     Case: 11-50362   Document: 00511931964   Page: 1   Date Filed: 07/24/2012




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

                                                                  FILED
                                                                 July 24, 2012

                                 No. 11-50362                    Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA

                                          Plaintiff - Appellee

v.

EDWARD J. TEUSCHLER,

                                          Defendant - Appellant


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


Before JONES, Chief Judge, and WIENER and GRAVES, Circuit Judges.
EDITH H. JONES, Chief Judge:
        Edward Teuschler (“Teuschler”) pled guilty to distributing child
pornography after he sent pornographic images to an undercover officer posing
as a teenage girl. The district court sentenced him to 180 months imprisonment.
Teuschler appeals the sentence; we VACATE and REMAND for resentencing.
                                I. Background
        Edward Teuschler was caught distributing child pornography to a Texas
sheriff’s lieutenant posing as a fictional 13-year-old female (“Alexis”) in an
internet chat room. They began chatting May 14, 2010, and continued to
correspond though May 19, 2010. During their correspondence, Teuschler
transmitted both adult pornography and nine images of child pornography to
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                                 No. 11-50362

Alexis.   On July 6, 2010, law enforcement executed a warrant search of
Teuschler’s residence. The images Teuschler had sent to Alexis were found on
his computer, along with 277 additional images of child pornography. Teuschler
admitted to investigators that he received and traded child pornography over the
internet. He pled guilty to interstate distribution of child pornography.
      At sentencing, the presentence investigation report (PSR) assigned
Teuschler a base offense level of 22. Four levels were added because the offense
involved sadistic or masochistic conduct or other depictions of violence. Three
levels were added on the basis that the offense involved at least 150 but fewer
than 300 images. Another nine levels were added for reasons irrelevant to this
appeal. The resulting total offense level was 38. Teuschler had no criminal
history points and thus had a category I criminal history. His guidelines
sentencing range was therefore 235 to 293 months, but it became 235 to 240
months because the statutory maximum sentence was 240 months. One of
Teuschler’s objections to the PSR was sustained; of his remaining objections,
only one–regarding the offense level enhancement based on the number of
images possessed–is pertinent to this appeal. After the district court’s rulings
on the PSR, Teuschler’s guidelines range was 168 to 210 months.
      The district court sentenced Teuschler to 180 months, and he timely
appealed, raising three issues: (1) whether the district court erred by enhancing
his sentence based on the number of images involved; (2) whether the Guidelines
for child pornography crimes violate the Equal Protection Clause; and
(3) whether the district court erred by imposing a substantively unreasonable
sentence.
                                II. Discussion


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      We review sentences for reasonableness in light of the sentencing factors
of 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 46, 49-50 (2007). We
first decide whether the district court committed any procedural errors, “such as
failing to calculate (or improperly calculating) the Guidelines range.” Id. If the
sentence   is procedurally sound,       we next     consider   “the substantive
reasonableness of the sentence. Review of substantive reasonableness “merely
asks whether the trial court abused its discretion.” Rita v. United States,
551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). “A district court abuses its
discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence. United States v. Castillo, 430 F.3d 230, 238-39 (5th
Cir. 2005) (internal quotation marks and citation omitted). Whether a district
court misinterpreted the Guidelines and thereby committed an error of law is an
issue we examine de novo. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir.
2000). “The Government bears the burden of proving by a preponderance of the
relevant and reliable evidence that the facts support a sentencing enhancement.”
United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008) (citation omitted).
                                       A.
      Teuschler first objects that there should have been no numerosity
enhancement under § 2G2.2(b)(7)(B) of the Guidelines. He preserved this
objection below. In calculating an offense level, a district court may consider
acts other than the acts underlying the crime of conviction if those other acts
constitute “relevant conduct” as defined by the Guidelines. U.S.S.G. § 1B1.3(a).
Teuschler argues that his possession of additional child pornography images
beyond those nine images sent to Alexis does not qualify as “relevant conduct”
under U.S.S.G. § 1B1.3(a)(1)(A) (conduct occurring in preparation for the offense,


