United States of America v.  MICHAEL PERRY, a/k/a Get Lucky 99

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4362 
MICHAEL PERRY, a/k/a Get Lucky 99,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-99-442-MJG)
Submitted: December 20, 2000
Decided: January 11, 2001
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael Perry, Appellant Pro Se. Lynne Ann Battaglia, United States
Attorney, Bonnie S. Greenberg, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Michael Perry pled guilty to one count of transmitting child por-
nography, in violation of 18 U.S.C.A. § 2252A(a)(1) (West 2000),
and one count of interstate travel with intent to engage in a sexual act
with a minor, in violation of 18 U.S.C.A. § 2423(b) (West 2000). He
was sentenced to concurrent terms of 63 months’ imprisonment and
3 years’ supervised release. Both statutes carry a maximum term of
15 years’ imprisonment. See 18 U.S.C.A. §§ 2252A(b), 2423(b). On
appeal, Perry contends that his intention to produce a visual depiction
of the proposed sexual activity was an element of the offenses that
needed to be in the indictment and proven beyond a reasonable doubt.
He further contends that the district court clearly erred by finding that
he had the intention to produce a visual depiction of the proposed sex-
ual activity. Perry also contends that the district court erred by not
departing downward for diminished capacity pursuant to U.S. Sen-
tencing Guidelines Manual § 5K2.13 (1998). We affirm the convic-
tions and sentences.
The district court’s finding at sentencing that Perry intended to pro-
duce a visual depiction of the proposed sexual activity did not
increase Perry’s maximum statutory sentence for either conviction.
Thus, the court did not err by making this finding by a preponderance
of the evidence at sentencing. See, e.g., Apprendi v. New Jersey, 530
U.S. ___, 68 U.S.L.W. 4576 (June 26, 2000) (any fact that increases
the penalty for a crime beyond the prescribed statutory maximum,
other than the fact of prior conviction, must be submitted to the jury
and proved beyond a reasonable doubt).
The district court’s factual findings at sentencing are reviewed for
clear error. United States v. Jones, 31 F.3d 1304, 1315 (4th Cir.
1994). This Court is reluctant to overturn the district court’s factual
findings. United States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
We find that the court’s finding that Perry intended to produce a
visual depiction of the sexual activity was not clearly erroneous.
Because the district court knew that it had the authority to depart
downward from the sentencing guidelines for diminished capacity and
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found that a departure was not warranted, we cannot review the claim.
United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).
Accordingly, we affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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