     Case: 17-10082   Document: 00514514051     Page: 1   Date Filed: 06/14/2018




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

                                                                      FILED
                                 No. 17-10082                     June 14, 2018
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


             Plaintiff – Appellee,

v.

RONALD ERIC ARY,

             Defendant – Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before ELROD, COSTA, and HO, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Ronald Ary appeals his sentence following a conviction for distributing a
visual depiction of a minor engaged in sexually explicit conduct. He argues
that the district court erred in determining that his Texas deferred
adjudications qualify as prior convictions for the purpose of 18 U.S.C.
§ 2252(b)(1)’s sentencing enhancement and in sentencing him to a term of
imprisonment that exceeded the statutory maximum term of imprisonment
charged in his indictment. Because the district court did not err, we AFFIRM.
                                      I.
      Ary pleaded guilty to distributing a visual depiction of a minor engaged
in sexually explicit conduct. Under 18 U.S.C. § 2252(b)(1), Ary was subject to
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a maximum term of imprisonment of 20 years unless he had a prior conviction
involving the sexual exploitation of a minor. 18 U.S.C. § 2252(b)(1).
      The United States Probation Office prepared a presentence report, which
noted that Ary had pleaded guilty in Texas state court to one charge of
aggravated sexual assault and one charge of indecency with a child. For both
offenses, Ary was granted deferred adjudication and placed on ten years of
probation with a condition to serve 90 days of imprisonment.
      With a total offense level of 42 and a criminal history category of III,
Ary’s range was 360 months to life imprisonment under the United States
Sentencing Guidelines. The presentence report explained that the applicable
maximum term of imprisonment depended on whether Ary had any qualifying
prior convictions for the sexual exploitation of children.           See 18 U.S.C. §
2252(b)(1). Ordinarily, for an offense under § 2252, the statutory minimum
term of imprisonment is 5 years, and the maximum term of imprisonment is
20 years. See § 2252(b)(1). However, if a defendant has a previous conviction
for sexual exploitation under certain federal statutes or “under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child pornography,
or sex trafficking of children,” the statutory minimum and maximum terms of
imprisonment increase to 15 years and 40 years, respectively.               18 U.S.C.
§ 2252(b)(1).
      The presentence report noted Ary’s Guidelines range would be 360 to 480
months if the district court determined that he had a qualifying prior
conviction. 1   If not, the Guidelines term of imprisonment would be 240


      1  The statutory maximum sentence (480 months) is less than the maximum Guidelines
term (life), so the Guidelines maximum term of imprisonment becomes 480 months. U.S.S.G.
§ 5G1.1(a).
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months. 2 Responding to the presentence report, the government argued that
the enhanced statutory maximum term in § 2252(b)(1) should be applied in
Ary’s case because his deferred adjudications qualified as prior convictions. In
his objections to the presentence report, inter alia, Ary argued that the
enhanced statutory maximum term should not be used to calculate his
Guidelines range because: (1) Texas deferred adjudications do not qualify as
convictions for purposes of § 2252(b)(1); and (2) his prior convictions were not
alleged in his indictment or admitted by him.
      The district court determined that Ary’s deferred adjudications qualified
as prior convictions and applied the enhanced minimum and maximum terms
of imprisonment set forth in § 2252(b)(1). It sentenced Ary to 360 months of
imprisonment and a life term of supervised release. Ary timely appealed.
                                          II.
      Because Ary preserved his arguments for appellate review, we review
his claims de novo. See United States v. Hubbard, 480 F.3d 341, 344 (5th Cir.
2007).
                                         III.
      According to Ary, the district court erred in treating Ary’s deferred
adjudications as prior convictions because they are not convictions under
§ 2252(b)(1). Section 2252(b)(1) provides that a defendant who has a “prior
conviction under . . . the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, or sex trafficking of children” is subject to




      2 The statutory maximum sentence (240 months) is less than the maximum Guidelines
term (360 months), so the Guidelines term of imprisonment becomes 240 months. U.S.S.G.
§ 5G1.1(a).
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a term of imprisonment of at least 15 years but not more than 40 years. 18
U.S.C. § 2252(b)(1).        “Conviction” is not defined for the purpose of the
§ 2252(b)(1) sentencing enhancement. See 18 U.S.C. § 2256. And neither party
has identified any Fifth Circuit cases addressing the question of whether a
deferred adjudication qualifies as a “prior conviction” for the purposes of this
enhancement.
       One issue is whether we should consult state or federal law to define
“conviction.” 3    The language of § 2252(b)(1) specifies that this sentencing
enhancement applies if the defendant has a prior conviction, inter alia, “under
the laws of any State relating to” the sexual exploitation of minors. 18 U.S.C.
§ 2252(b)(1) (emphasis added). There is a list of federal crimes between “prior
conviction” and “under the laws of any State,” but the prepositional phrase
beginning with “under the laws of any State” refers to prior conviction.
       Absent “a plain indication to the contrary . . . it is to be assumed when
Congress enacts a statute that it does not intend to make its application
dependent on state law.” NLRB v. Nat. Gas Utility Dist. of Hawkins Cty., 402
U.S. 600, 603 (1971).        Here, there is arguably a “plain indication to the
contrary” in the text of the statute. Section 2252(b)(1) appears to instruct us
to analyze whether the defendant has a prior conviction under “the laws of any
State.” “[O]ur inquiry begins with the statutory text, and ends there as well if
the text is unambiguous.” BedRoc Ltd. v. United States, 541 U.S. 176, 183
(2004). The statutory language suggests that we should consult state law to
determine whether a deferred adjudication qualifies as a prior conviction
under § 2252(b)(1).



