United States v. Christopher Landreneau ( 2020 )

Case: 19-50297 Document: 00515499361 Page: 1 Date Filed: 07/22/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50297 July 22, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
CHRISTOPHER SHAWN LANDRENEAU,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before WIENER, STEWART, and WILLETT, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Christopher Shawn Landreneau (“Landreneau”) pled guilty to one count
of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4). A week
before sentencing, Landreneau moved to withdraw his guilty plea—the district
court denied his motion to withdraw. At sentencing, the district court applied
several sentencing enhancements. Landreneau appealed the application of two
of those enhancements—a two-level enhancement for possessing child
pornography with the intent to distribute and a five-level enhancement for the
pattern of sexual abuse against minors. For the reasons given below, we
AFFIRM the district court’s denial of Landreneau’s motion to withdraw and
its application of the challenged sentencing enhancements.
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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
The Underlying Facts and the Guilty Plea
The Landreneau investigation spanned two states. Louisiana law
enforcement officials first received an anonymous cyber-tip from the National
Center for Missing and Exploited Children (“NCMEC”) indicating that a
Google mail (“Gmail”) user attempted to distribute eighteen files of suspected
child pornography on April 6, 2017. The flagged email account was
OTESSArsenal@gmail.com. An open source database check for the Gmail
account led to a Facebook account for a paranormal nonprofit company called
OTESS. The Facebook page indicated Shawn Landreneau and Nadine
Stanford, Landreneau’s wife, as the owners of the company. 1 Additional open
source database searches identified Shawn Landreneau as Christopher Shawn
Landreneau, the defendant–appellant. The presentencing report (“PSR”) notes
that Landreneau has a series of tattoos on his body, including a tattoo of the
word “Otess” on his back.
Louisiana law enforcement officials conducted additional open source
database checks for Landreneau and found a Port Barre, Louisiana address
associated with his name. Port Barre officials executed a search warrant for
the residence, but found it empty. The owner of the rental property told the
officers that Landreneau moved to Texas and where he believed Landreneau
was employed.
Texas law enforcement then took over the investigation. After
confirming his place of employment, the Texas Department of Public Safety
(“DPS”) obtained Landreneau’s new address in Midland, Texas and contact
1 During her testimony at Landreneau’s sentencing hearing, Nadine Stanford clarified
that she had not yet legally changed her surname to Landreneau.
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information. DPS agents surveilled his residence and observed a car with
Louisiana tags that was registered to Christopher Shawn Landreneau. DPS
also conducted a criminal history database check that indicated that
Landreneau was arrested for two counts of first degree rape in Louisiana on
March 22, 2018 for alleged offenses in June 2017 and October 2017. Both
parties indicate that these charges are still pending.
On July 30, 2018, DPS agents met with Landreneau at his job.
Landreneau voluntarily went with the agents to the local DPS office where
they asked him for his cell phone, an Apple iPhone S. According to his plea
agreement, Landreneau gave written consent to the search of his residence,
laptop, and personal and work cell phones. According to the PSR, “Landreneau
attempted to take his phone from agents while pressing the home button.
Agents knew it was possible to reset the phone to factory settings by pressing
the home button several times, so they forcefully removed the phone from
Landreneau.” While Landreneau spoke with DPS agents at the DPS office,
other agents went to Landreneau’s residence and met with Landreneau’s wife,
Nadine. After the agents detailed the purpose of the visit, Nadine consented to
their search of the residence wherein they recovered an Acer laptop and a
Samsung cell phone. A search of those devices yielded no contraband. After his
interview with the agents, Landreneau’s laptop and Samsung phone were
returned to him.
However, a search of his iPhone revealed 592 images of child
pornography depicting lewd sexual acts of children under the age of thirteen,
with some as young as five years old. In a post-Miranda interview, Landreneau
admitted to downloading images of child pornography. He said that he used a
website called “link share” and clicked on links containing child pornography
and saved the images on his iPhone. He said that he only used the iPhone to
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download images of child pornography and that he “gets excited when [he]
look[s] at that.”
On July 31, 2018, Landreneau was charged with possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4). He was denied bail and was
eventually indicted by a grand jury for one count of possession of child
pornography. Landreneau pled guilty to that charge on October 16, 2018 and
affirmed that he was pleading guilty because he was “in fact, guilty and for no
other reason.”
