                       IN THE UNITED STATES COURT OF APPEALS

                                    FOR THE FIFTH CIRCUIT

                                     _____________________

                                          No. 01-10435
                                     _____________________




UNITED STATES OF AMERICA,


                                                                                 Plaintiff - Appellee,


                                                 v.


TERRY WAYNE HESSON,


                                                                              Defendant - Appellant.
______________________________________________________________________________

                  Appeal from the United States District Court for the
                     Northern District of Texas, Abilene Division
                            USDC No. 1:00-70-CR-ALL
______________________________________________________________________________
                                    July 22, 2002

Before JOLLY, DeMOSS and PARKER, Circuit Judges:*

E. GRADY JOLLY, Circuit Judge:

       Terry Wayne Hesso n (“Hesson”) pled guilty to a single count of sexual exploitation of a

minor, in violation of 18 U.S.C. § 2251(a). On appeal , Hesson argues that the district court

erroneously considered his other uncharged acts of sexual exploitation with other minors as “relevant


        *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
conduct” under United States Sentencing Guideline (“U.S.S.G.”) § 1B1.3 (2000), on the basis of

which the district court increased Hesson’s offense level under U.S.S.G. §§ 2G2.1(c)(1) and 3D1.4.

Hesson also argues that the district court abused its discretion in additionally departing upward to the

statutory maximum sentence pursuant to U.S.S.G. § 5K2.0. Although we agree with Hesson that

the district court erred in considering his uncharged acts of sexual exploitation that were not part of

the same offense to be relevant conduct under § 1B1.3, we find that the district court would have

imposed the same sentence notwithstanding this error. We therefore AFFIRM Hesson’s sentence.

                                                   I

       Hesson transported a twelve-year old male from Abilene, Texas to a motel in Ruidoso, New

Mexico, and made a videotape of the boy engaged in sexually explicit conduct. As a result, Hesson

was charged with and pled guilty to one count of sexual exploitation of a minor, in violation of 18

U.S.C. § 2251(a), pursuant to a plea agreement. During a search of Hesson’s residence, the police

found the videotape of the boy in New Mexico, numerous other sexually explicit videos of underage

males made by Hesson, and other evidence of child pornography. The district court found, based on

the videotapes, that Hesson had sexually exploited and videotaped at least seventy-four other minor

males over a period of at least fifteen years.

       In the plea agreement, Hesson and the government entered into several stipulations as to the

applicability of several of the sentencing guideline sections. However, the plea agreement specifically

stated that Hesson and the government did not agree on the applicability of U.S.S.G. § 2G2.1(c) to

Hesson’s sentence. Section 2G2.1(c) provides that if the “offense” involved the exploitation of more

than one minor, then Chapter III, Part D of the Sentencing Guidelines (Multiple Counts), “shall be

applied as if the exploitation of each minor had been contained in a separate count of conviction.”


                                                   2
Application Note 1, Part (l), to U.S.S.G. § 1B1.1 defines “offense” as “the offense of conviction and

all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is

otherwise clear from the context.” Section 1B1.3(a) defines relevant conduct, in applicable part, as

follows:

          (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded,
                 induced, procured, or willfully caused by the defendant . . .

          that occurred during the commission of the offense of conviction, in preparation for
          that offense, or in the course of attempting to avoid detection or responsibility for that
          offense.

The district court considered Hesson’s uncharged conduct in videotaping seventy-four other minor

males engaged in sexually explicit activities as “relevant conduct” under § 1B1.3. Therefore,

pursuant to § 2G2.1(c), the district court relied on the multiple count provisions of § 3D1.4

(Determining the Combined Offense Level) to increase Hesson’s base offense level by five. Under

§ 3D1.4, the district court can depart upward by five offense levels if it calculates that the defendant

has more than five “units.” “Units” are computed by taking into consideration the “groups” of

offenses for which the defendant is responsible when there are multiple counts involved. According

to the PSR, there were a total of sixty-nine units in this case.1 The district court increased Hesson’s

offense level by two additional levels under the background language in § 3D1.4 authorizing a




      1
       The PSR calculated that there were sixty-nine additional units, based on seventy-one victims.
The PSR assigned one unit each to sixty-seven of the victims, based on these offenses being as serious
or one to four levels less serious than the conduct to which Hesson pled guilty. See U.S.S.G. §
3D1.4(a). The PSR assigned half a unit each to four of the victims, because the levels for these
offenses were five to eight levels less serious than highest offense level. See U.S.S.G. § 3D1.4(b).
The difference between the seventy-one victims calculated in the PSR and the seventy-four victims
found by the district court would result in a slightly different calculation of the number of units
involved, but the difference is not significant.

