     Case: 10-50549 Document: 00511449273 Page: 1 Date Filed: 04/18/2011




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

                                                 FILED
                                                                            April 18, 2011
                                     No. 10-50549
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHN CHRISTOPHER BRUNSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-238-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       John Christopher Brunson appeals the 360-month sentence imposed
following his guilty plea to production of child pornography by a parent in
violation of 18 U.S.C. § 2251(b). Brunson argues that the district court clearly
erred in imposing a two-level vulnerable victim adjustment to his base offense
level pursuant to U.S.S.G. § 3A1.1(b)(1) because the victim’s age and Brunson’s
parental relationship to the victim had already been taken into account by two
other separate guidelines enhancements. See § 2G2.1(b)(1)(A); § 2G2.1(b)(5). He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50549

contends that the double-counting is proscribed by the application notes to the
vulnerable victim Guideline. See § 3A1.1, comment. (n.2).
      “[T]he determination of whether a victim is vulnerable is a factual finding
that the district court is best-suited to make.” United States v. Wilcox, 631 F.3d
740, 753-54 (5th Cir. 2011). We “review the district court’s interpretation of the
guidelines de novo,” and “a finding of unusual vulnerability for clear error and
to determine whether the district court’s conclusion was plausible in light of the
record as a whole.” United States v. Robinson, 119 F.3d 1205, 1218 (5th Cir.
1997) (internal quotation marks and citations omitted). Based on the testimony
presented at sentencing, the district court found that the victim was especially
vulnerable. This finding is plausible in light of the record as a whole and, thus,
is not clearly erroneous. See United States v. Somner, 127 F.3d 405, 406-07 (5th
Cir. 1997); Robinson, 119 F.3d at 1218.
      Brunson further argues that the district court plainly erred in assessing
two points for his 1999 conviction for unauthorized use of a motor vehicle,
resulting in his placement in criminal history category II. The Government
concedes that the district court’s assessment of two criminal history points for
the 1999 conviction was clear and obvious error for purposes of plain error
review but contends that Brunson fails to show that the error affected his
substantial rights.
      As Brunson concedes, plain error review applies because he did not object
to the calculation of his criminal history score in the district court. See United
States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009). To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.



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                                   No. 10-50549

      The district court’s assessment of two criminal history points based on
Brunson’s 1999 unauthorized use of a motor vehicle conviction was clear or
obvious error. See United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.
2006); § 4A1.2(e)(1)–(3); § 4A1.2(k)(2)(B).       Because Brunson’s 360-month
sentence was 33 months above the upper end of the correct advisory guidelines
range, Brunson has demonstrated that his substantial rights were affected and
that the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See United States v. Jones, 596 F.3d 273, 277 (5th Cir.),
cert. denied, 131 S. Ct. 93 (2010); United States v. John, 597 F.3d 263, 285-86
(5th Cir. 2010).
      Accordingly, we vacate Brunson’s sentence and remand for resentencing
in accordance with this opinion.
      SENTENCE VACATED; CASE REMANDED.




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