B. Procedural History
The PSR reflected several recommended offense-level adjustments for
sentencing. Starting at a base offense level of eighteen, the PSR calculated and
recommended an increase of nineteen points which resulted in an offense level
of thirty-seven. The PSR also recommended a three-point reduction for
Landreneau’s accepting responsibility, and for pleading guilty, which resulted
in a final total offense level of thirty-four. Landreneau objected in writing to
two of the recommended enhancements which accounted for seven of the
nineteen points. The first was a two-level enhancement applied for the
intended distribution of child pornography. The second was a five-level
enhancement applied for engaging in a pattern of sexual abuse or exploitation
of a minor. The basis for the five-level enhancement was two pending charges
of first degree rape of victims under the age of thirteen, originating in
Evangeline Parish, Louisiana on June 28, 2017 and October 5, 2017,
respectively, that were noted in paragraphs twenty-seven and twenty-eight of
the PSR.
After pleading guilty, the district court scheduled Landreneau’s
sentencing hearing to be held on January 15, 2019. Landreneau filed a motion
to continue the deadline to object to the PSR on December 20, 2018, which was
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granted. On that same day, the Court rescheduled the sentencing hearing for
February 14, 2019.
Motion to Withdraw Guilty Plea
On February 7, 2019, a week before the rescheduled sentencing hearing,
Landreneau moved to withdraw his guilty plea. He argued that “his plea was
the result of not understanding the ramifications of his decision [to plead
guilty]” because he learned from “other inmates that the conviction rate of the
U.S. government is extremely high, and [he] would receive a longer sentence if
convicted after a trial.” After a February 14 motion hearing, Magistrate Judge
Ronald C. Griffin recommended that the motion to withdraw be denied.
Landreneau objected to the magistrate judge’s report and recommendation,
which was ultimately adopted by the district court on February 23. The PSR
was then amended to reflect that Landreneau maintained his innocence. The
amended PSR removed the three-point reduction which brought his total
offense level back to a level thirty-seven.
Sentencing Hearing
The sentencing hearing was reset for March 27, 2019. At sentencing, the
district court addressed two unresolved objections to the recommended
sentencing enhancements, which were Landreneau’s objection to the two-level
enhancement for distribution of child pornography and the five-level
enhancement for pattern of behavior of the sexual abuse or exploitation of a
minor. On the distribution enhancement, Landreneau argued that the
evidence was insufficient to support that enhancement because the draft email
referenced in the cyber-tip was not provided in discovery. The government
argued that the PSR sufficiently provided all of the evidence it had to
substantiate the distribution enhancement. The district court agreed with the
government and overruled Landreneau’s objection to the distribution
enhancement.
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With respect to the pattern of abuse enhancement, Landreneau
presented two witnesses, Holly Chapman and his wife, Nadine. Holly
Chapman is Landreneau’s personal friend and the mother of a child who is
friends with Landreneau’s daughter. Chapman’s daughter, E.C., is one of the
two teenagers who brought the rape allegations against Landreneau.
Chapman testified that she does not believe that Landreneau raped her
daughter because, in her view, Landreneau’s ex-wife, April, spitefully coaxed
her child into making false accusations of rape against Landreneau in response
to her bitter divorce from Landreneau. When Nadine testified, she asserted the
same position, that she did not believe the allegations of rape against
Landreneau, brought by his own daughter T.L. and her friend, E.C.
(Chapman’s daughter), because April convinced them to say that Landreneau
raped them.
The district court overruled Landreneau’s objection to the pattern of
abuse enhancement, stating that neither witness was credible because they
did not accept that Landreneau was guilty for possessing child pornography,
despite his guilty plea. In turn, the district court stated that his credibility
determination of those witnesses in tandem with the collective evidence before
it was enough to satisfy the preponderance of the evidence standard with
respect to the pattern of abuse enhancement. When the district court asked
Landreneau if he had anything else to say before the sentence was pronounced,
Landreneau only said “I’m innocent” and limited any responses to any follow-
up questions from the court to a bare “Yes, sir.”
Ultimately, the district court declared a total offense level of thirty-
seven, a criminal history category of I, and a guidelines range of 210 to 240
months of incarceration, five years to life of supervised release, and no
eligibility for probation. The district court imposed a sentence of 210 months
of incarceration that would run consecutively to any sentence imposed in the
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pending Louisiana rape cases, a $40,000 fine, restitution in the amount of
$31,000, and a mandatory assessment of $100.