                                                      3
departure “in the unusual case where the additional offenses resulted in a total of significantly more

than 5 Units.”

        This resulted in a total offense level of thirty-five. Hesson had a criminal history category of

I, resulting in a recommended imprisonment range of 168 to 210 months. However, the district court

further departed upward under § 5K2.0 and sentenced Hesson to the statutory maximum of twenty

years, based on the fifteen year o r longer period over which Hesson committed his crimes, the

existence of at least seventy-four victims, and Hesson’s extensive videotaping and documentation of

his acts of sexual exploitation, which the district court found took this case outside the heartland of

cases contemplated by the sentencing guidelines. The district court also sentenced Hesson to a three-

year term of supervised release, and ordered him to pay a special assessment of $100. Hesson timely

appealed his sentence.

                                                    II

        The first question we consider is what the appropriate standard of review is in this case.

Hesson did not object to the inclusion of § 2G2.1(c)(1) in the Pre-Sentence Report, nor did he object

to its application at the sentencing hearing. Further, Hesson did not argue in his opening brief to this

court that the district court should not have applied §§ 2G2.1(c)(1) and 3D1.4, and the “relevant

conduct” provisions of § 1B1.3. He first raised this argument in his Supplemental and Reply Brief,

filed after he substituted new counsel for his former attorney. Nevertheless, Hesson argues that he

preserved the issue of the applicability of § 2G2.1(c)(1) by refusing to agree to its applicability in his

plea agreement.

        We have held previously that when a defendant fails to object, at his sentencing hearing, to

an asserted lack of notice by the district court that it intended to depart upward from the


                                                    4
recommended guideline range based on factors contained in the PSR, and when the defendant fails

to move for a continuance at the sentencing hearing, we review any alleged errors for plain error only.

See United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002). Here, Hesson did not object to

the inclusion of § 2G2.1(c)(1) in the PSR or to its application at the sentencing hearing. Further, the

district court did notify Hesson in advance that it was considering an upward departure in his case.

Furthermore, we ordinarily do not consider issues raised for the first time in a reply brief. Therefore,

we review the district court’s application of § 2G2.1(c)(1) for plain error only.

                                                   III

         In order for us to correct an unpreserved alleged error, there must have been, in the trial

court: (1) an error; (2) that was “plain,” i.e. clear or obvious; and (3) the error must have affected

substantial rights (generally, it must have been prejudicial). United States v. Olano, 507 U.S. 725,

732-33 (1993). A court of appeals need not always correct a plain error. It need only do so “if the

error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’" Id. at

735 (citation omitted).

         Here, the district court did commit an error that was plain in its application of § 2G2.1(c)(1).

The language in § 2G2.1(c)(1) states that “[i]f the offense involved the exploitation of more than one

minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor

had been contained in a separate count of conviction” (emphasis added). There was only one offense

actually charged here, and it only involved one minor. Although the term “offense” includes relevant

conduct under § 1B1.3, see U.S.S.G. § 1B1.1, Commentary, Hesson’s uncharged acts with other

minors, which were not part of the same offense, cannot be considered relevant conduct under §

1B1.3.


                                                    5
        Section 1B1.3(a) has four subparts that each provide for a different category of relevant

conduct. Section 1B1.3(a)(1) includes as relevant conduct “all acts and omissions committed . . .

by the defendant . . . that occurred during the commission of the offense of conviction, in preparation

for that offense, or in the course of attempting to avoid detection or responsibility for that offense .

. .” Hesson’s uncharged acts do not fall into this category, as they did not occur during the

commission of the offense of conviction, in preparation for the offense, or while trying to avoid

detection or respo nsibility for the offense. Section § 1B1.3(a)(2) includes as relevant conduct

offenses “of a character for which § 3D1.2(d) would require grouping of multiple counts,” but

Hesson’s offense is explicitly excluded from the grouping provisions. See U.S.S.G. § 3D1.2(d)

(excluding offenses under § 2G2.1 from the grouping provisions of § 3D1.2). Section § 1B1.3(a)(3)

includes as relevant conduct “all harm that resulted from the acts and omissions specified in

subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions.”

However, because Hesson’s conduct does not fall under §§ 1B1.3(a)(1) or (a)(2), it cannot fall under

§ 1B1.3(a)(3). Finally, section 1B1.3(a)(4) provides for adjusting the offense level for relevant

conduct based on “any other information specified in the applicable guidelines.” No other information

has been specified here. It follows that, for the purpose of this sentence, Hesson’s unrelated acts with

other minors therefore are not relevant conduct under § 1B1.3, and cannot be considered part of the

same offense under § 2G2.1(c)(1). Therefore, the district court should not have applied § 3D1.4 to

Hesson’s offense level, and to do so was an error that was plain.

