UNITED STATES COURT OF APPEALS
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
CARY LEE LUDWIG aka Lee Collis,
Defendant - Appellant.
(D. C. No. 2:02-CR-767-TS)
ORDER AND JUDGMENT
Before TACHA, Chief Judge,
BRISCOE and HARTZ, Circuit
After Defendant Cary Lee Ludwig had been sentenced for various state-law
child-sex crimes, he pleaded guilty to manufacture of child pornography in
violation of 18 U.S.C. § 2251(a). The federal district court sentenced Defendant
to 151 months in prison--96 months to run concurrently with his state sentences
and the remaining 55 months to run consecutively. Citing U.S.S.G. § 5G1.3,
Defendant claims that the district court erred when it imposed a sentence to run
consecutively with his undischarged state sentences. We have jurisdiction under
28 U.S.C. 1291 and 18 U.S.C. § 3742(a)(3), and affirm.
Defendant pleaded guilty in Utah state court to two counts of sodomy on a
child, two counts of aggravated sexual abuse of a child, one count of sexual
abuse of a child, and one count of dealing in material harmful to a minor. The
charges involved repeated sexual contact with four different minors ranging in
age from 5 to 15 over a period of several years. Much of the contact occurred
while Defendant operated a daycare center out of his home. He was sentenced on
November 7, 2002.
On April 21, 2003, Defendant pleaded guilty in federal court to
manufacture of child pornography in violation of 18 U.S.C. § 2251(a). As part of
his plea agreement, Defendant stipulated to the following:
Between January 2000, and December 2001, in Washington
County, Utah, I . . . did on two occasions knowingly employ, use,
persuade, induce, entice, and coerce a minor girl who was under the
age of 10 to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct. Specifically, I took
pictures of the minor girl in sexual[ly] explicit poses while she was
attending daycare at my home. The pictures were then scanned into
my computer . . . and maintained. . . . Furthermore, I possessed
numerous other child pornography depictions on my computer.
Vol. 1 Doc. 16 at 10.
Citing U.S.S.G. § 5G1.3(b), Defendant filed a motion requesting that his
federal sentence run concurrently with his undischarged state sentences. The
district court denied the motion and imposed a partially consecutive sentence
under § 5G1.3(c).
At the time of sentencing on October 6, 2003, § 5G1.3 stated
If the instant offense was committed while the defendant was
serving a term of imprisonment (including work release,
furlough, or escape status) or after sentencing for, but before
commencing service of, such term of imprisonment, the
sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment.
If subsection (a) does not apply, and the undischarged term
imprisonment resulted from offense(s) that have been fully
taken into account in the determination of the offense level for
the instant offense, the sentence for the instant offense shall
be imposed to run concurrently to the undischarged term of
(Policy Statement) In any other case, the sentence for the
instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term
of imprisonment to achieve a reasonable punishment for the
The parties agree that subsection (a) does not apply. The question before us is
whether subsection (b) applies; that is, whether Defendant's state offenses "have
been fully taken into account in the determination of the offense level for the
instant offense." Id.
Defendant contends that "§ 5G1.3(b)'s central aim is to ensure that no
defendant is punished twice for the same crime," Aplt. Br. at 10, and that his
federal sentence should therefore run concurrently with his state sentence because
the underlying acts were part of the same course of conduct. He also argues that
§ 5G1.3(b) applies because his state offenses are reflected in his criminal history
score. Both arguments miss the mark.
An offense has been "fully taken into account in the determination of the
offense level for the instant offense" when the sentencing court has considered
the conduct in enhancing the offense level under § 1B1.3 (Relevant Conduct).
See United States v. Johnson, 40 F.3d 1079, 1082-83 (10th Cir. 1994);
§ 5G1.3 (2002), Application Note 2 (providing example of defendant's offense
level being enhanced under Relevant Conduct guideline). Here, Defendant was
charged federally with manufacturing child pornography. The conduct forming
the basis for this charge was his act of photographing a child in the nude. See 18 U.S.C. 2251(a). Determining his offense level for this offense did not take into
account under § 1B1.3 his state offenses involving sexual contact with various
minors. Therefore, Defendant's state offenses have not "been fully taken into
account in the determination of the offense level for the instant offense."
Defendant's argument that state offenses were considered when calculating
his criminal history score is likewise misplaced. By its plain terms, § 5G1.3(b)
applies only if state offenses have been "fully taken into account in the
determination of the offense level." (emphasis added).
Section 5G1.3(b) does not apply. The district court therefore did not err in
choosing to impose a partially consecutive sentence under § 5G1.3(c). We
AFFIRM the district court.
ENTERED FOR THE COURT
Harris L Hartz
Click footnote number to return to corresponding location in the text.
*.After examining the briefs and the appellate
record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. This court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
1.The Guideline was amended on November
This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 2251 - Sec. 2251. Sexual exploitation of children
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 3742 - Sec. 3742. Review of a sentence
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1291 - Sec. 1291. Final decisions of district courts
- U.S. Court of Appeals for the Tenth Circuit - United States of America, Plaintiff-Appellee, v. Timothy John Johnson, Defendant-Appellant., 40 F.3d 1079 (10th Cir. 1994)
See other documents that cite the same legislation