     Case: 14-50892      Document: 00513115388         Page: 1    Date Filed: 07/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50892                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   July 14, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JOHN RODGER HUGHES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:14-CR-72


Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant John Rodger Hughes (“Hughes”) appeals his
criminal sentence for using a cellular telephone and the Internet to knowingly
transfer obscene matter to a minor under the age of sixteen, as prohibited by
18 U.S.C. § 1470. Hughes challenges the district court’s imposition of a six-
level sentence enhancement under U.S.S.G. § 2G3.1(b)(1)(D) (2013). We find
no reversible error and AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50892


                                       I.
      The facts of the case are essentially undisputed. Hughes first
encountered MV-1 on the Internet in 2009. Hughes and MV-1 frequently
played the same online video game, which allowed them to converse using the
in-game chat application. Hughes and MV-1 struck up an online friendship. At
the time they first became acquainted, MV-1 was 11 or 12 years old and lived
in Michigan, while Hughes was 16 or 17 years old and lived in Texas. MV-1
informed Hughes that she was under the age of 16.
      Hughes’s online relationship with MV-1 continued over the course of five
years. As far as the record reflects, Hughes and MV-1 never met in person. As
the years passed, Hughes’s online interactions with MV-1 became increasingly
sexual in nature. Hughes sent MV-1 pictures of his erect penis over the
Internet on multiple occasions. In return, MV-1 sent Hughes pornographic
images of her breasts, buttocks, and vagina. MV-1 sent Hughes so many nude
photos of herself over a period of several years that she lost count. At Hughes’s
rearraignment hearing, he described this arrangement – whereby he and MV-
1 would exchange images of their private parts – as “a mutual thing between
us.” When Hughes last sent a sexual image to MV-1, he was 20 years old and
MV-1 was 15. At that time, Hughes knew that MV-1 was a minor below the
age of 16.
      In 2013, Hughes mailed MV-1 a wallet filled with cash so that MV-1
could repair her broken phone. MV-1’s parents discovered the wallet and
questioned her about it. She informed her parents about her interactions with
Hughes. MV-1’s father confiscated the wallet and the iPod Touch device that
MV-1 used to communicate with Hughes and turned the items over to
Homeland Security agents. The agents searched the iPod Touch and discovered
hundreds of nude images of MV-1, as well as an image of Hughes’s erect penis.
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                                 No. 14-50892
      The agents traced the wallet back to Hughes’s address and executed a
search warrant at his house. In an interview with the agents, Hughes
identified MV-1 as his girlfriend and admitted mailing her the cash-filled
wallet. Hughes further admitted that he sent images of his penis to MV-1 and
that MV-1 would send naked photographs to him in return. Hughes also
admitted that he knew that MV-1 was a minor under the age of 16.
      A grand jury charged Hughes in a one-count indictment with sending
obscene material – specifically an image of his erect penis – to a minor under
16 years old. The indictment alleged that Hughes used a facility of interstate
and foreign commerce – namely, a cellular telephone and the Internet – to
knowingly transfer obscene matter to MV-1 with full knowledge that MV-1 had
not yet attained the age of 16 years.
      Hughes ultimately pleaded guilty to the indictment without a plea
agreement. At his rearraignment hearing, Hughes swore under oath that all
of the facts of the case described above were accurate.
      A probation officer then prepared a presentence investigation report
(“PSR”). The PSR recommended that Hughes’s total offense level be increased
by six levels pursuant to U.S.S.G. § 2G3.1(b)(1)(D), which applies when the
offender distributes obscene matter to a minor “that was intended to persuade,
induce, entice, or coerce the minor to engage in illegal activity” other than
“prohibited sexual conduct.”
      Hughes timely objected to the six-level enhancement. Hughes disputed
that he intended MV-1 to commit illegal activity. Hughes further contended
that, because MV-1 lived in Michigan and he lived in Texas, “[t]he distance
between Hughes and the minor militates against the specific offense
characteristic.”
      In response, the probation officer argued that the six-level enhancement
was proper. The probation officer reasoned that
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                                      No. 14-50892
       the defendant sent obscene material to [MV-1] in an effort to
       persuade, induce, entice, or coerce the minor to engage in illegal
       activity, specifically the production and distribution of child
       pornography. Hughes admitted to sending images of his penis to
       [MV-1] via the Skype application. He would, in turn, receive sexual
       images from [MV-1], where she would expose her vagina and
       breasts.

       At Hughes’s sentencing hearing, the district court adopted the PSR in its
entirety. The court found by a preponderance of the evidence that Hughes sent
MV-1 the image of his penis to persuade, induce, or entice her to produce child
pornography and send it to him. The court therefore overruled Hughes’s
objection and applied the six-level enhancement. The court sentenced Hughes
to 18 months imprisonment and ten years supervised release.
       Hughes now appeals that sentence. He challenges only the district
court’s    imposition    of   the    six-level     enhancement      under     U.S.S.G.     §
2G3.1(b)(1)(D).


                                             II.
       When reviewing a criminal sentence, we first consider whether the
district court committed a significant procedural error, such as improperly
calculating the Guidelines range. 1 We review the district court’s interpretation
and application of the Sentencing Guidelines de novo 2 and its factual findings
for clear error. 3 Even if the district court commits a procedural error, we will
not reverse the sentence if the error is harmless. 4 Then, if the district court




       1United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)).
      2 United States v. Pringler, 765 F.3d 445, 451 (5th Cir. 2014) (citing United States v.

