UNITED STATES v. RICHARDSON IV

UNITED STATES of America, Plaintiff–Appellee v. Bennie E. RICHARDSON, IV, Defendant–Appellant.

No. 11–20773.

-- April 01, 2013

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.

Paula Camille Offenhauser, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.David Adler, Bellaire, TX, for Defendant–Appellant.

Bennie E. Richardson, IV (“Richardson”) challenges his conviction for distribution of child pornography, arguing that he did not “distribute” child pornography by storing images in a shared folder accessible on a peer-to-peer computer network. Richardson also asserts that the district court erred in applying a two-level enhancement under U.S.S.G. § 2G2.2(b)(6) based on the use of a computer. For the reasons more fully set forth below, we AFFIRM.

I.

Richardson challenges his conviction and sentence following a bench trial on stipulated facts. The parties stipulated to the following. On July 14, 2008, Lieutenant M. Gray, the Unit Commander for the Houston Metro Internet Crimes Against Children Task Force, entered a peer-to-peer network using undercover software to locate and identify individuals making child pornography available to others online. Lieutenant Gray searched for shared files accessible to the general public using common search terms associated with child pornography. Lieutenant Gray located a user in Pasadena, Texas, offering a large variety of videos that, by their titles, appeared to be child pornography. He proceeded to download a video of child pornography from the user, ultimately identified as Bennie Richardson.

On July 25, 2008, a search warrant was executed on the Pasadena residence where Richardson, along with two other individuals, resided. Richardson was found upstairs, standing in front of a computer when officers entered. Police found LimeWire—a peer-to-peer file-sharing program—running with files being actively transferred to Richardson's computer.1

Peer-to-peer file sharing is a means of Internet communication utilizing software that lets users exchange digital files through a network of linked computers. Users access peer-to-peer networks by downloading the peer-to-peer software from the Internet; this software is used exclusively for sharing digital files. Generally, after a user downloads or installs the software, either the user selects a folder to store downloaded files or the installation program designates the shared folder as the default folder into which files are automatically downloaded. Files that are downloaded into the shared folder (or downloaded into a separate folder but later placed into the shared folder) are available to anyone on the peer-to-peer network for downloading. Someone interested in sharing child pornography with other peer-to-peer network users need only leave or place such files in his shared folder, which other users may then access by searching for relevant terms and phrases.

The peer-to-peer program is structured so as to incentivize the sharing of files. As stipulated to by the parties:

Most [peer-to-peer] software gives each user a rating based on the number of files he/she is contributing to the network. This rating affects the user's ability to download files. The more files a user is sharing, the greater his/her ability is to download files. This rating system is intended to encourage users to “share” their files, thus propagating the [peer-to-peer] network.

As a result, a user's ability to download files hinges in part on the number of files the user contributes to the network.

In this instance Richardson's “shared” file on LimeWire contained 144 videos; the videos were determined to be known child pornography. Police also examined two computer hard drives owned by Richardson; each contained images and videos of children under the age of 18 participating in sexual activities.

Richardson admitted that he was the only person in the home using the computer in his room and that none of the residents knew of his activities involving child pornography; that he was a computer technician and was very knowledgeable about computers; that he was familiar with common search terms associated with child pornography; that he installed LimeWire on his computer; and that he knew that what was in his “shared” folder was made available to others through file sharing.

Following the bench trial on stipulated facts,2 Richardson was found guilty of distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(b)(1) (Count 1) and possession of child pornography involving the sexual exploitation of minors in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A) (Count 2). After the district court granted Richardson's request for a two-level acceptance of responsibility decrease and varied down one additional level, Richardson had a total offense level of 34 and a criminal history category of I, producing a Guidelines range of 151 to 188 months. The district court imposed a sentence of 151 months on Count 1 and 120 months on Count 2 (to run concurrently). The district court stated that even if its calculation under the Guidelines was incorrect, it would still impose the same sentence.

II.

Richardson first argues that his conduct did not amount to “distribution” under the statute.3 We review a claim of statutory interpretation de novo. United States v. Clayton, 613 F.3d 592, 595 (5th Cir.2010). Section 2252A(a)(2)(B) provides, in relevant part:

(a) Any person who—

·

(2) knowingly receives or distributes—

·

(B) any material that contains child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;

·

shall be punished·

18 U.S.C. § 2252A(a)(2)(B) (2006).

Noting that § 2252A does not define “distributes,” Richardson argues that the plain meaning of the word is “to deliver.” He cites an Eleventh Circuit Pattern Jury Instruction, which reads: “To ‘distribute’ something means to deliver or transfer possession of it to someone else, with or without any money involved in the transaction.” Eleventh Circuit Pattern Jury Instructions (Criminal Cases)) 83.4A (2010). Richardson alleges that there is no evidence that he actually delivered or transferred possession of his child pornography to another person; rather, he installed LimeWire on his computer, downloaded materials that included child pornography, and then, unbeknownst to him, an undercover officer downloaded a video from Richardson's computer. Richardson contends that he did not control whether or not others would download files from his account; he merely kept files in a “shared folder,” such that others could gain access to the files on the computer only if they affirmatively initiated a download. He maintains that storing files on a peer-to-peer network in this manner is akin to leaving magazines containing child pornography in a public location: while anyone would be able to pick up the magazines or even take them, his act of leaving the magazines has not actually transferred possession of the magazines.

We recognize that we have not yet addressed the issue of whether placing items in a shared folder on a peer-to-peer program may constitute distribution for purposes of the statute. We have, however, numerous times held that use of a peer-to-peer program can constitute distribution for the purposes of U.S.S.G. § 2G2.2(b)(3)(B).4 For example, in United States v. Powers we stated: “Powers used a peer-to-peer program on his computer to obtain images of child pornography and, also, to make the images available to others. Under the Guidelines, making the images available to others constitutes distribution and may be accounted for as relevant conduct.” 379 Fed.Appx. 347, 348 (5th Cir.2010).5

Other circuits have squarely addressed this issue, and we find the reasoning of the Tenth Circuit in United States v. Shaffer persuasive. 472 F.3d 1219 (10th Cir.2007). In Shaffer, the defendant downloaded images and videos from a peer-to-peer computer network and stored them in a shared folder on his computer which was accessible to other users of the network. Id. at 1220–21. Shaffer was convicted of distribution of child pornography and argued on appeal—as Richardson does here—that he did not “distribute” child pornography because he did not actively transfer possession to another; rather he was only a passive participant in the process. Id. at 1223. The Tenth Circuit rejected this argument, concluding that Shaffer “distributed child pornography in the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or ‘dispensed’ it to others.” Id. The court compared Shaffer's role in the process to that of the owner of a self-service gas station: although the owner might not be present and does nothing when a motorist purchases gas at the pump, the gas station owner distributes gasoline just as a computer user on a peer-to-peer network distributes child pornography—by making the material available for other users on the network just as the gasoline is available to passing motorists.6 Id. at 1223–24.

The First Circuit reached the same conclusion in United States v. Chiaradio, stating: “When an individual consciously makes files available for others to take and those files are in fact taken, distribution has occurred,” and “[t]he fact that the defendant did not actively elect to transmit those files is irrelevant.” 684 F.3d 265, 282 (1st Cir.2012).7

Such is the case here. We agree with the conclusions set forth in Shaffer and Chiaradio, and we conclude that downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network amounts to distribution under § 2252A(a)(2)(B) under the stipulated facts in this case. Considering that Richardson was a computer technician with computer experience, he affirmatively downloaded the LimeWire program, he maintained 144 videos of child pornography in his shared folder, he knew that others could access the materials stored in his shared folder, and Lieutenant Gray actually downloaded one such video, the evidence was sufficient to support a finding that Richardson distributed child pornography in violation of § 2252A(a)(2)(B).

III.

Richardson also argues that the application of the two-level enhancement under U.S.S.G. § 2G2.2(b)(6) constituted unwarranted double-counting because the statute of conviction contemplates the use of a computer to commit the crime as one of the elements of the offense, and therefore the computer was already included in his base offense level.8 We review a district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Valenzuela–Quevedo, 407 F.3d 728, 731 (5th Cir.2005).

Although § 2252A(a)(2)(B) provides that the offense can be committed by “any means or facility of interstate or foreign commerce · including by computer,” § 2G2.2(b)(6) does not expressly forbid double-counting. In United States v. Calbat we held that the Guidelines do not contain a general prohibition against double-counting; rather, double-counting is prohibited only if the relevant Guideline expressly forbids it. 266 F.3d 358, 364 (5th Cir.2001). Because § 2G2.2(b)(6) does not expressly prohibit double-counting, the district court did not err in applying § 2G2.2(b)(6).9

We also note that the statutory language “including by computer” does not require computer use to violate the statute: using a computer is just one example of a manner in which child pornography can be transmitted, and Richardson would have violated the statute had he transported child pornography “by any means” affecting interstate commerce. See 18 U.S.C. § 2252A(a)(2)(B). As the Sixth Circuit noted in United States v. Lewis, “because Lewis could have violated the statute without using a computer, we cannot say that computer use is an element of the crime,” and the use of a computer “may serve as an offense characteristic affecting the determination of his sentence [and] may result in an additional sentence enhancement.” 605 F.3d 395, 403 (6th Cir.2010).

And further, any error in calculating the total offense level was harmless, given the district court's clear statements that it would have imposed the same sentence regardless of the correctness in the calculation.

IV.

Finding no error, the judgment of the district court is AFFIRMED.

FOOTNOTES

1.  Forensic examination revealed that the files that were completely transferred in this instance were adult pornography.

2.  The parties had a bench trial on stipulated facts solely to preserve the issue of whether Richardson's conduct constituted distribution. Thus Richardson did not contest any of the underlying facts in this case, only the legal definition of “distributes” and whether his conduct meets that definition.This approach is not controverted on appeal, hence we express no opinion as to the propriety of a “stipulated bench trial” rather than a conditional guilty plea as a procedural vehicle that preserves an issue for appeal or how such an approach conforms with the Federal Rules of Criminal Procedure, notably Rules 11 and 23, as well as with double jeopardy doctrine.

3.  While Richardson frames his argument as an inquiry into whether there was sufficient evidence that he committed the offense (and thus articulates that the standard of review is whether the finding of guilty is supported by substantial evidence), Richardson's real challenge is that what he did failed to amount to distribution, an element of the offense. Thus, the appeal presents an underlying issue of statutory construction. See United States v. Saldana, 427 F.3d 298, 306 n. 21 (5th Cir.2005) (noting that although posited as a sufficiency challenge, the defendants' real challenge was that their actions were not prohibited by any statute); cf. United States v. Compian–Torres, No. 11–10921, –––F.3d ––––, ––––, 2013 WL 1135808, at *2 (5th Cir. Mar. 19, 2013) (addressing, but not resolving, the question of which standard of review is appropriate when a challenge to the sufficiency of the evidence masks a purely legal question).

