                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 00-20178
                            _____________________



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                    versus

JONATHAN M. TAMPICO

                                             Defendant-Appellant.
_________________________________________________________________

          Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 4:98-CR-485-1
_________________________________________________________________
                           July 6, 2001

Before HILL,* JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:**

     Jonathan Tampico appeals his conviction and sentence for the

possession, receipt and distribution of child pornography, in

violation of 18 U.S.C. § 2252-2252A.           Because the statute under

which     Tampico    was    convicted   was   constitutional,    there    was

sufficient evidence to convict him, and there was no error in the

sentence, we AFFIRM Tampico’s conviction and sentence.

     *
      Circuit       Judge    of   the   Eleventh   Circuit,     sitting    by
designation.
     **
      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this opinion should not be published and is not precedent except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.
                                 I

     In 1989, approximately ten years before the conviction at

issue here, Jonathan M. Tampico was convicted of sexually molesting

a boy under the age of 14 years, and was sentenced to six years in

prison in California. He was released in October 1992 on the

condition that he not possess child pornography.   Tampico’s parole

was revoked on September 12, 1995, after police discovered a large

volume of child pornography at his residence.      He was released

again on February 23, 1996, when California authorities discovered

he had discharged his parole.    Although the California district

attorney’s office intended to file state charges for the possession

of child pornography, Tampico left California and moved to Texas,

without informing either the California or Texas authorities of his

new address.   A television broadcast of “America’s Most Wanted” on

July 11, 1998, led to his arrest in Texas.

     After Tampico’s arrest, authorities seized a large volume   of

child pornography from Tampico’s residence and storage shed, much

of which Tampico had brought from California by U-Haul.   Both the

individual with whom Tampico was living, Jerome Ciolio, and another

individual who had obtained child pornography from Tampico, Donald

Sandberg, gave statements implicating Tampico in offenses relating

to child pornography.

     On December 9, 1998, Tampico was indicted for violations of

the federal statute prohibiting child pornography and the sexual



                                 2
exploitation of children.              18 U.S.C. § 2252-2252A.       Specifically,

Counts One through Four of the indictment charged Tampico with,

respectively, possession, receipt, distribution, and reproduction

of child pornography involving the sexual exploitation of minors.

Count Five dealt with the forfeiture of Tampico’s property.

       A     bench      trial   on     stipulated    facts   was    conducted    on

September 17, 1999. Tampico admitted to possession of the evidence

seized by the government, stated that Sandberg had obtained certain

photographs from Tampico’s computer, and stipulated that the videos

and photographs had been transported in interstate commerce.                    The

government also submitted evidence, through the testimony of an FBI

agent, that Sandberg and Ciolino had told the FBI that Tampico had

transported       a     great   deal   of   the   same   child   pornography    from

California.       Sandberg told the FBI that he was computer illiterate

and that Tampico had printed the computer images off his computer

for Sandberg.            After examining the photographs, a government

expert, Dr. Sheila Lahoti, determined, through Tanner analysis,

that the children appeared to be between the ages of nine and

eighteen years.          The district court found Tampico guilty of Counts

One,       Two,   and    Three,      that   is,   possessing,      receiving,   and

distributing child pornography.              It found him not guilty of Count

Four, reproducing child pornography.

       Tampico submitted over sixty objections to the Presentence

Investigation Report (“PSR”). The district court addressed each of

these objections, some of which the court sustained, during the

                                            3
sentencing hearing on February 14, 2000.            The district court then

sentenced Tampico to 60 months on Count One, and 360 months each

for Counts Two and Three, to run concurrently.                 The 360-month

sentence represented an upward departure, based on the general

policy statement of U.S. Sentencing Guideline § 5K2.0, from the

Sentencing Guideline range of 210 to 262 months of confinement.

The district court gave a number of reasons for granting the upward

departure, including: Tampico’s departure from California without

notifying the authorities within days of his release from prison

for sexually       assaulting   a   minor;   the    sheer   volume    of   images

involved; Tampico’s continued exploitation of certain victims, even

after incarceration; his involvement in the North American Man Boy

Love       Association   (“NAMBLA”);   and    his    extensive       history   of

exploiting children.

