from the United States District Court for the Northern
District of Texas
STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT, Circuit
D. ENGELHARDT, Circuit Judge.
entered a guilty plea to a four-count indictment charging him
with production, transportation, and possession of child
pornography, as well as committing a felony offense involving
a minor while being required to register as a sex offender,
all in violation of 18 U.S.C. §§ 2251(a),
2252A(a)(1), 2252A(a)(5)(B), and 2260A, Jason Lee Randall
appeals his sentence of imprisonment. Specifically, Randall
challenges, on plain error review, the procedural correctness
of the district court's calculation of his total offense
level. Finding plain error in the district court's
offense level calculation, we VACATE Randall's sentence
and REMAND for re-sentencing consistent with this opinion.
respect to the production count (Count I), Randall admitted
that he used an alias, pretending to be a minor female, and
asked Jane Doe 5 (JD5), a 10-year-old female, to create a
visual depiction of herself engaging in sexually explicit
conduct. JD5 complied and sent the depiction to Randall. JD5,
however, was by far not Randall's only victim. Rather,
according to the presentence report (PSR), which the district
court adopted as modified,  an investigation revealed that
Randall, a registered sex offender, had held himself out as a
12-year-old female on various social media platforms and
messaging services, while encouraging other minor females to
"exchange" nude and sexually explicit photographs
and videos. See PSR ¶¶ 13-23.
determined that Randall solicited and distributed sexually
graphic images and videos on several platforms with a number
of prepubescent minor females and was aware that he was
communicating with minors. Id. at ¶¶
26-27, 30. As part of the investigation, law enforcement
officials were able to confirm the identity of 16
prepubescent minor females, including JD5, the subject of the
production count in the indictment. Id. at ¶ 31.
probation officer also confirmed that "during his
communications with the victims, Randall sent images and
videos depicting the sexual abuse of minors, to include
prepubescent [sic] in an effort to persuade each
victim to produce the same." Id. at ¶32.
The communications included Randall's distribution of a
video depicting JD5, engaged in a sex act, to Jane Doe 6
(JD6) and an as-yet-unidentified victim, in an effort to
convince them to produce additional videos. Id. The
probation officer's own review also confirmed that, in
addition to JD5, Randall's direct messages with five of
the prepubescent victims-Jane Doe 3 (JD3), Jane Doe 4 (JD4),
Jane Doe 7 (JD7), Jane Doe 9 (JD9), and Jane Doe 10
(JD10)-showed that the victims had produced sexually graphic
videos or images at his instruction. Id. at ¶
calculating Randall's offense level under the United
States Sentencing Guidelines, the probation officer grouped
the transportation and possession counts (Counts II and III)
together for sentencing purposes and determined their
adjusted offense level to be 40. Id. at ¶¶
59, 61-70. The production count involving JD5 (Count I),
considered separately, also yielded an adjusted offense level
of 40. Id. at ¶¶ 59, 71-78. Additionally,
reasoning that, under U.S.S.G. § 2G2.1(d)(1), the
offense level for an exploitation offense involving more than
one minor should be calculated as if each minor resulted in a
separate count of conviction and, according to application
note 7 to § 2G2.1, multiple counts involving the
exploitation of minors are not to be grouped
together under U.S.S.G. § 3D1.2, the probation officer
included separate offense level calculations for "pseudo
counts" of child pornography production for JD3, JD4,
JD7, JD9, and JD10. Id. at ¶ 60. The five
pseudo counts, reflecting conduct not charged in the
indictment, had adjusted offense levels of 38 and 42.
Id. at ¶¶ 79-115.
applying a multiple count adjustment to the seven offense
"groups," pursuant to § 3D1.4, the probation
officer added five levels to the highest adjusted offense
level of 42, resulting in a combined adjusted offense level
of 47. Id. at ¶¶ 116-19. Finally, although
a three-level reduction for acceptance of responsibility
subtracted from a combined adjusted offense level of 47 would
otherwise yield a total offense level of 44, Randall's
total offense level was 43-the highest possible level
provided for by Chapter 5 of the Sentencing Guidelines.
Id. at ¶¶ 121-23; see U.S.S.G
§ 3E1.1; U.S.S.G. Ch. 5, Pt. A, cmt.
(n.2). A total offense level of 43, combined with
a criminal history category of III, produced an advisory
Sentencing Guidelines range of life imprisonment for the
three pornography charges. Id. at ¶¶ 136,
171; see U.S.S.G. Ch. 5, Pt. A.
statute, however, Randall's pornography production
conviction subjected him to a sentencing range of 25-50 years
for Count I. See 18 U.S.C. § 2251(e). The
statutory imprisonment ranges for the transportation (Count
II) and possession (Count III) offenses were 15-40 years and
10-20 years, respectively. See 18 U.S.C.
