     Case: 15-30152   Document: 00513741236       Page: 1   Date Filed: 10/31/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                   No. 15-30152
                                                                           Fifth Circuit

                                                                         FILED
                                                                   October 31, 2016

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff–Appellee,

v.

AARON WIKKERINK,

             Defendant–Appellant.




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


Before CLEMENT, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Aaron Wikkerink pleaded guilty to one count of receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2). In calculating the range
applicable to Wikkerink’s offense under the U.S. Sentencing Guidelines (the
“Guidelines”), the district court applied sentencing enhancements pursuant to
§ 2252A(b)(1) and U.S.S.G. § 4B1.5(a). On appeal, Wikkerink argues the
district court erred in applying these sentencing enhancements to the
calculation of his Guidelines range. Although the district court made a clear
and obvious error that affected Wikkerink’s substantial rights, we hold that
the error does not seriously affect the fairness, integrity, or public reputation
of judicial proceedings, and thus we AFFIRM.
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                                      No. 15-30152
                                  I. BACKGROUND
       In October 2014, Wikkerink entered into an agreement in which he
pleaded guilty to one count of receipt of child pornography in violation of 18
U.S.C. § 2252A(a)(2). A presentence report (“PSR”) was subsequently prepared
to assist the district court in determining the appropriate sentence. The PSR
revealed that Wikkerink’s only previous conviction was for the Louisiana
offense of aggravated incest, for which he had been sentenced to an eight-year
term of imprisonment. Wikkerink had committed the Louisiana offense by
sexually molesting his seven-year-old niece. 1 Based on this prior conviction,
the PSR indicated that § 2252A(b)(1) imposed a minimum term of
imprisonment of 15 years and a maximum term of 40 years. The PSR also
found that Wikkerink was a “repeat and dangerous sex offender against
minors” within the meaning of U.S.S.G. § 4B1.5, which gave him an offense
level of 34 and a criminal history category of V. After a three-level reduction
for acceptance of responsibility, the PSR concluded that Wikkerink’s total
offense level was 31. Based on this total offense level and a criminal history
category of V, the Guidelines range would have been 168 to 210 months.
Because the statute of conviction imposed a mandatory minimum sentence,
however, the PSR stated that the Guidelines range was 180 to 210 months.
       During the sentencing hearing, the district court considered the
recommendations made in the PSR and adopted the PSR’s factual findings.
The district court also stated that the maximum sentence under the Guidelines
was 240 months, even though the PSR had calculated the maximum sentence
as 210 months. The district court then imposed a sentence of 360 months of