4.  U.S.S.G. § 2G2.2(b)(3)(B) provides for an increase of five levels where an offense involving the sexual exploitation of a minor involved: “Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain ·” (emphasis added).

5.  See, e.g., United States v. Onken, 440 Fed.Appx. 304, 305 (5th Cir.2011) (“[Defendants] were sophisticated users of computers and the file-sharing program who knowingly made their child pornography files available to others and obtained child pornography files from the file-sharing network· The district court did not err in finding that they distributed child pornography ·”); see also United States v. Burman, 666 F.3d 1113, 1118–19 (8th Cir.2012).

6.  We note that the owner of a gas station, unlike a passive user on a peer-to-peer file-sharing network, affirmatively places a product into the marketplace and expects remuneration. We note as well that the sale of gas, a tangible good, entails a transfer of possession, whereas the transmittal of digital child pornography, an intangible good, does not. That the Tenth Circuit's analogy is not a perfect one, however, does not in any way upset our confidence in its interpretation of the statute.

7.  See also United States v. Budziak, 697 F.3d 1105, 1108–10 (9th Cir.2012) (holding that the placement of child pornography in a shared folder on a peer-to-peer network constitutes distribution of child pornography); United States v. Collins, 642 F.3d 654, 656–57 (8th Cir.2011) (same).

8.  U.S.S.G. § 2G2.2(b)(6) provides: “If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels.”

9.  See also United States v. Desadier, 495 Fed.Appx. 501, 503 (5th Cir.2012) (finding district court's application of § 2G2.2(b)(6) did not constitute impermissible double-counting); United States v. Lynde, 428 Fed.Appx. 334, 338 (5th Cir.2011) (same).

W. EUGENE DAVIS, Circuit Judge:

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VUNCANNON v. UNITED STATES

Timmy VUNCANNON, Plaintiff Tippah County, Third Party Plaintiff–Appellant v. UNITED STATES of America, Defendant Mississippi Public Entities Workers' Compensation Trust, Third–Party Defendant–Appellee.

No. 12–60435.

-- March 15, 2013

Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.

Billy Sean Akins, Akins & Adams, P.A., Ripley, MS, for Third Party Plaintiff–Appellant.Joshua Jerome Wiener, Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Ridgeland, MS, for Third–Party Defendant–Appellee.

This case asks whether plaintiff Timmy Vuncannon, a county jail inmate, was covered under the Mississippi Workers' Compensation Act (“MWCA”) and thus is entitled to compensation benefits for injuries sustained while he was laboring on a work detail program maintained by Appellant Tippah County (“the County”). The incarcerating county and the medical corporation that treated Vuncannon seek reimbursement of medical expenses from Appellee, Mississippi Public Entities Workers' Compensation Trust (“MPE”), the provider of workers' compensation insurance for the County. Concluding as a matter of law that the County had no enforceable contract of hire with Vuncannon, which is a prerequisite to coverage under the MWCA, we AFFIRM the district court's summary judgment in favor of MPE.

I. FACTS AND PROCEDURAL HISTORY

While he was serving time in the County's jail, Vuncannon labored in a county work program under the sheriff's supervision, for which services he earned $10 per day to be credited “toward any and all charges of F.T.A/cash bonds owed to the county.” Vuncannon was seriously injured in a forklift accident while helping law enforcement officials conduct a “drug bust” pursuant to that program.

In his federal court action, Vuncannon asserted both state and federal claims against numerous defendants, all of which have been dismissed. Shelby County Health Care Corporation (“the MED”), owner of the medical facility where Vuncannon was treated for his injuries, filed a complaint in intervention, contending that Mississippi law required the County to pay Vuncannon's hospital bills of more than $640,000. The MED ultimately settled its claims against the County, and, with the County, filed a third party complaint against MPE. The County contended that because Vuncannon was injured while working as a trustee for its jail, he was covered by the MWCA, making MPE liable for reimbursing his medical expenses. MPE countered that it is under no obligation to provide reimbursement because county inmates injured on work detail are not among those covered by the MWCA.

Both sides moved for summary judgment. Noting an absence of binding authority, the district court concluded that the Mississippi Supreme Court would likely interpret the MWCA strictly and deny coverage in this case. Although conceding that the issue posed a difficult question of state law, the court dismissed the claim against MPE by granting its motion for summary judgment.

The County now appeals that judgment, insisting that statutory provisions excluding state inmates from MWCA coverage do not apply to county inmates like Vuncannon. MPE responds that the dispositive issue is not whether the exclusion of state inmates extends to county inmates, but whether, when Vuncannon was injured, he qualified as an “employee” under a “contract of hire,” as required for him to come within the purview of the MWCA in the first place.

II. ANALYSIS

A. Standard

We review a grant of summary judgment de novo, applying the same legal standards as do the district courts.1 Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”2 When reviewing a summary judgment, we construe all the evidence and reasonable inferences in the light most favorable to the nonmoving party.3 We are “not limited to the district court's reasons for its grant of summary judgment”4 and “may affirm the district court's judgment on any grounds supported by the record.”5

B. The Mississippi Workers' Compensation Act

Under Mississippi law, compensation “shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.”6 The law defines an eligible “employee” as “any person · in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied·”7 Mississippi's statutes also specify exclusions that, by their terms, place some classes of inmates outside the MWCA's scope. For example, Mississippi Code § 47–5–417 provides that no inmate, while outside the jail on a state-approved work program, “shall be deemed to be an agent, employee or involuntary servant of the Department of Corrections, the state or any political subdivision thereof[.]” Vuncannon was not a participant in any state-approved work program, however, and the County had not implemented any such program at the time Vuncannon was injured. Likewise, Mississippi Code § 47–5–567—which excludes “inmate[s]” from MWCA coverage—applies only to state inmates and thus has no bearing on the status of Vuncannon, who was a county inmate.8

The County contends that the absence of an explicit workers' compensation exclusion that applies to Vuncannon is dispositive. But whether an applicable exclusion bars Vuncannon's MWCA eligibility is only of import if Vuncannon is shown to qualify as an “employee” working under a “contract of hire” under the express terms of the MWCA.9 Mississippi courts have not addressed whether and in what circumstances a county prisoner injured on a work detail is an employee working pursuant to a contract of hire, but the Mississippi Supreme Court has identified the common law features of an employment contract that bear on the question. Required are (1) the consent of the parties, (2) consideration for the service rendered, and (3) control over the employee.10

Based on the undisputed material facts of the instant summary judgment record, we conclude that Vuncannon was not an employee working under a contract of hire within the intendment of the MWCA. At the outset, we note an absence of any express, written contract between Vuncannon and the County. It is true that a worker may be an “employee” covered by the MWCA if his “contract of hire” is either written or oral, express or implied, so this absence is not dispositive.11 The County's assertion that an express, written agreement existed, however, finds no support in the record. The County points only to a notice from the sheriff transmitted not to Vuncannon, but to the Tippah County Justice Court, stating that Vuncannon had been placed on a work detail program and credited $10 per day for his labor. Vuncannon never signed this document, however, and it was dated January 26, 2006—the day of his injury and nine days after he began working for the County. Neither is it evident from the record that Vuncannon was even aware of that notice, much less that he was given a copy of it or of any other writing explaining the terms and conditions under which he would work.

Any contention that Vuncannon labored under an implied contract of hire likewise proves unavailing. First, notwithstanding the dearth of Mississippi case law on point, the Mississippi Attorney General (“AG”) has addressed a similar matter. Responding to the question whether a city must carry workers' compensation insurance for a convict participating in community service pursuant to the terms of a municipal court order, the AG cited Mississippi Code § 71–3–3 in a 1991 opinion letter which concluded that “a person performing work as part of his sentence for a criminal conviction is not an ‘employee’ according to [the MWCA's] definition as there is no ‘contract of hire.’ ”12

The AG's opinion addressed mandatory work required by court order, whereas Vuncannon was alleged to have volunteered for the subject work detail assignment. As noted in a leading workers' compensation treatise, however, state courts typically find mutual assent wanting, not only when “the prisoner has no choice in the matter of working or not working,” but also when “the appearance of free choice is belied by the presence of a residual right of compulsion.”13 Although the parties dispute whether Vuncannon in fact volunteered to work, his consent is at best illusory when examined against the backdrop of Mississippi's long-held practice of requiring convicts to work. Under Mississippi law,

[i]t is the imperative duty of the board of supervisors in each county in this state to require each convict sentenced to imprisonment in the county jail and the payment of a fine and costs, or to imprisonment and payment of costs, or to payment of fine and costs, to work out the sentence on the county convict farm or on the public roads or other public works of the county, or in a contiguous county[.] 14

That Vuncannon, like any Mississippi inmate, was entitled to credit for his labors15 does not change the fact that the County simply could have required him to work.

Further, although coverage under the MWCA usually “is not affected by the fact that an employee's wages are minimal,”16 courts nationwide have looked to whether the inmate labored alongside, and under circumstances substantially similar to, traditional workers in determining workers' compensation eligibility.17 There might be “little justification in freeing [a private] employer from the burdens of the prisoner's work-related injury”18 when, for example, the prisoner works outside the prison pursuant to a work-release program. But, Vuncannon suffered injury while working under the supervision of the country sheriff for the benefit of the Mississippi Bureau of Narcotics, a public entity. He received only a $10 per day credit “toward any and all charges of F.T.A/cash bonds owed to the county”—a meager sum well below the prevailing wages earned by traditional public-sector workers, and not in cash at that. Perhaps most importantly, as Mississippi law saddles the incarcerating county with the burden of paying an indigent inmate's hospital bills,19 it is the County, and not Vuncannon himself, that is likely to be stuck with the hospital costs. Of course, absent workers' compensation, a typical county worker in Mississippi would have no such recourse against his employer for injuries sustained on the job—casting doubt on the necessity and practical import of providing such coverage for inmates.

We note in closing that if the County had bargained successfully with MPE for coverage of its working inmates, it would be entitled to the benefit of that bargain, regardless whether the MWCA in fact required the County to maintain that coverage. The record, however, includes neither evidence nor allegation that any such bargaining occurred. It follows that the County has not been deprived of any payment to which it is entitled.

III. CONCLUSION

Because, at the time of his injury, Vuncannon was not working for the County under a contract of hire, he did not fall within the ambit of the MWCA. Thus, the County's workers' compensation insurance did not cover Vuncannon's medical expenses. We therefore AFFIRM the district court's judgment dismissing the third party plaintiffs' claims against MPE.

