     Case: 14-31241      Document: 00513103114         Page: 1    Date Filed: 07/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31241
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             July 2, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

LARRY CAILLIER, II, also known as Larry Callier, II,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:10-CR-76-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Larry Caillier, II, pleaded guilty to knowingly and intentionally
receiving child pornography through interstate commerce.                   See 18 U.S.C.
§ 2242(a)(2)(A).       The district court sentenced him to 168 months of
imprisonment and 15 years of supervised release. In this out-of-time appeal,
Caillier challenges the application of a higher offense level under U.S.S.G.
§ 2G2.1 by operation of U.S.S.G. § 2G2.2(c)(1).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-31241    Document: 00513103114     Page: 2   Date Filed: 07/02/2015


                                 No. 14-31241

      Because the district court did not reenter the judgment of conviction
upon granting Caillier leave to file an out-of-time appeal, Caillier’s appeal was
“both late and premature.” See United States v. West, 240 F.3d 456, 457-59
(5th Cir. 2001). The Government, however, expressly waives the untimeliness
of the appeal and we, therefore, address the merits. See United States v.
Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007); United States v. Haynes, 469
F. App’x 317, 318 (5th Cir. 2012).
      Caillier has not shown that he is entitled to relief. The record before the
district court at sentencing confirms that the district court did not clearly err
in finding that Caillier requested that a minor female send him sexually
explicit photographs of herself. See United States v. Rodriguez-Mesa, 443 F.3d
397, 401 (5th Cir. 2006); United States v. Flores, 887 F.2d 543, 546 (5th Cir.
1989).
      Additionally, the district court properly determined that Caillier’s
conduct fell within the ambit of § 2G.2.2(c)(1), which we construe broadly. See
§ 2G2.2(c)(1) & comment. (n. 5) (2009); Rodriguez-Mesa, 443 F.3d at 401. The
record shows that Caillier’s request to his minor student to provide him with
sexually explicit photos of herself had the effect of the student producing the
images and providing them to Caillier. Thus, in the ordinary meaning of the
word “cause,” Caillier’s request caused the minor to engage in prohibited
sexual conduct and the district court did not err in applying the higher offense
level of § 2G2.1. See § 2G2.2(c)(1); United States v. Carbajal, 290 F.3d 277, 283
(5th Cir. 2003); BLACK’S LAW DICTIONARY (9th ed. 2009).
      The judgment of the district court is AFFIRMED.




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