       1 The PSR indicated that Wikkerink had molested an eight-year-old niece as well, but
the record as supplemented on appeal shows that Wikkerink pleaded guilty to aggravated
incest with respect to only one of his nieces, who was seven years of age at the time of the
offense.
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                                  No. 15-30152
imprisonment and a five-year term of supervised release. The district court
explained that this sentence, which was significantly above the Guidelines
range, was just and reasonable under either U.S.S.G. § 5K2.0(a)(3) or 18 U.S.C.
§ 3553(a) because of Wikkerink’s previous sex offense involving a child and the
“very disturbing nature” and “high number” of pornographic videos and still
images. Wikkerink orally objected to the sentence during the hearing, but he
gave no reasons for his objection. After the sentence was imposed, Wikkerink
timely appealed.
                        II. STANDARD OF REVIEW
      Wikkerink asserts that this Court should conduct a de novo review of the
sentencing enhancements applied to the calculation of his Guidelines range.
“To preserve an issue for review on appeal, the defendant’s objection must fully
apprise the trial judge of the grounds for the objection so that evidence can be
taken and argument received on the issue.” United States v. Musa, 45 F.3d 922,
924 n.5 (5th Cir. 1995). Wikkerink did not object to the PSR, which stated he
was subject to sentencing enhancements under 18 U.S.C. § 2252A(b)(1) and
U.S.S.G. § 4B1.5(a). At sentencing, Wikkerink’s counsel stated that her client
was “looking at, under the statutory guidelines or mandates, 15 to 40 years.”
And Wikkerink’s generic objection after the district court imposed the sentence
did not apprise the district court of the enhancement issues he raises on
appeal. See Musa, 45 F.3d at 924 & n.5.
      In cases such as this, where “the defendant has failed to make his
objection to the guidelines calculation sufficiently clear, the issue is considered
forfeited, and we review only for plain error.” United States v. Chavez-
Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). “Plain error occurs when:
‘(1) there was an error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.’” United States v. Gonzalez-
Terrazas, 529 F.3d 293, 296 (5th Cir. 2008) (quoting United States v. Villegas,
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                                     No. 15-30152
404 F.3d 355, 358 (5th Cir. 2005)). “If each of these conditions is satisfied, we
may exercise our discretion to correct the error only if ‘the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.’” Id.
(quoting United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005)).
                                  III. DISCUSSION
       Wikkerink argues that his previous Louisiana conviction for aggravated
incest did not clearly constitute a qualifying “prior conviction” under 18 U.S.C.
§ 2252A(b)(1) or a “sex offense conviction” under U.S.S.G. § 4B1.5(a). Thus, he
contends that the district court erred by applying sentencing enhancements to
the calculation of his Guidelines range based on his previous state conviction.
       Generally, courts employ a categorical approach when classifying a
previous conviction for sentence enhancement purposes. See Taylor v. United
States, 495 U.S. 575, 602 (1990). “Under the categorical approach, the analysis
is grounded in the elements of the statute of conviction rather than a
defendant’s specific conduct.” United States v. Rodriguez, 711 F.3d 541, 549
(5th Cir. 2013) (en banc). A court must compare the elements of the statute of
conviction for the prior offense with the elements of the “generic crime”
warranting a sentencing enhancement. Descamps v. United States, 133 S. Ct.
2276, 2281, 2284 (2013). 2 The prior conviction qualifies the defendant for a
sentencing enhancement “only if the statute’s elements are the same as, or
narrower than, those of the generic offense.” Id. at 2281.
      When the statute of conviction is “divisible”—that is, “comprises
multiple, alternative versions of the crime”—a court may apply the modified
categorical approach “to determine which alternative formed the basis of the
defendant’s prior conviction.” Id. at 2281, 2284. In doing so, a court may review


      2 The “generic crime” refers to “the offense as commonly understood” or as defined in
the statute or Guideline warranting the sentencing enhancement, as applicable. See
Descamps, 133 S. Ct. at 2281.
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                                       No. 15-30152
“the statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge
to which the defendant assented.” 3 Shepard v. United States, 544 U.S. 13, 16
(2005). “The court can then do what the categorical approach demands:
compare the elements of the crime of conviction (including the alternative
element used in the case) with the elements of the generic crime.” Descamps,
133 S. Ct. at 2281.
       In the present case, the district court made a clear and obvious error
when it relied solely on the PSR in concluding that Wikkerink’s previous state
conviction warranted sentencing enhancements under 18 U.S.C. § 2252A(b)(1)
and U.S.S.G. § 4B1.5(a). See United States v. Martinez-Vega, 471 F.3d 559, 562
(5th Cir. 2006); Garza-Lopez, 410 F.3d at 274. However, we must ask “whether
there is plain error at the time of appellate consideration.” Martinez-Vega, 471
F.3d at 562. Therefore, this Court can consider the statute of conviction and
the record as supplemented on appeal to determine whether the Louisiana
offense of aggravated incest falls within the definitions of a qualifying “prior
conviction” under 18 U.S.C. § 2252A(b)(1) and a “sex offense conviction” under
U.S.S.G. § 4B1.5(a). See United States v. Garcia-Arellano, 522 F.3d 477, 480
(5th Cir. 2008).
A.     Enhancement Pursuant to § 2252A(b)(1)
       First, Wikkerink argues that the district court erred in concluding that
his aggravated incest conviction was a qualifying “prior conviction” under 18
U.S.C. § 2252A(b)(1). Section 2252A(b)(1) generally mandates a sentence of at
least 5 years and not more than 20 years of imprisonment, but the statutory
minimum increases to 15 years and the statutory maximum increases to 40


