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United States v. Tenuto

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ARGUED NOVEMBER 12, 2009

Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.

Vincent Tenuto pleaded guilty to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). At sentencing he unsuccessfully challenged two guideline enhancements for use of a computer and distribution of material that involved the sexual exploitation of a minor. On appeal he argues that the enhancements constitute double counting because the behavior they are based on was already accounted for in his conviction. In this context, double counting occurs when the underlying offense itself necessarily includes the same conduct as the enhancements. Because Tenuto’s conduct that gave rise to the enhancement went beyond what was needed to satisfy the statute he pleaded guilty to violating, no double counting occurred. We affirm.

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