Federal Criminal Law Opinions

Appeal from the U.S. District Court for the Middle District of Florida (No. 06-00012 CR-ORL-31-DAB).

(Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and STORY,* District Judge.)

(PER CURIAM.) In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3553(a) factors and imposed an unreasonable sentence. Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.

Background
Defendant pleaded guilty to one count of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), following an investigation by United States Immigration and Customs Enforcement (“ICE”). During the investigation, 981 images of child pornography and 45 videos were found in Defendant’s residence. Defendant admitted that the pornography belonged to him.

In preparing the Presentence Investigation Report (“PSI”), the probation officer calculated a base offense level of 22 pursuant to U.S.S.G. § 2G2.2(a)(2). Defendant qualified for enhancements: (1) a two-level enhancement because the material involved a prepubescent minor; (2) a two-level enhancement because the offense involved distribution; (3) a four-level enhancement because the material portrayed sadistic or masochistic conduct; (4) a two-level enhancement because the offense involved a computer; (5) a five-level enhancement because the offense involved more than 600 images. The probation officer also included a three-level reduction for acceptance of responsibility. Defendant’s final adjusted offense level was 34. Taking into account Defendant’s clean criminal record, the sentencing guideline range was 151-188 months’ imprisonment.

The offense carried a statutory maximum sentence of 20 years’ imprisonment and a minimum sentence of 5 years’ imprisonment. 18 U.S.C. § 2252(b)(1). Under 18 U.S.C. § 3583(k), the maximum term of supervised release was life. The minimum term of supervised release was 2 years. U.S.S.G. § 5D1.2(b)(2). The probation officer noted that the “Term of Supervised Release (Policy Statement)” in § 5D1.2(b)(2) recommended the maximum life term for supervised release because the offense was a sex offense.

Defendant was referred for a psychosexual evaluation. The report detailed that at age 2, Defendant’s father was murdered. Around the age of 2, Defendant incurred severe injuries — including a severed intestine, burns, bruises, and a broken arm — at the hands of his uncle and mother. Defendant was then sent to live with his grandfather, who sexually abused him until Defendant was removed from the home at age 12. Defendant entered the foster system until he was an adult.

At age 16, Defendant pleaded guilty to two counts of lewd acts on a child. One incident involved a 4-year-old girl; the other a 3-year-old girl. Following the incidents, Defendant underwent a 30-day assessment and was placed in a residential treatment program for adolescents. During his treatment sessions, Defendant failed polygraph exams and admitted to these things: (1) performing oral sex on a 9-year-old boy at age fourteen and having the boy perform oral sex on him; (2) molesting about 5 girls at his church and his workplace at a fast-food restaurant; (3) exposing himself to a 5-year-old boy at age eighteen; (4) watching a 3-year-old girl play naked and later masturbating to the memory; (5) watching a ten-year-old girl play naked and later masturbating to the memory; and (6) placing himself in areas where young children congregated, in violation of a court order. Defendant remained in some form of state custody until the age of 20. In 2003, Defendant was arrested and found to be taking pictures of 3-to-5-year-old girls.

During the pre-sentencing interview with the psychologists, Defendant admitted to being sexually attracted to children 55% of the time. He strongly agreed with the statements, “Some men sexually assaulted children because they really thought the children would enjoy how it felt,” and, “Many men sexually assaulted children because of stress and molesting helped to relieve that stress.” He expressed a desire to be treated in a residential treatment program.

Defendant was diagnosed as a pedophile. The psychologists’ report concluded that Defendant should be sentenced to an extended period of probation so that he could be supervised and receive follow-up treatment. Defendant had no objections to the contents of the letters from the mental health professional who detailed his past history and diagnosed his condition.

The district court adopted the factual findings as contained in the PSI and agreed that 151 to 188 months’ imprisonment was the appropriate guidelines range. The court also listened to statements by defense counsel recounting Defendant’s personal history — namely, that his father was murdered, his mother and uncle physically abused him, his grandfather sexually abused him, and he was transferred around to many foster homes. Defendant claimed he suffers from several health problems, such as anxiety, depression, post-traumatic stress disorder, and conduct disorder. Defendant admitted that he had not always been completely truthful, but contended that his denials were psychological and would be dealt with in treatment.