       3In addition, the court is “bound by the [state supreme court’s] interpretation of state
law, including its determination of the elements of [the crime of conviction].” Johnson v.
United States, 559 U.S. 133, 138 (2010).
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                                       No. 15-30152
years if the defendant has a qualifying “prior conviction.” A qualifying prior
conviction under § 2252A(b)(1) includes a conviction “under the laws of any
State relating to . . . sexual abuse.” The term “sexual abuse” is not defined in
§ 2252A(b)(1), but this Court has previously held that sexual abuse is a generic
term that must be given its ordinary, common meaning. United States v.
Hubbard, 480 F.3d 341, 348 (5th Cir. 2007). “We have repeatedly endorsed the
definition of ‘sexual abuse’ set forth in Black’s Law Dictionary, which is ‘an
illegal or wrongful sex act, esp. one performed against a minor by an adult.’”
United States v. Vigil, 774 F.3d 331, 334 (5th Cir. 2014) (quoting Sexual Abuse,
Black’s Law Dictionary (9th ed. 2009)).
       When Wikkerink committed his prior offense of aggravated incest in May
1999, the statute of conviction criminalized “engaging in any [enumerated]
prohibited act . . . with a person who is under eighteen years of age and who is
known to the offender to be related to the offender as any of [several] biological,
step, or adoptive relatives.” La. Stat. Ann. § 14:78.1(A) (Supp. 1998) (repealed).
The statute then enumerated a long list of prohibited acts. § 14:78.1(B).
Wikkerink contends that this definition of aggravated incest is far broader
than the qualifying prior convictions described in § 2252A(b)(1). However, the
state court charging document and transcript of the plea colloquy show that
Wikkerink pleaded guilty to aggravated incest for engaging in the following
prohibited acts: “sexual battery,” “indecent behavior with juveniles,” and
“molestation of a juvenile.” 4 Accordingly, under the modified categorical
approach, we must determine whether these specific versions of aggravated
incest (not all of the acts described in the Louisiana statute) fall within the
ordinary, common meaning of sexual abuse.


       4 Notably, Louisiana courts have defined each of these acts by reference to state
statutes specifically punishing the offenses. See, e.g., State v. Flores, 669 So. 2d 646, 650–51
& n.1 (La. Ct. App. 1996) (citing La. Stat. Ann. §§ 14:43.1, :81, :81.2).
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                                  No. 15-30152
      In May 1999, the Louisiana offense of sexual battery was defined as:
      the intentional engaging in any of the following acts with another
      person, who is not the spouse of the offender, where the offender
      acts without the consent of the victim, or where the other person
      has not yet attained fifteen years of age and is at least three years
      younger than the offender:
      (1) The touching of the anus or genitals of the victim by the
      offender using any instrumentality or any part of the body of the
      offender; or
      (2) The touching of the anus or genitals of the offender by the
      victim using any instrumentality or any part of the body of the
      victim.
La. Stat. Ann. § 14:43.1(A) (1997). The plea colloquy indicates that Wikkerink
committed aggravated incest by touching his seven-year-old niece on her
vagina. Thus, the elements of the version of sexual battery Wikkerink
committed are (1) an intentional (2) touching of the anus or genitals of a victim
who is (3) not the spouse of the offender, (4) under age fifteen, and (5) at least
three years younger than the offender. See Vigil, 774 F.3d at 336. In addition,
the crime of aggravated incest imposes an additional element requiring that
the victim is a relative of the defendant. See La. Stat. Ann. § 14:78.1(A). These
elements align with the elements of the generic definition of sexual abuse—an
illegal or wrongful sex act, especially one performed against a minor by an
adult. See Vigil, 774 F.3d at 336.
      Likewise, in May 1999, the Louisiana offense of indecent behavior with
juveniles was defined as “any lewd or lascivious act upon the person or in the
presence of any child under the age of seventeen, where there is an age
difference of greater than two years between the two persons, with the
intention of arousing or gratifying the sexual desires of either person.” La. Stat.
Ann. § 14:81(A) (1986 & Supp. 1998). For purposes of this offense, a “lewd or
lascivious act” is one “which is lustful, obscene, indecent, tending to deprave

