     Case: 17-30654   Document: 00514614027    Page: 1   Date Filed: 08/23/2018




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

                                                                        FILED
                                No. 17-30654                      August 23, 2018
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                  Plaintiff-Appellee

v.

RAYLIN RICHARD,

                  Defendant-Appellant


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


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Raylin Richard appeals the district court’s acceptance of his guilty plea
to one count of transportation of child pornography and his subsequent
sentence. He contends that the district court erred because: (1) the factual
basis for his plea did not support a conviction for knowing transport under
18 U.S.C. § 2252A(a)(1); (2) the district court improperly applied a cross
reference to U.S.S.G. § 2G2.1; (3) the district court improperly applied an
enhancement for obstructing justice under U.S.S.G. § 3C1.1; and (4) the
within-Guidelines sentence Richard received was “grossly disproportionate to
the severity of his offense and violates the Eight Amendment’s ban on excessive
sentences.” We AFFIRM.
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                                No. 17-30654

                              BACKGROUND
      In 2015, a grand jury indicted Raylin Richard on numerous counts of
production   or   attempted    production     of    child    pornography     under
18 U.S.C. § 2251(a), and one count of possession of child pornography under
18 U.S.C § 2252A. Later, the Government filed a bill of information charging
Richard with one count of knowingly transporting child pornography using a
means or facility of interstate commerce under 18 U.S.C. § 2252A(a)(1).
Richard waived prosecution by indictment on the single charge and pleaded
guilty to the bill of information with a written plea agreement and factual
resume.
      The factual basis stated that in May 2015, the mother of the 12-year-old
victim, who was involved in a romantic relationship with and lived with
Richard, discovered nude photographs of her daughter on Richard’s phone.
The photos showed the juvenile in the bathroom of the home Richard shared
with the family. The mother contacted the local sheriff’s office, which took
custody of the cellular telephone and conducted a forensic examination of the
phone. The forensic exam revealed multiple videos of the naked child in the
bathroom including zoomed-in images. A search of Richard’s vehicle produced
a notebook computer with the same videos and images.
      In the presentence report (“PSR”), the probation officer noted that the
mother of the juvenile also found evidence that Richard had been texting with
another minor with whom he may have had a sexual relationship. While
Richard was in jail on the charges in the instant matter, a monitored jail call
revealed Richard asking a friend to intervene with the mother of the 16-year-
old girl with whom Richard had been exchanging inappropriate text messages.
Specifically, Richard asked his friend to inform the mother that he had
photographs of “her” in her underwear with “very compromising” things on the



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                                  No. 17-30654

table, and to discover why law enforcement officers were in contact with the
mother. Richard also told his friend to contact Richard’s parents for money to
give to “the women” to “keep her [sic] mouth shut.”
      The probation officer prepared a PSR, which assessed a base offense level
of 32 under U.S.S.G. § 2G2.2, by cross reference to U.S.S.G. § 2G2.1, because
the offense of conviction involved causing a minor to engage in sexually explicit
conduct. The probation officer added two levels because the offense involved a
minor of 12 years but under the age of 16, 2 levels because the minor was in
Richard’s custody, care, or supervisory control, and two levels because Richard
obstructed justice. The probation officer recommended a reduction of three
levels for acceptance of responsibility, resulting in a total offense level of 35.
The probation officer calculated a criminal history category of III, based on two
points arising from a violation of a protective order, to which two further points
were added because Richard committed the instant offense while on probation.
With a total offense level of 35 and criminal history category of III, Richard
faced an advisory Guidelines sentencing range of 210 months to 240 months in
prison, as limited by the statutory maximum sentence of 20 years.
§ 2252A(b)(1).
      Richard made a number of objections in writing, which he reiterated at
sentencing. The district court overruled the objections. The district court
sentenced Richard at the bottom of the Guidelines range to 210 months in
prison along with a 15-year term of supervised release.          Richard timely
appealed.
                          STANDARD OF REVIEW
      This court reviews an unpreserved challenge to the sufficiency of the
evidence supporting entry of a guilty plea for plain error. United States v.
Palmer, 456 F.3d 484, 489 (5th Cir. 2006). A district court’s interpretation or