FOOTNOTES

1.  United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir.2011).

2.  Fed.R.Civ.P. 56(a).

3.  Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir.2010).

4.  Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir.2008).

5.  Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.2009).

6.  Miss.Code Ann. § 71–3–7 (emphasis added).

7.  Miss.Code Ann. § 71–3–3 (emphasis added).

8.  The Mississippi legislature adopted the MWCA in the late 1950s, but exempted cities and counties from the class of employers required to provide coverage to their employees. Thus, there was no need to exclude municipal and county inmates under the Act. In 1990, however, the legislature amended Mississippi Code § 71–3–5 to bring counties and municipalities under the provisions of the MWCA, but no coverage exclusion for city and county inmates attended the change. Whether any policy rationale justified excluding state prisoners but not city and county inmates from MWCA coverage is unclear.

9.  The County contends that Vuncannon's eligibility does not actually hinge on his “employee” designation, but rather, on his status as a “workman” or “operative.” It cites the portion of the MWCA that defines those employers subject to the law and its requirement that five or more “workmen or operatives” regularly be in service. See Miss.Code Ann. § 71–3–5. Whether the County or any other entity was a qualifying employer is not at issue, however; the County has attempted to borrow the operative terminology from the portion of the law concerning covered employers and apply it to the portion concerning which workers are subject to the law's benefits and burdens. This statutory borrowing contravenes the clear language of the MWCA that renders compensable under the Act only the injuries of “employees.” See Miss.Code Ann. § 71–3–7.

10.  Walls v. N. Miss. Med. Cntr., 568 So.2d 712, 715 (Miss.1990). Traditionally, however, these elements are not rigidly applied in workers' compensation cases. Id.

11.  See Miss.Code Ann. § 71–3–3.

12.  Miss. Office of Att'y Gen., Op. Ltr., 1991 WL 578135 (Miss.A.G. November 20, 1991).

13.  See 3–64 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 64.03 (2012) (hereafter, “Larson's”) (collecting cases).

14.  See Miss.Code Ann. § 47–1–3.

15.  See Miss.Code Ann. §§ 47–1–15, 47.

16.  See Mathis v. Jackson Cnty. Bd. of Supervisors, 916 So.2d 564, 570 (Miss.Ct.App.2005) (citing Sullivan v. Okolona, 370 So.2d 921 (Miss.1979)).

17.  See S. Tucson v. Indus. Comm'n, 156 Ariz. 543, 549, 753 P.2d 1199 (Ariz.Ct.App.1988) (recognizing trend to require compensation for prisoners whose work was indistinguishable from that performed by other employees).

18.  Larson's, supra note 7, § 64.03; see also, e.g., Benavidez v. Sierra Blanca Motors, 122 N.M. 209, 215, 922 P.2d 1205 (N.M.1996); Hamilton v. Daniel Int'l Corp., 273 S.C. 409, 257 S.E.2d 157, 158 (1979) (finding that inmate injured while on work-release acquired the rights and liabilities of a private employee because he voluntarily entered into an employment contract and enjoyed the same salary and working conditions as other employees such that he “transcended his prisoner status and became a private employee entitled to work[ers'] compensation benefits”); Courtesy Constr. Corp. v. Derscha, 431 So.2d 232, 232–33 (Fla.Dist.Ct.App.1983) (finding workers' compensation applicable to work-release prisoners engaged to work in private enterprises, since those businesses, in paying for the inmate labor, become “ ‘employers' in every practical sense of the word”).

19.  See Miss.Code Ann. § 47–1–59 (“[I]f the prisoner is ineligible for state aid or the amount available for hospitalization as a state aid patient is inadequate to pay all such hospital expense of a prisoner who is financially unable to pay his own expenses, the board of supervisors of the county where the prisoner was originally confined or arrested shall, upon presentation of the certificate of the physician certifying that said prisoner was in need of hospitalization, pay from the general funds of the county the reasonable and customary charges for such services or as much thereof as is not paid by state aid.”).

PER CURIAM:

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UNITED STATES v. VARGAS OCAMPO

UNITED STATES of America, Plaintiff–Appellee v. Ruben VARGAS–OCAMPO, Defendant–Appellant.

No. 11–41363.

-- March 14, 2013

Before DAVIS, JONES and SMITH, Circuit Judges.

James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Terri–Lei O'Malley, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.Marjorie A. Meyers, Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appellant challenges one of two counts of his drug-trafficking conviction for insufficiency of evidence and the other for an erroneously submitted jury instruction. Finding no error, we affirm. We also clarify that because the Supreme Court has stated and repeatedly reaffirmed the constitutional test for sufficiency of the evidence to uphold a conviction, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the statements inconsistent with Jackson that have appeared in some Fifth Circuit cases must be disavowed.

Background

The grand jury for the United States District Court for the Southern District of Texas, McAllen Division, filed a two-count indictment charging Ruben Vargas–Ocampo with possession with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and with conspiring to do the same, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B). The possession count also cited 18 U.S.C. § 2, which provides for the punishment of anyone who aids or abets a crime. Vargas–Ocampo was tried by jury. Vargas–Ocampo moved for a judgment of acquittal at the close of the government's case-in-chief and after the presentation of all the evidence, and the district court denied both motions. The jury found Vargas–Ocampo guilty on both counts, and the district court sentenced him to 78 months in prison. Vargas filed a timely appeal.

The following facts were developed at trial.

United States Customs and Border Protection Service (“CBP”) Agent Stewart Goodrich was patrolling the Rio Grande Valley by helicopter1 when he observed a pickup truck leaving the Rio Grande River headed north and two rafts moving south across the river toward Mexico. Agent Goodrich could see that the rafts were occupied.

Agent Goodrich dropped to an altitude between 150 and 200 feet and began following the truck. Agents Goodrich and Martinez–Baco could see that the truck's bed liner was too small and that there was about a six-inch gap between the walls of the truck bed and the liner. The agents could see what they believed to be packages of narcotics in the space in between. Agent Goodrich circled the helicopter around to in front of the truck, and he saw more packages in the passenger seat of the truck and that the driver appeared to be talking on a cell phone.

In the meantime, the agents had contacted CBP ground units. Agent Maibum was on patrol in a ground unit. Shortly before receiving the call, Agent Maibum had observed two men sitting in vehicles approximately one and a half miles apart. The two men remained at their respective locations and used their push-to-talk radios each time Agent Maibum passed them in his vehicle. He believed they were acting as scouts for drug smugglers and was making plans to investigate when he received the call from the helicopter agents.

Agent Maibum drove toward the location indicated by the helicopter agents (an area notorious for drug smuggling) and saw Vargas–Ocampo's truck.2 Agent Maibum began pursuing the truck and pulled to within 10–15 feet of it. Vargas–Ocampo drove the truck approximately another one-eighth of a mile before stopping by a fence. Vargas–Ocampo jumped the barbed-wire fence, ran through some thick brush, and disappeared into an open garage. Agent Maibum exited his vehicle and pursued Vargas–Ocampo on foot but fell trying to navigate his way past the barbed-wire fence, losing sight of Vargas–Ocampo. The helicopter agents informed Agent Maibum that Vargas–Ocampo had ducked into a nearby garage, and Agent Maibum found him there. Vargas–Ocampo was holding a push-to-talk radio and a cell phone. Vargas–Ocampo's phone rang many times after he was apprehended.

The agents retrieved the packages from the truck and discovered they contained marijuana. The agents ultimately found 84 packages totaling approximately 430 kilograms of marijuana. The registered owner of the truck was Maria Alvarez.

DISCUSSION

On appeal, the defendant first challenges the sufficiency of evidence to convict him of conspiracy. Because the issue of evidentiary sufficiency was preserved at trial, this court reviews the record de novo under the thirty-four year old standard of Jackson v. Virginia, 443 U.S. 307, 90 S.Ct. 2781 (1979). The essential question is whether, viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 443 U.S. at 319, 90 S.Ct. at 2789.

The Appellant adds to this standard, however, a caveat, gleaned from a few Fifth Circuit cases, that this court “must reverse a conviction if the evidence construed in favor of the verdict ‘gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.’ “ United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995) (citations omitted). This court has embroidered the Jackson standard further by stating that “[w]hen the evidence is essentially in balance, a reasonable jury must necessarily entertain a reasonable doubt.” United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998). Rarely have these glosses, founded on a concept of equipoise, led to reversal of a conviction on appeal,3 but they have been so frequently cited as to suggest confusion in our understanding of Jackson. See, e.g., United States v. Mudd, 685 F.3d 473, 479–80 (5th Cir.2012) (upholding conviction); United States v. Viscarra, 494 F.3d 490, 493–94 (5th Cir.2007) (upholding conviction); United States v. Mireles, 471 F.3d 551, 555–57 (5th Cir.2006) (upholding conviction); United States v. Valdez, 453 F.3d 252, 256–61 (5th Cir.2006) (upholding conviction); United States v. Rose, 449 F.3d 627, 630–32 (5th Cir.2006) (upholding conviction); United States v. Dean, 59 F.3d 1479, 1484–90 (5th Cir.1995) (upholding conviction). It is time to dispel the confusion.

The Supreme Court has never departed from the Jackson standard, which preserves the fact-finder's role as weigher of the evidence. As the Court explained in Jackson, “[t]his familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts .” 443 U.S. at 319, 90 S.Ct. at 2789. Moreover, a court “faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” 443 U.S. at 326, 90 S.Ct. at 2793. Jackson expresses no hierarchy of creditable evidence, whether direct or circumstantial, lay or expert or scientific. In particular, Jackson says nothing about the consequences for appellate review if a case is based on circumstantial evidence in equipoise, such that the prosecution and defense can each claim the benefit of inferences. Compare Peñeloza, 473 F.3d at 580–81 (“[B]ecause the circumstantial evidence equally supports a theory of innocence of the crime charged, we find that it is insufficient to sustain the jury's verdict of guilt.”) The Supreme Court's point is to confirm, as a matter of due process, that the fact-finder, having viewed the evidence in the lively context of trial with the defendant present, is best positioned to reach a rational verdict. The role of reviewing courts is accordingly limited.

That Jackson remains unadulterated for sufficiency questions is confirmed by no less than three recent Supreme Court decisions, each a per curiam reversal of a lower court's misapplication of the standard. In Coleman v. Johnson, ––– U.S. ––––, 132 S.Ct. 2060, 182 L.Ed.2d 978 (2012), the Court criticized a circuit court for its “fine grained factual parsing” of the evidence and erroneous use of state law to determine the distinction between mere speculation and a reasoned inference. The Court concluded, “the only question under Jackson is whether that finding [of guilt] was so insupportable as to fall below the threshold of bare rationality.” 132 S.Ct. at 2065. See also Cavazos v. Smith, ––– U.S. ––––, 132 S.Ct. 2, 7, 181 L.Ed.2d 311 (2012)(reversing habeas grant on ground that, under Jackson, “The jury decided that question [of guilt], and its decision is supported by the record.”); McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (2010)(while court of appeals acknowledged that it must review the evidence in the light most favorable to the prosecution, “the court's recitation of inconsistencies in the testimony shows it failed to do so.”)