Defendant said he wanted to receive treatment and pointed out one two-year program, operated by the Bureau of Prisons, that was supposedly very effective. The program only has 120 beds, and several thousand people had asked to enter the program. Defendant requested a sentence below the guideline range and recommended a sentence of 5 to 7 years so that he would have time to wait for and complete the treatment program.

The government pointed out that Defendant had committed a very serious offense and that children and the public needed protection. The government also pointed out that past treatment programs had failed and that protection of children was a “very, very strong factor.” The government also noted that, since Defendant’s latest release from residential treatment, Defendant had rubbed up against several young children at an amusement park and lied to the psychologist about it.

The court sentenced Defendant to 84 months’ imprisonment followed by a ten-year period of supervised release. The court stated that it had considered the advisory guidelines and the 18 U.S.C. § 3553(a) factors and that the sentence would allow sufficient time for Defendant to complete the sexual treatment program. The government objected; Defendant did not. On appeal, the government argues that the district court imposed an unreasonable sentence.

Discussion
Under Booker, this Court must review sentences for reasonableness in the light of the factors listed in 18 U.S.C. § 3553(a). 125 S. Ct. 738, 765-66 (2005).1 The sentence must be sufficient but not greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a)(2). “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “Review for reasonableness is deferential.” Id.

This Court has established a two-part process for district courts to determine an appropriate sentence following Booker. The court must consult and correctly determine the sentencing range prescribed by the Sentencing Guidelines. Id. at 786. The court must then impose a reasonable sentence in the light of the factors enumerated in 18 U.S.C. § 3553(a). Id. We have regularly said that a district court need not account for every § 3553(a) factor, nor must it discuss each factor and the role that it played in sentencing. See, e.g., id. at 786; United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005).

Here, the government does not allege that the district court committed a procedural error. The government concedes that “the district court correctly calculated [Defendant's] sentencing guidelines range.” It also acknowledges that the district court considered a number of the § 3553(a) factors. The district court also specifically found that the 84-months sentence “would be sufficient but not greater than necessary to accomplish [the] purposes [of sentencing].”

The government’s challenge rests on the contention that the district court’s order was substantively unreasonable. Although we accept that a sentence may be unreasonable even where the district court followed the proper sentencing procedure,2 an appellate court should not simply substitute its judgment for that of the sentencing court. United States v. Melvin, 187 F.3d 1316, 1323 (11th Cir. 1999) (“[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” (quoting Williams v. United States, 112 S. Ct. 1112, 1121 (1992) (alteration in original)).

The government argues that, although the district court discussed many of the § 3553(a) factors, it failed to give proper weight to some while overemphasizing others. Even if we were to disagree with the weight that the district court gave to Defendant’s history of abuse, we will only reverse a procedurally proper sentence if we are “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006).

Whatever sentence we might have imposed, we do not believe an 84-months’ sentence lies outside the range of reasonable in this case. The sentence exceeds the statutory minimum by some years. The district court explicitly discussed a number of the § 3553(a) factors, including the goal of protecting the public. In announcing Defendant’s sentence, the court stated that the sentence provides for “a significant term of incarceration to account for his misconduct and the seriousness of the offense and, frankly, to keep him off the streets for that period of time so that he will not be in a position to repeat this conduct in society.” About Defendant’s own history, the district court also said that the Defendant “has perhaps one of the worst histories that I have seen since being on the bench, being essentially abandoned by his family and then consistently abused.” We cannot conclude that the district court committed clear error in judgment in determining that a sentence considerably less than the Sentencing Guidelines’ recommended range was appropriate.

Unlike the sentences in Crisp and Martin, the sentence in this case involves significant time in prison and a 10-year period of supervised release. See United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006) (vacating a sentence of 5 years’ probation and 12 months’ home confinement where the Sentencing Guidelines’ range was 24-30 months’ incarceration); United States v. Martin, 455 F.3d 1227 (11th Cir. 2006) (vacating a 7-day sentence where the guidelines’ range was 108-135 months’ imprisonment). By the way, the 84-months’ sentence in this case is a year longer than the 72-months’ sentence we affirmed in United States v. Gray, where the Defendant was also charged with distribution of child pornography and was subject to the same Sentencing Guidelines’ range. 453 F.3d 1323, 1325 (11th Cir. 2006) (“Although Gray’s sentence is less than half the 151 months that defines the bottom of the guidelines range, under the circumstances and given the district court’s explanation we cannot say that is unreasonable in light of the § 3553(a) factors.”).3

AFFIRMED.

