USA v. Thomas K. Tanner

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 08, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-16379
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D. C. Docket No. 09-00132-CR-ORL-22GJK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS K. TANNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 8, 2010)
Before BARKETT and MARTIN, Circuit Judges, and HUNT, District Judge.*
PER CURIAM:
Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of*
Georgia, sitting by designation.

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Thomas K. Tanner appeals his 262-month sentence following a plea of
guilty for distribution of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(B). Tanner seeks reversal of his sentence arguing that the district
court erred in finding that he had a prior conviction that subjected him to an
increased minimum and maximum sentence under 18 U.S.C. § 2252A(b)(1). On
this record, we find no reversible error. In evaluating Tanner’s prior conviction
for sentencing purposes, the district court did not err in considering the state court
indictment for his prior conviction in light of the ambiguity in the state court’s
final judgment in that case. See United States v. Aguilar-Ortiz, 450 F.3d 1271,
1273-74 (11th Cir. 2006). Based thereupon, the district court did not err in
determining that Tanner had a prior conviction in state court for the felony
exposure of his sexual or genital parts to a child under Virginia Code § 18.2-370,
which supports the sentence imposed within the increased statutory range of 15 to
40 years as set forth in § 2252A(b)(1).
AFFIRMED.
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