     Case: 17-41242   Document: 00515070344   Page: 1   Date Filed: 08/09/2019




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


                               No. 17-41242
                                                                     FILED
                                                                August 9, 2019
                             c/w No. 17-41253
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JOHN KEVIN WALDRIP,

                                         Defendant-Appellant

Cons w/No. 17-41253

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JOHN KEVIN WALDRIP, also known as DVD Man,

                                         Defendant-Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas
                           USDC No. 3:16-CR-16-1
     Case: 17-41242      Document: 00515070344         Page: 2    Date Filed: 08/09/2019


                                     No. 17-41242
                                   c/w No. 17-41253

Before JOLLY, HIGGINSON, and HO, Circuit Judges.
PER CURIAM: *
       John Kevin Waldrip appeals the within-guidelines, 175-month sentences
imposed following his convictions for distribution, receipt, and possession of
child pornography. He contends that the district court erred by finding that
he is non-indigent for purposes of 18 U.S.C. § 3014 and, consequently, by
imposing a total of $15,000 in special assessments under § 3014(a)(3). Waldrip
also appeals his consecutive, 18-month revocation sentence, contending that
the district court erred by holding that he committed a Grade A violation as
defined by U.S.S.G. § 7B1.1.
       We review for clear error the district court’s determination that Waldrip
is not indigent for purposes of § 3014. See United States v. Graves, 908 F.3d
137, 140 (5th Cir. 2018), cert. denied, 139 S. Ct. 1360 (2019). In making the
determination, the district court could consider Waldrip’s future earning
capacity and whether he will be capable of paying the assessments over the
span of 20 years following his release from prison. See Graves, 908 F.3d at 141-
43; § 3014(g); 18 U.S.C. § 3613(b). Given the record evidence of Waldrip’s
education, his past record of employment and earnings, his identified monthly
expenses, and his prospects for future employment as set forth in a letter
written by his most recent employer, Waldrip fails to leave us “with the definite
and firm conviction that a mistake has been made.” Graves, 908 F.3d at 144
(internal quotation marks and citation omitted).
       Because Waldrip failed to object to the classification of his supervised
release violations under § 7B1.1, we review for plain error. See Puckett v.


       * 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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    Case: 17-41242     Document: 00515070344     Page: 3   Date Filed: 08/09/2019


                                  No. 17-41242
                                c/w No. 17-41253

United States, 556 U.S. 129, 135 (2009). To demonstrate plain error, Waldrip
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See id. If he makes such a showing, we have the discretion
to correct the error, but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See id. We agree with the parties
that Waldrip has made the necessary showing for the reasons below.
      Waldrip’s violative conduct does not constitute a crime of violence or
controlled substance offense and does not involve possession of a firearm or
destructive device.   See § 7B1.1(a)(1)(A).    Further, since Waldrip has no
qualifying prior convictions, his violations of Texas Penal Code § 43.26 and 18
U.S.C. §§ 2252A do not constitute Grade A violations because they are not
punishable by terms of imprisonment exceeding 20 years. See § 7B1.1(a)(1)(B);
§ 43.26(d) and (g) (providing that, absent prior § 43.26 convictions, violations
of § 43.26 constitute second or third degree felonies under Texas law);
§ 2252A(b)(1) and (2) (prescribing 20-year maximum sentences absent prior,
enhancement-qualifying convictions). The district court thus committed clear
or obvious error by holding that Waldrip had committed a Grade A violation.
See Puckett, 556 U.S. at 135.
      The error affects Waldrip’s substantial rights since it incorrectly
increases his guidelines range. See Molina-Martinez v. United States, 136 S.
Ct. 1338, 1345 (2016). We exercise our discretion to correct the error. See
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018); Puckett, 556
U.S. at 135.
      Waldrip’s convictions and sentences for distribution, receipt, and
possession of child pornography are AFFIRMED. The revocation sentence is
VACATED, and the revocation case is REMANDED for resentencing.




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