                                       II

       Tampico now appeals both his conviction and his sentence.               He

challenges the constitutionality of 18 U.S.C. § 2256(8), the

sufficiency of the evidence for his conviction on the distribution

count, the district court’s upward departure on his sentence, and

the district court’s admission of the Presentence Investigation

Report (“PSR”) as evidence during the sentencing hearing.1

       1
      For the purpose of Supreme Court review, Tampico also
contends that the district court erred in enhancing his sentence
under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to
sexual abuse, because the prior conviction was not alleged in the
indictment. Tampico claims that this is unconstitutional after the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,

                                       4
                                        A

     Tampico    first      contends     that   the    definition     of    child

pornography    under the Child Pornography Prevention Act, 18 U.S.C.

§ 2252A, is vague and overbroad, and prohibits protected speech in

contravention   of   the    First     Amendment.     Section    2256(8),   which

provides the definition of child pornography for all of the counts

against Tampico, defines child pornography as:

     any visual depiction, including any photograph, film, picture,
     or computer generated image or picture, whether made or
     produced by electronic, mechanical, or other means, of
     sexually explicit conduct where –
     (A) the production of such visual depiction involved the use
          of a minor engaging in sexually explicit conduct;
     (B) such visual depiction is, or appears to be, of a minor
          engaging in sexually explicit conduct;
     (C) such visual depiction has been created, adapted, or
          modified to appear that an identifiable minor is engaging
          in sexually explicit conduct; or
     (D) such visual depiction is advertised, promoted, presented,
          described, or distributed in such a manner that conveys
          the impression that the material is or contains a visual
          depiction of a minor engaging in sexually explicit
          conduct.

19 U.S.C. § 2256(8)(emphasis added).           Tampico’s challenge focuses

on the “appears to be” language in the statute.                He contends that

non-obscene, sexually explicit images that merely appear to depict

minors are protected speech under the First Amendment.

     Tampico’s First Amendment challenge to § 2252A is foreclosed

by our recent decision in United States v. Fox, 248 F.3d 394 (5th


120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing
factors must be proved beyond a reasonable doubt.           Tampico
recognizes, however, that this issue is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

                                        5
Cir. 2001), which upheld the constitutionality of the “appears to

be” language.        In Fox, we found that § 2252A survived strict

scrutiny       because   of    the    government’s      compelling    interest   in

“shielding all children from sexual exploitation resulting from

child pornography.”           Id. at 402 (quoting United States v. Mento,

231 F.3d 912, 920(4th Cir. 2000)).              We also found that the statute

was neither overbroad nor void for vagueness. Fox, 248 F.3d at 404-

07.     Thus, we reject Tampico’s constitutional challenge to the

statute.

                                          B

      Tampico next claims that the evidence was insufficient to

prove    him    guilty   of    Count    Three,    the    distribution    of   child

pornography under 18 U.S.C. § 2252(a)(2).                In reviewing challenges

to the sufficiency of the evidence, we generally hold the evidence

sufficient if a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.                    United

States v.       Resio-Trejo,     45    F.3d    907,   910-11   (5th   Cir.    1995).

Because Tampico failed to make and renew a motion for a judgment of

acquittal, however, our review is limited to plain error review.

United States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994).                    Under

this standard, the conviction can be reversed only if there was a

“manifest miscarriage of justice,” such as a complete lack of

evidence to support the verdict, or such tenuous evidence that the

conviction itself was shocking.               United States v. Villasenor, 236

F.3d 220, 222 (5th Cir. 2001) (citations omitted).

                                          6
       Tampico contends that the evidence was insufficient to convict

him    of   distribution    of    child       pornography     because      the    court

acquitted him of reproduction of child pornography. He argues that

the government only offered evidence that Tampico distributed child

pornography to Sandberg, by printing pictures off the computer.

Tampico claims that a verdict that he did not reproduce the

photographs is therefore inconsistent with a verdict that he

distributed these photographs to Sandberg, because the reproduction

of    the   photographs    off   the   computer      was     necessary      for    their

distribution.       He    also   claims       that   while    a   jury     may    render

inconsistent verdicts, a court in a bench trial may not.

       The claim on which Tampico was acquitted, however, was for

“knowingly reproduc[ing] any child pornography for distribution

through the mails, and in interstate and foreign commerce by any

means, including by computer.”            18 U.S.C. § 2252(a)(3).                Because

the reproduction claim required the government to show that Tampico

reproduced child pornography for “distribution through the mails,

or in interstate and foreign commerce by any means, including by

computer,” an acquittal on the reproduction claim does not mandate

the inference that Tampico did not reproduce child pornography.

