     Case: 14-11309      Document: 00513136783         Page: 1    Date Filed: 07/31/2015




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


                                    No. 14-11309                                    FILED
                                  Summary Calendar
                                                                                July 31, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SCOTT BRANDON HUTCHESON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CR-59


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Scott Brandon Hutcheson appeals the sentence following his guilty plea
conviction for aiding and abetting the transportation of child pornography.
       Hutcheson maintains that the district court plainly erred in its relevant
conduct determination. He contends that the district court should not have
treated his prior uploading to YouTube of a video involving child pornography
as relevant conduct that could be used to determine the number of images


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-11309    Document: 00513136783     Page: 2   Date Filed: 07/31/2015


                                 No. 14-11309

involved in this offense for purposes of an enhancement pursuant to U.S.S.G.
§ 2G2.2(b)(7)(A). The record reflects that the previous uploading of the video
and the instant offense both involved the transportation of child pornography,
concerned images of young boys, and shared a modus operandi of electronically
transmitting child pornography over the internet to appear on social-media
websites. Because the prior uploading of the video was connected to the instant
offense by at least one common factor, it was part of a “common scheme or plan”
and was relevant conduct for purposes of the Sentencing Guidelines. See
U.S.S.G. § 1B1.3(a)(2). Hutcheson therefore cannot show clear or obvious error
by the district court. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      Furthermore, Hutcheson argues that the district court erred in requiring
that he submit to plethysmograph testing as a special condition of supervised
release. He concedes that this argument is foreclosed by circuit precedent, but
he raises it to preserve it for further appellate review. Hutcheson is correct
that his argument is foreclosed by United States v. Ellis, 720 F.3d 220, 227 (5th
Cir.), cert. denied, 134 S. Ct. 681 (2013), which held that a defendant’s
challenge to a supervised release condition requiring him to participate in a
sex offender treatment program, which included the possibility of submitting
to psycho-physiological testing, was not ripe for review on direct appeal. A
panel of this court may not overrule the decision of another without en banc
reconsideration or a superseding Supreme Court decision. United States v.
Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002).
      AFFIRMED.




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