     Case: 09-10645     Document: 00511127717          Page: 1    Date Filed: 06/01/2010




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

                                                  FILED
                                                                            June 1, 2010
                                     No. 09-10645
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JASON SEGURA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 6:08-CR-45-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jason Segura pleaded guilty to one count of producing child pornography
and aiding and abetting in the production of child pornography.                       See 18
U.S.C. §§ 2, 2251. The district court imposed a term of imprisonment of 360
months, above the United States Sentencing Guidelines advisory range of
imprisonment but not above the statutory maximum. See § 2251(e). Segura
argues that the sentence is substantively unreasonable. He asserts that the
district court’s explanation of the sentence was inadequate to justify the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10645

variance, that the stated reasons for the sentence were truisms present in all
offenses of the type, that the district court imposed a sentence greater than
necessary to meet the goals of 18 U.S.C. § 3553(a), and that the district court
ignored mitigating factors such as Segura’s lack of a criminal history, his stable
employment record, and the fact that the incident occurred while he was under
the influence of alcohol.
      We review the substantive reasonableness of Segura’s non-guidelines
sentence for abuse of discretion, in light of the totality of the circumstances. See
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). We review whether
the § 3553(a) factors support the sentence but give deference to the district
court’s determination that the factors justify the variance. Id. In light of that
deference, Segura has failed to show that the district court abused its discretion.
The district court stated that the factors enumerated in § 3553(a), particularly
the nature of the offense, which the district court described as “heinous,”
supported a sentence of the statutory maximum term of imprisonment.
See § 3553(a)(1). Specifically, the district court stated that the sentence was
necessary to address Segura’s history and characteristics, the need to promote
respect for the law, the need to reflect the seriousness of the offense, and the
need to provide an adequate and just punishment. See § 3553(a)(1), (2)(A)-(B).
The district court added that the sentence was needed to afford adequate
deterrence to further criminal conduct and to protect the community at large,
children, and “little girls in particular” from further criminal activity by Segura.
See § 3553(a)(2)(C).
      The record supports the district court’s conclusions. Segura admitted that
he had viewed child pornography in the past, that he committed the instant
offense   while     intoxicated,   and   that   he   was   addicted    to   alcohol.
See § 3553(a)(2)(B)-(C). Segura also had a prior conviction for driving while
intoxicated, suggesting that the alcohol addiction was relatively long-term and
ongoing. The information supports the district court’s determination that the

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                                 No. 09-10645

sentence was needed to protect children and deter future criminal conduct by
Segura. The record also supports the district court’s characterization of the
offense. Although the standard adjustments for specific offense characteristics
were used to increase Segura’s offense level in calculating the advisory
guidelines range, the discrete increases did not truly capture the nature of the
specific characteristics or the cumulative resulting nature of the whole offense.
Not only was the child under 12, but she was only 3 years of age. Not only did
the offense involve sexual contact or a sexual act, but Segura placed his penis in
the toddler’s mouth. Not only was the child in his care at that moment, but, as
the mother’s live-in boyfriend in the child’s home, Segura held a particular,
almost parental, position of trust with the child. Additionally, the district court
stated that the offense was “one of the most vile” of all the cases the court had
seen in twenty-one years, reflecting the court’s conclusion that the offense was
outside of the “heartland” of child pornography cases as addressed by the
Sentencing Guidelines and previously seen by the court itself. See Rita v. United
States, 551 U.S. 338, 351 (2007).
      Moreover, the upward variance of 37% from the top of the guidelines range
of 262 months to a sentence of 360 months of imprisonment is within the range
of variances this court has upheld. See Brantley, 537 F.3d at 348-50 (upward
variance resulted in sentence 253% above top of Guidelines range); United States
v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008); United States v.
Smith, 440 F.3d 704, 708-10 (5th Cir. 2006). Segura has failed to show that his
sentence was substantively unreasonable. See Brantley, 537 F.3d at 349.
      Segura additionally argues that his sentence violated his Sixth
Amendment right to a trial by jury and his Fifth Amendment rights to proof
beyond a reasonable doubt and indictment, but concedes that the issue is
foreclosed by this court’s decision in United States v. Rhine, 583 F.3d 878, 891
& n.50 (5th Cir. 2009).



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     Finding no abuse of discretion in the district court’s judgment, we
AFFIRM.




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