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                                 No. 11-50362

during the offense, or in an attempt to avoid detection) or § 1B1.3(a)(2) (conduct
occurring as part of a “common scheme or plan” or the “same course of conduct”).
      There is no evidence in the record before us that Teuschler’s possession of
the 277 additional images found on his computer occurred in preparation for the
offense, during the offense, or in an attempt to avoid detection. The charged
offense occurred in May 2010 and the search of his computer did not occur until
July 2010, and the government offers no evidence to suggest how many of these
images were obtained in the interim. Thus, the government did not show by a
preponderance of the evidence that Teuschler’s possession of the additional
images was “relevant conduct” under § 1B1.3(a)(1)(A), which speaks to conduct
occurring in preparation for, during, or in an attempt to avoid detection of an
offense.
      The government argues, however, that Teuschler’s possession of these
images was part of a “common scheme or plan” under § 1B1.3(a)(2): Teuschler,
it reasons, had an inventory of images from which he drew to distribute images
to entice young victims, and all the images possessed in that inventory were
relevant conduct to the crime of distribution.
      This theory is foreclosed by our decision in United States v. Fowler,
216 F.3d 459, 461 (5th Cir. 2000).       There, a defendant was convicted of
transporting child pornography after sending images to an undercover agent.
When federal agents arrested him, he was in possession of images portraying
sadistic sexual conduct involving minors. Because Fowler had never sent the
sadistic images–only non-sadistic images–the court held that the possession of
the undistributed sadistic images was not part of a common scheme or plan with
the distribution for which Fowler was convicted. Id. at 461-62.


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                                 No. 11-50362

      Here, there is no evidence that Teuschler had an ongoing scheme to entice
other girls to engage in sexual activity. The government does not cite evidence
that Teuschler attempted to use these images to entice young girls on other
occasions. And unlike in Fowler, there is no evidence in the record that
Teuschler possessed the additional images at the time of his offense of
conviction. See Fowler, 216 F.3d at 462 (citing evidence that images were dated
prior to offense). The government’s theory here mirrors what Fowler rejected:
that all child pornography images possessed by a defendant constitute an
inventory and are thus relevant to the offense of distribution. See id. at 462
(“The dissent would make the possession of any child pornography a part of the
offense of the interstate transportation of child pornography. We do not believe
the guidelines should be construed so broadly.”). Under Fowler, a showing that
possession of images of child pornography is “relevant conduct” to the offense of
distribution requires more than simply showing that both the images distributed
and the images possessed were child pornography. We therefore conclude that
the district court erred in imposing a three-level enhancement for numerosity
of images.
                                       B.
      Teuschler also makes a general attack on the Guidelines governing child
pornography crimes, arguing that they have no rational or empirical basis and
result in unreasonable and irrational results, and they therefore violate the
Equal Protection Clause. He notes that multiple sentencing enhancements can
place child pornography perpetrators in the same sentencing ranges as those
who actually engage in acts of sexual abuse of minors.




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                                 No. 11-50362

      As Teuschler did not raise these arguments in the district court, review is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). Teuschler cannot prevail on plain error review, because he
cannot demonstrate any error at all. This court has expressly rejected the
suggestion that the Guidelines are unreasonable or irrational simply because
they are not based on empirical data, even where this leads to apparent
disparities in sentences. United States v. Miller, 665 F.3d 114, 120-121 (5th Cir.
2011). This attack on the Guidelines has already failed.
      Teuschler also asserts that the district court abused its discretion by
failing sua sponte to impose a “downward departure sentence,” and that its
failure to do so is an abuse of discretion. Because we remand for resentencing,
and the new sentence may differ, we do not consider this issue.
                               III. Conclusion
      Because it was error to impose the three-level enhancement for
numerosity, we VACATE and REMAND for resentencing.




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