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application of the Guidelines is reviewed de novo, and its factual findings are
reviewed for clear error. United States v. Goluba, 672 F.3d 304, 306 (5th Cir.
2012). Under the clearly erroneous standard, a sentencing court’s factual
findings will be upheld if they are “plausible in light of the record as a whole,”
and they will be deemed clearly erroneous “only if” a review of all the evidence
leaves this court “with ‘the definite and firm conviction that a mistake has been
committed.’”   United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012)
(quoting United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011)).
                                 DISCUSSION
      Sufficiency of the Factual Basis
      Richard first argues that the factual basis for his plea did not support a
conviction under 18 U.S.C. § 2252A(a)(1) because transferring a file from his
phone to computer did not constitute “transportation.” The United States
responds, in part, that Richard waived any argument regarding the factual
sufficiency of his plea. We address waiver first to determine whether it is
necessary to decide the underlying merits of Richard’s argument.
      “A waiver ‘occurs by an affirmative choice by the defendant to forego any
remedy available to him, presumably for real or perceived benefits resulting
from the waiver.’” United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir.
2010) (quoting United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002)).
“[W]aived errors are entirely unreviewable.” United States v. Arviso-Mata,
442 F.3d 382, 384 (5th Cir. 2006) (citing United States v. Musquiz, 45 F.3d 927,
931-32 (5th Cir.1995)).
      At sentencing, the district court discussed Richard’s various objections
to the PSR with his attorney. The court noted that “[m]any of the objections to
the Guideline range are that the Guidelines are not factually appropriate.”
The district court advised that “if the defendant believes that the factual basis



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is not correct, then his remedy is to file a motion to undo his guilty plea and go
to trial in this matter, or the Court is faced with the possibility of not awarding
points for acceptance of responsibility.” Richard’s attorney responded:
      We don’t intend to say that he’s pleading guilty, but he’s not really
      guilty. What we are saying is he is guilty of the facts of this case.
      If those facts fit the way the Guideline Sentencing Commission
      decides generically to apply them, then that’s fine. We have to live
      with that. But the Court doesn’t, and we don’t because the
      sentence should be tailored to the defendant and not to the
      Guidelines. That’s our argument.

      The record makes clear that Richard and his attorney were explicitly told
that they should file a motion to undo Richard’s guilty plea if they believed the
factual basis did not support his plea. Richard’s attorney affirmatively did not
do so. Indeed, the attorney responded in a manner that forewent a challenge
to the factual sufficiency of the plea to help secure benefits for Richard. Most
immediately, he wanted to preserve the three-level deduction for acceptance of
responsibility. But Richard also had no incentive to challenge the one count to
which he had pled guilty, because doing so would vitiate this highly favorable
plea agreement and expose him to multiple counts. Accordingly, placed in
context, we conclude that Richard waived any challenge to the factual
sufficiency of his guilty plea.
      U.S.S.G. § 2G2.1 Cross Reference
      Richard next argues that the district court improperly applied a cross
reference to U.S.S.G. § 2G2.1 under § 2G2.2(c)(1) because he did not cause the
victim to engage in sexually explicit conduct. We need not dwell on the details
of Richard’s offense to determine that the district court did not clearly err by
applying the cross reference. Richard’s conduct closely resembles the conduct
at issue in United States v. McCall, 833 F.3d 560 (5th Cir. 2016), cert. denied,
137 S. Ct. 686 (2017). In McCall, this court held that a defendant caused his


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victim to engage in sexually explicit conduct when he hid his cell phone in the
bathroom of his home to record his teenage niece using the shower. 833 F.3d
at 561-64. The district court did not err by applying the § 2G2.2(c)(1) cross
reference.
       Obstructing Justice Enhancement
       Richard also argues that the district court improperly enhanced his base
offense level by two for obstructing justice under U.S.S.G. § 3C1.1. Richard
argued to the district court, and again here, that his phone call asking his
friend to tell the mother of another teenage girl that he had compromising
photographs of her was not obstruction of justice with regard to his offense of
conviction. Richard quotes the language of § 3C1.1 as saying the two-level
increase is warranted when the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing of the instant offense of
conviction . . . .”
       The ellipsis in Richard’s quoted language omits the relevant second
portion of § 3C1.1, which goes on to say that the increase can apply when “the
obstructive conduct related to (A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1 (emphasis
added).    Richard’s conduct involving the 16-year-old girl was part of the
investigation into his offense of conviction. Indeed, Richard’s texts to this child
were charged as Attempted Production of Child Pornography in the
Superseding Indictment. Richard’s phone call and attempt to threaten this
girl’s mother from jail involved a closely related offense to his offense of
conviction and he made the phone call during the investigation. Accordingly,
this court finds that the district court did not err in applying the § 3C1.1
enhancement for obstructing justice.



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      Excessive Sentence
      Richard briefly asserts, without further argument, that his sentence “is
grossly disproportionate to the severity of his offense and violates the Eighth
Amendment’s ban on excessive sentences.” Richard has waived this issue by
failing to argue it in his appellate briefing. See N.W. Enters., Inc. v. City of
Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003).
                               CONCLUSION
      For the foregoing reasons, we AFFIRM.




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