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B), and the district court sentenced him to a prison term of 87

months. He now appeals his sentence, contending that the district court incorrectly

calculated his sentence range under the Sentencing Guidelines because it held him

accountable for pornographic images that he had deleted from his computer before

he knew he was under criminal investigation. Accordingly, the court should have

calculated his sentence range to include only the images that were currently

accessible to him. 

Appellant did not object to the district court’s decision to hold him

accountable for the deleted images. We therefore review the court’s decision for

plain error. We will correct a plain error when (1) there is an error, (2) that is 1

plain, and (3) that affects substantial rights. Bennett, 472 F.3d at 831. If all three

conditions are met, we may then “exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005). Plain error means an error that is “clear” or “obvious.” United States v.
3

Olano. 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). “At a

minimum, court of appeals cannot correct an error . . . unless the error is clear

under current law.” Id. “The error must be so ‘plain’ the trial judge and prosecutor

were derelict in countenancing it, even absent the defendant’s timely assistance in

detecting it.” United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71

L.Ed.2d 816 (1982). “When neither the Supreme Court nor this Court has resolved

an issue, and other circuits are split on it, there can be no plain error in regard to

that issue.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). 

Given the lack of binding authority on the Guidelines-calculation-issue 

presented, we conclude that the district court did not plainly err by including

previously deleted images in the total number of images for purposes of calculating

Walker’s advisory guideline range. 

AFFIRMED.