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United States v. Sumner

United States Court of Appeals, Eighth Circuit

March 21, 2016

United States of America, Plaintiff - Appellee
v.
Donnie Ray Sumner, Defendant - Appellant

Submitted November 20, 2015.

Appeal from United States District Court for the Western District of Missouri - Joplin.

For United States of America, Plaintiff - Appellee: James J. Kelleher, U.S. ATTORNEY'S OFFICE, Springfield, MO.

For Donnie Ray Sumner, Defendant - Appellant: Stuart P. Huffman, WHITEAKER & WILSON, Springfield, MO.

Donnie Ray Sumner, Defendant - Appellant, Pro se, Seagoville, TX.

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.

OPINION

GRUENDER, Circuit Judge.

Donnie Sumner pleaded guilty to receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). The district court[1] concluded that Sumner's 1989 Missouri conviction for deviate sexual assault in the first degree triggered a sentencing enhancement under § 2252(b)(1) and sentenced Sumner to the mandatory minimum of 180 months' imprisonment. Sumner challenges his sentence, arguing that the district court erred by determining that the previous Missouri offense subjected him to the enhancement. We affirm.

I.

In 1989, Sumner entered an Alford plea to the crime of deviate sexual assault in the first degree, in violation of section 566.070 of the Missouri Revised Statutes. This statute provided:

A person commits the crime of deviate sexual assault in the first degree if he has deviate sexual intercourse with another person to whom he is not married and who is incapacitated or who is fourteen or fifteen years old.

Mo. Rev. Stat. § 566.070 (1989). Sumner received a suspended sentence with five years' probation, which was discharged after one year.

In January 2013, investigators with the Southwest Missouri Cybercrimes Task Force remotely connected to a computer through the Ares peer-to-peer network. The investigators downloaded from the target computer two video files that depicted prepubescent males engaged in a sexual act. Investigators later identified Sumner as the subscriber through his IP address. Investigators subsequently obtained a warrant to search Sumner's residence and seized a desktop computer, laptop computer, and a Seagate hard drive. A forensic examination revealed fifteen video files and 114 images depicting child pornography located on the desktop computer and one video file containing child pornography located on the laptop computer.

Sumner was then charged in a single-count indictment with receiving and distributing child pornography under 18 U.S.C. § 2252(a)(2). Sumner pleaded guilty. At the change-of-plea hearing, the magistrate judge advised Sumner that, if he had a qualifying prior offense to trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(1), the range of punishment for the offense would be fifteen to forty years in prison. According to 18 U.S.C. § 2252(b)(1), if a person who violates 18 U.S.C. § 2252(a)(2) " has a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward . . . such person shall be . . . imprisoned for not less than 15 years nor more than 40 years." Pursuant to the magistrate judge's report and recommendation, the district court entered an order accepting Sumner's guilty plea and adjudging him guilty. The district ...


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