     Case: 17-10796       Document: 00514526409         Page: 1     Date Filed: 06/25/2018




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

                                     No. 17-10796
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                         June 25, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                  Plaintiff - Appellee

v.

ROBERT DION ABLES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-38-1


Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       Robert Dion Ables pleaded guilty to receiving child pornography (count
one) and producing it (counts two and three), in violation of 18 U.S.C.
§§ 2252(a)(2) and 2251(a). He challenges his within-Guidelines sentence of 960
months’ imprisonment.
       Ables claims the district court relied on conduct that was not “relevant
conduct” under Guideline § 1B1.3. to support enhancing his offense level under


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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Guideline § 2G2.1 on count one for sadomasochistic images, the number of
images involved, and pecuniary involvement. Because Ables did not preserve
these issues in district court, review is only for plain error. E.g., United States
v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Under that standard, Ables must show a forfeited plain error (clear or
obvious error, rather than one subject to reasonable dispute) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      Ables’ claim raises fact questions pertaining to the type and number of
images involved and whether the money he received from extorting other
pedophiles accurately reflected his pecuniary gains. Because “[q]uestions of
fact capable of resolution by the district court upon proper objection at
sentencing can never constitute plain error”, United States v. Lopez, 923 F.2d
47, 50 (5th Cir. 1991), Ables fails to demonstrate the requisite plain error.
      Additionally, Ables’ assertions that United States v. Olano, 507 U.S. 725,
732 (1993), and United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en
banc), which addressed legal error, dictate we not follow Lopez are
unpersuasive. Likewise, his reliance on the Supreme Court’s admonition in
Puckett, 556 U.S. at 142, against the use of per se rules on plain-error review
is misplaced. That language clarified that the discretionary fourth prong of
the plain-error analysis was “meant to be applied on a case-specific and fact-
intensive basis”.    Id.   Ables effectively asks us to overturn our court’s
precedent, which we may not do as a panel. E.g., United States v. Walker, 302
F.3d 322, 324-25 (5th Cir. 2002).




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                                 No. 17-10796

      Accordingly, Ables’ assertion that he has raised a legal issue warranting
plain-error review based on the court’s refusal to make fact findings under
Guideline § 1B1.3 is meritless. Because Ables failed to raise this issue in
district court, he, therefore, cannot now complain of the court’s refusal to make
such findings. United States v. Ruiz, 43 F.3d 985, 991–92 (5th Cir. 1995).
      Ables additionally claims that, because his sentence on count one was
enhanced for engaging in a pattern of sexual activity involving sexual abuse or
exploitation of a minor, and such conduct was embodied in counts two and
three, count one should have been grouped with either count two or count
three. As discussed supra, because Ables did not raise these issues in district
court, review is only for plain error. E.g., Broussard, 669 F.3d at 546.
      The probation officer misapplied the grouping rules by failing to group
count one with one of the other counts. U.S.S.G. §§ 3D1.2(c), 3D1.4. (The
Government agrees.) But, without the addition of the one level resulting from
that mistake, Ables’ maximum offense level of 43 and Guidelines-sentencing
range would have remained the same. U.S.S.G. § 3D1.4. Consequently, he
cannot show the error affected his substantial rights. United States v. Garcia-
Gonzalez, 714 F.3d 306, 317 (5th Cir. 2013).
      As Ables acknowledges, his claim that the court committed plain error
by determining his offense level exceeded 43 before subtracting 3 levels for
acceptance of responsibility is foreclosed. United States v. Wood, 1995 WL
84100 (5th Cir. 8 Feb. 1995) (unpublished). (He raises the issue to preserve it
for possible further review.) Although unpublished, Wood is binding precedent
because it was issued before 1 January 1996. 5th Cir. R. 47.5.3; Zenor v. El
Paso Healthcare Sys., Ltd., 176 F.3d 847, 854 n.4 (5th Cir. 1999).
      Likewise, Ables’ claim that his sentence was substantively unreasonable
because the child-pornography Guidelines are not empirically based is



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foreclosed. United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011); United
States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009). (He raises the issue to
preserve it for possible further review.)
      AFFIRMED.




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