United States v. Anthony Caudill

427 F. App'x 301

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 1, 2011
• Docket: 10-50809
• Status: Unpublished

Opinion

PER CURIAM: *

Defendant-Appellant Anthony Patrick Caudill appeals the 240-month prison sentence he received after his guilty plea conviction for knowingly transporting child pornography through interstate commerce. Caudill contends that the district court erred in applying U.S.S.G. § 2G2.2(c)(l)’s cross reference to § 2G2.1 to obtain his base offense level. He further asserts that the district court erred in enhancing his offense level pursuant to §§ 2G2.1(b)(5) and 2G2.1(b)(2)(A).

We review a district court’s interpretation or application of the Guidelines de novo, and its factual findings for clear error. United States v. Lopez-Urbina, 434 F.3d 750, 762-63 (5th Cir.2005). The applicable cross reference at issue in this case is triggered if the “offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” See § 2G2.2(c)(l). The cross reference is to be construed broadly, see § 2G2.2, comment. (n.5), and the term “offense,” as used in the cross reference includes both charged and uncharged conduct. See U.S.S.G. § 1B1.1, comment. (n.l(H)) (defining “offense” to include “the offense of conviction and all relevant conduct under § 1B1.3”).

The district court properly considered the taking of nude photographs of an underage victim as relevant conduct pursuant to § lB1.3(a)(2) because Caudill’s action was part of the same course of conduct as the offense of conviction. See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir.2009); United States v. Canada, 110 F.3d 260, 264; § 1B1.3(a)(2); § 1B1.3, comment. (n.9(A), (B)). Furthermore, while taking the illicit photographs, Caudill touched the victim’s vagina, causing harm. See § lB1.3(a)(3). Accordingly, the district court did not clearly err in applying the cross reference. See Lopez-Urbina, 434 F.3d at 763.

Likewise, because Caudill’s actions were properly considered relevant conduct and the offense involved sexual contact, the district court did not err in applying a two-level sentencing enhancement pursuant to § 2G2.1(b)(2)(A). See Lopez-Urbina, 434 F.3d at 763. Moreover, Caudill admitted on several occasions that he actually babysat the victim. Therefore, his objection to the district court’s application of a two-level sentencing enhancement pursuant to § 2G2.1(b)(5) because the minor was in his care or custody is without merit. See § 2G2.1(b)(5), comment. (n.3(A)). Accordingly, the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 Cut. R. 47.5.4.