Landreneau timely appealed the district court’s denial of his motion to
withdraw and the application of the distribution and pattern of abuse
enhancements to his sentence.
II. STANDARDS OF REVIEW
This court reviews a district court’s denial of a motion to withdraw a
guilty plea for an abuse of discretion. United States v. McKnight, 570 F.3d 641,
645 (5th Cir. 2009). “A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” United
States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).
When a defendant objects to his sentence in the district court, this court
reviews “the application of the Guidelines de novo and the district court’s
factual findings—along with the reasonable inferences drawn from those
facts—for clear error.” United States v. Gomez-Valle, 828 F.3d 324, 327 (5th
Cir. 2016) (internal quotations omitted). “A factual finding is not clearly
erroneous if it is plausible in light of the record read as a whole.” Id. (quoting
United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005)).
III. DISCUSSION
A. The district court did not abuse its discretion when it denied
Landreneau’s motion to withdraw his guilty plea.
In United States v. Lord, we explained the contours of a defendant’s
ability to withdraw his guilty plea:
A defendant does not have an absolute right to withdraw his guilty
plea. [citing United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003)]. Instead, the district court may, in its discretion, permit
withdrawal before sentencing if the defendant can show a “fair and
just reason.” [Id.] The burden of establishing a “fair and just
reason” for withdrawing a guilty plea remains at all times with the
defendant. United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).
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In considering whether to permit withdrawal of a plea, the district
court should address the seven factors set forth in this court’s
opinion in United States v. Carr, 740 F.2d 339, 343–44 (5th Cir.
1984). These include: (1) whether the defendant asserted his actual
innocence; (2) whether withdrawal would prejudice the
Government; (3) the extent of the delay, if any, in filing the motion
to withdraw; (4) whether withdrawal would substantially
inconvenience the court; (5) whether the defendant had the benefit
of close assistance of counsel; (6) whether the guilty plea was
knowing and voluntary; and (7) the extent to which withdrawal
would waste judicial resources. Id. “[N]o single factor or
combination of factors mandates a particular result,” and “the
district court should make its determination based on the totality
of the circumstances.” Still, 102 F.3d at 124. The district court is
not required to make explicit findings as to each of the Carr
factors. Powell, 354 F.3d at 370.
915 F.3d 1009, 1014 (5th Cir. 2019).
Landreneau argues that the district court erred in denying his motion to
withdraw his guilty plea because, in his view, the Carr factors collectively
weighed in his favor. We disagree. As an initial matter, Landreneau only raises
arguments concerning the first, second, third and sixth Carr factors, leaving
the fourth and fifth, and seventh factors—three of the most persuasive factors
in the district court’s view—unmentioned. As for the factors he did contest, his
arguments are not persuasive.
On the first and sixth Carr factors—whether the defendant asserted his
actual innocence and whether the guilty plea was knowing and voluntary—
Landreneau contends that he was not given the chance to fully explain his
position at the motion hearing. He claims that he accidentally/mistakenly
possessed the pornographic images—not knowingly possessed them—and that
he gave his plea under duress from other inmates, i.e., the plea was not
knowing and voluntarily. But, with respect to the first factor, the district court
reasonably assigned little weight to Landreneau’s post-guilty-plea pledges of
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innocence—regardless of whether they were fully articulated—because the
“solemn declarations in open court” that accompany a guilty plea “carry a
strong presumption of verity.” McKnight, 570 F.3d at 649. Months before
moving to withdraw his guilty plea, Landreneau declared his guilt under oath
before the court, and the district court was in no way obligated to accept his
novel protestations to the contrary as truth. Requiring district courts to do so
would essentially convert withdrawal into an automatic right, which we will
not do. See United States v. Harrison, 777 F.3d 227, 235 (5th Cir. 2015) (“[An]
assertion of actual innocence alone, without supporting evidence, is
insufficient to warrant allowing withdrawal under Carr.”).
Landreneau’s argument with respect to the sixth factor also fails. “For a
plea to be knowing and voluntary, ‘the defendant must be advised of and
understand the consequences of the [guilty] plea.’” United States v. Williams,
116 F. App’x. 539, 540 (5th Cir. 2004) (per curiam) (quoting United States v.
Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992)). A defendant’s “statements that
his plea was knowing and voluntary and that he understood the rights he was
waiving ‘create a presumption that in fact the plea is valid.’” United States v.