Because we must operate on the premise that Jackson alone states the test for reviewing sufficiency of evidence supporting a conviction, the glosses that have appeared in our decisions, for whatever reason,4 must be excised. Such statements should no longer be relied upon in this court.

When confronted with these authorities, Appellant's response is to reiterate his arguments that for each incriminating inference from the circumstantial evidence of conspiracy—the presence and timing of rafts in the river when Vargas Ocampo's truck was located, the large amount of marijuana found in his truck, the proximity and actions of surveillance “scouts” for the drug transfer, Ocampo's use of a push-to-talk telephone and numerous calls received on his other phone—there is a benign explanation. But this is precisely the weighing of inferences that, under Jackson, the jury was entitled to perform. The elements of a drug conspiracy are (1) an agreement between two or more persons to violate the narcotics laws; (2) a defendant's knowledge of the agreement, and (3) his voluntary participation in the agreement. United States v. Misher, 99 F.3d 664, 667 (5th Cir.1996). Not infrequently, the elements must be inferred from evidence concerning the defendant's concert of action with others. While it is not enough to sustain a conspiracy conviction that the defendant was merely present in an atmosphere that reeks of something foul, that objection will not wash in this case. Nor is it enough that a defendant was in a mere buyer-seller relationship with others, United States v. Maseratti, 1 F.3d 330, 336 (5th Cir.1993), but again, this defendant was a link in the chain of importation and distribution. A circumstantial case is built upon reasonable inferences from all the relevant circumstances. And as this court has stated, “Circumstances, altogether inconclusive if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.” United States v. Rodriguez–Mireles, 896 F.2d 890, 892 (5th Cir.1990). Appellant may present all his arguments why the circumstantial evidence adduced here was insufficient to support a rational jury's determination of guilt. But even if there was “equipoise,” a vague and subjective description in any event, the jury's final determination of guilt controls this court's review unless it was “so insupportable as to fall below the threshold of bare rationality.” Coleman, supra.

It should be clear that, based on the Jackson standard, this court finds the evidence, circumstantial though it is, sufficient in quantity and quality to convict Vargas–Ocampo of knowing, voluntary participation in a conspiracy to possess with intent to distribute marijuana.

Vargas–Ocampo additionally contends that the district court erred in giving an aiding and abetting instruction to the jury on the possession charge, because it was unsupported by the evidence. A district court has “substantial latitude in formulating a jury charge,” and may only be reversed for abuse of discretion. United States v. Carrillo, 660 F.3d 914, 925–26 (5th Cir.2011)(internal quotation marks and citation omitted). The court reasonably explained its lengthy aiding and abetting charge on the basis that a jury might think Vargas–Ocampo did not illegally possess the contraband if he did not package it and did not actually load it in his truck. Aiding and abetting is not a separate crime but (at least) an implicit charge in every indictment. United States v. Neal, 951 F.2d 630, 633 (5th Cir.1992). The court neither erred nor abused its discretion.

For these reasons, the conviction is AFFIRMED.

FOOTNOTES

1.  Agent Orlando Martinez–Baco was also in the helicopter.

2.  It is unknown what happened to the two men Agent Maibum observed.

3.  United States v. Reveles, 190 F.3d 678, 686 (5th Cir.1999) (reversing conviction on the basis that “a reasonable trier of fact would see virtually equal circumstantial evidence of incrimination and exoneration, and consequently would entertain a reasonable doubt”); United States v. Peñeloza, 473 F.3d 575, 580–81 (5th Cir.2006) ( “[B]ecause the circumstantial evidence equally supports a theory of innocence of the crime charged, we find that it is insufficient to sustain the jury's verdict of guilt.”); United States v. Stewart, 145 F.3d 273, 277–81 (5th Cir.1998) (reversing conviction where government's arguments required the court to “pile inference on inference”).

4.  See United States v. Bell, 678 F.2d 547, 550 (5th Cir.1982)(en banc). The concurring opinion may be the source of confusion, although Bell itself holds that Jackson is controlling whether the evidence is direct or circumstantial. 678 F.2d at 549 n. 3.

EDITH H. JONES, Circuit Judge:

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UNITED STATES v. CULBERTSON

UNITED STATES of America, Plaintiff–Appellee, v. Todd Mitchell CULBERTSON, Defendant–Appellant.

No. 11–10917.

-- March 22, 2013

Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.

James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.Jerry Van Beard, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, for Defendant–Appellant.

Defendant–Appellant Todd Mitchell Culbertson (“Culbertson”) appeals his revocation sentence because he contends that the district court impermissibly based the length of the sentence on the court's perception of his rehabilitative needs, in violation of Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). The district court sentenced Culbertson to 30 months imprisonment, followed by 113 days in a residential reentry program, which was above his advisory guideline range of 5 to 11 months imprisonment. We conclude that the district court based Culbertson's sentence on its perception of the defendant's rehabilitative needs. We therefore VACATE the sentence and REMAND for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2001, Culbertson pled guilty to possession with intent to distribute methamphetamine. The district court sentenced him to 87 months of imprisonment, followed by 5 years of supervised release. After his release from prison, Culbertson violated his conditions of supervised release by using and possessing methamphetamine on six separate occasions, using and possessing marijuana, and failing to complete his 120–day residential reentry program by failing to report after 7 days. At the revocation hearing on September 22, 2011, the recommended guideline range of imprisonment was 5 to 11 months. Defense counsel argued for a within-guidelines sentence, emphasizing that Culbertson had struggled with a drug problem intermittently but had been relatively successful while on supervised release for several years, and that his failure to report timely to the residential reentry program was justified. He concluded by stating that he would “object to anything above the guideline sentence as substantively and procedurally reasonable.” The district court found Culbertson in violation of his supervised release and revoked same.

Prior to imposing the sentence, the district court noted, “The United States Sentencing Commission policy statements contained in Chapter 7 of the guidelines manual regarding supervised release violations have been duly considered.” The district court then sentenced Culbertson outside the guideline range to 30 months of imprisonment, followed by the remaining 113 days of the residential reentry program that the court previously imposed. The district court further ordered that, upon release from imprisonment, Culbertson was to serve 15 months of additional supervised release, with the same terms and conditions as his prior term of supervision. The district court also ordered that the sentence would run consecutively to any sentence imposed in Culbertson's pending state court case. The district court concluded imposition of the sentence by stating, “While under supervision, Mr. Culbertson committed the violations of using and possessing methamphetamine and marijuana and failing to complete 120 days at the Volunteers of America. A sentence of 30 months and 113 days will serve as punishment and deterrence from further criminal activity. I have now stated the sentence.”

The district court then solicited the parties' objections to the sentence. Defense counsel objected to the “substantive and procedural reasonableness of the sentence,” and to the sentence running consecutively to any sentence imposed in the state court case. The district court overruled both objections without further comment.

The district court then told Culbertson:

Now, Mr. Culbertson, I am not angry at you, and I'm not ordering this sentence because I want to be punitive or to hurt you. What I'm trying to do here is give you a period of time where you can, once again, get clean and sober and stay clean and sober and come out after you serve your sentence and stop using drugs and stay on your meds.

I can see you're an intelligent guy. You're competent and you're capable, but, apparently, you have to stay on your meds to do that, and I'm told that when you're out, you don't really stay on your meds, and that causes a cycle of problems. So I want you to work on that while you're in the [Bureau of Prisons (“BOP”) ].

Then, after discussing with Culbertson whether he might benefit from the BOP's 500–hour drug program, the district court said, “I want you to be provided with housing, and I want you to be taken care of while you get yourself together and prepare yourself for reentry into society, and I've put you on 15 more months of supervised release so we can help you do that.” The district court added as explanation, “And so that we can also monitor you, because if you're not going to stop using drugs and stop being a threat to society, we'll have to keep sending you back.”

Defense counsel then asked the court why it was imposing a sentence in excess of the guideline range:

[DEFENSE COUNSEL]: Is there a need to triple the guidelines, Your Honor? I'm not being disrespectful to Your Honor. I'm just asking why so much time?

THE COURT: Because I think you need that time to get yourself stabilized. I think if we gave you within the guidelines, you would be there and then quickly out and be right back here.

Culbertson timely filed a notice of appeal.

II. DISCUSSION

A. Tapia v. United States

In Tapia v. United States, a unanimous Supreme Court held that a district court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” ––– U.S. ––––, ––––, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011). In so holding, the Court noted that 18 U.S.C. § 3582(a) “precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation.” Id. at 2391 (citing 18 U .S.C. § 3582(a)). The Court relied on the plain language of 18 U.S.C. § 3582(a), which provides that, when a sentencing court is determining whether to impose a term of imprisonment and the length of that term, it “shall consider the factors set forth in [18 U.S.C .] section 3553(a)1 to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a) (emphasis added). Interpreting this statutory language, the Court reasoned, “what Congress said was that when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation—because imprisonment is not an appropriate means of pursuing that goal.” Tapia, 131 S.Ct. at 2389.

On the other hand, Tapia also stated that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” Id. at 2392. “To the contrary, a court properly may address a person who is about to begin a prison term about these important matters” and “may urge the BOP to place an offender in a prison treatment program.” Id. Thus, Tapia recognized a distinction between imposing or lengthening a prison sentence based on rehabilitative needs and merely discussing opportunities for rehabilitation while in prison.

During the initial sentencing in Tapia, the district court stated, “The sentence has to be sufficient to provide needed correctional treatment, and here I think the needed correctional treatment is the 500 Hour Drug Program.” Id. at 2385, 2392. The district court again stated that the “ ‘number one’ thing ‘is the need to provide treatment. In other words, so [the defendant] is in long enough to get the 500 Hour Drug Program.’ “ Id. at 2392–93. The Supreme Court concluded: “These statements suggest that the [district] court may have calculated the length of Tapia's sentence to ensure that she receive certain rehabilitative services. And that a sentencing court may not do.” Id. at 2393. Importantly, Justice Sotomayor's concurring opinion in Tapia discussed at length the fact that the sentencing judge carefully weighed all of the § 3553(a) factors, not just the defendant's need for rehabilitation.2 Id. (Sotomayor, J., concurring).

On this record, the Supreme Court vacated and remanded the matter to the Ninth Circuit, holding that the district court may have lengthened the defendant's sentence impermissibly in order to make her eligible for the BOP's 500–hour drug treatment program.3 Tapia, 131 S.Ct. at 2392–93.

