     Case: 18-60216      Document: 00514815379         Page: 1    Date Filed: 01/30/2019




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

                                    No. 18-60216                           FILED
                                  Summary Calendar                  January 30, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

STEVEN DEDUAL, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:17-CR-79-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Steven Dedual, Jr., pleaded guilty to one count of accessing with intent
to view child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was
sentenced to 159 months of imprisonment and 10 years of supervised release.
In addition, he was ordered to pay, inter alia, a $5,000 assessment pursuant to
the Justice for Victims of Trafficking Act (JVTA), 18 U.S.C. § 3014.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60216

        Dedual raises two issues on appeal. He argues that the district court
erred    by   applying    a   five-level   enhancement   pursuant     to   U.S.S.G.
§ 2G2.2(b)(3)(B), which resulted in a procedurally unreasonable sentence. He
also argues that the district court erred by imposing the $5,000 JVTA
assessment.
        We review the district court’s factual findings for clear error and its
interpretation or application of the Guidelines de novo.         United States v.
Halverson, 897 F.3d 645, 651 (5th Cir. 2018).          Under § 2G2.2(b)(3)(B), a
defendant’s base offense level for a child pornography offense is increased by
five levels “[i]f the defendant distributed [child pornography] in exchange for
any valuable consideration, but not for pecuniary gain.” Section 2G2.2(b)(3)(B)
was amended in 2016, and we had not expressly addressed the amendment at
the time of Dedual’s sentencing. However, after Dedual was sentenced, we
addressed the amendment and held that the “new test” under amended
§ 2G2.2(b)(3)(B) “requires a court to find: (1) the defendant agreed to an
exchange with another person, (2) the defendant knowingly distributed child
pornography to that person (3) for the purpose of obtaining something of
valuable consideration, and (4) the valuable consideration came from that
person.” Halverson, 897 F.3d at 652. We also recognized that, under the
amended Guideline, the Government must prove that valuable consideration
came from the person to whom the defendant distributed child pornography.
See id. at 651-52.
        We do not decide whether the district court procedurally erred by
imposing the enhancement, however, because even if there was error, the error
was harmless. Although the district court did not state that it considered
Dedual’s guidelines range without the enhancement, the district court
explicitly stated that even if the guidelines range was improperly calculated or



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                                  No. 18-60216

Dedual’s objection to the enhancement was improperly resolved, it “would
impose the same sentence as a variance or nonguideline sentence based upon
the offense conduct in this case, the characteristics of the defendant and other
[18 U.S.C. §] 3553(a) factors” discussed at sentencing. Under the
circumstances, and in light of the district court’s “clarity of intent” to impose
the same sentence even if a lower guidelines range applied, Halverson, 897
F.3d at 652 (internal quotation marks and citation omitted), any error in
applying the enhancement was harmless.
      As for his challenge to the imposition of the $5,000 JVTA assessment,
Dedual argues that the district court erred by finding that he had the future
capacity to pay the assessment even though he currently is indigent. He also
asserts that he is unlikely to have sufficient income to satisfy his financial
needs after his release.
      Under the provisions of the JVTA, the district court is required to impose
a $5,000 assessment on “any non-indigent person” convicted of, inter alia,
certain child pornography offenses. § 3014(a). Whether a defendant is a “non-
indigent person” under the statute is a factual question reviewed for clear
error; whether the district court applied the correct legal standard in assessing
a defendant’s non-indigence is a question of law that is reviewed de novo.
United States v. Graves, 908 F.3d 137, 139, 140 (5th Cir. 2018).
      As we recently explained in Graves, a district court does not apply the
wrong legal standard in assessing a defendant’s “non-indigence” for purposes
of § 3014 by considering a defendant’s future earning ability. Id. at 141-43.
Thus, the district court did not err by doing so in this case. Nor was the district
court’s factual finding that Dedual was a “non-indigent person” clearly
erroneous in light of the record as a whole. The district court’s finding was
based in part on Dedual’s education and work history, which reflected, inter



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                                  No. 18-60216

alia, that prior to his involvement in the instant offense, Dedual made over
$5,000 per month as a sales manager and was capable of obtaining and
maintaining employment. While we are mindful of the possibility that Dedual
may have difficulty in satisfying all of his financial obligations after he is
released from prison, the district court’s finding that Dedual is a “non-indigent
person” for purposes of the JVTA does not leave us “with the definite and firm
conviction that a mistake has been made.” Graves, 908 F.3d at 144 (internal
quotation marks and citation omitted).
      The judgment of the district court is AFFIRMED. However, we remand
the case to the district court for the limited purpose of correcting the judgment
to reflect the correct statute of conviction. FED. R. CRIM. P. 36. Dedual was
charged with and pleaded guilty to violating § 2252(a)(4)(B), but the judgment
identifies the statute of conviction as § 2252(s)(4)(B).
      AFFIRMED; LIMITED REMAND to correct clerical error in the
judgment.




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