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*Honorable Richard W. Story, United States District Judge for the Northern District of Georgia, sitting by designation.

1These factors are to be considered: (1) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (2) the need for deterrence; (3) the need to protect the public; (4) the need to provide the most effective correctional treatment or medical care; (5) the nature and circumstances of the offense; (6) the history and characteristics of the defendant; (7) the Sentencing Guidelines range; and (8) the need to avoid unwanted sentencing disparities. 18 U.S.C. § 3553(a).

2In United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006), we stated “a sentence may be substantively unreasonable, regardless of the procedure used.” In Hunt, however, the defendant did not challenge the sentence on substantive grounds, but claimed only that the sentencing procedure used by the district court was unreasonable. Id.

3We do not say that Gray controls this case.

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(DUBINA, Circuit Judge, dissenting.) Though I agree with the majority that the district court followed the proper procedures in calculating the Guidelines range and considering the 18 U.S.C. § 3553(a) factors, I disagree with the majority’s conclusion that the sentence imposed is substantively reasonable, and thus, I respectfully dissent.

In Gall v. United States, 552 U.S. ___ (2007) [21 Fla. L. Weekly Fed. S11a], the Supreme Court made it clear that appellate courts must undertake a two-part process in reviewing the sentence imposed by the district court. First, the appellate court must determine whether or not the proper procedures were followed by the district court. Id. at ___ (slip op. at 7). Second, “the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. “In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may . . . take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Id. at ___ (slip op. at 6).

In this case, the district court chose to depart from the Guidelines range of 151-188 months imprisonment and instead sentenced the defendant to 84 months imprisonment. Furthermore, in spite of the fact that the Guidelines recommended a lifetime term of supervised release, the district court chose to impose a 10-year term of supervised release. I believe that both the term of incarceration and the term of supervised release are substantively unreasonable given the facts of this case.

First, 84 months of imprisonment is unreasonable because the district court unjustly fixated on the defendant’s horrific childhood. In United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006), this court stated that “courts have found that a district court’s unjustified reliance upon any one 3553(a) factor is a symptom of an unreasonable sentence.” (internal quotations and citations omitted). The court went on to state that “[t]he district court focused single-mindedly on the goal of restitution to the detriment of all the other sentencing factors. An unreasonable approach produced an unreasonable sentence.” Id. This is exactly what happened in this case. Though the district court gave lip-service to other § 3553(a) factors, the district court’s downward departure was based largely, if not solely, on the defendant’s childhood, which it deemed to be one of the worst it had ever seen. Some reduction might have been appropriate based on the defendant’s childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence, and the need to protect the public, all support a more lengthy term of incarceration than the one given. Thus, as in Crisp, “[a]n unreasonable approach produced an unreasonable sentence.”1 Id.

Second, although I believe that the term of incarceration was unreasonably low in this case, I believe a bigger problem with the district court’s sentence is the 10-year term of supervised release. Title 18 U.S.C. § 3553(a) states that the “court shall impose a sentence sufficient . . . to comply with the purposes set forth in paragraph (2),” which includes the need “to protect the public from further crimes of the defendant.” The sentence imposed in this case does not satisfy this requirement and is thus unreasonable. Given that the defendant is a pedophile who has admitted to sexually abusing seven children over the last 13 years, failed to be rehabilitated through treatment, violated a court order to stay away from areas where young children are congregated, and admitted to being sexually attracted to children 55% of the time, the only way to satisfy the § 3553(a) requirement of protecting the public is to impose a sentence that includes lifetime supervised release. This need for lifetime supervised release is also supported by the Guidelines, which include a policy statement recommending lifetime supervised release because the offense is a sex offense. U.S.S.G § 5D1.2(b)(2). As it stands, the defendant will walk free in society without restrictions at age 45. Allowing someone who will unquestionably continue to remain a danger to society’s most vulnerable citizens — its children — to live free of any restrictions at any age, let alone at such a young age, in my view, is substantively unreasonable. The only reasonable sentence for this defendant must include a term of lifetime supervised release.

