     Case: 18-50991      Document: 00515164225         Page: 1    Date Filed: 10/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals

                                   No. 18-50991
                                                                             Fifth Circuit

                                                                           FILED
                                 Summary Calendar                    October 18, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff-Appellee

v.

JASON LEE BENNETT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:17-CR-252-1


Before BENAVIDES, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Jason Bennett appeals his conviction for production of child pornography
in violation of 18 U.S.C. § 2251(a). He argues that the evidence was insufficient
to establish that he “used” the minor to engage in “sexually explicit” conduct.
See § 2251(a).
       Bennett argues for the first time on appeal that the evidence did not
support a finding by the district court that he “used” the minor to engage in


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50991

sexually explicit conduct. Because this issue was not raised below, we will
reverse only if the record is so “devoid of evidence pointing to guilt” that the
conviction creates “a manifest miscarriage of justice.” United States v. Ruiz,
860 F.2d 615, 617 (5th Cir. 1988) (internal quotation marks and citation
omitted).   The conduct proscribed in § 2251(a) is assessed by asking two
questions: “Did the production involve the use of a minor engaging in sexually
explicit conduct, and was the visual depiction a depiction of such conduct?”
United States v. Steen, 634 F.3d 822, 826 (5th Cir. 2011). With respect to the
first question, “[a] person who videotapes or photographs a minor clearly ‘uses’
the minor for the purposes of the statute.” United States v. Barry, 634 F. App’x
407, 411 (5th Cir. 2015); Steen, 634 F.3d at 826 (videotaping a minor is “using”
a minor). The uncontradicted testimony established that Bennett admitted to
filming the minor in the video in question. Therefore, the “use” element was
sufficiently established by the evidence. See Barry, 634 F. App’x at 411; Ruiz,
860 F.2d at 617.
      Bennett additionally argues that the district court erred in finding that
the conduct at issue was “sexually explicit,” contending that the facts of his
case are closer to those in United States v. Gleich, 397 F.3d 608, 614 (8th Cir.
2005). At issue is only whether there was a lascivious exhibition of the minor’s
genitalia or pubic area, which is a factual finding reviewed for clear error. See
Steen, 634 F.3d at 825-26. A factual finding is not clearly erroneous if it is
“plausible in light of the record as a whole.” United States v. Torres-Hernandez,
843 F.3d 203, 207 (5th Cir. 2016).     (internal quotation marks and citation
omitted). After application of the nonexhaustive factors set forth in United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), we hold that the district
court did not clearly err in determining that the conduct at issue was sexually
explicit. See Steen, 634 F.3d 825-26. Gleich is inapposite insofar as the conduct



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                                No. 18-50991

at issue therein involved taking pictures only of a minor’s non-pubic area. See
397 F.3d at 614.
AFFIRMED.




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