        Nevertheless, this plain error did not affect Hesson’s substantial rights. Normally, if the

sentence “was imposed in violation of law or imposed as a result of an incorrect application of the

sentencing guidelines, the court shall remand the case for further sentencing proceedings with such


                                                   6
instructions as the court considers appropriate.” 18 U.S.C. § 3742. However, “[i]f the party

defending the sentence persuades the court of appeals that the district court would have imposed the

same sentence absent the erroneous factor, then a remand is not required under § 3742(f)(1), and the

court of appeals may affirm the sentence as long as it is satisfied that the departure is reasonable

under § 3742(f)(2).” Williams v. United States, 503 U.S. 193, 203 (1992) (applying harmless error

review). In order to determine if a departure is reasonable under § 3742(f)(2),

       the [Sentencing Reform Act of 1984] directs a court of appeals to examine the factors
       to be considered in imposing a sentence under the Guidelines, as well as the district
       court's stated reasons for the imposition of the particular sentence. § 3742(e). A
       sentence thus can be "reaso nable" even if some of the reasons given by the district
       court to justify the departure from the presumptive guideline range are invalid,
       provided that the remaining reasons are sufficient to justify the magnitude of the
       departure.

Id. at 203-04. After the district court increased Hesson’s offense level under § 3D1.4 (erroneously),

the court concluded that the sentence was still not yet long enough. The court was determined to

sentence Hesson to the maximum that the statute would allow for one count in an indictment. It

therefore departed upward to the statutory maximum sentence of twenty years under U.S.S.G. §

5K2.0. Under this section, “the sentencing court may impose a sentence outside the range established

by the applicable guidelines, if the court finds ‘that there exists an aggravating or mitigating

circumstance of a kind, o r to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines . . . .’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

The district court explicitly relied on the large number of other minors whom Hesson had exploited,2

the many years over which Hesson engaged in the exploitation, and Hesson’s extensive videotaping


       2
          Although Hesson contested the district court’s calculation of the exact number of victims
involved, Hesson did not argue that he had not sexually exploited other minor children. Further, the
district court’s finding as to the number of victims was not clearly erroneous.

                                                 7
and documentation of his offenses, to justify its departure under § 5K2.0. These factors are the same

regardless of whether the district court erroneously calculated the base offense level or not. Because

the district court imposed the statutory maximum sentence based on these factors and not “as a result

of” the erroneous application of §§ 1B1.3, 2G2.1(c)(1) and 3D1.4, the district court would have

imposed the same sentence even if Hesson’s offense level was not erroneously increased.

       Further, we find that the sentence that the district court imposed was reasonable. The district

court’s stated reasons for departing upward to the statutory maximum (large number of victims, many

years of exploitation, and extensive videotaping and documentation) were eminently reasonable, and

were not otherwise adequately taken into consideration by the guidelines. Further, in the past we

have upheld departures from recommended sentencing guideline ranges that were even greater than

the departure here. With a criminal history category of I and a base offense level of twenty-eight (the

offense level that Hesson would have received absent the erroneous calculations), the guidelines call

for a sentencing range of seventy-eight to ninety-seven months. The upward departure from ninety-

seven months to 240 months (the statutory maximum, which Hesson received) would be an additional

143 months, or a sentence 2.47 times longer than the recommended maximum of ninety-seven

months. We have approved depart ures from the guidelines that were even greater. See, e.g.,

Davenport, 286 F.3d at 221 (approving upward departure from eighty-seven months to 240 months,

or 2.75 times the recommended sentence); United States v. Roberson, 872 F.2d 597, 606 (5th Cir.

1989) (affirming upward departure in sentence from guideline range of thirty to thirty-seven months

to 120 months, or 3.24 times the recommended sentence).




                                                  8
        We hold that because the district court would have imposed the same sentence absent the

error and because the sentence was reasonable, Hesson’s substantial rights were not affected and

there was no plain error in the imposition of Hesson’s sentence.

                                                   IV

        Hesson also argues that the district court abused its discretion in departing upward under §

5K2.0. However, as is clear from our discussion in part III, the district court did not abuse its

discretion in doing so.3

                                                   V

        For the reasons stated, Hesson’s sentence is

                                                                                           AFFIRMED.




       3
         Hesson also argues in a short footnote in his brief that it was ineffective assistance of counsel
for his attorney to fail to object to the inclusion of § 2G2.1(c) in the PSR. However, Hesson does
not develop this argument and does not show how he was prejudiced. Given our finding that the
district court would have imposed the same sentence anyway and that the sentence was reasonable,
there is no prejudice. His argument is therefore meritless.

                                                    9
