     Case: 16-40135      Document: 00513969548         Page: 1    Date Filed: 04/26/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-40135                                FILED
                                  Summary Calendar                          April 26, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUSTIN RYAN SERNA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-652-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Justin Ryan Serna pleaded guilty to one count of sexual exploitation of a
minor, in violation of 18 U.S.C. § 2251(a). The district court sentenced Serna
to the statutory minimum sentence of 180 months in prison, which was also
the applicable guidelines range, to be followed by a 10-year term of supervised
release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40135

      Following the completion of briefing, Serna’s appointed counsel moved to
withdraw based on her acceptance of employment with the Harris County
District Attorney’s Office, which became effective prior to the completion of
briefing. This motion is granted. See Fifth Circuit Plan Under the Criminal
Justice Act, § 5(b); see also 18 U.S.C. § 3006A(c). Serna’s unequivocal motion
to proceed pro se, and his motions to file a supplemental or replacement
appellate brief, are granted.     Although the Government has not had an
opportunity to address the claims raised in Serna’s pro se brief, we dispense
with further briefing as we are able to resolve his claims on the record before
us. Although Serna is not entitled to hybrid representation on appeal, see
United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir. 1999), in light of
the unusual timing presented in this case, we shall address the claims in both
counsel’s brief and Serna’s pro se brief.
      Serna’s counsel contends that the district court abused its discretion by
failing to grant a downward departure, in light of Serna’s favorable personal
characteristics. We review de novo the district court’s authority to depart
below a statutory minimum sentence. See United States v. James, 468 F.3d
245, 246 (5th Cir. 2006).     Because the Government did not seek a lower
sentence based on Serna’s substantial assistance, as permitted under 18 U.S.C.
§ 3553(e), and because Serna did not qualify for the safety valve of § 3553(f),
the district court had no discretion to depart below the statutory minimum
sentence. See United States v. Harper, 527 F.3d 396, 411 (5th Cir. 2008).
      Counsel also asserts that the district court erred in imposing a two-level
enhancement pursuant to U.S.S.G. § 2G2.1(b)(6)(B)(i) based on Serna’s use of
a computer in the offense, as he maintains that the enhancement constitutes
impermissible double counting. We need not address this issue, as any error
in the district court’s guidelines calculations would be harmless in light of the



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                                  No. 16-40135

statutory minimum sentence imposed. See Harper, 527 F.3d at 411; United
States v. Sandle, 123 F.3d 809, 813 (5th Cir. 1997).
      In his first pro se ground for relief, Serna contends that the indictment
was insufficient to allege an offense or confer jurisdiction on the federal courts.
Because he did not object to the indictment in the district court, we review for
plain error. See United States v. Franco, 632 F.3d 880, 884 (5th Cir. 2011). An
indictment is sufficient if (1) it contains the essential elements of each offense
charged, (2) the elements are described with particularity, and (3) the charge
is sufficiently specific to protect against a later prosecution for the same
offense. See United States v. Cooper, 714 F.3d 873, 877 (5th Cir. 2013). As
Serna’s indictment closely tracks the language and sets forth the elements of
§ 2251(a), and the facts elicited during the rearraignment proceedings are
adequate to protect him against a future prosecution based on the same
conduct, the indictment is sufficient. See United States v. Richard, 775 F.3d
287, 292 (5th Cir. 2014). Serna therefore has not shown a clear or obvious
error. See Puckett v. United States, 556 U.S. 129, 135 (2009). In any event, a
guilty plea waives defects in an indictment. United States v. Scruggs, 714 F.3d
258, 261–64 (5th Cir. 2013).
      Serna also asserts that the factual basis for his plea is insufficient. As
he concedes, we review for this claim for plain error because it is raised for the
first time on appeal. See United States v. Trejo, 610 F.3d 308, 313 (5th Cir.
2010).   Serna contends there was insufficient evidence to show that the
photographs of the victim constituted “sexually explicit conduct” under 18
U.S.C. § 2256(2)(B)(iii), that he requested lascivious photographs from the
victim, that he was involved in taking the photographs, that the photographs
were taken as a result of his enticements, or that he ever received the
photographs. The facts that were not disputed by Serna at the rearraignment



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                                 No. 16-40135

proceeding, together with those set forth in the presentence report, establish
each element of the offense under § 2251(a). Although Serna complains that
the district court should have asked him to describe in his own words the
conduct underlying the offense, he cites to no authority forbidding a prosecutor
from setting forth the relevant facts and obtaining the defendant’s agreement
with those facts during a guilty plea colloquy. Thus, Serna has not shown a
clear or obvious error that affects his substantial rights. See Puckett, 556 U.S.
at 135.
      Accordingly, the judgment of the district court is AFFIRMED. Appointed
counsel’s motion to withdraw is GRANTED.          Serna’s motions for leave to
proceed pro se and to file a supplemental or replacement brief are GRANTED,
although we dispense with further briefing.




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