Washington, 480 F.3d 309, 316 (5th Cir. 2007). Here, Landreneau alleges that
other inmates pressured him into pleading guilty because of the United States’
high success rate at securing convictions at trial and the likelihood that the
imposed sentence after losing at trial would be higher than if he pled guilty.
But the district court expressly warned Landreneau of this risk and advised
him against relying on the advice of those he was in custody with before
accepting Landreneau’s guilty plea. In response to the court’s warning,
Landreneau responded, “I know.” When the court further inquired, “Does that
make sense?,” Landreneau confirmed his understanding with a “Yes.” As was
the case in Washington, Landreneau confirmed that his plea was knowing and
voluntary, acknowledged his understanding of the rights he was giving up, and
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swore that he was pleading guilty because he was “in fact guilty, and for no
other reason.” Therefore, the presumption of a truthful guilty plea stands.
As to the second and third Carr factors—whether withdrawal would
prejudice the government and the extent of the delay, if any, in filing the
motion to withdraw—Landreneau’s arguments also fail. As for the second
factor, Landreneau makes a reasonable argument that the government raised
only a general assertion of prejudice. But even if true, the district court still
did not abuse its discretion as the second factor is not such a critical factor to
the overall Carr analysis that would alone merit withdrawal. See United States
v. Gray, 717 F.3d 450, 451 (5th Cir. 2013) (citing Carr, 740 F.2d at 345). Even
if the district court’s finding that the government would be prejudiced was
incorrect, the district court still correctly found that the other Carr factors
individually and collectively weigh against Landreneau.
Regarding the third Carr factor, our precedent shows that even
assuming that only three months elapsed between Landreneau pleading guilty
and moving to withdraw, the district court did not abuse its discretion in
weighing this factor against him. See, e.g., United States v. Harrison, 777 F.3d
227, 237 (5th Cir. 2015) (weighing a five week delay against defendant); United
States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009) (weighing a six week delay
against defendant); Carr, 740 F.2d at 345 (weighing a 22-day delay against
defendant).
Finally, as noted at the outset, Landreneau did not offer any arguments
regarding the fourth, fifth, or seventh Carr factors; he has therefore forfeited
any claim that the district court erred in weighing these factors in favor of the
government. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party
who inadequately briefs an issue is considered to have abandoned the claim.”).
In sum, the district court did not abuse its discretion when it denied
Landreneau’s motion to withdraw his guilty plea in light of its Carr analysis.
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B. The district court did not err when it applied the challenged
sentencing enhancements.
1. The Legal Standards Governing Sentencing Enhancements
“When making factual findings at the sentencing stage, a district court
may consider any information that ‘bears sufficient indicia of reliability to
support its probable accuracy.’” United States v. Hawkins, 866 F.3d 344, 347
(5th Cir. 2017) (quoting United States v. Zuniga, 720 F.3d 587, 590–91 (5th
Cir. 2013)). Findings of fact for sentencing purposes need only be established
by a preponderance of the evidence. United States v. Hebert, 813 F.3d 551, 560
(5th Cir. 2015). Clear error will not be found on appeal if the district court’s
finding is plausible in light of the entire record. Id. Additionally, if there are
two permissible views of the evidence, the factfinder’s choice between them will
not be deemed clearly erroneous. Id.
“[A] [PSR] generally bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations required
by the sentencing guidelines.” Hawkins, 866 F.3d at 347 (quoting United States
v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007) ) (alterations in original). “As a
result, a district court may adopt facts contained in a PSR without further
inquiry, assuming those facts have an adequate evidentiary basis that itself is
sufficiently reliable and the defendant does not present evidence to the
contrary.” Id. (citing United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)).
The defendant carries the burden of presenting rebuttal evidence to show that
those facts within the PSR are materially untrue, inaccurate, or unreliable. Id.
But, any objections, unsupported by facts, generally do not carry this burden.
Id.; see also United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010)
(“Because no testimony or other evidence was submitted to rebut the
information in the PSR, the district court was free to adopt the PSR’s findings
without further inquiry or explanation.”).
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2. Two-Level Distribution Enhancement
The Sentencing Guidelines add two offense levels if a defendant
knowingly “engaged in distribution” of child pornography. U.S.S.G.
