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

                                                                            FILED
                                                                            June 4, 2008

                                       No. 07-40725                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellant
v.

WESLEY ADAM TAYLOR

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Texas, Tyler
                              USDC No. 6:06-CR-113


Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       Wesley Adam Taylor pleaded guilty to one count of possessing visual
depictions involving the sexual exploitation of minors. In sentencing Taylor, the
district court applied a substantial downward variance from the sentence
recommended by the presentence report. Under the United States Sentencing
Guidelines (“Sentencing Guidelines”), Taylor could have received a sentence of
120 months of imprisonment. The district court, however, sentenced Taylor to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40725

sixty months of imprisonment followed by three years of supervised release. The
government appealed. After reviewing the sentence for plain error, we AFFIRM.
                                         I.
      On July 11, 2006, Taylor was arrested for trading child pornography.
Responding to an internet advertisement to trade child pornography placed by
an undercover government official, Taylor sent the official DVDs containing
thousands of sexually explicit images along with countless pornographic movies,
most of which involved children. A month later, government agents executed a
controlled mail delivery of videos containing child pornography to Taylor’s
residence. After Taylor’s wife accepted the package, the agents exercised a
search warrant and seized Taylor’s computer.          The computer contained a
plethora of child pornographic materials, including hundreds of movies and
thousands of images.        The computer also showed that Taylor frequented
numerous web sites containing child pornography. During questioning, Taylor
confessed to possessing and trading child pornography. Taylor also admitted
that he had taken sexually explicit photographs of his brother’s sixteen-year-old
girlfriend and that he had cajoled his twelve-year-old sister into letting him take
pictures of her breasts for money.
      On December 13, 2006, Taylor was indicted on six counts. The first count
charged Taylor with producing sexually explicit images of a minor in violation
of 18 U.S.C. § 2251(a) and (d). The second and third counts alleged that Taylor
had distributed pornographic materials involving minors in violation of 18
U.S.C. § 2252(a)(2) and (b)(1). Finally, the fourth, fifth, and sixth counts charged
Taylor with possessing child pornographic materials in violation of 18 U.S.C. §
2252(a)(4)(B) and (b)(2).
      Pursuant to a plea agreement, Taylor pleaded guilty to Count Four of the
indictment and agreed to the application of various adjustments under the
Sentencing Guidelines.       In accordance with the plea, Taylor admitted to


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possessing materials involving a prepubescent minor and distributing the
materials with the expectation of receiving a thing of value in return. Moreover,
Taylor acknowledged that his offense involved materials that were sadistic or
masochistic in nature, the use of a computer, and 600 or more images. Given
these admissions, the presentence report found that the proper sentencing range
under the Sentencing Guidelines was 235-293 months. Because the statutory
maximum for a violation of § 2252(a)(4)(B) and (b)(2) is 120 months, the
presentence report recommended a 120-month sentence.
      On June 21, 2007, the district court sentenced Taylor to sixty months of
imprisonment followed by three years of supervised release. In explaining its
decision, the district court took note of Taylor’s admissions and the seriousness
of his offense but found the following factors justified the downward variance
from the recommended sentence: (1) the absence of a prior criminal record, (2)
Taylor’s youth and “impressive employment history,” (3) the supportive
testimonies of Taylor’s wife, mother, and step-father, and (4) the needs of
Taylor’s newborn son. After handing down the sentence, the district court asked,
“[I]s there anything else from the government?” The government replied, “No.”