For the aforementioned reasons, I believe that the district court’s sentence in this case is substantively unreasonable and should thus be vacated. Accordingly, I respectfully dissent.

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1The majority distinguishes United States v. Crisp, 454 F.3d 1285 (11th Cir. 2006), and United States v. Martin, 455 F.3d 1227 (11th Cir. 2006), in which we found sentences unreasonable, as support for the conclusion that this sentence was reasonable. However, assuming, arguendo, that the sentences in Crisp and Martin were more unreasonable than the sentence in this case, the fact that the sentence in this case is less unreasonable does not mean it is reasonable. I am similarly unpersuaded by the majority’s reliance on United States v. Gray, 453 F.3d 1323 (11th Cir. 2006), which I do not find to be controlling, nor for that matter very persuasive. Though Gray dealt with a similar departure in a child pornography case, Gray is clearly distinguishable because the defendant in Gray, unlike the defendant in this case, had never acted out against children.

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Appeals from the U.S. District Court for the Middle District of Alabama (No. 05-00301-CR-WHA).

(Before ANDERSON, CARNES and PRYOR, Circuit Judges.)

(PER CURIAM.) Michael David King appeals his convictions for transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The government cross-appeals challenging the district court’s determination that King’s conviction for transporting child pornography did not constitute a “prior conviction” for the purpose of imposing a mandatory minimum sentence of ten years imprisonment for the possession conviction, under 18 U.S.C. § 2252A(b)(2).

I.
In February 2003, while serving as a civilian contractor, King resided in a dormitory at the Prince Sultan Air Base in Saudi Arabia. During his stay in the dormitory, King kept his personal laptop computer in his room and connected it to the base network. King understood that as a user of the base network, his activities on the network were subject to monitoring. King also believed that he had secured his computer so that others could not access the contents of its hard drive.

On February 23, 2003, an enlisted airman was searching the base network for music files when he came across King’s computer on the network. The airman was able to access King’s hard drive because it was a “shared” drive. In addition to finding music files on King’s computer, the airman also discovered a pornographic movie and text files “of a pornographic nature.” The airman reported his discovery to a military investigator who in turn referred the matter to a computer specialist. This specialist located King’s computer and hard drive on the base network and verified the presence of pornographic videos and explicit text files on the computer. She also discovered a folder on the hard drive labeled “pedophilia.” The folder, however, contained no files. The computer specialist did not employ any “special means” to access King’s computer because “everybody on the entire network” could obtain the same access.

The computer specialist then filed a report with the investigator detailing what she had found, and the investigator obtained a search warrant for King’s room. During a search of his room, military officials seized King’s computer and also found CDs containing child pornography. They then referred the matter to the FBI for investigation and King left Saudi Arabia and returned to Montgomery, Alabama.

Two years later, the government obtained an indictment charging King with possession of child pornography.1 After his arrest, the government searched his residence pursuant to a search warrant and found additional CDs and hard drives containing over 30,000 images of child pornography.

At his arraignment, King entered a plea of not guilty. Shortly thereafter, he filed a motion to suppress the evidence seized from his dorm room in Saudi Arabia, arguing that the search violated the Fourth Amendment. Later, King filed a motion to suppress the evidence obtained from his residence in Montgomery and a post-arrest statement, arguing that the evidence and statement were fruits of the illegal search of his dorm room. A magistrate judge issued a recommendation and report as to the first motion, recommending its denial. King objected to the report and recommendation, but the district court overruled his objection and denied the first motion to suppress, finding that King had no reasonable expectation of privacy in the contents of his computer and, alternatively, that the search was a proper workplace search. The district court also considered King’s second motion to suppress, without the benefit of a magistrate judge’s report, and denied that motion as well.

King then entered into a plea agreement with the government pursuant to which he pleaded guilty to one count of transporting child pornography and one count of possessing child pornography. The agreement allowed King to appeal the district court’s denial of his motions to suppress. The agreement also reflected the parties’ understanding that the government would recommend a sentence within the applicable sentencing guidelines range, subject to the government’s right to seek a ten-year mandatory minimum sentence on the possession count on the basis of King’s “prior conviction” for the transporting child pornography count.