Tampico’s      conviction    on    the        distribution        charge     under    §

2252A(a)(2), on the other hand, did not require proof of an intent

to distribute through the mails or in interstate commerce; it

required proof that Tampico distributed materials containing child

pornography that had “been mailed, shipped, and transported in

                                          7
interstate    and    foreign    commerce        by   any    means,   including    by

computer.”        18 U.S.C. § 2252A(a)(2)(a),(b).                 Thus, Tampico’s

acquittal on the charge of reproducing child pornography did not

automatically require acquittal on the charge of distributing child

pornography.        The court reasonably could have found that Tampico

reproduced child pornography to distribute, not in interstate

commerce, but to Sandberg, who lived next door.                       The act of

distributing the child pornography (which had been in interstate

commerce)    to     Sandberg    could      then      form   the   basis   for    the

distribution charge.

     Because there is evidence that Tampico knowingly distributed

child pornography to Sandberg, and there was evidence that the

child    pornography    had    been   in       interstate   commerce,     Tampico’s

conviction is not a manifest miscarriage of justice.                 The evidence

is sufficient to support the district court’s verdict on Count

Three.

                                           C

     Tampico next contends that the district court abused its

discretion by departing upward on Tampico’s sentence for Counts Two

and Three to 360 months from the sentence guideline of 210 to 262

months.     Tampico contends that the district erred by considering

(1) evidence on the quantity of pornographic materials when the

exact quantity was unclear, (2) factors that had already been taken

into account under the guidelines, and (3) Tampico’s membership in

NAMBLA.    He also argues that the district court failed to give him

                                           8
notice that it was planning to consider certain facts as grounds

for upward departure.

      We review the district court’s upward departure from the

sentencing guidelines for abuse of discretion.              United States v.

Route, 104 F.3d 59, 64 (5th Cir. 1997).                 “[W]e will affirm an

upward departure if (1) the court gives acceptable reasons for

departing, and (2) the extent of the departure is reasonable.” Id.

Upward departure is justified when the case is atypical, and does

not fall into the “heartland” of cases embodied by the sentencing

guidelines.     United States v. Winters, 174 F.3d 478, 482 (5th Cir.

1999). More specifically, the sentencing court may depart from the

guidelines if it finds an aggravating circumstance not adequately

taken into account by the guidelines, or if unusual circumstances

render the guideline level insufficient. Id. The district court’s

determination is entitled to substantial deference because of the

district court’s particular competence to determine whether a case

is ordinary or unusual compared to the vast majority of cases.             Id.

      If the district court departs from the Sentencing Guidelines

for   reasons   not   included   in   the    PSR   or    other   presentencing

submissions, it must give the parties notice and specifically

identify the grounds for an upward departure.               United States v.

Nevels, 160 F.3d 226, 231 (5th Cir. 1998).          Because Tampico did not

object to the lack of notice in the district court, his allegations

of lack of notice are reviewed for plain error.            See   Fed. R. Crim.

P. 52(b); Nevels, 160 F.3d at 231.          Even assuming plain error, the

                                      9
sentence merits reversal only if the error affects the substantial

right of the defendant or seriously affects the fairness of the

proceeding.       United States v. McDowell, 109 F.3d 214, 216 (5th Cir.

1997).    The defendant has the burden of proving that the error was

prejudicial.       Nevels, 160 F.3d at 231.

      In justifying its upward departure, the district court noted:

first, that the sentencing guidelines did not adequately take into

account     the   volume   of   pornographic   images;   second,   that   the

defendant had sexually molested children other than the victim that

led to Tampico’s first conviction;          third, that Tampico had used

the   Big     Brothers     program   to    target   children   for   sexual

exploitation, and had therefore smudged the reputation of the Big

Brothers program; fourth, that Tampico associated with NAMBLA, a

group known to promote adult/child sexual relations, including the

support of a foster home in Thailand for the sexual exploitation of

children; and fifth, that the defendant’s criminal history category

was underrepresentative of the seriousness of his conduct and the

likelihood of recidivism, as he failed to notify officials of his

change of address when he moved to Texas.

                                      1

      Tampico first argues that the volume of pornographic material

is not an appropriate ground for departure, because the district

court did not actually know what volume of child pornography

Tampico had in his possession.        Tampico points to the fact that the

district court sustained an objection to information in the PSR

                                      10
that deemed all of the visual depictions as child pornography, but

overruled Tampico’s objection to a paragraph in the PSR which

described the amount of child pornography seized in California,

even though that amount included as child pornography images that

the other ruling suggested were not pornographic.                 Even if the

district court could not determine the exact volume of child

pornography,   however,   Tampico       was    clearly   in   possession   of

significant amounts of child pornography. The government’s exhibit

list contained over 300 pages of details concerning materials

recovered from Tampico.      Tampico rented a U-Haul to move the

materials from California to Texas.           Because there was significant

evidence for the district court to rely on in considering the

volume of pornographic materials, the court did not abuse its

discretion in considering the volume of materials in granting the

upward departure.

