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

                                                 FILED
                                                                           March 30, 2009

                                       No. 07-41249                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

PEDRO CALDERON, III,

                                                   Defendant – Appellant.




                   Appeal from the United States District Court
               for the Southern District of Texas, McAllen Division
                           USDC No. 7:06-cr-00233-ALL


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit judges.
PER CURIAM:*
       Defendant-Appellant Pedro Calderon, III engaged in lurid conversation
with an undercover police investigator in an Internet chat room titled “preteen
567891011,” and sent the investigator an image of child pornography depicting
a child of at least twelve years of age.           Police later found additional child
pornography on Calderon’s home computer. Calderon pleaded guilty to child
pornography possession. During his plea colloquy, Calderon verified the truth
of a government statement of facts, to the effect that his computer contained

       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                  No. 07-41249

“over ten images of young children engaged in sexually explicit conduct,”
including “children under 12 years of age.” At sentencing, however, Calderon
argued that the government only proved he “possessed” the single image sent to
the investigator, because police had located the others only in the computer’s
difficult-to-access “cache” memory, where the computer had saved them as part
of its automatic background processes.         Calderon therefore objected to
enhancements, of two levels each, for possessing 10–149 images of child
pornography, U.S.S.G. § 2G2.2(b)(7)(A), and possessing an image of child
pornography depicting a child under age twelve, U.S.S.G. § 2G2.2(b)(2). The
district court applied both enhancements.        Calderon received a 46 month
sentence, which he now appeals. We affirm.
      This court reviews the district court’s interpretation and application of the
sentencing guidelines de novo, and applies clear error review to findings of fact
made in connection with sentencing. United States v. Smith, 440 F.3d 704, 706
(5th Cir. 2006). Calderon does not dispute that the district court’s decisions to
apply upward adjustments under U.S.S.G. § 2G2.2 are subject to clear error
review. A factual finding is not clearly erroneous unless the court has a definite
and firm conviction that a mistake was made. Anderson v. Bessemer City, 470
U.S. 564, 573 (1985). A finding cannot be clearly erroneous if it is “plausible in
light of the record viewed in its entirety” or constitutes one of multiple
“permissible views of the evidence.” Id. at 574. A district court makes factual
findings at sentencing based on a preponderance of the evidence standard. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      Calderon argues that the government did not show by a preponderance of
the evidence that he possessed ten or more images of child pornography, or that
he possessed an image of a child under twelve. He argues that the images found
on his computer appeared in cache memory, which he claims he did not know
how to directly access. He analogizes his case to United States v. Kuchinski, 469

                                        2
                                  No. 07-41249

F.3d 853 (9th Cir. 2006), where the Ninth Circuit held that evidence of child
pornography images in a type of cache memory was inadequate to prove the
defendant individually possessed those images. We need not decide whether we
agree with the statutory interpretation in Kuchinski, or whether the cache
memory and other technical facts discussed in that case are analogous to this
one, because there is ample evidence in this record to support the district court’s
determination that Calderon possessed the requisite images. This includes the
statement of facts Calderon verified during the plea colloquy, evidence that
Calderon has a long-term history with child pornography, Calderon’s activity
procuring child pornography in the “preteen” chat room, and Calderon’s lack of
alternate explanations for the presence of the images found on his computer.
      During the plea colloquy, Calderon personally verified under oath that the
government’s statement of facts was true and correct, except as to one
ambiguous phrase to which his counsel objected. The statement of facts, with
the objected-to language omitted by ellipses, was as follows:
      On July 12th, 2005, in the Southern District of Texas, the
      Defendant knowingly and intentionally possessed a material,
      namely a computer hard drive which contained an image of child
      pornography that had been mailed, shipped and transported in
      interstate and foreign commerce by any means, including by
      computer. During an undercover sting operation based out of
      Dallas, Texas, the Defendant entered into a chat room and
      corresponded with an undercover officer. The conversation turned
      sexual in nature involving children.             Various Internet
      correspondence took place between the undercover officer and the
      Defendant with the Defendant sending a picture of an unknown
      naked child to the undercover officer. By obtaining information
      from [America Online], via Grand Jury subpoena, the undercover
      officer was able to determine the Defendant’s address, which resided
      [sic] in Mission, Texas. A search warrant was obtained and
      executed for the Defendant’s residence in Mission, Texas. Forensics
      examination of the computer . . . seized revealed over ten images of