The district court held a sentence proceeding on April 17, 2007. At that proceeding, the government argued for a ten-year mandatory minimum sentence as it was entitled to do under the plea agreement. The district court rejected the government’s argument and sentenced King to 108 months imprisonment on both the transportation and possession charges to be served concurrently. That sentence was within the applicable guideline range. King then appealed his conviction and the government cross-appealed, challenging the sentence imposed by the district court.

II.
King contends that the district court denied his motions to suppress based on the erroneous finding that he did not have a reasonable expectation of privacy in his computer files that were remotely accessed over a military computer network, because the search of those files by the computer specialist exceeded the scope of her authority to monitor usage of the base network. King asserts that he sought to protect his computer files through security settings, he never knowingly exposed them to the public, and he was unaware that the files were shared on the network. King further challenges the district court’s alternative finding that the military officials conducted a proper workplace search, arguing that this was a criminal investigation into King’s personal computer located in his private dorm room. Finally, King asserts that the subsequent search warrant was invalid, as it was based on information that was obtained improperly through the remote search of his computer files.

We review a district court’s denial of a defendant’s motion to suppress under a mixed standard of review, examining the district court’s findings of fact for clear error and the district court’s application of law to those facts de novo. United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir.), cert. denied, 127 S. Ct. 2924 (2007).

The Fourth Amendment’s prohibition against unreasonable searches and seizures “protects an individual in those places where [he] can demonstrate a reasonable expectation of privacy against government intrusion,” and “only individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the validity of a government search.” United States v. Cooper, 203 F.3d 1279, 1283-84 (11th Cir. 2000). “The party alleging an unconstitutional search must establish both a subjective and an objective expectation of privacy. The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.” United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir. 2006) (quotation marks and citations omitted). Accordingly, the threshold issue in this case is whether King had a legitimate expectation of privacy in the contents of his personal laptop computer when it was connected to the base network from his dorm room. See Cooper, 203 F.3d at 1284.

We have held that tenants of a multi-unit apartment building do not have a reasonable expectation of privacy in the common areas of the building, where the lock on the front door is “undependable” and “inoperable.” United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir. 2002). We have also held that even though a company has a subjective expectation of privacy in documents that are shredded and disposed of in a garbage bag that is placed within a private dumpster, the company’s “subjective expectation of privacy is not one that society is prepared to accept as objectively reasonable” when the company fails to “take sufficient steps to restrict the public’s access to its discarded garbage.” United States v. Hall, 47 F.3d 1091, 1097 (11th Cir. 1995).

King has not shown a legitimate expectation of privacy in his computer files. His experience with computer security and the affirmative steps he took to install security settings demonstrate a subjective expectation of privacy in the files, so the question becomes “whether society is prepared to accept [King's] subjective expectation of privacy as objectively reasonable.” See id. at 1094.

It is undisputed that King’s files were “shared” over the entire base network, and that everyone on the network had access to all of his files and could observe them in exactly the same manner as the computer specialist did. As the district court observed, rather than analyzing the military official’s actions as a search of King’s personal computer in his private dorm room, it is more accurate to say that the authorities conducted a search of the military network, and King’s computer files were a part of that network. King’s files were exposed to thousands of individuals with network access, and the military authorities encountered the files without employing any special means or intruding into any area which King could reasonably expect would remain private. The contents of his computer’s hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public.

Because his expectation of privacy was unreasonable King suffered no violation of his Fourth Amendment rights when his computer files were searched through the computer’s connection to the base network. It follows that his additional claim that the later search warrant was invalid because it incorporated information obtained from the search of his computer files also lacks merit.

III.
Where an individual “violates” 18 U.S.C. § 2252A(a)(5), the maximum term of imprisonment is ten years, however, “if such person has a prior conviction under this chapter . . . such person shall be . . . imprisoned for not less than 10 years nor more than 20 years.” 18 U.S.C. § 2252A(b)(2). The government contends in its cross-appeal that King’s conviction for transporting child pornography constitutes a “prior conviction” for the purpose of imposing a mandatory minimum sentence of ten years imprisonment for the possession conviction under 18 U.S.C. § 2252A(b)(2), even though both convictions were entered at the same time.

