                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         February 1, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                          No. 06-8022
          v.                                               (D. W yoming)
 TER RY HOFF,                                        (D.C. No. 05-CR-36-W FD)

               Defendant-Appellant.




                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Terry Hoff pleaded guilty to possession of child pornography, in violation

of 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced M r. Hoff to 120

months’ imprisonment and ten years’ supervised release. The court also imposed


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
a $750.00 fine and a $100.00 special assessment. M r. Hoff challenges the district

court’s sentence on appeal.

                                 I. BACKGROUND

      On July 23, 2004, Agent M att W aldock of the W yoming Division of

Criminal Investigation received information that M r. Hoff, a 39-year-old-resident

of Gillette, W yoming, may have been providing methamphetamine to underage

girls and taking pornographic pictures of them. Agent W aldock obtained a state

search warrant, authorizing him to search M r. Hoff’s residence for child

pornography. The search revealed a digital camera in the master bedroom of the

residence. The flash memory of the camera contained numerous images of nude

females, including a nude image of a fifteen-year-old-girl.

      W hile the search was being conducted, Agent W aldock and another agent

interviewed M r. Hoff. According to Agent W aldock, M r. Hoff admitted taking

the images of the underage girl, although he stated he believed she was eighteen

years old. W hen Agent Waldock told him that the girl was fifteen years old, M r.

Hoff changed his story and denied taking the images altogether. Agent W aldock

subsequently showed the images of the fifteen-year-old-girl to her mother, who

identified the girl depicted in the images as her daughter. Additionally, the girl’s

mother told Agent W aldock that in M ay of 2004, she had told M r. Hoff her

daughter’s age and to stay away from her. Agent W aldock then interviewed the

girl depicted in the images. She told him M r. Hoff was the photographer.

                                          -2-
      On September 16, 2005, the United States filed an amended information

containing one charge of production of child pornography in violation of 18

U.S.C. § 2251(a), and one charge of possession of child pornography, in violation

of 18 U.S.C. § 2252A(a)(5)(B). Pursuant to a written plea agreement, M r. Hoff

entered a plea of guilty to the possession of child pornography charge. The

“PARTICULARIZED TERM S” of the agreement stated that the government and

M r. Hoff stipulated that M r. Hoff

      agree[d] to conditionally plead guilty to the following:
      Count Two of the Amended Information alleging Possession of Child
      Pornography in violation of 18 U.S.C. § 2252(a)(5)([B ]).

      ....

      Penalty: 10 years imprisonment

      ....

      Supervised Release: 3 years pursuant to 18 U.S.C. § 3585.

      ....

Aplt’s App. doc. 3, at 2 (Plea A greement) (unsigned).

      During the Rule 11 plea colloquy, the government stated that M r. Hoff

would be subject to “three years of supervised release.” Id. doc. 4 at 31. The

district court informed M r. Hoff that he “could be imprisoned up to ten years,

fined up to $250,000, be required to serve up to three years of supervised release

and to pay a [$100.00] special assessment.” Id. at 45.




                                        -3-
      The presentence report found that U.S.S.G. § 2G2.4 was the guideline used

to calculate a recommended sentence for possession of child pornography, but

because M r. Hoff’s conduct involved “permitting a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such conduct,”

the cross-reference found at § 2G2.4(c) applied and U.S.S.G. § 2G1.2 should be

utilized to determine the advisory sentence. PSR ¶ 9, at 6. 1 The base offense

level was 27. See U.S.S.G. § 2G1.2. Two offense levels were added because the

material M r. Hoff produced involved a girl between the ages of twelve and

sixteen.   Id. ¶ 10, at 6; U.S.S.G. § 2G1.2(b)(1)(B)). Because he accepted

responsibility for his actions, the report recommended a three-level reduction in

the adjusted offense level, resulting in a final offense level of 26. Id. ¶ 15, at 7.

M r. Hoff’s extensive criminal history yielded seventeen criminal history points,

placing him in Category VI. Id. ¶ 29, at 12. The guideline range for M r. Hoff

was 120 to 150 months, but due to the statutory maximum sentence of ten years,

his advisory sentencing range was 120 months. Additionally, the presentence

report correctly noted the “authorized term of supervised release is any term of

years or life.” Id. ¶ 63, at 17 (citing 18 U.S.C. § 3583(k)).


      1
         W e note that U.S.S.G. § 2G2.4 was deleted by consolidation with
U.S.S.G. § 2.2, effective Nov. 1, 2004. See U.S.S.G. App. C, Amendment 664.
However, the presentence report applied the Nov. 1, 2003 edition of the
guidelines because “use of the Guidelines M anual which was in effect on the date
of sentencing would violate the ex post facto clause of the United States
Constitution.” PSR ¶ 8, at 6. The parties do not dispute this conclusion, and, as a
result, we refer to the now-deleted U.S.S.G. § 2G2.4 in our discussion.

                                          -4-
      The government did not object to the presentence report, but M r. Hoff filed

three separate memorandums prior to sentencing, each of which objected to the

use of the U.S.S.G. § 2G2.1 cross-reference. Aplt’s App. at 70, 77, 84. M r. Hoff

did not object to the presentence report’s finding regarding the maximum term of

supervised release that he could be required to serve. The district court sentenced

M r. Hoff to 120 months’ imprisonment and ten years of supervised release. 2



                                 II. DISCUSSION

      M r. Hoff challenges (1) the district court’s imposition of the ten-year term

of supervised release, and (2) reliance on relevant conduct when it accepted the

cross-reference to U.S.S.G. § 2G2.1 as required by U.S.S.G. § 2G2.4(c)(1). For

the reasons set forth below, we reject M r. Hoff’s arguments and affirm his

sentence.

