from the United States District Court for the Northern
District of Texas
ELROD, COSTA, and HO, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge.
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
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).
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.
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).
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. If not, the Guidelines term
of imprisonment would be 240 months. 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.
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
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).
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. § 2256. And ...