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                                  No. 15-30152
the morals in respect to sexual relations, and relating to sexual impurity or
incontinence carried on in a wanton manner.” State v. Holstead, 354 So. 2d 493,
497–98 (La. 1977). When the elements of indecent behavior with juveniles are
combined with the requirement that the victim and defendant are relatives,
this form of aggravated incest undoubtedly constitutes an illegal or wrongful
sex act performed against a minor by an adult and thus constitutes sexual
abuse. See United States v. Duron-Rosales, 584 F. App’x 218, 219 (5th Cir.
2014) (per curiam).
      Finally, in May 1999, the Louisiana offense of molestation of a juvenile
was defined as:
      the commission by anyone over the age of seventeen of any lewd or
      lascivious act upon the person or in the presence of any child under
      the age of seventeen, where there is an age difference of greater
      than two years between the two persons, with the intention of
      arousing or gratifying the sexual desires of either person, by the
      use of force, violence, duress, menace, psychological intimidation,
      threat of great bodily harm, or by the use of influence by virtue of
      a position of control or supervision over the juvenile.
La. Stat. Ann. § 14:81.2 (1986 & Supp. 1998). In the context of this offense,
Louisiana courts have defined a “lewd or lascivious act” as “an act which tends
to excite lust and to deprave the morals with respect to sexual relations and
which is obscene, indecent and related to sexual impurity or incontinence
carried on in a wanton manner.” State v. Ragas, 607 So. 2d 967, 972 n.2 (La.
Ct. App. 1992). Thus, where the prohibited act is molestation of a juvenile, the
elements of aggravated incest clearly fall within the generic definition of sexual
abuse that this Court has previously endorsed—an illegal or wrongful sex act
performed against a minor by an adult.
      In summary, the elements of each of the versions of aggravated incest
Wikkerink committed (sexual battery, indecent behavior with juveniles, and
molestation of a juvenile) align with the elements of the generic definition of

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                                    No. 15-30152
sexual abuse previously endorsed by this Court. Thus, Wikkerink’s conviction
for aggravated incest constituted a prior conviction under state law relating to
sexual abuse that warranted a sentencing enhancement under § 2252A(b)(1).
We hold that the district court did not err in imposing a sentencing
enhancement pursuant to § 2252A(b)(1) when it calculated Wikkerink’s
Guidelines range.
B.    Enhancement Pursuant to § 4B1.5(a)
      1. Existence of an Error
      Wikkerink also contends that the district court erred in concluding his
aggravated incest conviction was a prior “sex offense conviction” under
U.S.S.G. § 4B1.5(a). Section 4B1.5(a) provides for a sentencing enhancement
“[i]n any case in which the defendant’s instant offense of conviction is a covered
sex crime, § 4B1.1 (Career Offender) does not apply, and the defendant
committed the instant offense of conviction subsequent to sustaining at least
one sex offense conviction.” A prior “sex offense conviction” is defined by
reference to 18 U.S.C. § 2426(b)(1), see U.S.S.G. § 4B1.5 cmt. 3(A)(ii), which
defines the term as a conviction:
      (A) under this chapter [117], chapter 109A, chapter 110, or section
      1591; or
      (B) under State law for an offense consisting of conduct that would
      have been an offense under a chapter referred to in paragraph (1)
      if the conduct had occurred within the special maritime and
      territorial jurisdiction of the United States . . . .
18 U.S.C. § 2426.
      Applying the modified categorical approach, it is apparent that each
version of aggravated incest to which Wikkerink pleaded guilty (sexual
battery, indecent behavior with juveniles, and molestation of a juvenile)
criminalized a broader range of conduct than the corresponding offenses
currently enumerated in Chapters 117, 109A, and 110 and in § 1591 of Title