§ 2G2.2(b)(3)(F). A defendant has “knowingly engaged in distribution” if the
defendant “(A) knowingly committed the distribution, (B) aided, abetted,
counseled, commanded, induced, procured, or willfully caused the distribution,
or (C) conspired to distribute.” Id. cmt. n.2. “Distribution,” in turn, “means any
act . . . related to the transfer of material involving the sexual exploitation of a
minor,” and “include[s] possession with intent to distribute.” Id. cmt. n.1.
In this case, the district court adopted the PSR’s findings of fact and
applied a two-level enhancement to Landreneau’s offense level based on a
finding that Landreneau intended to distribute child pornography. To support
this finding, the PSR pointed to a cyber-tip provided to NCMEC by Google,
which alerted that someone using Landreneau’s email address 2 had uploaded
eighteen child pornography images to an email. Landreneau does not provide
any evidence to contradict this finding of fact, but he argues that his objection
to the enhancement should have sufficed as an indicator that its application
was improper. He also contends that the cyber-tip does not satisfy the
preponderance of the evidence standard required of factual findings at the
sentencing stage because the alleged email was not provided in discovery.
Finally, he argues that the district court clearly erred because no additional
evidence was heard on the reliability of the cyber-tip. We disagree.
First, as the government stated in its brief, the district court “acted well
within its discretion” in relying on the PSR when it evaluated the distribution
enhancement. To be sure, the tip provided in this case was the basis for the
2 Landreneau does not dispute that he is the owner of the email address in question,
nor does he claim that anyone other than he had access to or use of the email address.
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search warrant executed against Landreneau, which Landreneau did not
challenge. The tip did not come from an unidentified or questionable source:
Google, pursuant to a federal statute, see 18 U.S.C. § 2258A, alerted NCMEC, 3
and in turn local law enforcement, based on Google’s actual knowledge that a
Gmail user had uploaded child pornography images to an email. See Illinois v.
Gates, 462 U.S. 213, 233–34 (1983) (distinguishing anonymous or confidential
tips from tips provided by informants known for their “unusual reliability” and
“unquestionably honest citizen[s who] come[] forward with a report of criminal
activity”). But even if the tip had come from a questionable source, we reiterate
that it was later corroborated when a search of Landreneau’s cell phone
revealed 592 images of child pornography. A district court “has significant
discretion in evaluating reliability,” United States v. Young, 981 F.2d 180, 185
(5th Cir. 1992), and, here, the court had ample reliable evidence to conclude
that Landreneau intended to distribute child pornography. 4
Second, Landreneau incorrectly challenges the reliability of the NCMEC
cyber-tip. The cases he relies on, pertaining to tips provided by unidentified
informants and co-conspirators, are inapposite here. NCMEC cyber-tips
3 The NCMEC was founded by John and Revé Walsh in 1984 as a private, non-profit
organization after the abduction and murder of their son, Adam. See National Center for
Missing and Exploited Children, About NCMEC, available at
https://www.missingkids.org/footer/media/KeyFacts (last accessed July 13, 2020). It is now
codified as the statutorily appointed reporting agency for conduct related to the sexual
exploitation of minors in the CyberTipline Modernization Act of 2018 (P.L. 113-115 §2, Dec.
21, 2018, 132 Stat. 5287) (codified as 18 U.S.C. § 2258A).
4 The record is silent as to whom the intended recipient of the email was, but even if
Landreneau had only intended to send the email to himself, this would qualify as a
“distribution” under the statute. See U.S.S.G. § 2G2.2(b)(3)(F) cmt. n.1 (defining
“distribution” to mean “any act . . . related to the transfer of material involving sexual
exploitation of a minor” without reference to the intended recipient of such a transfer).
Though it is certainly possible that Landreneau did not intend to send the draft email at all,
the district court’s determination that, by the preponderance of the evidence, he likely did
intend to distribute child pornography more than satisfies the “plausibility” test this court
applies on review for clear error.
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regularly form the basis of investigations in both this circuit and across the
nation; their reliability have seemingly been rarely questioned. For example,
in United States v. Baker, we affirmed a search warrant based off of an
independently corroborated NCMEC cyber-tip provided by Yahoo! after police
traced the IP address to the defendant. 538 F.3d 324 (5th Cir. 2008).
Additionally, in United States v. Reddick, we held that the government did not
conduct a separate search of the defendant’s computer files, in violation of the
Fourth Amendment, that was more expansive of the search conducted by
Microsoft that compared the hash-values of child pornographic images
uploaded by the defendant to SkyDrive to those hash-values known to the
NCMEC. 900 F.3d 636, 639 (5th Cir. 2018).
