     Case: 09-30032     Document: 00511057699          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010
                                     No. 09-30032
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICKEY J COMEAUX, SR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:07-CR-60045-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Rickey J. Comeaux, Sr., made a pornographic video tape of his foster
daughter using a camera he had hidden in her bathroom. He pleaded guilty to
a single count of producing child pornography. On appeal, Comeaux challenges
his 240-month sentence, which is 30 months above the high end of the guidelines
range. Comeaux asserts that his sentence is procedurally unreasonable because,
he says, the district court failed to provide sufficient reasons to support it at the
sentencing hearing. He also argues that the court’s written statement of reasons

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30032

did not detail any justifications for imposing an above-guidelines sentence as
18 U.S.C. § 3553(c)(2) requires.     Comeaux also argues that his sentence is
unreasonably high, contending that the district court failed to take into account
mitigating factors—his lack of education, his health, his assertion that he was
sexually abused as a child, and his expression of remorse.
      In determining whether the district court arrived at an appropriate
sentence, we first decide whether the district court committed any procedural
errors, including whether it failed to adequately explain the sentence and its
reasons for imposing a sentence outside of the guidelines range. Gall v. United
States, 552 U.S. 38, 51 (2007). If the district court’s decision is procedurally
sound, we then determine whether the sentence is substantively reasonable. Id.
      After the district court imposed the sentence, defense counsel raised a
general objection, which was insufficient to preserve for review arguments that
the court inadequately explained the sentence and that the district court failed
to comply with § 3553(c)(2); thus, we review these issues only for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,
130 S. Ct. 192 (2009).
      An examination of the entire sentencing transcript reveals that the court
did not plainly err because it sufficiently articulated its reasons for imposing the
240-month sentence. The judge asked Comeaux a series of pointed questions
about his conduct and his relationship with the victim, and in response Comeaux
admitted that the victim was his foster daughter, that in addition to video taping
her in the bathroom he had photographed her breasts and his penis while she
slept, that his son had found the video tape, and that he had pleaded guilty to
a charge of battery involving the same victim.          The court characterized
Comeaux’s behavior as “reprehensible” and reiterated several times that the
Guidelines did not adequately take into account the seriousness of the offense.
The court concluded that Comeaux was capable of committing the same crime
again. It also explained that a longer sentence was necessary to protect the

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                                 No. 09-30032

public, to deter Comeaux, and to provide him with educational training and
extensive psychological treatment.
      Furthermore, any error in the written statement of reasons did not affect
Comeaux’s substantial rights. Cf. Mondragon-Santiago, 564 F.3d at 364-65
(defendant failed to show that failure to give reasons impeded appellate review
or affected substantial rights).      The remedy for an inadequate written
explanation of a sentence is a remand for correction of the written judgment, not
resentencing. See United States v. Zuniga-Peralta, 442 F.3d 345, 349 n.3 (5th
Cir. 2006). Furthermore, the district court’s adequate oral articulation of the
reasons for the sentence served the aims § 3553(c)(2)—to ensure that the parties
understand the rationale for the sentence, to assist us in our review of the
sentence, and to assist the Sentencing Commission’s effort to collect sentencing
data. See id. at 348.
      It is unclear whether Comeaux’s objection at sentencing preserved his
substantive-reasonableness argument. See United States v. Dunigan, 555 F.3d
501, 506 (5th Cir.), cert. denied, 129 S. Ct. 2450 (2009). Regardless of the
standard of review, however, Comeaux’s argument fails. The district court’s
explanation was sufficient to justify a sentence 30 months greater than the top
end of the guidelines range. The record reflects that the district court reviewed
Comeaux’s sentencing memorandum, listened to his attorney’s arguments at
sentencing, and consulted the § 3553(a) factors.       Furthermore, the court’s
questions to Comeaux reflected an understanding of Comeaux’s background and
the nature of his offense. After explaining the reasons for the sentence, the court
concluded that a within-guidelines sentence was inappropriate given “the
severity of this particular crime committed by this particular defendant.” The
district court made the required individualized assessment and was free to
conclude, as it did, that in Comeaux’s case the guidelines range gave insufficient
weight to some of the sentencing factors, including the nature and circumstances
of the offense, the need for deterrence, and the need to protect the public.

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Mondragon-Santiago, 564 F.3d at 360; United States v. Williams, 517 F.3d 801,
809 (5th Cir. 2008); see § 3553(a). Furthermore, though Comeaux lists a set of
factors he contends the court did not consider, he presents no convincing
argument that any of these is substantial enough that it should have been
weighted more heavily. See United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006).
      The district court’s judgment is AFFIRMED.




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