     Case: 19-10982       Document: 00515529963         Page: 1     Date Filed: 08/17/2020




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

                                     No. 19-10982                                FILED
                                   Summary Calendar                        August 17, 2020
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ADAM DONALD BENNETT,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-96-1


Before JONES, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM: *
       Adam Donald Bennett pleaded guilty to one count of sexual exploitation
of children, in violation of 18 U.S.C. §§ 2251(a) and (e). The district court
sentenced him to, inter alia, a within-Sentencing Guidelines term of 600-
months’ imprisonment. Bennett asserts five claims of error in the district
court’s determining his sentence.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 19-10982     Document: 00515529963      Page: 2    Date Filed: 08/17/2020


                                  No. 19-10982

      He, however, failed to preserve in district court four of those five claimed
errors. Review of the first four of the following five issues, therefore, is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Bennett must show a forfeited plain error (clear
or obvious error, rather than one subject to reasonable dispute) that affected
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009)
(citations omitted). If he makes that showing, we have the discretion to correct
such reversible plain error but generally should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
(citation omitted).
      First, Bennett contends the court erred by using his prior deferred
adjudication for indecency with a child, in violation of Texas Penal Code
§ 21.11(a)(2), to apply the enhanced sentencing penalties set forth in 18 U.S.C.
§ 2251(e) (enhancing penalty for defendant’s violating § 2251(a) when
defendant has previous “conviction . . . under the laws of any State relating to”,
inter alia, “aggravated sexual abuse, sexual abuse, [or] abusive sexual contact
involving a minor or ward”). According to Bennett, “deferred adjudication is
not a conviction” under Texas law, and “federal courts defer to state law when
assessing a ‘conviction’” for purposes of § 2251(e).
      Bennett (as he concedes) did not raise this issue in district court. For the
resulting plain-error review, he has not shown the requisite clear or obvious
error because, as he correctly recognizes, his contention is foreclosed by United
States v. Ary, 892 F.3d 787, 790 (5th Cir.) (noting deferred adjudication for
indecency with a child is a “conviction” under the Texas Penal Code and federal
law), cert. denied, 139 S. Ct. 394 (2018).
      Second, Bennett asserts this previous Texas offense does not qualify as
a prior conviction under 18 U.S.C. § 2251(e) because Texas Penal Code



                                         2
    Case: 19-10982      Document: 00515529963     Page: 3   Date Filed: 08/17/2020


                                   No. 19-10982

§ 21.11(a)(2) defines a minor more broadly than the generic definition. As
Bennett concedes, he did not raise this issue in district court.
         For our plain-error review, and as Bennett correctly recognizes, his
contention is foreclosed by our precedent.        See United States v. Zavala-
Sustaita, 214 F.3d 601, 604 (5th Cir. 2000) (“The best ‘ordinary, contemporary,
common’ reading of the phrase ‘sexual abuse of a minor’ [from 18 U.S.C.
§ 2251(a)] is that it encompasses a violation of Texas Penal Code § 21.11(a)(2).
The victim of a § 21.11(a)(2) offense, ‘a child younger than 17 years,’ is clearly
a ‘minor.’”). Further, his assertion that we should reconsider Zavala-Sustaita
in the light of the Supreme Court’s decision in Esquivel-Quintana v. Sessions,
137 S. Ct. 1562 (2017), lacks merit. Unlike the immigration statute at issue in
Esquivel-Quintana, 18 U.S.C. § 2256 unambiguously defines “minor”, as used
in § 2251(a), as “any person under the age of eighteen years”.          18 U.S.C.
§ 2256(1); see also Esquivel-Quintana, 137 S. Ct. at 1567. There is, therefore,
no need to rely on Esquivel-Quintana’s generic definition of minor.            See
Esquivel-Quintana, 137 S. Ct. at 1568. In short, there is no clear or obvious
error.
         Third, Bennett contends his previous Texas offense does not qualify as a
prior conviction under 18 U.S.C. § 2251 because Texas Penal Code § 21.11(a)(2)
does not require the offender make physical contact with the minor. Once
more, Bennett (as he concedes) failed to preserve this issue in district court.
         Under our limited plain-error review, and as Bennett again correctly
recognizes, this contention is also foreclosed by our precedent. See Contreras
v. Holder, 754 F.3d 286, 294 (5th Cir. 2014) (“[A] sexual act does not require
physical contact with a minor to be abusive, since psychological harm may
occur even without such contact and can be equally abusive”. (citing Zavala-
Sustaita, 214 F.3d at 604–05)). Additionally, to the extent Bennett asserts we



