United States v. Buczkowski, 122011 FED4, 09-4938

Docket Nº:09-4938
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL NICHOLAS BUCZKOWSKI, Defendant-Appellant.
Attorney:Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. David A. Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE...
Judge Panel:Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Case Date:December 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

DANIEL NICHOLAS BUCZKOWSKI, Defendant-Appellant.

No. 09-4938

United States Court of Appeals, Fourth Circuit

December 20, 2011

UNPUBLISHED

Argued: September 20, 2011

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. James C. Fox, Senior District Judge. (5:08-cr-00159-F-1)

ARGUED:

Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

David A. Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM

Daniel Buczkowski was convicted of one count of possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-seven counts of transportation of child pornography in interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1). Buczkowski appeals, challenging the convictions and sentences imposed on the transportation counts only. While we find the government's evidence sufficient to establish that Buczkowski transported child pornography, that evidence established only a single act of transportation. Accordingly, we affirm the conviction and sentence on the first transportation count, vacate the remaining transportation convictions and sentences, and remand for resentencing.

I.

After retiring from the Army, Buczkowski went to work as a truck driver for Kellogg, Brown & Root ("KBR"), a military contractor. Buczkowski worked for KBR in Iraq from November 2004 through February 2006 and from December 10, 2006 through March 29, 2007. Buczkowski had a password-protected laptop computer that he used at home and took with him to Iraq. The evidence presented at trial established that when he was in Iraq, his computer was often in a shared lounge space and was sometimes used by people other than Buczkowski.

Buczkowski was injured on March 21, 2007. He was sent to a clinic in Kuwait for medical evaluation, where it was determined that he should return to the United States for treatment. Buczkowski left from Kuwait, without returning to the base in Iraq, and arrived in Fayetteville, North Carolina, on March 29, 2007. KBR later shipped Buczkowski's personal effects to him; the shipment arrived around the first week of May 2007.

On May 8, 2007, Buczkowski took his laptop to be repaired. While repairing the computer, the technician found child pornography on the computer and called the police. Twenty-seven images qualifying as child pornography were found on the computer, all of which had been loaded onto the computer on January 4, 2007, when Buczkowski was in Iraq. Buczkowski was indicted on one count of possession of child pornography and twenty-seven counts (one for each image) of transportation of child pornography.

A jury convicted Buczkowski of all counts. The district court sentenced him to 240 months' imprisonment on the first transportation count, a consecutive 240 months' on the second transportation count, and concurrent sentences on the remaining transportation counts.

II.

Section 2252(a) prohibits "knowingly transport[ing] or ship[ping] [child pornography] using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means." 18 U.S.C. § 2252(a)(1). At trial, the government sought to prove that Buczkowski transported the child pornography by bringing the computer with him when he returned from Iraq at the end of March. Buczkowski contended that he had no knowledge the child pornography images were on his computer and that he did not bring the computer with him when he returned from Iraq. On appeal, Buczkowski concedes the sufficiency of the evidence showing that he knowingly possessed the child pornography, but he argues that the government's evidence was insufficient to establish that he transported the pornography by bringing the laptop with him when he returned from Iraq.

When considering the sufficiency of the evidence supporting a criminal conviction, we must view "the evidence in the light most favorable to the government, assuming its credibility, and drawing all favorable inferences from it." United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011), petition for cert. filed, (U.S. Oct. 4, 2011) (No...

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