                                    2

     Tampico next contends that the district court should not have

considered the sexual abuse of other children because a five level

increase had already been imposed under U.S. Sentencing Guideline

§ 2G2.2(b)(4) for a pattern of activity involving the sexual abuse

or exploitation of a minor.         Tampico refers to the commentary

definition of pattern of activity to show that multiple minors and

instances may be included in an increase under the Guideline.2

     2
      Pattern of activity involving                the   sexual    abuse   or
exploitation of a minor is defined as

                                    11
U.S.S.G. § 2G2.2, cmt. n.1.             The commentary to the guidelines,

however, also notes that “an upward departure may be warranted if

the defendant received an enhancement under subsection (b)(4) but

that enhancement does not adequately reflect the seriousness of the

sexual abuse or exploitation involved.”                 U.S.S.G. § 2G2.2, cmt.

n.2.     Tampico was convicted in California for sexual abuse of a

minor.     The individual that Tampico had been living with, Jerome

Ciolino, told the authorities that he had been abused by Tampico as

a   minor.      In   addition,    the    PSR    contained     a   report   by    the

authorities that one of Tampico’s victims alleged that Tampico had

sexually assaulted children who were part of the Big Brothers

program.       Furthermore,      the    PSR    included   information      on    the

California case, which had initially                involved six boys.           The

additional charges were dropped when Tampico agreed to plead

guilty.      The evidence also included pictures of Thai boys sitting

on Tampico’s lap, and information that members of NAMBLA were

arrested in Thailand for sexual abuse related to a foster home for

boys developed for sexual exploitation.                 Given this evidence of

numerous     instances   of   sexual     abuse,    it   was   not   an   abuse    of

discretion for the district court to consider the sexual abuse of



     any combination of two or more separate instances of the
     sexual abuse or sexual exploitation of a minor by the
     defendant, whether or not the abuse or exploitation (A)
     occurred during the course of the offense; (B) involved
     the same or different victims; or (C) resulted in a
     conviction for such conduct.
U.S.S.G. § 2G2.2, cmt. n.1.

                                         12
other children in granting the upward departure.

                                  3

       Tampico also contends that the district court should not have

considered his membership in NAMBLA during sentencing.      Tampico

claims that using membership in NAMBLA as a reason for upward

departure violated Tampico’s rights to free speech and association.

He also argues that the PSR indicated that NAMBLA’s purpose is to

advocate abolition of the age of consent laws, not to promote

adult/child sexual relations.

       Although “the Constitution does not erect a per se barrier to

the admission of evidence concerning one’s beliefs and associations

at sentencing simply because those beliefs and associations are

protected by the First Amendment,” such evidence should not be

admitted indiscriminately.    Dawson v. Delaware, 503 U.S. 159, 164

(1992).     To be admissible at sentencing, evidence concerning

associations must be sufficiently related to the issues involved.

Boyle v. Johnson, 93 F.3d 180, 183-84 (5th Cir. 1996).          For

instance, in Dawson, the Supreme Court remarked that evidence of

membership in a racist group would be relevant if elements of

racial hatred were involved in the murder.      Dawson, 503 U.S. at

166.    See also Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir.

1997); Boyle, 93 F.3d at 183-85;.

       By arguing that NAMBLA’s purpose is only to advocate the

abolition of age of consent laws, Tampico is essentially claiming

that his membership in NAMBLA is not related to his possession and

                                 13
distribution of child pornography or to his history of sexual

exploitation    of    children.     Some      of   the   NAMBLA     literature    in

Tampico’s   possession,       however,       specifically       advocated    Man/Boy

sexual relationships.         Even the name NAMBLA, that is, the North

American Man Boy Love Association, suggests relationships between

adults and children.         Because Tampico’s membership in NAMBLA may

indicate the increased likelihood of recidivism or a lack of

recognition of the gravity of the wrong, Tampico’s association with

NAMBLA is relevant to his intentions and his conduct.                       The fact

that Tampico is within his First Amendment rights in belonging to

NAMBLA   does   not    bar    consideration        of    this    evidence     during

sentencing.