       3It is true that “[w]hether the Sentencing Guidelines apply to a prior conviction is a
question of federal law.” United States v. Mills, 843 F.3d 210, 213 (5th Cir. 2016). Here, we
are interpreting a federal statute, not a provision of the Sentencing Guidelines, and so
Sentencing Guidelines enhancement cases do not control.
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                                      No. 17-10082
       The Eighth Circuit has said otherwise. Sitting en banc, the Eighth
Circuit consulted federal law to decide whether a juvenile deferred
adjudication is a “conviction” under § 2252(b)(1). United States v. Gauld, 865
F.3d 1030, 1032 (8th Cir. 2017) (en banc). Gauld cites to an earlier Eighth
Circuit case that held that a similar statute—18 U.S.C. § 2252A(b)(2)—looks
to federal law to determine what is a “conviction,” but Gauld itself does not
address the state versus federal issue in detail. See id. (“Even though Gauld’s
adjudication occurred under state law, we look to federal law to define this
term.” (citing United States v. Storer, 413 F.3d 918, 921 (8th Cir. 2005))). 4
       However, we need not decide whether federal or state law defines
“conviction” under § 2252(b)(1).          Under either state or federal law, Ary’s
deferred adjudications qualify as prior convictions. Ordinarily, “[u]nder Texas
law, deferred adjudication probation is neither a conviction nor a sentence.”
United States v. Mondragon-Santiago, 564 F.3d 357, 368 n.9 (5th Cir. 2009)
(citing Hurley v. State, 130 S.W.3d 501, 506 (Tex. App.—Dallas 2004, no pet.)).
However, there are exceptions to this general rule.                       Prior deferred
adjudications for certain offenses, including aggravated sexual assault and
indecency with a child, are counted as prior convictions under the
enhancement scheme for repeat and habitual offenders.                   Tex. Penal Code
§ 12.42(g); see also Scott v. State, 55 S.W.3d 593, 595–96 (Tex. Crim. App.
2001). As such, Ary’s two deferred adjudications, for aggravated sexual assault
and indecency with a child, would be considered convictions under the Texas
Penal Code.
       If we were writing on a blank slate, the question of whether a deferred
adjudication qualifies as a prior conviction under federal law would be more


       4Interpreting 18 U.S.C. § 2252A(b)(2), the Eleventh Circuit has also consulted federal
law to determine what qualifies as a conviction. United States v. Maupin, 520 F.3d 1304,
1306–07 (11th Cir. 2008).
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difficult. We are not. As we have observed in a number of cases, 5 “[f]ederal
law counts Texas’s deferred adjudication probation as a conviction.”
Mondragon-Santiago, 564 F.3d at 368; see also United States v. Mills, 843 F.3d
210, 216 (5th Cir. 2016) (discussing “our treatment of deferred adjudication as
the functional equivalent of a final conviction in various other contexts” under
federal law). In United States v. Cisneros, we held that a defendant’s deferred
adjudication was a prior conviction “for purposes of sentence enhancement
under § 841(b)(1)(A).” 112 F.3d 1272, 1282 (5th Cir. 1997). We reasoned that
the state trial court “had to find the evidence substantiated” the defendant’s
guilt even though it did not enter an adjudication of guilt, and so the
defendant’s guilty plea that resulted in a deferred adjudication qualified as a
prior conviction. Id. Here, Ary pleaded guilty to these two offenses; the district
court determined that there was sufficient evidence of Ary’s guilt and entered
orders of deferred adjudication. Therefore, Ary’s deferred adjudications qualify
as convictions under federal law as well as state law.
       Accordingly, the district court did not err in applying § 2252(b)(1)’s
sentencing enhancement based on Ary’s deferred adjudications.
                                              IV.
           Ary also argues that his due process rights were violated because his
indictment did not allege a prior conviction, and his sentence exceeds the
statutory maximum term of imprisonment under § 2252(b)(1) for a defendant
without a qualifying prior conviction. As Ary acknowledges, his argument is



       5  We have repeatedly treated Texas deferred adjudications as “convictions” under
federal law. See, e.g., Mills, 843 F.3d at 215 (holding a Texas deferred adjudication is a prior
conviction for purposes of section 4B1.5(a) of the Sentencing Guidelines); DeLeon v. City of
Corpus Christi, 488 F.3d 649, 653–56 (5th Cir. 2007) (holding that a Texas deferred
adjudication is a conviction for purposes of a dismissal of a § 1983 action); United States v.
Stauder, 73 F.3d 56, 56–57 (5th Cir. 1996) (determining that a Texas deferred adjudication
is a prior conviction when calculating the defendant’s criminal history score under the
Sentencing Guidelines).
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foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” (emphasis added)). We are bound by our precedent, and
Ary’s due process claim fails.
      AFFIRMED.




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