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United States v. Ary

United States Court of Appeals, Fifth Circuit

June 14, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RONALD ERIC ARY, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Texas

          Before ELROD, COSTA, and HO, Circuit Judges.

          JENNIFER WALKER ELROD, Circuit Judge.

         Ronald Ary appeals his sentence following a conviction for distributing a visual depiction of a minor engaged in sexually explicit conduct. He argues that the district court erred in determining that his Texas deferred adjudications qualify as prior convictions for the purpose of 18 U.S.C. § 2252(b)(1)'s sentencing enhancement and in sentencing him to a term of imprisonment that exceeded the statutory maximum term of imprisonment charged in his indictment. Because the district court did not err, we AFFIRM.

         I.

         Ary pleaded guilty to distributing a visual depiction of a minor engaged in sexually explicit conduct. Under 18 U.S.C. § 2252(b)(1), Ary was subject to a maximum term of imprisonment of 20 years unless he had a prior conviction involving the sexual exploitation of a minor. 18 U.S.C. § 2252(b)(1).

         The United States Probation Office prepared a presentence report, which noted that Ary had pleaded guilty in Texas state court to one charge of aggravated sexual assault and one charge of indecency with a child. For both offenses, Ary was granted deferred adjudication and placed on ten years of probation with a condition to serve 90 days of imprisonment.

         With a total offense level of 42 and a criminal history category of III, Ary's range was 360 months to life imprisonment under the United States Sentencing Guidelines. The presentence report explained that the applicable maximum term of imprisonment depended on whether Ary had any qualifying prior convictions for the sexual exploitation of children. See 18 U.S.C. § 2252(b)(1). Ordinarily, for an offense under § 2252, the statutory minimum term of imprisonment is 5 years, and the maximum term of imprisonment is 20 years. See § 2252(b)(1). However, if a defendant has a previous conviction for sexual exploitation under certain federal statutes or "under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, " the statutory minimum and maximum terms of imprisonment increase to 15 years and 40 years, respectively. 18 U.S.C. § 2252(b)(1).

         The presentence report noted Ary's Guidelines range would be 360 to 480 months if the district court determined that he had a qualifying prior conviction.[1] If not, the Guidelines term of imprisonment would be 240 months.[2] Responding to the presentence report, the government argued that the enhanced statutory maximum term in § 2252(b)(1) should be applied in Ary's case because his deferred adjudications qualified as prior convictions. In his objections to the presentence report, inter alia, Ary argued that the enhanced statutory maximum term should not be used to calculate his Guidelines range because: (1) Texas deferred adjudications do not qualify as convictions for purposes of § 2252(b)(1); and (2) his prior convictions were not alleged in his indictment or admitted by him.

         The district court determined that Ary's deferred adjudications qualified as prior convictions and applied the enhanced minimum and maximum terms of imprisonment set forth in § 2252(b)(1). It sentenced Ary to 360 months of imprisonment and a life term of supervised release. Ary timely appealed.

         II.

         Because Ary preserved his arguments for appellate review, we review his claims de novo. See United States v. Hubbard, 480 F.3d 341, 344 (5th Cir. 2007).

         III.

         According to Ary, the district court erred in treating Ary's deferred adjudications as prior convictions because they are not convictions under § 2252(b)(1). Section 2252(b)(1) provides that a defendant who has a "prior conviction under . . . the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children" is subject to a term of imprisonment of at least 15 years but not more than 40 years. 18 U.S.C. § 2252(b)(1). "Conviction" is not defined for the purpose of the § 2252(b)(1) sentencing enhancement. See 18 U.S.C. ยง 2256. And ...


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