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United States v. Randall

United States Court of Appeals, Fifth Circuit

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JASON LEE RANDALL, Defendant-Appellant

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

          Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT, Circuit Judges.

          KURT D. ENGELHARDT, Circuit Judge.

         Having 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.


         With 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, [1] 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.[2] See PSR ¶¶ 13-23.

         Officers 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.[3] Id. at ¶ 31.

         The 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 ¶ 45.


         In 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.

         Next, 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.[4] 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).[5] 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.

         By statute, however, Randall's pornography production conviction subjected him to a sentencing range of 25-50 years for Count I.[6] 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.


         Where a 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.").

         Under 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 Cir. 2007).

         In 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).

         Third, 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)).

         A 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 error.")

         Finally, 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 ...

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