                                          II.
      Ordinarily, we review sentences for “reasonableness” by applying an
abuse-of-discretion standard of review. United States v. Gall, -- U.S. --, 128
S.Ct. 586, 594 (2007). Because the government did not object to the downward
variance, however, Taylor argues that we should review his sentence for plain
error. We agree.
      “One of the most familiar procedural rubrics in the administration of
justice is the rule that the failure of a litigant to assert a right in the trial court
likely will result in its forfeiture.” United States v. Calverley, 37 F.3d 160, 162

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                                        No. 07-40725

(5th Cir. 1994) (en banc), abrogated in part on other grounds by Johnson v.
United States, 520 U.S. 461, 468 (1997). Therefore, for example, if the defendant
failed to object to his sentence at the district court, we review an upward
variance from the Sentencing Guidelines for plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
       The government acknowledges that it did not explicitly object to Taylor’s
sentence. It asserts, however, that it properly preserved the error because,
before the district court sentenced Taylor, it had argued for the district court to
follow the presentence report. But in Peltier, the defendant had also argued his
case to the district court before sentencing, and we nonetheless found that the
defendant had failed to object. See id. at 390-92. This makes sense because only
an explicit objection gives the district court the invaluable opportunity to correct
errors before they are appealed, which we have found to serve a “critical
function” by “encourag[ing] informed decisionmaking.”                     Id. at 392.       The
government does not contend–nor do we find appropriate–that the law applies
differently when the derelict litigant is the government instead of the criminal
defendant.1
       In sum, we conclude that, because the government did not properly object
to Taylor’s sentence, we must apply the plain-error standard of review in this
case. Accordingly, “[w]e may correct the sentencing determination only if (1)
there is error (and in light of Booker, an ‘unreasonable’ sentence equates to a
finding of error); (2) it is plain; and (3) it affects substantial rights.”                  Id.



       1
        Contrary to the government’s assertion, United States v. Castillo, 430 F.3d 230 (5th
Cir. 2005), does not support its argument. In Castillo, the “unique set of circumstances” of that
case deprived the government of any opportunity to object after the district court sentenced the
defendant. See id. at 234-35, 240. In this case, the district court gave the government an
opportunity to address the court after it sentenced Taylor, which the government inexplicably
declined.

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Moreover, we cannot correct a “forfeited error” unless the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks and
citations omitted) (alteration in original).
                                        III.
      The sentencing decision of the district court must be both procedurally
sound and substantively reasonable. Gall, 128 S.Ct. at 597. “A district court
should begin all sentencing proceedings by correctly calculating the applicable
Guidelines range.” Id. at 596. Because it cannot assume that the Sentencing
Guidelines range is per se reasonable, the district court must also make an
“individualized assessment” by considering the factors reflected in 18 U.S.C. §
3553 and the facts presented. See id. “A sentence is unreasonable if it (1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Peltier, 505 F.3d at 392
(internal quotation marks and citation omitted).
      The government first argues that the district court erred because it failed
to consider the Sentencing Guidelines when it sentenced Taylor. This argument
lacks merit. In this case, the district court correctly calculated the Sentencing
Guidelines range, which was 235-293 months. But because of the statutory
maximum, the most that the district court could have sentenced Taylor to under
the Sentencing Guidelines was 120 months. Therefore, in deciding to impose a
sixty-month, non-Guideline sentence, the district court properly considered
whether this was reasonable in light of the 120-month sentence Taylor could
have received under the Sentencing Guidelines. See United States v. Grossman,
513 F.3d 592, 595 (6th Cir. 2008) (reviewing a district court’s downward variance



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                                      No. 07-40725

for reasonableness in light of the recommended guidelines sentence after
accounting for the statutory maximum).
      The government also contends that the district court erred because it
failed to consider the factors provided under § 3553(a)(2) and § 3553(a)(5).
Under § 3553(a)(2), sentencing courts must consider the need for the sentence
imposed.2 Under § 3553(a)(5), sentencing courts must consider policy statements
issued by the Sentencing Commission.3 In this case, the government contends
that the district court failed to consider the policy statement found in U.S.S.G.
§ 5K2.0(b), which cautions courts against departing from the Sentencing
Guidelines in cases involving “[c]hild crimes and [s]exual offenses,” except in
limited circumstances.4