B. Post-Tapia

We have applied the Tapia rule to vacate initial sentences post-conviction where the district court explicitly relied on the defendant's need for rehabilitation in imposing or lengthening a sentence. See, e.g., United States v. Broussard, 669 F.3d 537, 555 (5th Cir.2012); United States v. Escalante–Reyes, 689 F.3d 415, 423–24 (5th Cir.2012) (en banc). Until our recent decision in United States v. Garza, however, it was an open question in this circuit whether Tapia applied to terms of imprisonment imposed upon the revocation of supervised release, as opposed to the original sentencing.4 See United States v. Garza, 706 F.3d 655, 657–59 (5th Cir.2013). In Garza, we held that “a sentencing court may not consider rehabilitative needs in imposing or lengthening any term of imprisonment,” including for revocations of supervised release. Id. at 659 (emphasis added). In so holding, we “join[ed] the uniform post-Tapia case law in our sister circuits,” including the First, Fourth, Eighth, Ninth, and Tenth Circuits.5 See id. at 657 & n. 5 (citations omitted).

Garza clarified that, while 18 U.S.C. § 3582(a) proscribes the consideration of a defendant's rehabilitative needs when imposing a sentence, “this does not mean · that a district court may make no reference to the rehabilitative opportunities available to a defendant.” Id. at 659 (citing Tapia, 131 S.Ct. at 2392 (stating that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs”)). Garza noted that “[a] district court also may legitimately ‘urge the [Bureau of Prisons] to place an offender in a prison treatment program.’ “ Id. (second alteration in original) (quoting Tapia, 131 S.Ct. at 2392). “However, when the district court's concern for rehabilitative needs goes further—when the sentencing record discloses ‘that the court may have calculated the length of [the defendant's] sentence to ensure that she receive certain rehabilitative services'— § 3582(a) has been violated.” Id. at 659–60 (quoting Tapia, 131 S.Ct. at 2393). Garza further observed that “[o]ur limited precedent post-Tapia has described the distinction between legitimate commentary and inappropriate consideration as whether rehabilitation is a “secondary concern” or “additional justification” (permissible) as opposed to a “dominant factor” (impermissible) informing the district court's decision.” Id. at 660 (citing United States v. Receskey, 699 F.3d 807, 810, 812 (5th Cir.2012) (finding no Tapia error where the district court discussed the potential rehabilitation services available only after discussing its unrelated reasons for selecting the length of the defendant's sentence); Broussard, 669 F.3d at 545, 551–52 (finding Tapia error where the district court described the defendant as “need[ing] help badly” and “sick in the head,” and it emphasized “the need to incarcerate [the defendant] for the treatment that he needs”)).

The district court in Garza imposed a sentence of 24 months' imprisonment, where Garza's advisory guideline range was 3 to 9 months. Id. at 660–62. We concluded that the district court impermissibly relied on the defendant's rehabilitative needs, based on its statements that Garza “ ‘should be required [or] at least be given an opportunity to participate in that residential institution drug treatment program’ in order to ‘get [Garza] straightened out.’ “6 Id. at 660–61 (alterations in original). The district court stated that it would not give Garza enough time for a long term program “because I don't think he really needs that again. I think some of these shorter term programs ought to be enough for him· I'm hoping a 24 month term of imprisonment followed by a 24 month term of supervised release will be enough.” Id. at 661–62. Accordingly, we concluded that, although the court might have been inclined to impose some upward departure in light of Garza's conduct, “Garza's rehabilitative needs were the dominant factor in the court's mind.” Id. at 662. We therefore vacated the sentence and remanded for resentencing. Id. at 663.

C. Application of Tapia to Culbertson's Case

The Government argues that the district court did not violate Tapia because the court did not lengthen Culbertson's sentence based on rehabilitative needs. We disagree.

The district court expressly stated its reason for giving Culbertson three times the guidelines range:

[DEFENSE COUNSEL]: Is there a need to triple the guidelines, Your Honor? I'm not being disrespectful to Your Honor. I'm just asking why so much time?

THE COURT: Because I think you need that time to get yourself stabilized. I think if we gave you within the guidelines, you would be there and then quickly out and be right back here.

Additionally, the district court explained on several occasions that its purpose in imposing the sentence was to provide Culbertson with enough time for rehabilitation. After the district court imposed its sentence and defense counsel objected, the court stated, “I'm not ordering this sentence because I want to be punitive or to hurt you.” Rather, the district court stated, “What I'm trying to do here is give you a period of time where you can, once again, get clean and sober and stay clean and sober and come out after you serve your sentence and stop using drugs and stay on your meds.” While the district court expressly referenced the policy statements in Chapter Seven of the Sentencing Guidelines and stated that it was imposing a sentence “as punishment and deterrence from further criminal activity,”7 its other statements on the record evidence that a “dominant factor” in imposing the sentence was Culbertson's need for rehabilitation. See Garza, 706 F.3d at 662 (determining that “Garza's rehabilitative needs were the dominant factor in the court's mind”); cf. Receskey, 699 F.3d at 811 (concluding that the district court's “concern over rehabilitation may have been an ‘additional justification,’ but it was not a ‘dominant’ factor in the court's analysis”).

In these ways, this case is similar to Broussard, where we concluded that the district court erred in determining the defendant's sentence by relying on his need for treatment to address his sexual fantasies involving minors and his inclinations to engage in such sexual conduct. See Broussard, 669 F.3d at 552. Notably, the district court addressed all of the 18 U.S.C. § 3553(a) factors, but it also specifically made statements that Broussard “is sick in the head,” “needs help badly,” and “is in need of education pertaining to his problems and he needs medical care and treatment.” Id. at 544–45, 552. We held that the district court committed Tapia error in spite of the district court's consideration of the § 3553(a) factors:

We do not dispute that the district court considered other permissible factors in explaining its chosen sentence for Broussard; however, it is also quite apparent from the transcript of the sentencing that the district court imposed a sentence—a three hundred percent increase over the guidelines range—based on the court's belief that Broussard was “sick in the head” and in need of treatment.

Broussard, 669 F.3d at 555.

Accordingly, we reject the Government's argument that the district court here did not lengthen Culbertson's sentence based on his rehabilitative needs because it also referenced its reasons as “deterrence,” “punishment,” and the need to prevent Culbertson from being a “threat to society.” Justice Sotomayor's concurring opinion in Tapia further supports this conclusion: it demonstrates that the district court, tracking the § 3553(a) statutory factors, provided multiple reasons for Tapia's sentence, and the Supreme Court still vacated the sentence because the district court may have relied on the defendant's rehabilitative needs.8 Tapia, 131 S.Ct. at 2393. Evidently, in both Broussard and Tapia, the sentencing courts expressly considered the § 3553(a) factors at much greater length than the sentencing court here, but both we and the Supreme Court vacated the sentences and remanded for resentencing nonetheless. Again, when defense counsel specifically asked the district court why it was exceeding Culbertson's guideline range threefold, the court made its reasoning clear: “I think you need that time to get yourself stabilized.” Accordingly, the district court's words are the best evidence of why it did what it did, and they overshadow its passing reference to deterrence, punishment, and the threat Culbertson posed to society.

We also reject the Government's suggestion that a district court impermissibly relies on rehabilitative needs only when the court refers to a specific treatment program as its reason for the length of the sentence. While several cases, including Tapia, have involved a district court imposing a sentence of a specific length in part to make the defendant eligible for a certain program, we do not read Tapia as requiring this element. To the contrary, Tapia clearly held that a district court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia, 131 S.Ct. at 2393 (emphasis added). Thus, it is clear to us that the Tapia rule contemplates methods that “otherwise · promote rehabilitation” beyond facilitating eligibility for a specific treatment program. See id.

D. Plain–Error Review

Having concluded that the district court erred, we must determine whether that error is reversible. We agree with the Government that defense counsel's objection for “substantive and procedural unreasonableness” before the district court was ineffective to preserve the error alleged here. Thus, we review for plain error. Broussard, 669 F.3d at 553.

To demonstrate reversible plain error, Culbertson must show “(1) error (2) that is plain and (3) that affects his substantial rights.” Id. (citation omitted). “To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to reasonable dispute .’ “ Id. (citations omitted). “To affect the defendant's substantial rights, the defendant must demonstrate that the error affected the outcome of the district court proceedings.” Id. (citations omitted). Finally, under the fourth prong of plain-error review, “[w]e will exercise our discretion to correct plain error if it seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” Id. (citation omitted). As we already have determined that the district court erred, we focus our analysis on the second, third, and fourth prongs.

As to the second prong, we conclude that the error was plain in light of our recent decision in Garza. See Escalante–Reyes, 689 F.3d at 423 (holding that, “where the law is unsettled at the time of trial but settled by the time of appeal, the ‘plainness' of the error should be judged by the law at the time of appeal”).

In the sentencing context, the third prong requires that the defendant demonstrate a “reasonable probability” that, but for the district court's error, he would have received a lesser sentence. United States v. Dickson, 632 F.3d 186, 191 (5th Cir.2011) (citation omitted). Here, the error clearly affected Culbertson's substantial rights, as the district court's emphasis on his rehabilitative needs affected the outcome of the sentencing. The district court gave Culbertson a sentence that was three times his guideline range and repeatedly referred to Culbertson's need for rehabilitation, including after defense counsel specifically questioned why the sentence exceeded the guideline range three-fold. These facts are similar to those in Escalante–Reyes, where, in response to the defense counsel's objection to the length of the sentence, “the district court mentioned only two things: Escalante–Reyes's quick return to the United States and that ‘[h]e has a problem with his anger management. He has things that need to be addressed.’ “ Escalante–Reyes, 689 F.3d at 423. Therefore, Culbertson's need for rehabilitation was “such a central part of the district court's explanation of [Culbertson's] sentence that ‘we cannot confidently say that the district court would have imposed the same sentence’ without it.” Id. at 424 (citation omitted).

As to the fourth prong, we recognized in Escalante–Reyes that we respect the sentencing court's discretion in making sentencing decisions, and “we do not view the fourth prong as automatic if the other three prongs are met.” Id. at 425. Further, the Supreme Court's recent decision in Henderson v. United States provides additional guidance for assessing claims of error under plain-error review. ––– U.S. ––––, –––– – ––––, 133 S.Ct. 1121, 1130–31, –––L.Ed.2d ––––, –––– – –––– (2013) (holding that the plainness of plain error is to be judged by the law at the time of appellate consideration, rather than at the time of trial). On appeal, the Government had expressed a concern about an expansive plain-error rule that would permit “too many claims of plain error,” and the Henderson Court emphasized the inherent “screening criteria” contained within the plain-error rule which helps to avoid any “ ‘plain error’ floodgates.” See id. at 1130. The Court noted that, when lower courts of appeals apply the other prongs of plain error—requiring the impairment of substantial rights and error that seriously affected the fairness, integrity, or public reputation of the judicial proceedings—the fact that a defendant failed to object “may well count against” the grant of relief under plain-error review. Id.

