     Case: 16-50206      Document: 00514228883         Page: 1    Date Filed: 11/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fif h Circuit
                                      No. 16-50206                                FILED
                                                                           November 7, 2017

UNITED STATES OF AMERICA,                                                    Lyle W. Cayce
                                                                                  Clerk
                     Plaintiff-Appellee

v.

TRAVIS JASON WINSTEAD, also known as Travis Winstead, also known as
Travis J. Winstead,

                     Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CR-522-1


Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM: *
       A jury convicted Travis Jason Winstead of one count of receiving child
pornography and two counts of possessing child pornography. The district
court imposed a total sentence of 292 months of imprisonment. Finding no
merit in the issues he raises on appeal, we AFFIRM.
       Winstead first contends that evidence FBI agents obtained during an
interview with him while other agents were conducting a search of his home


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50206

should have been suppressed because he was not first provided with the
warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
Winstead did not move to suppress this evidence on this basis in the district
court and thus has waived the issue. See United States v. Chavez-Valencia,
116 F.3d 127, 129-33 (5th Cir. 1997). Moreover, had he simply forfeited the
issue, he nonetheless would not prevail because the testimony did not establish
that he was subject to a custodial interrogation and he thus has not shown
clear or obvious error. See United States v. Pope, 467 F.3d 912, 919 n.20 (5th
Cir. 2006); United States v. Harrell, 894 F.2d 120, 124 (5th Cir. 1990)
(identifying factors relevant to determining whether a person is in custody and
thus entitled to Miranda warnings).
      Asserting that possessing child pornography is a lesser-included offense
of receiving child pornography, Winstead next contends that his convictions
are multiplicitous and thus violate the prohibition against double jeopardy. He
raised this issue in the district court only after trial and before sentencing;
thus, he has waived any challenge to multiplicity in the indictment. See United
States v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991). However, Winstead may
challenge his separate sentences because the district court ordered one of the
possession sentences to be served consecutively to the sentence for receipt and
ordered separate monetary assessments for each count. See United States v.
Reedy, 304 F.3d 358, 364 n.1 (5th Cir. 2002); Galvan, 949 F.2d at 781. Our
review is de novo. United States v. Woerner, 709 F.3d 527, 538 (5th Cir. 2013).
      The rule against multiplicity, which derives from the Double Jeopardy
Clause of the Fifth Amendment, “prohibits the Government from charging a
single offense in several counts and is intended to prevent multiple
punishments for the same act.” United States v. Kimbrough, 69 F.3d 723, 729
(5th Cir. 1995). Convictions are multiplicitous where, as relevant here, the



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defendant is charged with and convicted of violating two distinct statutes
based on the same underlying conduct where one statute is a lesser-included
offense of the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
180, 182 (1932); Woerner, 709 F.3d at 539.                However, regardless whether
possessing child pornography is a lesser-included offense of receiving it,
Winstead’s sentences are not multiplicitous because the Government
presented evidence that a large number of images and videos containing child
pornography were downloaded and possessed on Winstead’s computers during
the separate time periods alleged in the indictment for Count I (the “receiving”
count) and Counts II and III (counts concerning “possession” on different
computers). The court carefully charged the jury on the distinct elements of
each count. Because the jury could have determined that Winstead received
and possessed different depictions of child pornography at different times, the
offenses did not involve the “same act or transaction” and so were not based on
the same underlying conduct. Blockburger, 284 U.S. at 304, 52 S. Ct. at 182.
       Winstead also challenges the district court’s application of the five-level
enhancement under U.S.S.G. § 2G2.2(b)(3)(B) (2015) based on a finding that
he distributed child pornography while expecting to receive a non-pecuniary
thing of value in return. The application of this enhancement is appropriate
where, as here, a defendant knowingly 1 uses a peer-to-peer file sharing

       1The court is satisfied that the facts support the inference that Winstead knowingly
used the peer-to-peer file sharing program to distribute the child pornography on his
computer in exchange for additional child pornography. The evidence established that
Winstead was the sole user of each computer in his home and that he had modified the
program’s default settings to minimize, but not eliminate, the ability of the program to upload
or share files with other users. This attempt at minimization demonstrates that Winstead
knew the program made his files available to other users. Moreover, he admitted to the FBI
that he generally understood how peer-to-peer programs worked. The presentence report,
which the district court adopted, explicitly noted this fact. Thus, Winstead is unlike the
defendant in United States v. Scott, where this court observed “no evidence that Scott ‘knew
that others could download his files’ and ‘knowingly let some users download from him.’”
821 F.3d 562, 569 (5th Cir. 2016) (citations omitted).


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program.    In doing so, the defendant “agrees to distribute the child
pornography on his computer in exchange for additional child pornography,”
which is “precisely the kind of exchange contemplated” by the Guideline.
United States v. Groce, 784 F.3d 291, 294-95 (5th Cir. 2015); see
§ 2G2.2(b)(3)(B) & cmt. n.1 (2015). Thus, the district court committed no error.
See Groce, 784 F.3d at 294-95.
      To the extent that Winstead asserts that his 292-month sentence exceeds
the statutory maximum sentence, he is incorrect. He was convicted of three
counts, each of which carried a statutory maximum sentence of 20 years,
meaning that his total statutory maximum sentence was 720 months. See
18 U.S.C. § 2252A(a)(2), (a)(5)(B), (b)(1), (b)(2). His 292-month sentence falls
far short of this threshold. Moreover, a district court may impose consecutive
sentences to achieve an aggregate sentence that falls within the guidelines
range. See United States v. Heard, 709 F.3d 413, 426 (5th Cir. 2013). When
the court imposed consecutive sentences, his final sentence was at the very
bottom of the recommended guidelines range.
      Finally, Winstead contends that his sentence is substantively
unreasonable. He argues that the Guideline applicable to child pornography
offenses lacks an empirical basis and thus overstated the seriousness of his
offense because it failed to distinguish between his conduct and that of the
most culpable offenders. He also argues that the sentence was greater than
necessary to deter future criminal conduct and to protect the public and that
it failed to account for his remorse, receptivity to treatment, poor physical and
mental health, military record, and lack of criminal history.
      The assertion that § 2G2.2 lacks an empirical basis and therefore does
not sufficiently distinguish among the relative culpability of child pornography
offenders is insufficient to establish that Winstead’s sentence is substantively



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unreasonable. See United States v. Miller, 665 F.3d 114, 119-23 (5th Cir. 2011).
His remaining arguments amount to a disagreement with the balance among
the sentencing factors that the district court struck, essentially asking this
court to reweigh those factors, which it will not do. See United States v.
McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011). Winstead has not shown that
the district court did not account for a factor that should have received
significant weight, gave significant weight to an irrelevant or improper factor,
or committed clear error of judgment in balancing sentencing factors. See
United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). Accordingly, he
has not overcome the presumption that his within-guidelines sentence is
reasonable.
      AFFIRMED.




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