United States v. Assiter , 93 F. App'x 655 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 31, 2004
Charles R. Fulbruge III
Clerk
No. 03-10566
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
STEPHEN L ASSITER
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
No. 5:03-CR-4-ALL-C
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
PER CURIAM:*
On March 30, 2003, Defendant-Appellant Stephen L. Assiter
pleaded guilty to one count of “Interstate Receipt of Child
Pornography,” in violation of 18 U.S.C. § 2252A(a)(2)(A) and § 2
(2000). Assiter appeals from the district court’s sentencing
decision, claiming that the court improperly enhanced his
sentence under U.S.S.G. § 2G2.2(b)(4) (2002). For the following
reasons, we affirm.
Because Assiter pleaded guilty to violating 18 U.S.C.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
§ 2252A(a)(2)(A), the district court applied § 2G2.2 of the
Sentencing Guidelines. The government recommended a five-level
increase to the base offense level, under § 2G2.2(b)(4), for
“engag[ing] in a pattern of activity involving the sexual abuse
or exploitation of a minor.” This five-level increase is
appropriate when the defendant has, on at least two occasions,
engaged in “conduct constituting criminal sexual abuse of a
minor, sexual exploitation of a minor, abusive sexual contact of
a minor, [or] any similar offense under state law.” U.S.S.G.
§ 2G2.2 cmt.1 (emphasis added). At the sentencing hearing, the
government asserted that Assiter had, at least twice, taken nude
photographs of two minor girls while he was wearing only a long
shirt. Accordingly, it argued that Assiter had committed the
Texas crime of “Indecency With a Child.” See TEX. PENAL CODE ANN.
§ 21.11(a)(2) (Vernon 2003). Assiter objected and claimed that
there was insufficient evidence to demonstrate that he had
violated § 21.11(a)(2). The district court overruled the
objection and sentenced Assiter to fifty-one months of
imprisonment, followed by a three-year term of supervised
release.
On appeal, Assiter reasserts his contention that the
enhancement was erroneously applied because the government did
not provide sufficient evidence to demonstrate that he had
committed the Texas indecency crime. We review the district
court’s application of the Sentencing Guidelines de novo and its
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factual findings at sentencing for clear error. See United
States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).
Generally, the government must prove factors for the enhancement
of a sentence by a preponderance of the evidence. See United
States v. Watts, 519 U.S. 148, 157 (1997); United States v.
Canada, 110 F.3d 260, 263 (5th Cir. 1997).
A person commits the Texas crime of Indecency With a Child
if,
with a child younger than 17 years and not the person’s
spouse, whether the child is of the same or opposite sex,
the person:
. . .
(2) with intent to arouse or gratify the sexual
desire of any person:
(A) exposes the person’s anus or any part of the
person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or
any part of the child’s genitals.
TEX. PENAL CODE ANN. § 21.11(a)(2) (emphasis added). Assiter claims
that the government proved only that he was wearing nothing but a
long shirt while taking photographs of the two minor children,
and it did not claim that the girls saw his genitals. But Texas
law does not require proof that a child actually saw Assiter’s
genitals; proof of exposure is sufficient. See Breckenridge v.
State, 40 S.W.3d 118, 128 (Tex. App.––San Antonio 2000, pet.
ref’d). Moreover, the government did not rely on Assiter’s
exposure in arguing that he had committed this crime. Instead,
the government alleged that Assiter violated § 21.11(a)(2)(B) by
causing the children’s genitals to be exposed while he took
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numerous photographs of them for his own sexual gratification.
Assiter also argues that there was insufficient evidence to
show that his intent in taking the photographs was to arouse or
to gratify his own sexual desires. Specifically, Assiter notes
that the government did not attempt to prove that he was actually
aroused during the photography session. Once again, Assiter’s
contention misses the mark because § 21.11(a)(2) does not require
proof of arousal. See Gregory v. State, 56 S.W.3d 164, 171 (Tex.
App.––Houston [14th Dist.] 2001, pet. dism’d), cert. denied 123
S. Ct. 1787 (2003); cf. Caballero v. State, 927 S.W.2d 128, 130
(Tex. App.––El Paso 1996, pet. Ref’d). Under Texas law, “[t]he
requisite specific intent to arouse or gratify the sexual desire
of a person can be inferred from conduct, remarks, or all the
surrounding circumstances.” Gregory, 56 S.W.3d at 171. Here,
the government maintained that the court could infer the intent
to arouse because Assiter not only caused two minor girls to
expose their genitals while he himself was naked from the waist
down, but he also took numerous nude pictures of the girls, some
of which focused on the genital area. In addition, an FBI agent
testified that Assiter had stored many pornographic images of
adult women on his computer, including images of bestiality.
This combination of circumstances is far more compelling than the
facts required to prove the intent to gratify under Texas law.
See Martins v. State, 52 S.W.3d 459, 475 (Tex. App.––Corpus
Christi 2001, no pet.) (reviewing cases). We therefore hold that
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the government met its burden of proving Assister’s intent by a
preponderance of the evidence.
In the alternative, Assister claims that even if he violated
§ 21.11(a)(2), this crime is not sufficiently similar to the
offenses enumerated in the commentary to U.S.S.G. § 2G2.2(b)(4)
to qualify for the five-level sentencing increase. Because
Assister did not object to his sentence on this basis in the
district court, this “issue is raised for the first time on
appeal and is reviewed for plain error.” United States v.
Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).2 We have
stated that an error is not “plain” unless it is “clear” or
“obvious.” Id. at 189. This circuit has never before considered
whether a violation of the Texas indecency statute constitutes
“sexual abuse or exploitation of a minor” under § 2G2.2(b)(4).
Thus, “any error by the district court in this regard was not
plain or obvious, as we have not previously addressed this
issue.” United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir.
2003).
Accordingly, the defendant’s sentence is AFFIRMED.
2
Although the government did not ask us to adopt this
standard until oral argument, its failure “is unfortunate, but
not fatal” to our use of the appropriate standard of review.
United States v. Vonsteen, 950 F.2d 1086, 1092 (5th Cir. 1992)
(en banc).
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