In support of its contention, the government relies on Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993 (1993). In that case the Supreme Court interpreted the term “conviction,” in the context of the 18 U.S.C. § 924(c) enhancement for a “second or subsequent conviction” for use of a firearm in connection with a crime of violence. It said that the term referred “to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgement of conviction,” and not “the adjudication of guilt and the sentence.” Id. at 132, 113 S. Ct. at 1996.2 Accordingly, where the defendant was found guilty in a single criminal proceeding of six counts for using a firearm in connection with a crime of violence, his convictions on the second through sixth counts constituted “second or subsequent convictions” for the purpose of enhancing the statutory term of imprisonment. See id. at 131-37, 113 S. Ct. at 1996-99. We have similarly held that “[t]he conviction on four counts of burglary constitutes four separate convictions” for purposes of 18 U.S.C. § 1202(a)(1), even though the burglary counts were charged in a single indictment. United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986).

After the Supreme Court decided Deal, we considered a similar question in United States v. Richardson, 166 F.3d 1360 (11th Cir. 1999). In that case we addressed the meaning of the phrase “previous convictions” in 18 U.S.C. § 924(e)(1). Id. at 1361. Section 924(e)(1) provides for an enhanced sentence “[i]n the case of a person who violates [18 U.S.C.§ 922(g)] and has three previous convictions . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The defendant in Richardson was convicted in 1997 for being a felon in possession of a firearm, in violation of § 922(g). Richardson, 166 F.3d at 1360-61. He received an enhanced sentence under § 924(e)(1), based in part on a 1996 drug conviction that occurred after his arrest but before his conviction on the § 922(g) violation. Id. at 1361. We reversed the enhance sentence, holding that “the only reasonable interpretation” of the key language in § 924(e)(1) is that “a conviction is ‘previous’ to a § 922(g) offense only if the conviction occurred before the violation of § 922(g), not simply prior to conviction or sentencing for that violation.” Id. (citation omitted). As a result, because the defendant’s drug conviction occurred after he violated § 922(g), it could not have been used to enhance his sentence for the § 922(g) violation. Id.

Here, we recognize that King’s convictions for transporting and possessing child pornography constitute separate convictions. See Deal, 508 U.S. at 132, 113 S. Ct. at 1996; see also Greene, 810 F.2d at 1000. Therefore, whether King’s conviction for transporting child pornography may serve as a basis to impose a mandatory minimum sentence for the possession conviction hinges on whether the conviction for transporting child pornography qualifies as a “prior conviction” under § 2252A(b)(2).

We conclude that the district court correctly held that the government may not use King’s conviction for transporting child pornography as a “prior conviction” to enhance his punishment for the possession conviction. The provision at issue provides that “[w]hoever violates” § 2252(a)(5) is subject to a mandatory minimum sentence “if such person has a prior conviction under this chapter.” 18 U.S.C. § 2252A(b)(2). As in Richardson, we interpret § 2252A(b)(2) to mean that the qualifying prior conviction must occur before the conduct violating § 2252A(a)(5), and not merely before the § 2252A(a)(5) conviction occurs. See Richardson, 166 F.3d at 1361. By way of contrast, the provision in Deal simply provided for an enhanced penalty “[i]n the case of a second or subsequent conviction,” and it contained no language suggesting that the predicate conviction must occur before the violation for which the government seeks to impose an enhanced penalty. Deal, 508 U.S. at 130, 113 S. Ct. at 1195. We therefore conclude that King was not subject to the ten-year mandatory minimum sentence.

In reaching this conclusion, we acknowledge that the government’s argument for the extension of Deal is not without force. If we were considering this case without the benefit of Richardson, we might reach a different result. But Richardson is closely analogous in light of the similarities in language between §§ 924(e)(1) and 2252A(b)(2). Cf. United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.”); see also Smith v. GTE Corp., 236 F.3d 1292, 1302 (11th Circ. 2001) (rejecting the argument that “an exception to the prior panel precedent rule exists where the first panel to address an issue failed to follow and apply controlling Supreme Court precedent”).

AFFIRMED.

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1A grand jury later returned a superceding indictment which contained two counts of possessing child pornography and one count of transporting child pornography from Montgomery, Alabama to Saudi Arabia.

2The statutory provision in Deal provided, in relevant part, that “[i]n the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.” 18 U.S.C. § 942(c)(1) (1988).

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