      2
       Section 3553(a)(2) requires sentencing courts to consider:
      [T]he need for the sentence imposed--
      (A) to reflect the seriousness of the offense, to promote respect for the law, and
      to provide just punishment for the offense;
      (B) to afford adequate deterrence to criminal conduct;
      (C) to protect the public from further crimes of the defendant; and
      (D) to provide the defendant with needed educational or vocational training,
      medical care, or other correctional treatment in the most effective manner.
      3
       Section 3553(a)(5) requires sentencing courts to consider:
      [A]ny pertinent policy statement--
      (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title
      28, United States Code, subject to any amendments made to such policy
      statement by act of Congress (regardless of whether such amendments have yet
      to be incorporated by the Sentencing Commission into amendments issued
      under section 994(p) of title 28); and
      (B) that, except as provided in section 3742(g), is in effect on the date the
      defendant is sentenced.
      4
        U.S.S.G. § 5K2.0(b) provides:
      Downward Departures in Child Crimes and Sexual Offenses.--Under 18 U.S.C.
      § 3553(b)(2)(A)(ii), the sentencing court may impose a sentence below the range
      established by the applicable guidelines only if the court finds that there exists
      a mitigating circumstance of a kind, or to a degree, that--
      (1) has been affirmatively and specifically identified as a permissible ground of
      downward departure in the sentencing guidelines or policy statements issued
      under section 994(a) of title 28, United States Code, taking account of any

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                                       No. 07-40725

       The problem with the government’s argument is that it is pure
speculation. The government assumes that the district court did not consider
the factors listed under § 3553(a)(2) and 3553(a)(5) because the district court did
not explicitly address them in its analysis. But we have previously found that
“a checklist recitation of the section 3553(a) factors is neither necessary nor
sufficient for a sentence to be reasonable.” United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006). In this case, the district court gave a long, meticulous
explanation for departing from the Sentencing Guidelines. From the district
court’s detailed discussion of the facts specific to this case, we find it is clear that
the district court considered all the concerns embodied in § 3553 and simply
determined that the variance was nonetheless appropriate. Because we conclude
that the district court considered all the § 3553 factors, the district court did not
err.
       Finally, the government asserts that Taylor’s sentence was unreasonable
because the district court improperly weighed the factors provided under §
3553(a)(1).5 The gravamen of the government’s argument is that Taylor’s crime


       amendments to such sentencing guidelines or policy statements by act of
       Congress;
       (2) has not adequately been taken into consideration by the Sentencing
       Commission in formulating the guidelines; and
       (3) should result in a sentence different from that described.
       The grounds enumerated in this Part K of Chapter Five are the sole grounds
       that have been affirmatively and specifically identified as a permissible ground
       of downward departure in these sentencing guidelines and policy statements.
       Thus, notwithstanding any other reference to authority to depart downward
       elsewhere in this Sentencing Manual, a ground of downward departure has not
       been affirmatively and specifically identified as a permissible ground of
       downward departure within the meaning of section 3553(b)(2) unless it is
       expressly enumerated in this Part K as a ground upon which a downward
       departure may be granted.
       5
         Section 3553(a)(1) requires sentencing courts to consider “the nature and
circumstances of the offense and the history and characteristics of the defendant.”


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is too despicable and his “mitigating” circumstances too unexceptional to
warrant the variance imposed. But “[w]e may not require district courts to find
‘extraordinary’ circumstances before they impose sentences outside of the
guidelines range.” United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008).
In this case, the district court explicitly took note of the “insidious” nature of
Taylor’s crime and the “irreparable harm” he caused, but it nonetheless decided
that a sixty-month sentence was appropriate because: (1) Taylor did not have a
prior criminal record; (2) Taylor was young and had an “impressive employment
history”; (3) Taylor’s wife, mother, and step-father wholeheartedly supported
him; and (4) Taylor had a newborn son. We “might reasonably have concluded
that a different sentence was appropriate,” but this “is insufficient to justify
reversal of the district court.” Gall, 128 S.Ct. at 597. Our review in this case is
also limited to plain error. Therefore, while the extent of the variance in this
case was admittedly substantial, we cannot find that the district court so plainly
erred as to warrant reversal.
                                       IV.
      For the reasons above, we AFFIRM.




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