     Case: 12-40072       Document: 00512215708         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013
                                     No. 12-40072
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SCOTT ANTHONY SULLIVAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:05-CR-792-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Scott Anthony Sullivan appeals his conviction and sentence for deprivation
of rights under color of law where the offense included aggravated sexual abuse.
Sullivan argues that the district court’s jury instructions and verdict form
lessened the Government’s burden of proof. Specifically, Sullivan challenges the
district court’s use of the Texas sexual assault definition and argues that the
court should have used the federal definition of sexual abuse as set forth in 18
U.S.C. § 2242. Additionally, he contends that the court erred in first asking the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40072     Document: 00512215708      Page: 2    Date Filed: 04/22/2013

                                  No. 12-40072

jury to determine whether Sullivan was guilty of deprivation of rights under
color of law before they decided the aggravated offenses of aggravated sexual
abuse and bodily injury.
      Defense counsel voiced objections to the jury instructions, but only on
grounds that the instructions regarding bodily injury and aggravated sexual
abuse be deleted. He did not object to the district court’s use of the Texas
definition of sexual assault, the issue he now raises on appeal. However, the
record does not support a finding that counsel knew of an error and deliberately
chose to ignore it. See United States v. Dodson, 288 F.3d 153, 160 (5th Cir.
2002). Thus, our review is limited to plain error. United States v. Arviso-Mata,
442 F.3d 382, 384 (5th Cir. 2006); United States v. Redd, 355 F.3d 866, 874-75
(5th Cir. 2003).
      To prevail on plain-error review, Sullivan must show a forfeited error that
is clear or obvious and affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If such a showing is made, we have the
discretion to correct the error but only if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” See id. (internal quotation
marks, citation, and brackets omitted).
      In essence, Sullivan’s argument is that the Government was required to
prove beyond a reasonable doubt that he committed the federal offense of sexual
abuse in order to find that he deprived R.S. of her right to bodily integrity.
There is no support for this argument. The sexual assault alleged in the
indictment is the means by which Sullivan deprived R.S. of her right to bodily
integrity; it is not a separately alleged offense. Because of the lack of authority
in support of his argument, Sullivan cannot show a clear or obvious error by the
trial court. See United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir.
2009).
      Further, Sullivan cannot show an adverse effect on his substantial rights
to justify a reversal of his conviction. See Puckett, 556 U.S. at 135. The jury was

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                                  No. 12-40072

instructed on the elements of the federal offense of aggravated sexual abuse as
set forth in 18 U.S.C. § 2241 and found Sullivan guilty beyond a reasonable
doubt of committing aggravated sexual abuse.           A finding that Sullivan
committed the offense of aggravated sexual abuse is enough to establish that he
deprived R.S. of her right to bodily integrity. Therefore, Sullivan cannot show
that the alleged error “affected the outcome of the district court proceedings.”
See id. (internal quotation marks and citation omitted).
      Regarding the verdict form, counsel objected but only on the ground that
the jury should consider the offense of bodily injury before considering the
charge of aggravated sexual abuse. Again, review is for plain error. See Puckett,
556 U.S. at 135; Arviso-Mata, 442 F.3d at 384.
      Section 242 creates a general offense and two distinct aggravated offenses
which increase the statutory penalty. See United States v. Williams, 343 F.3d
423, 432-34 & n.7 (5th Cir. 2003). To find Sullivan guilty of the aggravated
charges, the jury necessarily had to find him guilty of the elements of depriving
R.S. of her constitutional rights, as these are the three basic elements of any
section 242 offense. See id. at 431-32. The additional element in the greatest
offense is the aggravating factor of aggravated sexual abuse. Id. at 433-34. To
instruct the jury on the aggravated offenses requires instructions as to all the
elements of the basic offense and that the offense involved aggravated sexual
abuse. Id.
      However, even if the verdict form was erroneously structured and the
error was clear or obvious, Sullivan cannot show that the error affected his
substantial rights. See Puckett, 556 U.S. at 135. The jury reached a unanimous
decision on all charges and there is no indication that the result would have been
different had the jury considered only the aggravated offenses first.
      Accordingly, the judgment of the district court is AFFIRMED.




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