With these advisories in mind, we nonetheless conclude that the error in the instant case warrants reversal. For one, while we conclude that Culbertson's objection was insufficient to preserve the specific error alleged on appeal, he did object to a sentence three times higher than his guideline range. Moreover, this court already held in Escalante–Reyes that the plainness of any error should be judged by the time of appeal; thus, the Henderson decision only reifies, rather than supplants, our precedents. See Escalante–Reyes, 689 F.3d at 422–23. Accordingly, as in Escalante–Reyes, we are not satisfied here that there is other record evidence showing that Culbertson's sentence is “fair,” or that the “integrity or public reputation” of the judicial proceeding was protected despite the district court's erroneous consideration of Culbertson's need for rehabilitation in determining the length of his sentence. See id. at 425. Based on the sentencing record as a whole, we conclude that the district court's repeated emphasis on Culbertson's need for prison time “to get clean and sober” and “to get [himself] stabilized” affected the “fairness, integrity, or public reputation” of the sentencing proceeding. See id. at 425–26. Moreover, unlike Escalante–Reyes, who received a below-guidelines sentence and we nevertheless reversed his sentence, here, Culbertson's sentence was three times in excess of his advisory range. See id. at 425 (“While the district court gave a slightly-below Guidelines sentence, the circumstances show a probability that the court's mercy was, as Escalante–Reyes noted, “tempered” by the desire to have him receive anger management training.”). We therefore conclude that we should exercise our discretion to recognize this error. See id. at 426; Garza, 706 F.3d at 663 (reversing and remanding for resentencing after determining that the district court committed plain error under Tapia ).

III. CONCLUSION

Accordingly, the sentence is VACATED, and this matter is REMANDED to the district court for resentencing in a manner not inconsistent with this opinion.

FOOTNOTES

1.  These “ § 3553(a) factors” include:(1) the nature and circumstances of the offense and the history and characteristics of the defendant;(2) the need for the sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;(3) the kinds of sentences available;(4) the kinds of sentence and the sentencing range established ·(5) any pertinent policy statement [of the U.S. Sentencing Commission] ·(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a).

2.  For example, Justice Sotomayor highlighted that the sentencing judge considered, inter alia:“[t]he nature and circumstances of the offense” · emphasiz[ing] that Tapia's criminal conduct “created a substantial risk of death or serious bodily injury” to the smuggled aliens· He noted his particular concern about Tapia's criminal conduct while released on bail, when she failed to appear and was found in an apartment with methamphetamine, a sawed-off shotgun, and stolen mail[.]Tapia, 131 S.Ct. at 2393 (Sotomayor, J., concurring) (internal citations omitted).

3.  The Court left “it to the Court of Appeals to consider the effect of Tapia's failure to object to the sentence when imposed.” Id. at 2393.

4.  Although we held in United States v. Breland that, despite Tapia, a district court could use rehabilitation concerns to determine a revocation sentence, the Supreme Court vacated and remanded that decision for resentencing. See United States v. Breland, 647 F.3d 284, 290 (5th Cir.2011) (“Breland I ”), vacated by Breland v. United States, –––U.S. ––––, 132 S.Ct. 1096, 181 L.Ed.2d 973 (2012). The Supreme Court vacated Breland I in light of the Solicitor General's brief, which acknowledged the Government's change of position agreeing with the defendant that Tapia applies in the revocation context. Breland, 132 S.Ct. at 1096. On remand, we noted that the Government agreed with the First and Ninth Circuits that district courts may not lengthen a revocation sentence based on rehabilitative needs. United States v. Breland, 463 F. App'x 376, 376–77 (5th Cir.2012) (per curiam) (unpublished) (“Breland II ”) (citing United States v. Molignaro, 649 F.3d 1, 5 (1st Cir.2011) (Souter, J. (ret.), sitting by desig.); United States v. Grant, 664 F.3d 276, 282 (9th Cir.2011)). Thus, we remanded to the district court for resentencing. Id. at 377.

5.  See Molignaro, 649 F.3d at 5; United States v. Bennett, 698 F.3d 194, 197 (4th Cir.2012); United States v. Taylor, 679 F.3d 1005, 1006 (8th Cir.2012); Grant, 664 F.3d at 282; United States v. Mendiola, 696 F.3d 1033, 1042 (10th Cir.2012).

6.  In a dissenting opinion, Judge Haynes agreed with the panel majority that Tapia applied to revocation sentences, but she disagreed with the conclusion that the district court in Garza committed Tapia error. See Garza, 706 F.3d at 663–64 (Haynes, J., dissenting).

7.  We also note that the district court may have relied on “punishment” improperly as a justification for the sentence in this case. See United States v. Miller, 634 F.3d 841, 843–44 (5th Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 496, 181 L.Ed.2d 345 (2011) (holding that it is improper for a district court to rely on, inter alia, the need “to provide just punishment for the offense” in determining a revocation sentence where the relevant statute, 18 U.S .C. § 3583(e), omits this consideration). While Culbertson raises this issue in passing in his opening brief, he did not object to any potential error on this ground before the district court. Under plain-error review, we conclude that, while the district court plainly erred, this error did not affect Culbertson's substantial rights. See Broussard, 669 F.3d at 555 (noting that, to demonstrate reversible plain error, the defendant must show “(1) error (2) that is plain and (3) that affects his substantial rights”) (citations omitted). “To be ‘plain,’ legal error must be ‘clear or obvious, rather than subject to reasonable dispute.’ “ Id. (citations omitted). “To affect the defendant's substantial rights, the defendant must demonstrate that the error affected the outcome of the district court proceedings.” Id. (citations omitted). Here, the error was plain, given our Miller decision. See Miller, 634 F.3d at 843–44. However, the sentencing court only made passing reference to the need for “punishment” in sentencing Culbertson. Thus, we conclude that the court's mere mention of this impermissible factor did not affect Culbertson's substantial rights because the factor did not impact the district court proceedings.

8.  By contrast, Justice Sotomayor, who was joined by Justice Alito, expressed skepticism over the Court's finding that the district court may have lengthened the defendant's sentence based on the defendant's rehabilitative needs. Tapia, 131 S.Ct. at 2394. However, she concluded, “I cannot be certain that [the sentencing judge] did not lengthen Tapia's sentence to promote rehabilitation in violation of § 3582(a). I therefore agree with the Court's disposition of this case [vacating the sentence and remanding for resentencing] and join the Court's opinion in full.” Id. (emphasis added).

CARL E. STEWART, Chief Judge:

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UNITED STATES v. JENKINS

UNITED STATES of America, Plaintiff–Appellee v. Erik D. JENKINS, a/k/a Erik Jenkins, Defendant–Appellant.

No. 11–51277.

-- March 20, 2013

Before KING, SOUTHWICK, and GRAVES, Circuit Judges.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.Judy Fulmer Madewell, Assistant Federal Public Defender, Donnat F. Coltharp, Assistant Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant–Appellant.

Defendant–Appellant Erik D. Jenkins (“Jenkins”) appeals his conviction and sentence for various offenses concerning child pornography. Jenkins argues that the district court erred in applying a two-level sentence enhancement pursuant to U.S.S.G. § 3A1 .1(b)(1). Jenkins also argues that his sentence of twenty years imprisonment is substantively unreasonable. For the following reasons, we AFFIRM the judgment of the district court.

BACKGROUND

Jenkins was charged with one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2); two counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2); two counts of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B); one count of receiving obscene material depicting sexual abuse of a child in violation of 18 U.S.C. § 1466A(a)(1); and one count of possessing obscene material depicting sexual abuse of a child in violation of 18 U.S.C. § 1466A(b)(1). These charges arose from Jenkins' use of his personal computer to upload and download images and videos through an internet peer-to-peer file sharing program. Jenkins pleaded guilty to all counts without the benefit of a plea agreement.

The presentence report (“PSR”) stated that thirty-six image files and 110 video files depicting child sexual exploitation were found on Jenkins' computer. The PSR described the images and videos as follows:

The images and videos were of prepubescent children, a majority between the ages of 7 and 10 and a small number of them were infants/toddlers. The images and videos reflected the penetration of an adult penis into a child's vagina or anus, which would cause considerable amount of pain and physical damage. A few of the children's vaginas were red, swollen, and obviously irritated. In a small number of images the children were bound, their hands and feet tied together or to a bed or a chair with their legs apart exposing their genitalia.

The PSR recommended a two-level specific offense enhancement pursuant to U.S.S.G. § 2G2.2(b)(2), which applies “[i]f the material involved a prepubescent minor or a minor who had not attained the age of 12 years.” The PSR noted that numerous videos and images downloaded and distributed by Jenkins depicted prepubescent minors or minors under the age of twelve. The PSR also recommended a four-level specific offense enhancement pursuant to U.S.S.G. § 2G2.2(b)(4), which applies “[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The PSR found this enhancement to be applicable because the majority of the videos and images found on Jenkins' computer “portrayed an erect, adult male penis penetrating the vagina or anus of a prepubescent child[,] inflicting pain on the child.” The PSR also recommended a two-level victim-related enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), which applies “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” The PSR noted that the children depicted in the videos and images “rang[ed] from being toddlers to early teenagers,” and explained that “several · images depict sexual abuse and exploitation of young and small children who are unable to resist or object to the abuse or exploit [sic], making them susceptible to abuse and exploitation and thus, vulnerable victims.” The PSR also recommended a two-level enhancement for distribution, a two-level enhancement for use of a computer, and a five-level enhancement because the offense involved more than 600 images.1 See U.S.S.G. §§ 2G2.2(b)(3)(F), 2G2.2(b)(6) & 2G2.2(b)(7)(D).

Jenkins objected to the section 3A1.1(b)(1) “vulnerable victim” enhancement. Jenkins argued that because any child pornography offense would seemingly involve a “vulnerable victim,” this factor is adequately addressed by the specific offense guideline. More specifically, Jenkins argued that the vulnerability of the victims in this case was accounted for by the “prepubescent minor” and “depictions of violence” enhancements. The government argued that the enhancements account for distinct harms, and maintained that this court had explicitly rejected a similar argument in the past. The district court “agree[d] with the Government based on Fifth Circuit precedent” and overruled Jenkins' objection.

