     Case: 15-41470     Document: 00513903610        Page: 1    Date Filed: 03/08/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                     No. 15-41470
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
UNITED STATES OF AMERICA,                                                March 8, 2017
                                                                        Lyle W. Cayce
              Plaintiff - Appellee                                           Clerk

v.

CURTIS BILLUPS,

              Defendant - Appellant



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


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Appellant-Defendant Curtis Billups appeals two aspects of his sentence.
First, he appeals the district court’s application of a two-level pseudocount
enhancement pursuant to U.S.S.G. § 2G1.3(d)(1). Second, he appeals the
district court’s imposition of a mental health treatment condition as part of his
supervised release. For the reasons set out below, we AFFIRM the district
court’s application of the pseudocount enhancement, VACATE the mental
health treatment condition, and REMAND for resentencing in light of this
opinion. 1



      1  Resentencing shall be limited to a re-examination of the mental health treatment
condition.
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                                     No. 15-41470
                                            I.
      On March 24, 2015, a federal agent posing as the father of two girls, ages
12 and 14, posted an online advertisement seeking an adult male willing to
engage in various sex acts with both of his daughters and willing to let him
watch. Curtis Billups responded to the advertisement, and the two agreed to
meet. When Billups arrived at the meeting, he was arrested. At trial, he was
convicted of one count of enticing a minor to engage in unlawful sexual conduct,
in violation of 18 U.S.C. § 2422(b).
                                            II.
      After Billups was convicted, a United States Probation Officer prepared
his presentence investigation report (“PSR”), which the district court adopted
without alteration. The PSR treated Billups as if he was convicted of two
counts of enticing a minor to engage in unlawful sexual conduct, even though
he was only convicted of one. This second count, known as a pseudocount,
reflected the fact that Billups sought to engage in sexual conduct with two
fictitious minors. It also resulted in Billups receiving a two-level pseudocount
enhancement pursuant to U.S.S.G. § 2G1.3(d)(1). Billups did not object to this
enhancement in the district court, but now does. “Our review, therefore, is for
plain error.” 2
      To prevail on plain error review, Billups must establish: “(1) there was
an error; (2) the error was clear and obvious; and (3) the error affected [his]
substantial rights. If each of these conditions is satisfied, we may exercise our
discretion to correct the error only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” 3
      U.S.S.G. § 2G1.3(d)(1) states that if a sex offense involves “more than


      2 United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).
      3  United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016) (internal quotations
and citations omitted).
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                                       No. 15-41470
one minor, [a pseudocount enhancement] shall be applied [pursuant to
U.S.S.G. § 3D1.4] as if the . . . enticement . . . of each victim [constitutes] a
separate count of conviction.” The Sentencing Commission has made clear – in
application note 1 – that undercover officers posing as minors are minors for
purposes of § 2G1.3(d)(1). 4 The Sentencing Commission has also made clear –
in application note 6 – that if a district court finds that a defendant sought to
entice more than one fictitious minor, the pseudocount enhancement shall
apply. 5
       Billups argues that that we should disregard application note 6 because
it is inconsistent with the Guideline text. When an application note is
inconsistent with the Guideline text, we “follow the plain language of the
Guideline alone.” 6 Billups argues that, under § 2G1.3(d)(1), a pseudocount
enhancement applies only to victims, who are real people, not fictitious minors.
His argument relies upon two rules of statutory construction. First, the
Sentencing Commission did not define the term “victim” as used in §
2G1.3(d)(1), and “in the absence of a statutory definition, we give terms their
ordinary meaning.” 7 Second, when the Sentencing Commission uses two terms
in a single provision – in this case, victim and minor – we assume that “it
intended [for] each . . . to have a particular, nonsuperfluous meaning.” 8
       “It is well established that our interpretation of the Sentencing
Guidelines is subject to the ordinary rules of statutory construction.” 9
However, it is also well established that the rules of statutory construction may