                                         3
    Case: 19-10982     Document: 00515529963      Page: 4   Date Filed: 08/17/2020


                                  No. 19-10982

should reconsider Contreras in the light of Esquivel-Quintana, our court has
previously held that Esquivel-Quintana did not abrogate our court’s precedent
that physical contact with a minor is not required for a sexual act to be abusive.
See Shroff v. Sessions, 890 F.3d 542, 545 (5th Cir. 2018). Once again, there
was no clear or obvious error.
      Fourth, Bennett contends the district court erred in considering the
conduct underlying his previous arrest for indecency with a child because the
Texas grand jury “no-billed” the criminal charge. Bennett (as he concedes) did
not raise this contention in district court.
      For this final plain-error review, Bennett contends this issue is
foreclosed by United States v. Fields, 932 F.3d 316 (5th Cir. 2019), cert. denied,
140 S. Ct. 1299 (2020). In Fields, our court stated: a no-bill under Texas law
is “nothing more than the decision by a particular grand jury that the specific
evidence before it did not convince it to charge the defendant with an offense”;
and “[b]y itself, the no-bill cannot transform a factual recitation with sufficient
indicia of reliability into one that lacks such indicia”. Id. at 323.
      It is not clear, however, that Fields squarely governs the result here. As
stated in Fields, that appeal “d[id] not require [our court] to address whether
a grand jury no-bill precludes a sentencing court’s ability to find by a
preponderance that the defendant committed the particular no-billed offense,
and neither party [in Fields had] ask[ed] us to do so”. Id. at 324 (emphasis
added). Rather, “[t]he district court relied on sufficiently reliable evidence to
find that [defendant] had committed the underlying activities and [determined
defendant’s sentence] in part upon those activities”. Id. (emphasis added).
Bennett, by contrast, asserts, inter alia, “[t]he district court had an inadequate
factual basis to conclude that [he] committed two offenses for which he had
been no-billed”. (Emphasis added.)



                                         4
    Case: 19-10982     Document: 00515529963        Page: 5   Date Filed: 08/17/2020


                                     No. 19-10982

      In any event, “[i]t is well-established that prior criminal conduct not
resulting in a conviction may be considered by the sentencing judge”. United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (per curiam)
(citation omitted). As discussed, this includes activities underlying a Texas no-
billed offense. See Fields, 932 F.3d at 323–24.
      By adopting Bennett’s presentence investigation report (PSR), the court
implicitly found that, even though the Texas grand jury did not indict Bennett
for indecency with a child, a preponderance of the evidence showed that he
engaged in the conduct the PSR described. For that description, the PSR relied
on an offense report generated by local law enforcement and a report from
Child Protective Services.           These documents provided “an adequate
evidentiary basis with sufficient indicia of reliability”, and Bennett “d[id] not
present rebuttal evidence or otherwise demonstrate that the information in the
PSR [was] unreliable”. United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012) (per curiam) (citation omitted). Accordingly, Bennett has not shown the
requisite clear or obvious error in the district court’s considering the PSR’s
description of the conduct underlying his prior arrest for indecency with a
child. See id. (citation omitted).
      Finally, for the only issue not reviewed for plain error, Bennett contends
his 600-month sentence, at the top of his advisory Guidelines sentencing range,
is substantively unreasonable because the court failed to give adequate weight
to the abuse his pastor inflicted on him while a youth. Although post-Booker
the Guidelines are advisory only, the district court must avoid significant
procedural error, such as improperly calculating the Guidelines sentencing
range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural
error exists, a properly preserved objection to an ultimate sentence, as in this
instance, is reviewed for substantive reasonableness under an abuse-of-



                                          5
    Case: 19-10982     Document: 00515529963     Page: 6   Date Filed: 08/17/2020


                                  No. 19-10982

discretion standard. Id. at 51; see also, e.g., United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, the district court’s
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008) (citation omitted).
      Additionally, we “appl[y] a rebuttable presumption of reasonableness to
a properly calculated, within-[G]uidelines sentence”. United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). “The presumption is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing [the] sentencing factors” in 18 U.S.C. § 3553(a).         Id. (citation
omitted). Defendant’s “mere belief that the mitigating factors presented for
the court’s consideration should have been balanced differently is insufficient
to disturb this presumption”. United States v. Alvarado, 691 F.3d 592, 597–98
(5th Cir. 2012) (citation omitted).
      In this instance, the district court: adopted the findings and calculations
in Bennett’s PSR; considered Bennett’s abuse as a youth and other mitigating
circumstances; expressed concern regarding the “disturbing” and “dangerous”
nature of Bennett’s offense and prior conduct; and considered the 18 U.S.C.
§ 3553(a) sentencing factors.    Bennett, consequently, has not rebutted the
presumption of reasonableness afforded his within-Guidelines sentence. See
Cooks, 589 F.3d at 186 (citations omitted).
      AFFIRMED.




                                        6