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                                       No. 07-41249

       young children engaged in sexually explicit conduct.1 The images
       included children under 12 years of age. There are known victims
       in the images. Post-Miranda, the Defendant admitted that he
       possessed ten to 20 images of naked, young girls on his computer.
       The use of the Internet through phone lines affected foreign and
       interstate commerce.


       In summary, the verified statement of facts establishes that (1) Calderon
is guilty of possessing child pornography, (2) forensic examination of Calderon’s
computer “revealed over ten images of young children engaged in sexually
explicit conduct . . . includ[ing] children under 12 years of age” and (3)
“Post-Miranda, the Defendant admitted that he possessed ten to 20 images of
naked, young girls on his computer.” These admissions are adequate to show
that Calderon knowingly possessed ten or more images of child pornography.
Calderon quibbles that his admission to possessing images of naked young girls
“does not constitute an acknowledgment that the images were of child
pornography,” because according to a dictionary, “girl” can mean, e.g., “a single
or married woman of any age.” This argument ignores both the modifier “young”
and the context of the statement in a plea admitting guilt to the possession of
child pornography.
       The verified statement of facts also provides evidence to support the
conclusion that Calderon knowingly possessed an image of a child under twelve.
The most straightforward interpretation of the statement of facts is that the “ten
to 20” images Calderon admits he possessed are the same as the “over ten
images of young children . . . includ[ing] children under 12 years of age”
discussed two sentences earlier. In any case, this is a plausible interpretation.


       1
         The complete sentence read: “Forensics examination of the computer and computer
disks seized revealed over ten images of young children engaged in sexually explicit conduct.”
Calderon’s objected to the phrase “and computer disks” because it could suggest removable or
external disks as opposed to the internal hard drive of the computer. The images at issue were
found on the hard drive.

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                                       No. 07-41249

       Further evidence supports the district court’s conclusions. Calderon told
police he had a long history with child pornography, and more specifically that
he exchanged images by e-mail on his computer. As to the image of a young
child, Calderon was caught exchanging child pornography in a “preteen” chat
room. He has not claimed that any image found on his computer got there by a
means other than Calderon himself putting it there.2 The forensic evidence of
cache memory contents merely complements all this evidence. Altogether it is
“plausible in light of the record viewed in its entirety” that Calderon knowingly
possessed more than ten child pornography images, including at least one of a
child under twelve. 3
       Accordingly, the district court did not err at sentencing. The sentence is
AFFIRMED.




       2
         Calderon does argue that the government failed to rule out other possible
explanations for the existence of child pornography in his computer’s cache memory, but he
cannot prevail on a sentencing appeal by putting the government to its proof. He pled guilty
and admitted the key facts informing his sentence. The sentence stands unless Calderon
shows that the district court’s findings were clearly erroneous.
       3
          All of this evidence supports the district court’s ultimate finding that Calderon
possessed more than ten images, including an image of a child under twelve. In addition, the
district court acknowledged and relied on many of these specific facts, as well as others, in
reaching its rulings. It placed particular emphasis on Calderon’s admissions under oath in the
statement of facts, the “prurient interest” evident in Calderon’s on-line conversation with the
undercover officer, and the existence, apart from the local police sting that led to this
conviction, of FBI investigations identifying Calderon as a recipient of other, similar images.
The district court’s findings on subsidiary facts are of course entitled to the same deferential
review we apply to the ultimate rulings.

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