                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 31, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-10566


     UNITED STATES OF AMERICA

                          Plaintiff - Appellee

     v.

     STEPHEN L ASSITER

                          Defendant - Appellant


           Appeal from the United States District Court
                for the Northern District of Texas
                        No. 5:03-CR-4-ALL-C


Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.

PER CURIAM:*

     On March 30, 2003, Defendant-Appellant Stephen L. Assiter

pleaded guilty to one count of “Interstate Receipt of Child

Pornography,” in violation of 18 U.S.C. § 2252A(a)(2)(A) and § 2

(2000).   Assiter appeals from the district court’s sentencing

decision, claiming that the court improperly enhanced his

sentence under U.S.S.G. § 2G2.2(b)(4) (2002).     For the following

reasons, we affirm.

     Because Assiter pleaded guilty to violating 18 U.S.C.


     *
          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that this opinion should not be published and is not precedent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.
§ 2252A(a)(2)(A), the district court applied § 2G2.2 of the

Sentencing Guidelines.    The government recommended a five-level

increase to the base offense level, under § 2G2.2(b)(4), for

“engag[ing] in a pattern of activity involving the sexual abuse

or exploitation of a minor.”   This five-level increase is

appropriate when the defendant has, on at least two occasions,

engaged in “conduct constituting criminal sexual abuse of a

minor, sexual exploitation of a minor, abusive sexual contact of

a minor, [or] any similar offense under state law.”     U.S.S.G.

§ 2G2.2 cmt.1 (emphasis added).   At the sentencing hearing, the

government asserted that Assiter had, at least twice, taken nude

photographs of two minor girls while he was wearing only a long

shirt.   Accordingly, it argued that Assiter had committed the

Texas crime of “Indecency With a Child.”    See TEX. PENAL CODE ANN.

§ 21.11(a)(2) (Vernon 2003).   Assiter objected and claimed that

there was insufficient evidence to demonstrate that he had

violated § 21.11(a)(2).   The district court overruled the

objection and sentenced Assiter to fifty-one months of

imprisonment, followed by a three-year term of supervised

release.

     On appeal, Assiter reasserts his contention that the

enhancement was erroneously applied because the government did

not provide sufficient evidence to demonstrate that he had

committed the Texas indecency crime.   We review the district

court’s application of the Sentencing Guidelines de novo and its

                                  2
factual findings at sentencing for clear error.        See United

States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).

Generally, the government must prove factors for the enhancement

of a sentence by a preponderance of the evidence.       See United

States v. Watts, 519 U.S. 148, 157 (1997); United States v.

Canada, 110 F.3d 260, 263 (5th Cir. 1997).

      A person commits the Texas crime of Indecency With a Child

if,

      with a child younger than 17 years and not the person’s
      spouse, whether the child is of the same or opposite sex,
      the person:
      . . .
            (2) with intent to arouse or gratify the sexual
      desire of any person:
            (A) exposes the person’s anus or any part of the
      person’s genitals, knowing the child is present; or
            (B) causes the child to expose the child’s anus or
      any part of the child’s genitals.

TEX. PENAL CODE ANN. § 21.11(a)(2) (emphasis added).    Assiter claims

that the government proved only that he was wearing nothing but a

long shirt while taking photographs of the two minor children,

and it did not claim that the girls saw his genitals.       But Texas

law does not require proof that a child actually saw Assiter’s

genitals; proof of exposure is sufficient.    See Breckenridge v.

State, 40 S.W.3d 118, 128 (Tex. App.––San Antonio 2000, pet.

ref’d).   Moreover, the government did not rely on Assiter’s

exposure in arguing that he had committed this crime.       Instead,

the government alleged that Assiter violated § 21.11(a)(2)(B) by

causing the children’s genitals to be exposed while he took


                                 3
numerous photographs of them for his own sexual gratification.

     Assiter also argues that there was insufficient evidence to

show that his intent in taking the photographs was to arouse or

to gratify his own sexual desires.   Specifically, Assiter notes

that the government did not attempt to prove that he was actually

aroused during the photography session.   Once again, Assiter’s

contention misses the mark because § 21.11(a)(2) does not require

proof of arousal.   See Gregory v. State, 56 S.W.3d 164, 171 (Tex.

App.––Houston [14th Dist.] 2001, pet. dism’d), cert. denied 123

S. Ct. 1787 (2003); cf. Caballero v. State, 927 S.W.2d 128, 130

(Tex. App.––El Paso 1996, pet. Ref’d).    Under Texas law, “[t]he

requisite specific intent to arouse or gratify the sexual desire

of a person can be inferred from conduct, remarks, or all the

surrounding circumstances.”   Gregory, 56 S.W.3d at 171.   Here,

the government maintained that the court could infer the intent

to arouse because Assiter not only caused two minor girls to

expose their genitals while he himself was naked from the waist

down, but he also took numerous nude pictures of the girls, some

of which focused on the genital area.    In addition, an FBI agent

testified that Assiter had stored many pornographic images of

adult women on his computer, including images of bestiality.

This combination of circumstances is far more compelling than the

facts required to prove the intent to gratify under Texas law.

See Martins v. State, 52 S.W.3d 459, 475 (Tex. App.––Corpus

Christi 2001, no pet.) (reviewing cases).   We therefore hold that

                                4
the government met its burden of proving Assister’s intent by a

preponderance of the evidence.

     In the alternative, Assister claims that even if he violated

§ 21.11(a)(2), this crime is not sufficiently similar to the

offenses enumerated in the commentary to U.S.S.G. § 2G2.2(b)(4)

to qualify for the five-level sentencing increase.   Because

Assister did not object to his sentence on this basis in the

district court, this “issue is raised for the first time on

appeal and is reviewed for plain error.”    United States v.

Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).2    We have

stated that an error is not “plain” unless it is “clear” or

“obvious.”   Id. at 189.   This circuit has never before considered

whether a violation of the Texas indecency statute constitutes

“sexual abuse or exploitation of a minor” under § 2G2.2(b)(4).

Thus, “any error by the district court in this regard was not

plain or obvious, as we have not previously addressed this

issue.”   United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir.

2003).

     Accordingly, the defendant’s sentence is AFFIRMED.




     2
           Although the government did not ask us to adopt this
standard until oral argument, its failure “is unfortunate, but
not fatal” to our use of the appropriate standard of review.
United States v. Vonsteen, 950 F.2d 1086, 1092 (5th Cir. 1992)
(en banc).

                                  5