                                         4

     Lastly, Tampico contends that he had no notice of the district

court’s intent to depart upward based on his sexual abuse of other

children or his involvement in the Big Brothers program, and that

departing California without informing local authorities was not a

ground for departure included in the PSR.                       As noted earlier,

Tampico did not object to the lack of notice in the district court,

and we therefore review his contentions for plain error. Tampico’s

sentence merits remand only if Tampico demonstrates that a clear

error affected his substantial rights or seriously affected the

fairness of the proceeding.

     Although neither his sexual exploitation of other children nor

his involvement in the Big Brothers program were given as potential

                                     14
grounds for upward departure in the PSR, Tampico does not describe

how notice would have affected the sentencing proceedings. Tampico

claims he had no opportunity to respond to the allegation that he

sullied the reputation of the Big Brothers program, but he does not

explain how he would have responded.         He challenges the court’s

finding that he “molested numerous children” by noting that “based

on the information presented to the district court, two or possibly

three children were involved.”           The information in the record

described above (the pictures of Thai boys sitting on Tampico’s

lap, the dropped charges of sexual abuse against six other boys,

the testimony of one of Tampico’s victims that Tampico had abused

boys in   the   Big   Brother   program),   clearly   indicate   that   the

district court would have departed upward even if Tampico had been

given notice that these facts were going to be considered in an

upward departure.     Because Tampico has not carried his burden of

showing that the lack of notice prejudiced him, we cannot find that

the district court abused its discretion in considering these

factors in its decision to depart upward.

     Tampico also contends that the fact that he failed to notify

officials of his change of address was not a ground suggested in

the PSR for an upward departure, and thus should not have been

considered in departing upward. The PSR recommended that Tampico’s

deliberate attempts to avoid arrest3 be used as a ground for upward

     3
     These attempts including “changing his appearance, living in
a residence obtained in another person’s name, and renting a

                                    15
departure. The district court found that “the defendant’s criminal

history category is underrepresentative of the seriousness of his

conduct and the likelihood that he would commit future crimes as he

failed to notify officials of his change of residence which was

required based on his conviction as a sex offender.”     Tampico does

not seem to have broken the law by failing to notify officials of

his change of residence. Given the evidence supporting the court’s

determination   that     the   criminal    history     category   was

underrepresentative, however, we cannot find the district court’s

consideration of this factor prejudicial.

     In sum, considering all of these facts together, the district

court did not abuse its discretion in granting an upward departure

of approximately three offense levels.    The volume of pornographic

images, the sexual molestation of numerous children, Tampico’s

membership in NAMBLA, and his smudging the reputation of the Big

Brothers program take this case outside the heartland of ordinary

cases.   Viewing the record as a whole, we cannot say that the

district court’s departure was unreasonable.         Thus, we find no

reversible error in the district court’s upward departure from the

sentencing guidelines.

                                 D

     Finally, Tampico claims the district court erred by accepting

as evidence the portions of the PSR to which Tampico objected.     He



storage shed using a false name.”

                                 16
contends that, for the portions of the PSR to which he objected,

the government should either have been required to introduce

evidence to support those facts, or the court should not have

considered those facts in enhancing Tampico’s sentence.

     Generally, “a PSR bears sufficient indicia of reliability,

such that a sentencing judge may consider it as evidence in making

the factual determinations required by the Sentencing Guidelines.”

United States v. Huerta, 182 F.3d 361, 364                       (5th Cir. 1999).

Although Rule       32   of    the   Federal       Rules   of   Criminal   Procedure

requires the court to resolve disputed issues of fact before

sentencing, the court can adopt facts contained in the PSR without

inquiry as long as the “facts had an adequate evidentiary basis and

the defendant does not present rebuttal evidence.”                     United States

v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).                             Rebuttal

evidence must consist of more than a defendant’s objection; it

requires    a    demonstration       that    the    information    is    “materially

untrue, inaccurate        or    unreliable.”          Huerta,    182    F.3d    at   364

(citations omitted).           Although Tampico objected to a number of

factual issues in the PSR, he did not introduce any rebuttal

evidence.       Thus, the district court did not err in accepting the

PSR as evidence.4

     4
      Tampico urges us to reconsider our determination that the
district court can adopt facts in the PSR as evidence in the light
of the Eighth Circuit’s holding that the PSR cannot be considered
as evidence over the objection of the defendant. One panel of this
court, however, cannot overrule the decision of another panel.
United States v. Fowler, 216 F.3d 459, 460 (5th Cir. 2000).

                                            17
                                    III

     For   the   reasons   stated   above,   Tampico’s   conviction   and

sentence are                                             A F F I R M E D.




                                    18
