     Case: 10-30839     Document: 00511762256         Page: 1     Date Filed: 02/17/2012




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

                                                                            FILED
                                                                         February 17, 2012
                                     No. 10-30839
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERIC JAMES BOUTTE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:09-CR-318-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Eric James Boutte pleaded guilty to production of
child pornography and possession of child pornography. He now appeals the
consecutive sentences imposed of 360 and 120 months of imprisonment.
        The district court applied a four-level enhancement pursuant to U.S.S.G.
§ 2G2.1(b)(4), which had been cross-referenced to compute Boutte’s advisory
range on the possession count, based on its finding that he possessed
pornography that was sadistic. Boutte argues that his possession of violent or

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30839     Document: 00511762256       Page: 2    Date Filed: 02/17/2012

                                    No. 10-30839

sadistic pornography of one child was not relevant conduct to his production of
pornography depicting a different child. Boutte’s objection in the district court
was not sufficiently specific to alert the court to the nature of the error he argues
on appeal. Accordingly, we review for plain error. See United States v. Gonzales,
642 F.3d 504, 505 (5th Cir. 2011), cert. denied, 2011 WL 117598 (Jan. 17, 2012)
(No. 11-6095).
      Plain-error review involves the following four prongs: First, there must be
an error or defect that has not been affirmatively waived by the defendant.
Second, the error must be clear or obvious, i.e., not subject to reasonable dispute.
Third, the error must have affected the defendant’s substantial rights. Fourth,
if the above three prongs are satisfied, we have the discretion to correct the error
only if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal
quotation marks and citation omitted).
      Boutte has not demonstrated, based on United States v. Dickson, 632 F.3d
186, 188-91 (5th Cir.), cert. denied, 131 S. Ct. 2947 (2011), or United States v.
Fowler, 216 F.3d 459, 460-62 (5th Cir. 2000), that the district court clearly or
obviously misapplied the guidelines by applying § 2G2.1(d)(4) based on material
Boutte possessed but did not produce, when § 2G2.1 was cross-referenced
pursuant to § 2G2.2(c)(1).       Boutte’s case is distinguishable from Fowler’s
because, unlike Fowler, Boutte was convicted of possession. Further, in light of
the district court’s reasons for varying upward to achieve the statutory
maximum sentence by imposing Boutte’s sentences to run consecutively, Boutte
has not demonstrated that his substantial rights were affected. See Dickson, 632
F.3d at 191. The judgment of the district court is AFFIRMED.




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