United States v. Jimmy Gordon , 709 F. App'x 316 ( 2018 )

Case: 17-10312 Document: 00514323454 Page: 1 Date Filed: 01/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10312 FILED
Summary Calendar January 26, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JIMMY GORDON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-208-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jimmy Gordon appeals his guilty plea conviction for sexual exploitation
of a minor in violation of 18 U.S.C. § 2251(a). Gordon argues that the conduct
described in the factual resume supporting his guilty plea was not sufficient to
establish the offense of conviction because it did not reflect that a minor
engaged in sexually explicit conduct.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-10312 Document: 00514323454 Page: 2 Date Filed: 01/26/2018
No. 17-10312
Because Gordon did not object to the factual sufficiency of the factual
resume in the district court, review is for plain error. See United States v.
McCall, 833 F.3d 560, 562 (5th Cir. 2016); United States v. Trejo, 610 F.3d 308,
313 (5th Cir. 2010). Courts employ a six-factor test to determine whether an
image depicts sexually explicit conduct. See United States v. Steen, 634 F.3d
822, 826 (5th Cir. 2011). A review of those factors in light of the stipulations
in the written factual resume, Gordon’s admissions at his rearraignment, and
the record as a whole, see Trejo, 610 F.3d at 313, shows that the district
committed no clear or obvious error in finding a sufficient factual basis for
Gordon’s guilty plea. Specifically, the record supports a conclusion that the
focal point of the image in question was the child’s uncovered genitalia and
that the image was created to be sent to a third party to elicit a sexual response
from the viewer. See McCall, 833 F.3d at 563–64. Gordon’s argument that the
factual resume was insufficient because it did not reflect that the minor
actively engaged in the sexually explicit conduct is without merit. See id. at
563 n.4, 564 n.6.
For the foregoing reasons, the judgment is AFFIRMED.
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