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                                         No. 15-30152
18 of the U.S. Code. The closest federal analogues to Wikkerink’s previous state
offenses are aggravated sexual abuse (18 U.S.C. § 2241), sexual abuse (18
U.S.C. § 2242), and sexual abuse of a minor (18 U.S.C. § 2243(a)). Collectively,
these federal offenses criminalize any “sexual act” 5: (1) with a child under age
twelve, id. § 2241(c); (2) with another person of any age “by using force against
that other person” or “by threatening or placing that other person in fear,” id.
§§ 2241(a), 2241(c), 2242; (3) with another person of any age who is “incapable
of appraising the nature of the conduct” or “physically incapable of declining
participation,” id. § 2242; or (4) with a minor who “has attained the age of 12
years but has not attained the age of 16 years” and “is at least four years
younger than the person so engaging,” id. § 2243(a).
       When Wikkerink committed his prior offense in May 1999, the Louisiana
offense of sexual battery covered a broader range of conduct than all of these
federal offenses. First, sexual battery—which, as discussed above, covered any
intentional touching of anus or genitals, La. Stat. Ann. § 14:43.1(A)—was
broader than the federal crimes of sexual abuse under § 2242 and aggravated
sexual abuse under § 2241(a)—which only cover sexual acts that involve force,


       5   The term “sexual act” is defined as:
       (A) contact between the penis and the vulva or the penis and the anus, and for
       purposes of this subparagraph contact involving the penis occurs upon
       penetration, however slight;
       (B) contact between the mouth and the penis, the mouth and the vulva, or the
       mouth and the anus;
       (C) the penetration, however slight, of the anal or genital opening of another
       by a hand or finger or by any object, with an intent to abuse, humiliate, harass,
       degrade, or arouse or gratify the sexual desire of any person; or
       (D) the intentional touching, not through the clothing, of the genitalia of
       another person who has not attained the age of 16 years with an intent to
       abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
       person . . . .
18 U.S.C. § 2246(2).
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                                 No. 15-30152
threat, or incapacity, 18 U.S.C. §§ 2241(a), 2242. Second, sexual battery
covered minors who are age thirteen or fourteen, even in the absence of force,
threat, and incapacity, La. Stat. Ann. § 14:43.1(A)—by contrast, aggravated
sexual abuse only covers thirteen- or fourteen-year-olds if force, threat, or
incapacity is involved, 18 U.S.C. § 2241(c). Third, sexual battery covered
minors who were three years younger than the perpetrator, La. Stat. Ann.
§ 14:43.1(A), but the federal offense of sexual abuse with a minor only applies
if the minor is at least four years younger than the perpetrator, 18 U.S.C. §
2243(a).
      Likewise, the Louisiana offense of indecent behavior with juveniles was
broader than all of the federal offenses. First, indecent behavior with
juveniles—which covered any lewd or lascivious act, La. Stat. Ann.
§ 14:81(A)—was broader than sexual abuse under § 2242 and aggravated
sexual abuse under § 2241(a)—which only cover sexual acts involving force,
threat, or incapacity, 18 U.S.C. §§ 2241(a), 2242. Next, indecent behavior with
juveniles covered minors who were sixteen years of age, even in the absence of
force, threat, and incapacity, La. Stat. Ann. § 14:81(A)—by contrast, sexual
abuse of a minor only applies to minors under the age of sixteen, 18 U.S.C.
§ 2243(a), and aggravated sexual abuse does not cover children over the age of
eleven unless the sexual act involves force, threat, or incapacity, 18 U.S.C.
§ 2241.
      Finally, the Louisiana offense of molestation of a juvenile covered a
broader range of conduct than the corresponding federal offenses. First,
molestation of a juvenile covered sexual acts imposed on the juvenile not only
by force, violence, and threat but also “by the use of influence by virtue of a
position of control or supervision over the juvenile,” La. Stat. Ann. § 14:81.2—
by contrast, sexual abuse under § 2242 and aggravated sexual abuse under
§ 2241(a) cover sexual acts involving force, threat, or incapacity but do not
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                                      No. 15-30152
extend to sexual acts imposed on a juvenile by using a position of control or
supervision, 18 U.S.C. §§ 2241(a), 2242. Second, molestation of a juvenile
covered minors who are age sixteen, even in the absence of force, threat, and
incapacity, La. Stat. Ann. § 14:81.2, whereas sexual abuse of a minor only
applies to minors under age sixteen, 18 U.S.C. § 2243(a), and aggravated
sexual abuse does not cover children over the age of eleven unless the sexual
act involves force, threat, or incapacity, 18 U.S.C. § 2241.
       This Court has not identified any federal offenses that encompass the
elements      of   Wikkerink’s     Louisiana      conviction    of   aggravated      incest.
Accordingly, his previous conviction did not constitute a prior “sex offense
conviction” under § 4B1.5(a), and the district court erred in applying the
sentencing enhancement to the Guidelines range calculation. This error
satisfies the first prong of the plain error analysis.
       2. Clear and Obvious Error
       In determining whether the district court’s error is clear and obvious, “it
is enough that the error be ‘plain’ at the time of appellate consideration.”
Garza-Lopez, 410 F.3d at 275 (quoting Johnson v. United States, 520 U.S. 461,
467–68 (1997)). In this case, the district court improperly relied on the PSR’s
characterization of the previous conviction. See id. Had the district court
reviewed the plain language of the relevant statutory provisions to determine
whether Wikkerink’s previous state offense was a prior “sex offense
conviction,” the error in the PSR’s calculation would have been apparent. Thus,
the error was clear and obvious under the second prong of the plain error
analysis. 6