Based on Jenkins' total offense level of 36 and criminal history category of IV, the Guidelines range of imprisonment was 262 to 327 months. However, because this range was above the statutory maximum of twenty years imprisonment, the statutory maximum sentence became the advisory Guidelines sentence. See U.S.S.G. § 5G1.1(a). Jenkins moved for a below-Guidelines sentence, arguing that the advisory Guidelines sentence was excessive for several reasons. The government moved for an above-Guidelines sentence of thirty years imprisonment,2 arguing that the advisory Guidelines sentence was inadequate for several reasons. The district court rejected both motions and sentenced Jenkins to 240 months imprisonment. Jenkins timely appealed.

DISCUSSION

I. Sentence Enhancement

On appeal, Jenkins argues that the district court erred in applying the section 3A1.1(b)(1) “vulnerable victim” enhancement “based on the age of the children portrayed in the child pornography” because the specific offense guideline already takes into account the ages of the children. Jenkins does not contend that the children were not in fact vulnerable, but rather that the district court erred in applying a section 3A1.1(b)(1) enhancement based on an age-related vulnerability. Jenkins also argues that although the children were especially vulnerable to the crime of production of child pornography, they were not especially vulnerable to the specific crimes he committed.

We “review the district court's interpretation of the guidelines de novo; we review a finding of unusual vulnerability for clear error and to determine whether the district court's conclusion was plausible in light of the record as a whole.” United States v. Robinson, 119 F.3d 1205, 1218 (5th Cir.1997). “[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

“If the defendant knew or should have known that a victim of the offense was a vulnerable victim,” the offense level is increased by two. U.S.S.G. § 3A1.1(b)(1). The application notes define a “vulnerable victim” as a person “who is a victim of the offense of conviction,” along with any relevant conduct, and “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt.2. The application notes also state that the “vulnerable victim” enhancement should not be applied “if the factor that makes the person a vulnerable victim is incorporated in the offense guideline. For example, if the offense guideline provides an enhancement for the age of the victim, [the enhancement] would not be applied unless the victim was unusually vulnerable for reasons unrelated to age.” Id.

Although the government and the district court seemingly believed that Jenkins' challenge was foreclosed by circuit precedent, we have had no occasion to consider application of the section 3A1.1(b)(1) enhancement in addition to the section 2G2.2(b)(2) enhancement. In United States v. Wright, 373 F.3d 935, 942–44 (9th Cir.2004), the Ninth Circuit held that a section 3A1.1(b)(1) “vulnerable victim” enhancement was appropriate, along with a section 2G2.2(b)(2) enhancement based on prepubescent/younger-than-twelve children, where the victims ranged in age from eleven months to four years. The Ninth Circuit explained that “the victims' vulnerability is not fully ‘incorporated’ in the victim–under–12 adjustment” because “[m]ost children under 12 are well beyond the infancy and toddler stages of childhood during which they are the most vulnerable.” Id. at 943. The Ninth Circuit further explained that “[t]hough the characteristics of being an infant or toddler tend to correlate with age, they can exist independently of age, and are not the same thing as merely not having ‘attained the age of twelve years,’ the criterion for the 4–level increase in” section 2G2.1(b)(2). Id.

Jenkins cites two cases from other circuits in which the courts, rejecting challenges to the application of the section 3A1.1(b)(1) enhancement, noted that the victim was vulnerable for reasons unrelated to age. United States v. Gawthrop, 310 F.3d 405, 412 (6th Cir.2002) (“[T]he granddaughter was unusually vulnerable, not because of her age since that factor had already been considered by the guidelines, but because of her familial relationship.”); United States v. Snyder, 189 F.3d 640, 649 (7th Cir.1999) (“[T]he district court premised the enhancement on Doe's history of molestation, a factor that is ‘unrelated to age.’ ”). Jenkins suggests that these statements show that “other circuits require something more than just the young age of the child as the vulnerability factor” when a section 2G2.1(b)(2) enhancement is also applied.

The example provided in the commentary to U.S.S.G. § 3A1.1 may be fairly read to state that if a specific offense guideline provides any enhancement based on the age of the victim, the “vulnerable victim” enhancement can never be applied to account for a vulnerability that is “related to age.” Jenkins appears to support such an interpretation. However, we reject such an interpretation as plainly illogical and unreasonable. For example, the specific offense guidelines for some crimes provide enhancements based on the young age of the victim but do not provide enhancements based on the old age of the victim. See, e.g., U.S.S.G. § 2A3.1. The commentary language would seemingly prohibit a court from applying the “vulnerable victim” enhancement where a victim of one of these crimes was especially vulnerable due to extreme old age. Such an outcome would be odd; although the vulnerability is certainly “related to age,” it is in no way accounted for by the specific offense guidelines and presents no risk of “double counting” the same vulnerability.

The same problem also occurs in more subtle ways. Consider an enhancement for a victim under the age of twelve: A person who is unable to walk is no doubt especially vulnerable to many crimes. Most children under the age of twelve are able to walk. Some children under twelve, infants, are unable to walk due to extreme young age. Other children under twelve may be unable to walk due to paralysis. We see no reason why a “vulnerable victim” enhancement based on inability to walk should be applied to paralyzed children but not to infants. Although an infant's inability to walk is “related to age,” it is not accounted for by the “victim under twelve” enhancement.

Accordingly, we do not ascribe undue significance to the example provided in the Guidelines commentary. Rather, we believe the inquiry should focus on whether “the factor that makes the person a vulnerable victim is incorporated in the offense guideline.” U.S.S .G. § 3A1.1 cmt. 2. In this case, we do not see any logical reason why a “victim under the age of twelve” enhancement should bar application of the “vulnerable victim” enhancement when the victim is especially vulnerable, even as compared to most children under twelve. We agree with the Ninth Circuit that in such a case, the victim's vulnerability is not fully incorporated into the offense guideline by the “under twelve” enhancement.

Jenkins also argues that although the young age of the victims may have made them especially vulnerable to production of child pornography because they were unable to resist, their young age does not make them especially vulnerable to the crimes for which he was convicted—receipt, distribution, and possession of child pornography. We have previously held that “the children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.” United States v. Norris, 159 F.3d 926, 929 (5th Cir.1998). In that case, we rejected the defendant's argument that “the [only] victimization of the children occurred at the time the pornographic images were produced,” stating:

Unfortunately, the “victimization” of the children involved does not end when the pornographer's camera is put away. The consumer, or end recipient, or pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways.

Id. Here, it is clear that the children depicted were the victims of Jenkins' crime, and that at least some of these children were especially vulnerable to sexual abuse and exploitation. We agree with the Ninth Circuit that this is sufficient; there is no need to show that the particular vulnerabilities of the victims actually facilitated the commission of Jenkins' crimes. See United States v. Lynn, 636 F.3d 1127, 1138–39 (9th Cir.2011). We therefore conclude that the district court did not err in applying the section 3A1.1(b)(1) enhancement.

II. Substantive Reasonableness

Jenkins also argues that his within-Guidelines sentence of twenty years imprisonment is substantively unreasonable. The substantive reasonableness of a sentence is reviewed under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos–Maldonado, 531 F.3d 337, 338 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant,” Campos–Maldonado, 531 F.3d at 339.

Jenkins first argues that his sentence is substantively unreasonable because the child pornography guideline, section 2G2.2, lacks an empirical basis and therefore fails to distinguish between the least culpable and the most culpable defendants. However, Jenkins recognizes that this argument is foreclosed by our precedent in United States v. Miller, 665 F.3d 114, 121 (5th Cir.2011), and raises the argument only to preserve the issue for Supreme Court review. Jenkins also argues that his culpability was mitigated by his personal characteristics and history, specifically his diagnosed behavioral and learning disorders as a child and his Army service in Iraq. As the transcript of the sentencing hearing demonstrates, Jenkins presented these facts to the district court for consideration. Despite these mitigating factors, the district judge noted that Jenkins “show[ed] a lot of characteristics that really concern[ed]” her. We find no reason to conclude that the district judge abused her discretion in applying and balancing the sentencing factors, and therefore hold that Jenkins has not shown his sentence to be substantively unreasonable.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.

FOOTNOTES

1.  In calculating the total number of images, each video is considered to contain seventy-five images. U.S.S.G. § 2G2.2 cmt. n. 4(B)(ii).

2.  Such a sentence could have been imposed using consecutive sentencing on one or more counts.

JAMES E. GRAVES, JR., Circuit Judge:

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UNITED STATES v. COMPIAN TORRES

UNITED STATES of America, Plaintiff–Appellee, v. Osvaldo COMPIAN–TORRES, Defendant–Appellant.

No. 11–10921.

-- March 19, 2013

Before REAVLEY, PRADO, and ELROD, Circuit Judges.

Judson Jett Davis, Special Assistant U.S. Attorney, Brian W. McKay, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.Kevin Joel Page, Laura S. Haiper, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Dallas, TX, for Defendant–Appellant.

Defendant–Appellant Osvaldo Compian–Torres was convicted of illegally reentering the country. He appealed his conviction, and this Court affirmed. We granted a motion for rehearing and now affirm.

I

Osvaldo Compian–Torres (“Compian”) is a Mexican citizen who was removed from the United States in 1998 after admitting that he had entered the country illegally. He was apprehended again in 2000 and pleaded guilty to illegally reentering the country. After serving his sentence for the 2000 reentry, Compian was released into immigration custody and subsequently deported on November 7, 2003. The terms of his supervised release forbade him from illegally reentering the country. Those terms notwithstanding, Compian illegally returned to the United States shortly after his deportation. Compian was then arrested and charged with assault in Dallas on January 12, 2004. However, the charges were dropped and Compian was released days later. The police apparently did not suspect that he was illegally present.

Around June 21, 2004, a probation officer became aware of Compian's January 2004 arrest and filed a petition alleging that Compian had violated the terms of his supervised release by illegally reentering the country. A warrant was issued on June 23, 2004, but Compian was not arrested until two years later. On July 28, 2006, the district court revoked Compian's supervised release and sentenced him to a term of imprisonment. On September 9, 2006, the Bureau of Prisons released Compian from its custody. At no point were immigration officials notified about Compian's reentry, arrest, imprisonment, or release, though a copy of the release revocation petition found its way into Compian's alien file.

On May 11, 2010, Compian was arrested for assault again. At some point officials began to suspect that Compian was illegally present, and so he was transferred to the custody of immigration officials on August 20, 2010. Immigration officials determined that Compian had been previously removed in 2003 and that he had illegally reentered sometime thereafter. Accordingly, on October 6, 2010, Compian was indicted for violating 8 U.S.C. § 1326. The indictment alleged that Compian had been removed on November 7, 2003, that he was found on or about August 20, 2010, and that he had not received permission to reenter the country. Compian pleaded not guilty and proceeded to trial.