§§ 2252A(b)(1) & (2). Finally, the term of
imprisonment for the sex offender registration offense (Count
IV) was 10 years to be served consecutively to any other
sentence imposed. See 18 U.S.C. § 2260A. Having
calculated the applicable Guidelines sentencing range for
Counts I-III to be life imprisonment, the district court
imposed non-Guidelines concurrent sentences of 35 years for
the production offense (Count I), 20 years for the
transportation offense (Count II), and 10 years for the
possession offense (Count III), with a consecutive sentence
of 10 years for the sex offender registration offense (IV),
reasoning that a lifetime sentence was more than what is
necessary to accomplish the objectives of 18 U.S.C. §
3553(a). Further, the court noted, given the aggregate
sentence of 45 years, Randall would be in jail for most of
his remaining natural life. Accordingly, the court concluded,
the sentence imposed would be an adequate deterrent to
further criminal conduct. The court also imposed a supervised
release term of 15 years. This appeal followed.
defendant preserves a procedural sentencing error, such as a
Sentencing Guidelines calculation, by objecting before the
district court, we review the sentencing court's factual
findings for clear error and its interpretation or
application of the guidelines de novo. United States v.
Velasco, 855 F.3d 691, 693 (5th Cir. 2017) (internal
quotation marks and citations omitted); United States v.
Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). If
established, such error shall nevertheless be disregarded if
it is harmless, i.e., if it does not affect substantial
rights. Fed. R. Crim. P. 52 (a). For unpreserved sentencing
objections, however, Federal Rule of Criminal Procedure 52(b)
establishes a "plain error" standard. Fed. R. Crim.
P. 52 (b) ("A plain error that affects substantial
rights may be considered even though it was not brought to
the [district] court's attention.").
either standard, a claimed error must "affec[t]
substantial rights" to warrant relief on appeal. Fed. R.
Crim. P. 52. The primary difference between the two standards
is that, under harmless error review, the burden is on the
Government to prove that an error did not affect the
defendant's substantial rights, whereas under plain error
review, the defendant has the burden of proving that an error
did impact his substantial rights. United States
v. Olano, 507 U.S. 725, 734-35 (1993). The plain error
rule "serves a critical function by encouraging informed
decisionmaking and giving the district court an opportunity
to correct errors before they are taken up on appeal."
United States v. Peltier, 505 F.3d 389, 392 (5th
Olano, the Supreme Court established three
conditions to be met before an appellate court may consider
exercising its discretion to correct the error. First, there
must be an error that has not been intentionally relinquished
or abandoned. Olano, 507 U.S. at 725. A
"'[f]ailure to calculate the correct Guidelines
range constitutes procedural error.'"
Rosales-Mireles v. United States, 138 S.Ct. 1897,
1904 (2018) (quoting Peugh v. United States, 569
U.S. 530, 537 (2013)). Second, the error must be plain-that
is to say, clear or obvious." Olano, 507 U.S.
at 725. An error is not "clear or obvious" if it is
"subject to reasonable dispute." Puckett v.
United States, 556 U.S. 129, 135 (2009).
the error must have affected the defendant's substantial
rights." Molina-Martinez v. United States, 136
S.Ct. 1338, 1343 (2016). To satisfy this third condition, the
defendant ordinarily "must show a reasonable probability
that, but for the error, the outcome of the proceeding would
have been different." Id. (internal quotation
marks omitted). In Molina-Martinez, the Court
recognized that "[w]hen a defendant is sentenced under
an incorrect Guidelines range-whether or not the
defendant's ultimate sentence falls within the correct
range-the error itself can, and most often will, be
sufficient to show a reasonable probability of a different
outcome absent the error." 136 S.Ct. at 1345. In other
words, an error resulting in a higher range than the
Guidelines otherwise would provide usually establishes a
reasonable probability that a defendant will serve a prison
sentence that is more than "necessary" to fulfill
the purposes of incarceration. Rosales-Mireles, 138
S.Ct. at 1907 (citing 18 U.S.C. § 3553(a); Tapia v.
United States, 564 U.S. 319, 325 (2011)).
defendant may not carry his plain error burden, however, if
the sentencing court nevertheless concluded the chosen
sentence was appropriate regardless of the correct Guidelines
range or the sentence was based "on factors independent
of the Guidelines." Molina-Martinez, 136 S.Ct.
at 1346-47; see also United States v. Hott, 866 F.3d
618, 621 (5th Cir. 2017) (plain error review unsatisfied
where record showed district court thought the chosen
sentence appropriate irrespective of the Guidelines range and
the defendant failed to show a reasonable probability of a
different outcome); United States v. Munoz-Canellas,
695 Fed.Appx. 748, 758 (5th Cir. 2017) ("[u]nder either
a harmless-error or plain-error standard, we will not reverse
a sentence if we are convinced that the district court would
have imposed the same sentence, regardless of the
if the first three plain error conditions are met, "the
court of appeals should exercise its discretion to correct
the forfeited error if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings." Molina-Martinez, 136 S.Ct. at
1343 (internal quotation marks omitted). In the ordinary
case, the failure to correct a plain Guidelines error that
affects a defendant's substantial rights will seriously