       6In addition, the Government acknowledges that the instant offense of receiving child
pornography does not constitute a “covered sex crime” because the definition of covered sex
crime does not include “trafficking in, receipt of, or possession of, child pornography.” See
U.S.S.G. § 4B1.5 cmt. 2. Thus, the district court made a clear and obvious error when it
applied § 4B1.5(a) to its calculation of the Guidelines range. Despite the Government’s
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                                     No. 15-30152
      3. Effect on Wikkerink’s Substantial Rights
      Although the district court made a clear and obvious error, the
Government contends that the error did not affect Wikkerink’s substantial
rights because the district court imposed a sentence well above either the
appropriately or wrongfully calculated ranges and Wikkerink has not shown
that he would have received a lesser sentence if the correct range had been
used. After improperly applying the sentencing enhancement under § 4B1.5(a),
the PSR concluded that the Guidelines range was 180 to 210 months. Notably,
the district court made an additional error during the sentencing hearing when
it stated that the maximum sentence under the Guidelines was 240 months,
instead of 210 months. Absent these errors, Wikkerink’s total offense level
would have been 26, rather than 31, and his criminal history category would
have been II, rather than V. The correct total offense level and criminal history
category would yield a Guidelines range of 70 to 87 months. U.S.S.G. ch. 5, pt.
A. However, because of the mandatory minimum imposed by § 2252A(b)(1),
Wikkerink’s correct sentence according to the Guidelines would have been 180
months. U.S.S.G. § 5G1.1(b). The district court ultimately imposed a sentence
of 360 months because it found that the Guidelines failed to sufficiently
account for the circumstances of the case and the “very disturbing nature” of
the child pornography found in Wikkerink’s possession.
      Ordinarily, to show that a clear and obvious error affected his
substantial rights, a defendant “must ‘show a reasonable probability that, but
for the error,’ the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (quoting United