The government presented four witnesses. The first witness was Officer Aaron Nation, a deportation officer with Immigration and Customs Enforcement (“ICE”). He described the contents of Compian's alien file and discussed the procedure by which ICE is notified when suspected illegal aliens are in the custody of law enforcement. Usually, some other law enforcement agency suspects an individual is illegally present, at which point ICE is notified and the appropriate inquiries occur. Officer Nation further testified that ICE was not notified about Compian's arrest in 2004, nor his imprisonment and subsequent release, both of which occurred in 2006.

The government's second witness testified about his encounter with Compian, on August 20, 2010, after Compian was in ICE custody. The third witness testified to matching Compian's fingerprints to the fingerprints on Compian's 2003 warrant of removal. The government's last witness testified that there were no records indicating Compian had applied for or received permission to reenter the United States after he was removed on November 7, 2003.

After the government rested its case, Compian made a Rule 29 motion for a judgment of acquittal, which was denied. Compian did not present any witnesses and rested his case. The jury found Compian guilty and, on September 12, 2011, Compian was sentenced to 109 months' imprisonment. Compian then filed a timely appeal challenging the sufficiency of the evidence.

This Court issued an opinion affirming Compian's conviction on October 24, 2012. See United States v. Compian–Torres, No. 11–10921, 2012 WL 5246686, at *1 (5th Cir. Oct.24, 2012). In that opinion, the Court applied a plain error standard of review to Compian's claim because, while couched in terms of sufficiency, Compian's appeal presented a purely legal question that had not been preserved in the district court. Compian filed a petition for panel rehearing on November 7, 2012. In his petition, Compian argued that the Court had not applied the correct standard of review. We granted Compian's petition on November 28, 2012.

II

As this is a direct appeal from the final decision of a district court, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

III

The Court granted Compian's motion for rehearing to reconsider which standard of review is appropriate when, as here, a challenge to the sufficiency of the evidence masks a purely legal question. As explained below, we need not address this question because Compian's claim fails even under the de novo standard he advocates.

A

On appeal, this Court applies de novo review when a defendant preserves a challenge by making a motion for judgment of acquittal. United States v. Valentine, 401 F.3d 609, 615 (5th Cir.2005). Under that standard, we affirm if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. When an issue is raised for the first time on appeal, however, we review for plain error. United States v. Treft, 447 F.3d 421, 424–25 (5th Cir.2006). To show plain error, a defendant must show that a forfeited error is clear or obvious, and that it affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If such a showing is made, the Court has the discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

In our initial opinion we applied plain error review to Compian's claim because it presented a purely legal question that had not been preserved in the district court. Compian–Torres, 2012 WL 5246686, at *1. We reached this conclusion based on the precedent set out in three cases: Treft, 447 F.3d at 424–25 & n. 4 (reviewing for plain error a legal determination raised for the first time on appeal when the defendant had dropped his original motion for acquittal earlier in the proceedings); United States v. Brace, 145 F.3d 247, 257–58 & n. 2 (5th Cir.1998) (en banc) (reviewing for plain error a new, unpreserved legal subissue within an otherwise preserved sufficiency claim); and United States v. Loney, 959 F.2d 1332, 1334 (5th Cir.1992) (reviewing for plain error when a preserved sufficiency claim in fact presents a purely legal claim).

Compian, in his motion for rehearing, cited three previously unmentioned cases in support of his assertion that de novo review should apply. See United States v. Williams, 602 F.3d 313, 315 (5th Cir.2010) (applying de novo review to a sufficiency claim that required determining what conduct constitutes an offense under the relevant statute); United States v. Cuellar, 478 F.3d 282, 287 (5th Cir.2007) (en banc) (reviewing de novo a sufficiency claim dependant on a question of legal interpretation), rev'd on other grounds, 553 U.S. 550, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008); United States v. Santos–Riviera, 183 F.3d 367, 369 (5th Cir.1999) (reviewing a challenge to the sufficiency of an indictment de novo when the appeal involved statutory interpretation). We granted Compian's petition in order to review our precedent within the context of this case. However, having reexamined Compian's case, this Court need not address which standard of review is appropriate because Compian's claim fails, even under the more generous de novo standard. As explained in more detail below, see infra Part III.B, Compian was “found” in 2010 when immigration authorities became aware of his physical presence; and a rational trier of fact could find Compian guilty beyond a reasonable doubt based on the evidence presented at trial.

B

Compian's appeal is phrased as a challenge to the sufficiency of the evidence, but it in fact presents a pure question of law. While Compian claims that there was insufficient evidence to convict him, this assertion entirely depends on a legal claim—namely, that he was “found” for purposes of 8 U.S.C. § 1326(a)(2) in 2004 and not in 2010, as the government claims. For the reasons that follow, Compian was “found” in 2010, and the evidence presented at trial was sufficient to allow a rational trier of fact to find Compian guilty beyond a reasonable doubt.

Section 1326(a) authorizes penalties for any previously deported alien who is thereafter “found” in the United States. 8 U.S.C. § 1326(a). In the Fifth Circuit, “a previously deported alien is ‘found in’ the United States when his physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to the immigration authorities.” United States v. Santana–Castellano, 74 F.3d 593, 598 (5th Cir.1996). Thus, in order to be found, (1) immigration authorities must have specifically discovered and noted the alien's physical presence, and (2) knowledge of the illegality of the alien's presence must be reasonably attributable to immigration authorities. A § 1326 offense “begins at the time the defendant illegally re-enters the country and does not become complete unless or until the defendant is found by the [ICE] in the United States.” United States v. Corro–Balbuena, 187 F.3d 483, 485 (5th Cir.1999). “[T]he five year statute of limitations under § 1326 begins to run at the time the alien is ‘found,’ barring circumstances that suggest that the [ICE] should have known of his presence earlier, such as when he reentered the United States through an official border checkpoint in the good faith belief that his entry was legal.” Santana–Castellano, 74 F.3d at 597.

Compian's position is that an alien is “found” under § 1326 whenever an agent of the federal government encounters an alien and knows or should have known that the alien's presence is unlawful. However, such a rule would constitute an unauthorized departure from this Circuit's precedent. See French v. Allstate Indem. Co., 637 F.3d 571, 589 (5th Cir.2011) (stating that one panel may not overturn another panel's decision absent an intervening change in law—such as a statutory amendment, a Supreme Court decision, or an en banc court). In order to be “found” under § 1326, an alien's physical presence must be discovered and noted by immigration authorities and the illegality of the alien's presence must be reasonably attributable to immigration authorities through the exercise of typical law enforcement diligence. Santana–Castellano, 74 F.3d at 598. The first step of our test requires that immigration authorities discover and note the presence of the alien, and Compian does not contest the fact that, after his 2003 removal, he did not encounter immigration officials again until 2010. Thus, under the plain language of our test, it cannot be said that Compian was “found” in 2004 when he was arrested by state police officers and alleged to be in violation of the terms of his supervised release by a federal probation officer. The fact that Compian's alien file contained a copy of the revocation of his supervised release does not alter this outcome because holding otherwise would create a requirement that ICE actively monitor all alien files at all times for any information suggesting an alien had returned to the United States.

Furthermore, even if this panel could depart from the language of our established precedent, Compian's position would require imputing knowledge to immigration authorities whenever an alien's presence is discovered and noted by another government agent—i.e., the first prong of the test. Compian has not put forth any case law that supports his desired outcome. The first case he cites, United States v. Gunera, 479 F.3d 373 (5th Cir.2007), dealt exclusively with the second prong of the § 1326 test and is thus inapposite. In Gunera, an unlawfully present alien applied for Temporary Protected Status (“TPS”) through the immigration authorities using his real name, date of birth, and place of birth, while omitting his previous conviction, prior deportation, and alien number. 479 F.3d at 375. Using the information provided, the immigration authorities were able to discover Gunera's prior conviction and deportation, but they waited over five years to arrest him. Id. The government claimed that Gunera had not been “found” until his arrest because the immigration authorities were not aware that Gunera's presence was illegal given that Gunera omitted critical information on his TPS application. Id. at 376. The Court rejected the government's position and held that “the immigration authorities can reasonably be attributed with actual knowledge that Gunera was present illegally in the U.S.” when his prior deportation for an aggravated felony was discovered. Id. Gunera thus dealt exclusively with the second prong of our § 1326 test; the case hinged on when immigration authorities—who had already discovered and noted Gunera's presence—should have known that Gunera's presence was unlawful. The first prong was not in dispute because Gunera submitted his application directly to immigration authorities, thereby providing them with the requisite discovery and notice of his physical presence.1 By contrast, Compian was arrested by state police and his supervised release was revoked by judicial officials. His physical presence was not discovered or noted by immigration authorities until he entered ICE custody in 2010, and the notice or actual knowledge of one United States government agency generally is not imputed to other agencies. United States v. Harms, 442 F.3d 367, 377 (5th Cir.2006).

Compian also cites United States v. Vargas–Garcia, 434 F.3d 345 (5th Cir.2005), in an attempt to expand the scope of our test from requiring discovery by “immigration authorities” to “the government” or just “authorities” more broadly. However, the selective quotations Compian relies upon are actually quotations from a Second Circuit case used in Vargas–Garcia merely to illustrate the circumstances under which an illegal reentry constitutes a continuing offense. See 434 F.3d at 349. In fact, when paraphrasing the Fifth Circuit's precedent on point, the court refers to “the relevant authorities,” further underscoring the specific importance of “immigration authorities” in our § 1326 jurisprudence. See id. Moreover, even after Vargas–Garcia, the Santana–Castellano test has been continually applied verbatim in the Fifth Circuit. See, e.g., United States v. Santos–Guevara, 406 F. App'x 874, 874 (5th Cir.2010) (per curiam) (unpublished); Gunera, 479 F.3d at 376; United States v. Alvarado–Santilano, 434 F.3d 794, 798 (5th Cir.2005).

Therefore, for an alien to be “found” under § 1326, immigration authorities must discover and note the alien's physical presence, and the illegality of the alien's presence must be known or reasonably attributable to immigration authorities. Ultimately, a rational trier of fact could find Compian guilty beyond a reasonable doubt based on the evidence presented at trial. The government presented witness testimony showing that Compian was taken into ICE custody in 2010, that Compian had previously been deported, and that Compian unlawfully reentered the United States sometime after his deportation. There was thus sufficient evidence to convict Compian.

IV

For the forgoing reasons, Compian's conviction is AFFIRMED.

FOOTNOTES

1.  Moreover, Gunera provided immigration authorities with his current physical address, further underscoring immigration authorities' awareness of his physical presence. See 479 F.3d at 375. The same cannot be said here.

PRADO, Circuit Judge:

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