       4 U.S.S.G. § 2G1.3(d)(1) cmt. n.1.
       5 U.S.S.G. § 2G1.3(d)(1) cmt. n.6.
       6 United States v. Pringler, 765 F.3d 445, 455 (5th Cir. 2014).
       7 Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 391 (5th Cir. 2002).
       8 Bailey v. United States, 516 U.S. 137, 146 (1995).
       9 United States v. Crittenden, 372 F.3d 706, 708 (5th Cir. 2004) (quoting United States

v. Carbajal, 290 F.3d 277, 283 (5th Cir. 2002)).
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                                       No. 15-41470
not be “employed to eviscerate manifest legislative intent.” 10
       Application note 6 reflects “the [manifest] intent of the United States
Sentencing Commission.” 11 It unequivocally states that if a district court finds
that a defendant sought to entice more than one fictitious minor, the
pseudocount enhancement shall apply. “[T]he enhancement is directed at the
defendant’s intent, rather than any actual harm caused to a genuine victim.” 12
§ 2G1.3(d)(1) applies to all victims – real or fake.
                                            III.
       The district court also imposed two special conditions of supervised
release relevant to this appeal. The first was a sex offender treatment
condition, which required Billups “to participate in a mental health treatment
program and/or sex offender treatment program provided by a Registered Sex
Offender Treatment Provider, as approved by the United States Probation
Officer.” The second was a mental health treatment condition, which required
Billups “to participate in a mental health program as deemed necessary and
approved by the” United States Probation Officer. Billups appeals the district
court’s imposition of the mental health treatment condition. Because Billups
objected to this condition in the district court, our review is for abuse of
discretion. 13
       “District courts have wide discretion in imposing special conditions of
supervised release,” 14 subject to three limitations. First, the condition must be
“reasonably related” to one of the following four sentencing factors identified
in 18 U.S.C. § 3583(d)(1): “(1) the nature and characteristics of the offense and



       10   United States v. Insco, 496 F.2d 204, 207 (5th Cir. 1974).
       11   United States v. Smeathers, 884 F.2d 363, 364 (8th Cir. 1989) (citing U.S.S.G.
§ 1B1.7).
       12 United States v. Murrell, 368 F.3d 1283, 1289 (11th Cir. 2004).
       13 United States v. Fernandez, 776 F.3d 344, 345 (5th Cir. 2015).
       14 United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014).

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                                      No. 15-41470
the history and characteristics of the defendant, (2) the deterrence of criminal
conduct, (3) the protection of the public from further crimes of the defendant,
and (4) the provision of needed educational or vocational training, medical
care, or other correctional treatment to the defendant.” 15 “Second, the condition
cannot impose any greater deprivation of liberty than is reasonably necessary
to advance deterrence, protect the public from the defendant, and advance the
defendant’s correctional needs.” 16 Third, “the condition must be consistent with
the policy statements issued by the Sentencing Commission” pursuant to 28
U.S.C. § 994(a). 17
      When imposing a special condition of supervised release, district courts
must explain, on the record, how the condition is reasonably related to at least
one of the sentencing factors identified in 18 U.S.C. § 3583(d)(1). 18 If a district
court fails to articulate its reasoning, and its reasoning cannot be inferred from
the record, the special condition will be vacated. 19
      The district court offered no explanation for its decision to impose a
separate mental health treatment condition on top of the sex offender
treatment condition, and its reasoning cannot be inferred from the record. The
record reflects that Billups has no known history of mental problems, no known
history of emotional problems, and no known history of illicit drug use.
      Both Billups and the Government request that we remand with
instructions to vacate, rather than remand for resentencing. 20 However, in this
circuit, “[w]here a timely objection is made to a special condition and the record
does not clearly contain any discussion, factual finding, or other support for



      15 United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009).
      16 Ibid. (internal quotations omitted).
      17 Ibid.
      18 Salazar, 743 F.3d at 451.
      19 United States v. Caravayo, 809 F.3d 269, 275 (5th Cir. 2015).
      20 See, e.g., United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005).

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                                      No. 15-41470
that special condition, we must vacate and remand for resentencing.” 21 On
remand, the district court must either “articulate a reasonable relationship
between [the mental health treatment condition] and [one of] the [four
§ 3583(d)(1)] factors or dismiss the condition.” 22
                                            IV.
       For the foregoing reasons, we AFFIRM the district court’s application of
the pseudocount enhancement, VACATE the mental health treatment
condition, and REMAND for resentencing in light of this opinion. 23




       21Caravayo, 809 F.3d at 276 (emphasis added).
       22Salazar, 743 F.3d at 451.
      23 Because we vacate the mental health treatment condition on evidentiary grounds,

we need not reach Billups’s alternative argument that the district court’s imposition of the
mental health treatment condition was an impermissible delegation of judicial authority.
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