concession, however, Wikkerink’s brief does not raise the argument that the instant offense
was not a covered sex crime for purposes of § 4B1.5. Thus, Wikkerink has waived any
argument that § 4B1.5 was inapplicable due to the nature of the instant offense. United
States v. Montgomery, 747 F.3d 303, 312 n.8 (5th Cir. 2014) (holding that a party waived an
argument by failing to brief it on appeal).
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                                 No. 15-30152
States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)). In Molina-Martinez, the
Supreme Court held that “[w]hen a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant’s ultimate sentence falls
within the correct range—the error itself can, and most often will, be sufficient
to show a reasonable probability of a different outcome absent the error.” Id.
at 1345. The Supreme Court noted that district courts “must begin their
analysis with the Guidelines and remain cognizant of them throughout the
sentencing process.” Id. (quoting Peugh v. United States, 133 S. Ct. 2072, 2083
(2013)).   “Even if the sentencing judge sees a reason to vary from the
Guidelines, if the judge uses the sentencing range as the beginning point to
explain the decision to deviate from it, then the Guidelines are in a real sense
the basis for the sentence.” Id. (internal quotation marks omitted) (quoting
Peugh, 133 S. Ct. at 2083).
      Importantly, the Supreme Court in Molina-Martinez explained that
there are certain “unusual circumstances” wherein, “despite application of an
erroneous Guidelines range, a reasonable probability of prejudice does not
exist.” Id. at 1346–47. “The record in a case may show, for example, that the
district court thought the sentence it chose was appropriate irrespective of the
Guidelines range.” Id. at 1346. If the district court’s explanation for the
sentence “make[s] it clear that the judge based the sentence he or she selected
on factors independent of the Guidelines,” the application of an erroneous
Guidelines range will be insufficient to show a reasonable probability of a
different outcome absent the error. Id. at 1347.
      This Court’s decision in United States v. Dickson is instructive. 632 F.3d
186 (5th Cir. 2011). In Dickson, the Guidelines range was incorrectly calculated
as 360 to 840 months, and the district court imposed a sentence of 840 months,
which was also the maximum sentence permitted under the statute of
conviction. Id. at 188, 191. The correct Guidelines range was 235 to 293
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                                 No. 15-30152
months. Id. at 190–91. However, in imposing the sentence, the district court
noted that the defendant had an extensive criminal history and was “one of the
most vicious predators on children [the district court] had ever encountered.”
Id. at 191 (internal quotation marks omitted). The district court “believed that
no term of imprisonment would likely deter him from engaging in child
molestation,” and therefore, “a reasonable sentence . . . would be one that
would ensure to the maximum possible extent that this defendant will never
be free in society again.” Id. (internal quotation marks omitted). The fact that
the district court believed the defendant should receive the maximum sentence
allowed by the statute of conviction and imposed that maximum statutory
sentence made clear that the district court had based the sentence it selected
on factors independent of the Guidelines. See id. at 191–92. Accordingly, this
Court held that the defendant had not shown there was “a reasonable
probability that he would have received a lesser sentence absent the error.” Id.
      Unlike the court in Dickson, however, the district court’s explanation in
the instant case did not make clear that the district court based the sentence
on factors independent of the Guidelines. The district court imposed a sentence
of 360 months, a sentence which is halfway between what the district court
apparently believed to be the top of the Guidelines range (240 months) and the
maximum sentence permitted under the statute of conviction (480 months).
This suggests that the district court used the Guidelines range as a reference
point in determining the appropriate sentence.
      The district court did note that it would be reasonable to impose a “non-
Guideline sentence” above the recommended range based on its consideration
of 18 U.S.C. § 3553(a). Section 3553(a) lists the various factors a court should
consider in imposing a sentence, only one of which is the applicable Guidelines
range. But even a “district court contemplating a non-Guidelines sentence
‘must consider the extent of the deviation and ensure that the justification is
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                                  No. 15-30152
sufficiently compelling to support the degree of the variance.’” Peugh, 133 S.
Ct. at 2083 (quoting Gall v. United States, 552 U.S. 38, 50 (2007)). Thus, in the
normal course, a non-Guideline sentence still uses the Guidelines range as a
reference point. See Molina-Martinez, 136 S. Ct. at 1345. Moreover, the district
court indicated that U.S.S.G § 5K2.0(a)(3) was another potential basis for an
upward departure from the Guidelines range calculated in the PSR. Section
5K2.0(a)(3) allows for an upward departure from the otherwise applicable
range based on circumstances present to a degree not adequately taken into
consideration by the range. An upward departure pursuant to § 5K2.0(a)(3) is
undoubtedly based on the Guidelines.
      Thus, it appears that the district court used the Guidelines range as the
beginning point to explain the decision to deviate from it, and the Guidelines
appear to have been one of the bases for the sentence imposed. See Molina-
Martinez, 136 S. Ct. at 1345. At the very least, the district court’s explanation
did not make clear that the district court based the sentence it selected on
factors independent of the Guidelines. See id. Accordingly, Molina-Martinez
controls in this case, and we hold that the error in the calculation of the
Guidelines range was sufficient by itself to show a reasonable probability of a
different outcome absent the error. Thus, the error affected Wikkerink’s
substantial rights under the third prong of the plain error analysis.
      4. Effect on the Fairness, Integrity, or Public Reputation of
         Judicial Proceedings
      Having found the first three prongs satisfied, this Court may exercise its
discretion to reverse the sentence only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See Puckett v. United
States, 556 U.S. 129, 135 (2009). “[W]e do not view the fourth prong as
automatic if the other three prongs are met.” United States v. Escalante-Reyes,
689 F.3d 415, 425 (5th Cir. 2012) (en banc). This Court has rejected “a blanket

