     Case: 11-31136   Document: 00511976480      Page: 1   Date Filed: 09/06/2012




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

                                                                     FILED
                                                                  September 6, 2012
                                   No. 11-31136
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee

v.

BOBBY C. ODOM,

                                             Defendant-Appellant


                  Appeal from the United States District Court
                     for the Western District of Louisiana


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
        Bobby C. Odom appeals his 264-month sentence following his guilty plea
to sexual exploitation of children, in violation of 18 U.S.C. § 2251(a), (e) and § 2.
Odom’s sole contention on appeal is that the district court erred in applying a
two-level enhancement for distribution of explicit materials involving a minor
under § 2G2.1(b)(3) of the U.S. Sentencing Guidelines Manual. For the reasons
stated below, we AFFIRM the judgment of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
        Defendant–Appellant Bobby C. Odom pleaded guilty to Count One of an
indictment charging him and Richard A. Franklin with the sexual exploitation
of children, in violation of 18 U.S.C. § 2551(a), (e) and § 2. The district court
imposed a Guidelines sentence, beginning with a base offense level of 32 under
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U.S. Sentencing Guidelines Manual § 2G2.1(a). The district court increased the
offense level by two levels under § 2G2.1(b)(1)(B) based on its conclusion that
Odom’s offense involved a minor who had attained the age of 12 years but not
attained the age of 16 years, and the court imposed another two-level increase
under § 2G2.1(b)(2)(A) because the offense involved the commission of a sexual
act or sexual contact. The district court then imposed an additional two-level
increase under § 2G2.1(b)(3) based on its finding that Odom’s “offense involved
distribution.” Because Odom’s offense involved two minor victims, the district
court then calculated a combined offense level of 40 under § 3D1.4. Finally, the
district court applied a three-level reduction based on Odom’s acceptance of
responsibility under § 3E1.1(b), resulting in a total offense level of 37. Based on
the total offense level of 37 and Odom’s criminal history category of III, the
Guidelines imprisonment range was 262 to 327 months. The district court
imposed a sentence of 264 months’ imprisonment, followed by a supervised
release term of 10 years.
      At sentencing, Odom objected to the imposition of the enhancement for
distribution under § 2G2.1(b)(3). The Guidelines define “distribution” as “any
act, including possession with intent to distribute, production, transmission,
advertisement, and transportation, related to the transfer of material involving
the sexual exploitation of a minor.” U.S. SENTENCING GUIDELINES MANUAL
§ 2G2.1 cmt. n.1. Odom contended that there was no evidence that any explicit
materials had been distributed, and that his assistance in producing the images
did not make out “distribution” under the Guidelines. However, the district
court adopted the finding in Odom’s Presentence Investigation Report (“PSR”)
that Franklin, Odom’s co-defendant, had “advised [law enforcement] that several
adults had seen the [explicit] pictures [at issue].” The district court did not
expressly rule on Odom’s “production” argument, stating only that “the two-point
enhancement is not improperly applied in this particular case under those
factual circumstances set forth in the presentence report.”         Odom timely

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appealed, reiterating his contention that the district court improperly applied
the enhancement for distribution under § 2G2.1(b)(3).
                                II. DISCUSSION
A. Standard of Review
      Odom properly preserved his challenge to the district court’s imposition
of an enhancement under § 2G2.1(b)(3), and thus the district court’s adjustment
is reviewed for abuse of discretion. See United States v. Gutierrez, 635 F.3d 148,
154 (5th Cir. 2011). This court reviews the district court’s interpretation and
application of the Guidelines de novo, and the district court’s factual findings are
reviewed for clear error. United States v. Cisneros–Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). “There is no clear error if the district court’s finding is plausible
in light of the record as a whole.” Id. (citation and internal quotation marks
omitted). A factual “finding will be deemed clearly erroneous if, based on the
record as a whole, [this court is] left with the definite and firm conviction that
a mistake has been committed.” United States v. Ekanem, 555 F.3d 172, 175
(5th Cir. 2009) (citation and internal quotation marks omitted).
      Pursuant to Gall v. United States, 552 U.S. 38, 49–51 (2007), this court
engages in a bifurcated review process of the sentence imposed by the district
court. United States v. Delgado–Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
First, this court considers whether the district court committed a “significant
procedural error,” such as miscalculating the advisory Guidelines range. Id. If
there is no error or the error is harmless, this court may proceed to the second
step and review the substantive reasonableness of the sentence imposed for an
abuse of discretion.     Id. at 753.    Odom, however, does not challenge the
substantive reasonableness of his sentence on appeal.
B. Enhancement under U.S. Sentencing Guidelines Manual § 2G2.1(b)(3)
      Odom contends that, in calculating his sentence, the district court erred
by imposing a two-level enhancement under § 2G2.1(b)(3). Odom challenges the
district court’s finding that Franklin distributed the explicit images Odom

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helped to produce. The district court based its finding on the statement in
Odom’s PSR that Franklin admitted that he allowed several adults to view the
images at issue. According to Odom, however, there is no evidence that Franklin
showed the images to anyone other than Odom.
      We conclude that the district court did not commit clear error in
concluding that, as set out in the PSR, Franklin had shown the images at issue
to several adults. As this court has stated,
      [g]enerally, a PSR bears sufficient indicia of reliability to permit the
      sentencing court to rely on it at sentencing. The defendant bears
      the burden of demonstrating that the PSR is inaccurate; in the
      absence of rebuttal evidence, the sentencing court may properly rely
      on the PSR and adopt it.
United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (citation and internal
quotation marks omitted). At the sentencing hearing, counsel for Odom objected
to the enhancement under § 2G2.1(b)(3), and indicated that he had not seen
evidence that Franklin had shown the images at issue to anyone other than
Odom. However, “rebuttal evidence must demonstrate that the PSR information
is materially untrue, inaccurate or unreliable.” United States v. Parker, 133 F.3d
322, 329 (5th Cir. 1998) (internal quotation marks omitted). In addition, “[m]ere
objections do not suffice as competent rebuttal evidence.” Id. Thus, Odom failed
to demonstrate that the PSR was inaccurate, and the district court did not
clearly err in finding that Franklin had shown the explicit images to several
adults.
      Odom further argues that the § 2G2.1(b)(3) enhancement does not apply
because he did not distribute the images in question, and his help in producing
the images does not make out “distribution” as defined in the Guidelines. See
§ 2G2.1 cmt. n.1.     Whether Odom personally “distributed” the images is
inapposite, however, because the district court implicitly determined that
Franklin’s act of distribution was fairly attributable to Odom as “relevant
conduct.” Under the Guidelines, the relevant conduct used to determine a

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defendant’s advisory sentencing range includes “all harm that resulted from” “all
acts and omissions committed . . . by the defendant.” § 1B1.3(a)(1), (a)(3). The
record shows that Franklin’s distribution of the images—the contemplated
“harm” to the minor victims—resulted from Odom’s help in producing them.
United States v. Valenzuela-Contreras, 340 F. App’x 230, 236 (5th Cir. 2009)
(applying Guidelines enhancement where harm indirectly resulted from the
defendant’s acts). On appeal, Odom does not dispute that Franklin’s distribution
of the explicit images constituted harm to the victims, or that Odom’s assistance
in producing the images ultimately resulted in their distribution.        Odom
contends only that there was no evidence of distribution. However, as discussed
above, the district court’s factual finding that Franklin distributed the images
was not clearly erroneous. Consequently, we conclude that the district court
properly determined that Franklin’s distribution of the images that Odom helped
to create was relevant conduct attributable to Odom.
                              III. CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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