     Case: 15-51069      Document: 00513771520         Page: 1    Date Filed: 11/23/2016




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


                                    No. 15-51069
                                                                                FILED
                                                                        November 23, 2016
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARL WADE BAILES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CR-211-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Carl Wade Bailes was convicted by a jury of two counts of distribution of
child pornography, one count of receipt of child pornography, two counts of
possessing material, i.e., a laptop computer, that contained an image of child
pornography, and two counts of production of child pornography. The district
court departed downwardly from the advisory guidelines range and sentenced
him to a total of 1,620 months in prison.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 15-51069

      Bailes challenges two evidentiary rulings that the district court made at
trial. Bailes argues that the district court erred by allowing the Government
to present testimony with regard to his long-term sexual abuse of his daughters
and allowing the Government to offer extrinsic evidence on a collateral matter
during cross-examination of a character witness. We review the district court’s
rulings for an abuse of discretion, subject to harmless-error analysis, United
States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999). For the evidentiary rulings
to constitute reversible error, the admission of the evidence must have affected
Bailes’s substantial rights and actually contributed to the jury’s verdict. Id. at
206; FED. R. CRIM. P. 52(a).
      The district court did not abuse its discretion in admitting evidence of
Bailes’s prior sexual abuse of his prepubescent daughters, M.B. and A.B. The
evidence was admissible under Federal Rule of Evidence 414, and its probative
value was not substantially outweighed by the danger of unfair prejudice. See
FED. R. EVID. 403(b), 414(a). The evidence reflected Bailes’s deviant sexual
attraction to young girls and his motive to commit crimes involving the sexual
exploitation of children; the evidence was probative as to whether the child
pornography found on his computer devices – which depicted acts similar to
his conduct with his daughters – was knowingly possessed by him or placed
there by mistake, accident, or someone else. See United States v. Caldwell, 586
F.3d 338, 345-46 (5th Cir. 2009). Further, the evidence was probative as to the
charge that he made videos of M.B. and A.B. engaging in sexual acts because
it was consistent with, and indicative of, the conduct depicted in the videos and
suggested his intent to translate his sexual exploitation of M.B. and A.B. to the
production of child pornography involving them. See United States v. Hitt, 473
F.3d 146, 159 (5th Cir. 2006). The evidence also was relevant as to the issue




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of identity because Bailes disputed that he was the adult male in the videos of
his daughters and was reflective of his modus operandi. See id.
      The above-detailed probative value of the evidence was not substantially
outweighed by the risk of unfair prejudice. See FED. R. EVID. 403. Because of
the similarity between Bailes’s sexual conduct and the activities shown in the
videos that were offered at trial, there is no indication that the jury would be
distracted or confused or induced to decide the case on an improper basis. See
United States v. Dillon, 532 F.3d 379, 389 (5th Cir. 2008). The evidence was
not so inflammatory as to divert unduly the jury’s attention from the issues of
the case, which involved graphic evidence as to the child-pornography images
that Bailes possessed and distributed and lurid evidence as to the conduct on
the videos that Bailes produced. Moreover, the evidence was subject to cross-
examination and rebuttal, and the district court instructed the jury that Bailes
could be convicted only based upon the acts alleged and the crimes charged.
See United States v. Crawley, 533 F.3d 349, 355 (5th Cir. 2008).
      Bailes likewise is not entitled to relief on his claim that the district court
improperly allowed the Government to introduce during the cross-examination
of his mother, who testified as to her opinion of Bailes’s truthfulness, letters in
which Bailes falsely stated that he received a Purple Heart. Even if the letters
were improper rebuttal evidence under Federal Rule of Evidence 404(a)(2), and
exceeded the inquiry allowed under Federal Rule of Evidence 405(a), any error
was harmless. See Cantu, 167 F.3d at 203, 206. The evidence of Bailes’s guilt
– which included, inter alia, the results of forensic reviews of Bailes’s computer
equipment showing that he possessed images and videos of child pornography,
testimony from M.B. and A.B. asserting that Bailes produced child
pornography involving them, and evidence of child pornography featuring M.B.
and A.B. – was overwhelming.         Bailes’s credibility was not dispositive or



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significant, and, thus, there is no indication that any evidence as to whether
he was truthful about receiving a Purple Heart affected the jury’s assessment,
i.e., Bailes not shown that introduction of evidence that he falsely informed
others that he received a Purple Heart affected the jury’s evaluation of the
evidence and its ultimate determination of his guilt. See id. at 206; FED. R.
CRIM. P. 52.
      Finally, Bailes argues that his sentence was substantively unreasonable.
We typically review the substantive reasonableness of a sentence for an abuse
of discretion. Gall v. United States, 552 U.S. 38, 46, 49-51 (2007). However, if
a defendant fails to challenge the reasonableness of the sentence in the district
court, our review is for plain error only. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). Bailes seeks to preserve for possible further review
the claim that, for the abuse-of-discretion standard to apply, a defendant need
not object to the reasonableness of a sentence after its imposition. We need not
resolve the standard of review because Bailes is not entitled to relief even if he
preserved a challenge to the substantive reasonableness of his sentence. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      The district court made an individualized sentencing decision based on
the facts of the case and with reference to the 18 U.S.C. § 3553(a) factors. See
Gall, 552 U.S. at 49-50. The district court considered the parties’ sentencing
arguments – including, inter alia, Bailes’s claim that a 30-year sentence was
adequate and that he should receive a lesser sentence due to his poor health –
and granted a downward departure under U.S.S.G. § 5H.11. The district court
was authorized to run the sentences for each count consecutively to obtain the
aggregate sentence that it found to be appropriate, see U.S.S.G. § 5G1.2(d);
United States v. Heard, 709 F.3d 413, 426 (5th Cir. 2013), and Bailes has failed
to show that his sentence was unjustifiably harsh relative to similarly situated



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defendants nationwide, see United States v. Candia, 454 F.3d 468, 476 (5th Cir.
2006). Bailes’s disagreement with the district court’s sentencing decision and
its weighing of the § 3553(a) factors is insufficient to rebut the presumption
that his sentence was reasonable. See United States v. Ruiz, 621 F.3d 390, 398
(5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Thus,
he has not shown that his sentence is substantively unreasonable.
      AFFIRMED.




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