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                                 No. 15-30152
rule that once prejudice is found under the [third plain error prong], the error
invariably requires correction.” Id. (quoting United States v. Reyna, 358 F.3d
344, 352 (5th Cir. 2004) (en banc)). Instead, this Court’s discretion to correct
the sentence “should be employed in those circumstances in which a
miscarriage of justice would otherwise result.” Id. (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)). “The fourth prong is meant to be applied on
a case-specific and fact-intensive basis.” Puckett, 556 U.S. at 142.
      During Wikkerink’s sentencing hearing, the district court stated that the
offense was “quite troubling” and explained, “I don’t know, frankly, that the
Guidelines correctly captured the nature and extent of the behavior in this
defendant’s collection of child pornography.” The district court described the
disturbing images and videos found in connection with Wikkerink’s internet
protocol address and found on a computer seized from his residence. Moreover,
the district court noted that Wikkerink had previously been convicted of
aggravated incest for molesting his seven-year-old niece. Accordingly, the
district court concluded that the 360-month sentence was “a just and
reasonable sentence under the history and characteristics of this defendant,
the nature and circumstances of the instant offense, the need to afford
adequate deterrence to future criminal conduct by this defendant, as well as
the need to protect the public from further crimes of the defendant.”
      We conclude that affirming the district court’s 360-month sentence
would not result in a miscarriage of justice. The district court’s reasoning
during the sentencing hearing suggests that it did not think a sentence within
the erroneous Guidelines range of 180 to 240 months was sufficient in this
case. Rather, the district court believed a sentence well above 240 months was
just and reasonable based on Wikkerink’s criminal history and the large
number of disturbing images and videos. The district court also believed a 360-
month sentence was necessary to deter Wikkerink from engaging in future
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                                  No. 15-30152
criminal conduct and to protect the public from further crimes by Wikkerink.
Thus, we are not convinced that the district court’s error in this case seriously
affects the fairness, integrity, or public reputation of judicial proceedings. We
decline to exercise our discretion to correct the error.
                              IV. CONCLUSION
      For the reasons stated above, we AFFIRM the sentence imposed by the
district court.




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