     Case: 18-40511      Document: 00514887351         Page: 1    Date Filed: 03/25/2019




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


                                    No. 18-40511                                FILED
                                  Summary Calendar                        March 25, 2019
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRUCE ALLEN RUTHERFORD, also known as Allen Bruce Rutherford,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:17-CR-41-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Bruce Allen Rutherford appeals his guilty plea conviction of possessing
child pornography and the resulting prison sentence of 150 months.
Rutherford first argues that the district court erred in finding at his plea
hearing that he “knowingly” possessed the child pornography. In the district
court, Rutherford did not challenge the factual basis for his plea, so our review
is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009); United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40511     Document: 00514887351      Page: 2   Date Filed: 03/25/2019


                                  No. 18-40511

States v. Barton, 879 F.3d 595, 598 (5th Cir.), cert. denied 139 S. Ct. 167 (2018).
But we do not see any error here. Rutherford signed the following factual basis
that repeatedly admits his knowledge:
      Rutherford knew that the images and videos he possessed depicted
      children engaged in sexually explicit conduct and did constitute
      child pornography. Rutherford also know that he possessed more
      than 600 images and videos of child pornography, including files
      depicting prepubescent minors and sadistic or masochistic abuse.
      Further, Rutherford knew that, through the peer-to-peer file
      sharing program he used, files he possessed were made available
      and distributed to other users.
His colloquy at the plea hearing is not inconsistent with these admissions.
Rutherford’s argument that there was insufficient evidence of this element to
support the plea is frivolous.
      His argument that his sentence violated Apprendi v. New Jersey, 530
U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), is also way
off the mark. The claim rests on the increase in the statutory maximum, from
10 to 20 years, that results when the offense involved “any image” of “a
prepubescent minor or a minor who had not attained 12 years of age.” 18
U.S.C. § 2252A(b)(2). But the district court did not find this element that
increases the statutory maximum as a judicial determination at sentencing,
which is what Alleyne, 570 U.S. at 102-118, and Apprendi, 530 U.S. at 468-96,
address. Rather, the court found the “under 12” element proven at the plea
hearing. Apprendi of course does not prevent a defendant from pleading guilty
to a crime. So like the first argument, this one comes down to whether there
was a factual basis for the court to accept Rutherford’s admission of this
element. And, again, there was more than sufficient evidence to allow the
court to accept that plea given both the factual basis Rutherford signed and his
oral acceptance of the government’s recitation of his offense conduct.




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    Case: 18-40511    Document: 00514887351    Page: 3   Date Filed: 03/25/2019


                                No. 18-40511

     Rutherford’s final argument is a preserved challenge to a sentencing
enhancement for possession of more than 600 images and videos of child
pornography. U.S.S.G. § 2G2.2(b)(7)(D). We see no clear error in application
of that provision.   Rutherford’s agreement with the factual basis and his
statements at the plea hearing are adequate to support the number-of-images
enhancement. See United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016).
     The judgment of the district court is AFFIRMED.




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