United States v. Taylor

280 F. App'x 397
Procedural entryThis page is a short order in United States v. Taylor. Read the opinion of the Court — 482 F.3d 315
Court of Appeals for the Fifth Circuit·Decided June 4, 2008·No. 07-40725·Unpublished

Opinion

PER CURIAM: *

Wesley Adam Taylor pleaded guilty to one count of possessing visual depictions involving the sexual exploitation of minors. In sentencing Taylor, the district court applied a substantial downward variance from the sentence recommended by the presentence report. Under the United States Sentencing Guidelines (“Sentencing Guidelines”), Taylor could have received a sentence of 120 months of imprisonment. The district court, however, sentenced Taylor to sixty months of imprisonment followed by three years of supervised release. The government appealed. After reviewing the sentence for plain error, we AFFIRM.

I.

On July 11, 2006, Taylor was arrested for trading child pornography. Responding to an internet advertisement to trade child pornography placed by an undercover government official, Taylor sent the official DVDs containing thousands of sexually explicit images along with countless pornographic movies, most of which involved children. A month later, government agents executed a controlled' mail delivery of videos containing child pornography to Taylor’s residence. After Taylor’s wife accepted the package, the agents exercised a search warrant and seized Taylor’s computer. The computer contained a plethora of child pornographic materials, including hundreds of movies and thousands of images. The computer also showed that Taylor frequented numerous web sites containing child pornography. During, questioning, Taylor confessed to possessing and trading child pornography. Taylor also admitted that he had taken sexually explicit photographs of his brother’s sixteen-year-old girlfriend and that he had cajoled his twelve-year-old sister into letting him take pictures of her breasts for money.

On December 13, 2006, Taylor was indicted on six counts. The first count charged Taylor with producing sexually explicit images of a minor in violation of 18 U.S.C. § 2251(a) and (d). The second and third counts alleged that Taylor had distributed pornographic materials involving minors in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Finally, the fourth, fifth, and sixth counts charged Taylor with possessing child pornographic materials in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).

Pursuant to a plea agreement, Taylor pleaded guilty to Count Four of the indictment and agreed to the application of various adjustments under the Sentencing Guidelines. In accordance with the plea, Taylor admitted to possessing materials involving a prepubescent minor and distributing the materials with the expectation of receiving a thing of value in return. Moreover, Taylor acknowledged that his offense involved materials that were sadistic or masochistic in' nature, the use of a *399 computer, and 600 or more images. Given these admissions, the presentence report found that the proper sentencing range under the Sentencing Guidelines was 235-293 months. Because the statutory maximum for a violation of § 2252(a)(4)(B) and (b)(2) is 120 months, the presentence report recommended a 120-month sentence.

On June 21, 2007, the district court sentenced Taylor to sixty months of imprisonment followed by three years of supervised release. In explaining its decision, the district court took note of Taylor’s admissions and the seriousness of his offense but found the following factors justified the downward variance from the recommended sentence: (1) the absence of a prior criminal record, (2) Taylor’s youth and “impressive employment history,” (3) the supportive testimonies of Taylor’s wife, mother, and step-father, and (4) the needs of Taylor’s newborn son. After handing down the sentence, the district court asked, “[I]s there anything else from the government?” The government replied, “No.”

II.

Ordinarily, we review sentences for “reasonableness” by applying an abuse-of-discretion standard of review. Gall v. United States, — U.S. -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). Because the government did not object to the downward variance, however, Taylor argues that we should review his sentence for plain error. We agree.

“One of the most familiar procedural rubrics in the administration of justice is the rule that the failure of a litigant to assert a right in the trial court likely will result in its forfeiture.” United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc), abrogated in part on other grounds by Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Therefore, for example, if the defendant failed to object to his sentence at the district court, we review an upward variance from the Sentencing Guidelines for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007).

The government acknowledges that it did not explicitly object to Taylor’s sentence. It asserts, however, that it properly preserved the error because, before the district court sentenced Taylor, it had argued for the district court to follow the presentence report. But in Peltier, the defendant had also argued his case to the district court before sentencing, and we nonetheless found that the defendant had failed to object. See id. at 390-92. This makes sense because only an explicit objection gives the district court the invaluable opportunity to correct errors before they are appealed, which we have found to serve a “critical function” by “encourag[ing] informed decisionmaking.” Id. at 392. The government does not contend— nor do we find appropriate — that the law applies differently when the derelict litigant is the government instead of the criminal defendant. 1

In sum, we conclude that, because the government did not properly object to Taylor’s sentence, we must apply the plain-error standard of review in this case. Accordingly, “[w]e may correct the sentencing determination only if (1) there is error (and in light of Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it is plain; and (3) it affects *400 substantial rights.” Id. Moreover, we cannot correct a “forfeited error” unless the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citations omitted) (alteration in original).

III.

The sentencing decision of the district court must be both procedurally sound and substantively reasonable. Gall, 128 S.Ct. at 597.

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