Richardson, 713 F.3d 232, 237 (5th Cir. 2013)).
      3 Id. (citing United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012)).
      4 See Delgado-Martinez, 564 F.3d at 752-53 (citations omitted).

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                                        No. 14-50892
committed no significant procedural error, we review the substantive
reasonableness of the sentence for abuse of discretion. 5


                                              III.
       For the reasons explained below, even though the district court made no
clearly erroneous factual findings, it committed a procedural error when
calculating Hughes’s Guideline sentence. Reviewing the district court’s
interpretation and application of the Guidelines de novo, we conclude that the
district court applied the wrong subsection of the Guidelines. Nevertheless,
that error was harmless because it enured to Hughes’s benefit. We therefore
affirm Hughes’s sentence.
       The district court did not clearly err when it found by a preponderance
of the evidence that Hughes transmitted an obscene picture of his genitals to
MV-1 in an attempt to persuade, entice, or induce her to produce child
pornography and send it to him. First, the district court could reasonably
conclude that at least some 6 of the images MV-1 created and distributed to
Hughes constitute child pornography because they depict the “lascivious
exhibition” of MV-1’s genitals or pubic area. 7 Furthermore, the district court
could reasonably conclude that Hughes sent MV-1 the obscene picture of his
penis to entice, persuade, or induce her to create child pornography. Hughes
admitted at his rearraignment hearing that his arrangement to exchange nude



       5  Id. at 751 (quoting Gall, 552 U.S. at 51).
       6  The pictures of MV-1’s breasts and buttocks might not constitute child pornography.
See United States v. Johnson, 639 F.3d 433, 438 (8th Cir. 2011). However, the images of MV-
1’s genitals and pubic area clearly fall within the statutory definition.
        7 See 18 U.S.C. § 2256(8)(A) (defining child pornography); id. § 2256(2)(A)(v) (defining

“sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area”);
United States v. Grimes, 244 F.3d 375, 380 (5th Cir. 2001) (citations omitted) (articulating
standard governing whether a visual depiction of a minor’s genitals or pubic area is
“lascivious”).
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                                        No. 14-50892
pictures was “a mutual thing between us,” whereby Hughes would send MV-1
pictures of his genitals and ask her to reciprocate. Thus, the district court’s
factual findings were not clearly erroneous.
       However, we must also consider whether the production of child
pornography constitutes “illegal activity[] other than illegal activity covered
under subdivision (E),” as required by U.S.S.G. § 2G3.1(b)(1)(D). 8 Subdivision
(E) of § 2G3.1(b)(1) governs the distribution of obscene matter to a minor with
the intent to “persuade, induce, entice, coerce, or facilitate the travel of, the
minor to engage in prohibited sexual conduct.” 9 If persuading or enticing MV-
1 to produce pornographic pictures of herself constituted “prohibited sexual
conduct,” then U.S.S.G. § 2G3.1(b)(1)(E), not (D), governs this case, and the
district court committed a procedural error by imposing an inapplicable
enhancement. This is a legal question that we review de novo. 10
       We conclude that enticing and persuading a minor victim to produce
child pornography does indeed constitute “prohibited sexual conduct” within
the meaning of U.S.S.G. § 2G3.1(b)(1)(E). For the purposes of § 2G3.1,
“‘[p]rohibited sexual conduct’ has the meaning given that term in Application
Note 1 of the Commentary to § 2A3.1” of the Sentencing Guidelines, 11 which
“includes the production of child pornography.” 12 Thus, because Hughes
distributed obscene matter to MV-1 to encourage her to produce child
pornography, he induced, enticed, or persuaded her to engage in prohibited



       8 (Emphasis added.).
       9 (Emphasis added.).
       10 See Pringler, 765 F.3d at 451 (citing Richardson, 713 F.3d at 237).
       11 U.S.S.G. § 2G3.1, application note 1 (2013).
       12 Id. § 2A3.1, application note 1. We note that “prohibited sexual conduct . . . does not

include trafficking in, or possession of, child pornography.” Id. We need not decide whether
MV-1’s distribution of child pornography to Hughes or Hughes’s possession of that
pornography would warrant the subdivision (E) enhancement, because it is sufficient that
Hughes induced, persuaded, or enticed MV-1 to produce the pornographic images.
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                                        No. 14-50892
sexual conduct. Because U.S.S.G. § 2G3.1(b)(1)(D) only governs illegal activity
other than prohibited sexual conduct, the district court should not have
imposed an enhancement under that subsection.
       Nevertheless, the district court’s procedural error was harmless. 13 If the
district court had applied the U.S.S.G. § 2G3.1(b)(1)(E) enhancement as it
should have, it would have increased Hughes’s offense level by seven levels, not
six. 14 Because the district court’s procedural error benefited Hughes, we find
no reversible error. 15
       AFFIRMED.




       13  See Delgado-Martinez, 564 F.3d at 752-53 (citations omitted).
       14  Compare U.S.S.G. § 2G3.1(b)(1)(E) (2013) with id. § 2G3.1(b)(1)(D).
        15 Cf. United States v. Sheridan, 304 F. App’x 742, 745 (10th Cir. 2008) (“[I]t is beyond

peradventure that Mr. Sheridan persuaded, induced, or enticed a minor to engage in some
illegal activity. Assuming arguendo that the district court erred in applying the Guidelines
enhancement, it actually did so by not adjusting Mr. Sheridan’s offense level high enough.
The district court seemingly should have applied the seven level increase for intending to
induce a minor to engage in prohibited sexual conduct. It goes without saying that Mr.
Sheridan cannot benefit from such an error.” (emphasis in original, internal citations
omitted)).
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