      A. Supervised release

      M r. Hoff argues that the district court erred in failing to inform him that it

could impose a ten-year term of supervised release. W e construe his argument as

alleging a violation of Rule 11 of the Federal Rules of Criminal Procedure, which

requires the district court to inform the defendant of the “maximum possible



      2
         The district court found that the presentence report improperly calculated
M r. Hoff’s criminal history score and reduced the score to fifteen points but this
did not change his criminal history category.


                                         -5-
penalty, including imprisonment, fine, and term of supervised release.” F ED . R.

C RIM . P. 11(b)(1)(H).

      Because M r. Hoff did not object to the length of the ten-year supervised

release, we review the district court’s decision for plain error. F ED . R. C RIM . P.

52(b); United States v. Sanchez-Cruz, 392 F.3d 1196, 1199 (10th Cir. 2004).

(“W hen a defendant fails to raise a Rule 11 error during his sentencing hearing, . .

. we review only for plain error.”). “Plain error occurs when there is (1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (citation

and quotation marks omitted).

      The Supreme Court recently held that a defendant attempting to
      establish that a Rule 11 error has affected substantial rights “is obliged
      to show a reasonable probability that, but for the error, he would not
      have entered the plea.”

Sanchez-Cruz, 392 F.3d at 1200 (quoting United States v. Dominguez Benitez, 542

U.S. 74, 75 (2004)). Thus, informed by the entire record, we must be satisfied

“that the probability of a different result is sufficient to undermine confidence in

the outcome of the proceeding.” Dominguez Benitez, 542 U.S. at 83 (internal

quotation marks omitted).

      W e agree that the plea agreement, the government, and the district court

erred in stating that the maximum term of supervised release was three years.



                                           -6-
That conclusion follows from Section 101 of the PROTECT Act (Prosecutorial

Remedies and Other Tools to End the Exploitation of Children Today Act of

2003), which amended 18 U.S.C. § 3583 to provide for extended terms of

supervised release for certain crimes relating to the sexual exploitation of

children. Section 3583(k) as amended provided that “[n]ot withstanding

subsection (b), the authorized term of supervised release for any offense under . .

. [18 U.S.C.] § 2252A . . . is any term of years or life.” 18 U.S.C. § 3583(k)

(2003). 3 Section 5D1.2(b) of Sentencing Guidelines was amended on November

1, 2004 to reflect that statutory change. U.S.S.G. App. C, Amendment 664. The

supervised release guideline goes on to provide “[i]f the instant offense of

conviction is a sex offense, however, the statutory maximum term of supervised

release is recommended.” U.S.S.G. § 5D1.2(b).

      The offense of conviction here, 18 U.S.C. § 2252(a)(5)(B), constitutes a sex

offense.   Nevertheless, “[w]hile we have no doubt that [M r. Hoff] can satisfy the

first two elements of plain error, he has failed to establish that the error affected

his substantial rights.” Sanchez-Cruz, 392 F.3d at 1200. Although M r. Hoff

maintains that he had a “true and honest belief that his term of Supervised

Release would be 3- years,” Aplt’s Br. at 5, he does not suggest that, had the

district court informed him that it might impose a ten-year term of supervised



      3
         Section 3583(k) now authorizes a term of supervised release that is “not
less than 5 [years] or life.” 18 U.S.C. § 3583(k) (2006).

                                          -7-
release, he would have withdrawn his plea. M oreover, in exchange for his guilty

plea, M r Hoff received the quite-substantial benefit of the government’s

withdrawal of the production of child pornography charge, which carries a

mandatory minimum fifteen-year sentence. W e therefore conclude that any error

did not affect M r. H off’s substantial rights. United States v. Elias, 937 F.3d

1514, 1518-19 (10th Cir. 1991) (holding that district court’s failure to inform the

defendant of the mandatory period of supervised release was a “technical

violation of Rule 11 [that] will be disregarded unless it affects substantial

rights”).

      B. Cross-reference to U.S.S.G. § 2G2.1

      W e review the district court’s application of the sentencing guidelines de

novo, and its factual findings for clear error. United States v. M artinez, 418 F.3d

1130, 1133 (10th Cir. 2005). This standard remains unchanged in the wake of

United States v. Booker, 543 U.S. 220 (2005), which created an advisory

guidelines regime. United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).

      M r. Hoff claims that the district court erred when it found by a

preponderance of evidence that his relevant conduct included taking the

pornographic photographs he possessed, thus triggering the cross-reference found

at U.S.S.G. § 2G2.4(c)(1) and requiring that his advisory guideline sentence be

calculated using U.S.S.G. § 2G2.1. As the result of this calculation M r. Hoff was

subject to a sentence of 120 months. PSR ¶ 2, at 3-5; ¶ 61. M r. Hoff contends


                                          -8-
such conduct must be found beyond a reasonable doubt by a jury or stipulated by

him.

         Our precedent forecloses this argument. “Relevant uncharged conduct must

be proven by a preponderance of the evidence.” United States v. Garcia, 411

F.3d 1173, 1177 (10th Cir. 2005). “[I]n sentencing criminal defendants for

federal crimes, district courts are still required to consider Guideline ranges,

which are determined through application of the preponderance standard, just as

they were before. The only difference is that the court has latitude, subject to

reasonableness review, to depart from the resulting Guideline ranges. United

States v. M agallanez, 408 F.3d 672, 685 (10th Cir. 2005) (internal citation

omitted). The district court was authorized to consider the testimony of the minor

subject and her mother in considering whether the § 2G2.1 cross-reference should

apply.

                                 III. CONCLUSION

         Accordingly, we AFFIRM M r. Hoff’s sentence.



                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




                                          -9-