We hold that an NCMEC cyber-tip generated by information provided to
NCMEC by an internet company such as Google carries with it significant
indicia of reliability. The CyberTipline Modernization Act of 2018, supra n.3,
imbues such significant reliability by mandating “electronic communication
service provider[s] [and] remote computing service[s]” to report illicit,
questionable activity that comes through their servers. See 18 U.S.C.
§ 2258E(6) (definition of “provider” as utilized in 18 U.S.C. § 2258A(a)).
Accordingly, we conclude that the district court did not abuse its discretion
when applying the two-level distribution sentencing enhancement.
3. Five-Level Pattern of Abuse Enhancement
The Sentencing Guidelines add five additional offense levels if a
defendant “engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5). “Any combination of two or
more separate instances” of abuse or exploitation amounts to a pattern. Id.
cmt. n.1. “Sexual abuse or exploitation” under § 2G2.2(b)(5) includes a state
law offense that would have violated 18 U.S.C. § 2241 or § 2243 had the offense
occurred within the federal government’s special jurisdiction. Id. cmt. n.1. Title
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18, § 2241(a) of the United States Code prohibits sexual acts with children
under twelve, and § 2243(a) prohibits sexual acts with children between twelve
and sixteen who are more than four years younger than the defendant.
Here, the district court imposed this five-level enhancement to
Landreneau’s sentence based on its finding that Landreneau had engaged in a
pattern of abuse of minors. In recommending the imposition of this
enhancement, the PSR included only the Bills of Information filed when
Landreneau was previously arrested for the alleged rape of two girls under the
age of thirteen, though he has not yet been tried on those charges.
A district court commits procedural error in sentencing a defendant
based on information that does not have sufficient indicia of reliability. Harris,
702 F.3d at 229. “[O]ur precedent makes clear that the consideration of the fact
of prior arrests, without more, is prohibited.” United States v. Johnson, 648
F.3d 273, 277 (5th Cir. 2011); see also United States v. Earnest Jones, 489 F.3d
679, 681–82 (5th Cir. 2007); United States v. Robert Jones, 444 F.3d 430, 434
(5th Cir. 2006). “An arrest record is ‘bare’ when it refers . . . ‘to the mere fact of
an arrest—i.e.[,] the date, charge, jurisdiction and disposition—without
corresponding information about the underlying facts or circumstances
regarding the defendant’s conduct that led to the arrest.’” United States v.
Windless, 719 F.3d 415, 420 (5th Cir. 2013) (quoting Harris, 702 F.3d at 229)
(alteration in original). “In contrast, an arrest record is not bare, and may be
relied on, ‘when it is accompanied by a factual recitation of the defendant’s
conduct that gave rise to a prior unadjudicated arrest and that factual
recitation has an adequate evidentiary basis with sufficient indicia of
reliability.’” United States v. Foley, 946 F.3d 681, 686 (5th Cir. 2020) (quoting
Windless, 719 F.3d at 420).
A district court may consider conduct not resulting in a conviction (and
even conduct resulting in an acquittal) when applying sentencing
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enhancements as long as it finds that the conduct occurred by a preponderance
of the evidence. See United States v. Watts, 519 U.S. 148, 152, 154–55 (1997)
(holding that a sentencing court “may consider, without limitation, any
information concerning the background, character and conduct of the
defendant, unless otherwise prohibited by law” (internal quotation omitted)).
Landreneau argues that the district court could not have found that he
committed the alleged rapes because it relied only on the Bills of Information
to reach its conclusion, which this court has held is insufficient to satisfy the
preponderance of the evidence standard. Landreneau is correct that reliance
on a Bill of Information, or the fact of an arrest, alone may be insufficient. See
Johnson, 648 F.3d at 276–77. While the information contained in the PSR
alone was akin to a bare arrest record because it contained no facts beyond the
elements of the charges, the dates of the conduct, and the initials of the victims,
see Foley, 946 F.3d at 686, here, the PSR’s report of the charges was not the
only evidence before the district court that Landreneau assaulted two minor
girls as charged.
In order to fully analyze the propriety of this enhancement, we look at
not only what was included in the PSR but also at the full scope of the
sentencing hearing. This includes the substance of Landreneau’s objection to
the enhancement, his rebuttal evidence vis-à-vis his two witnesses, and the
government’s rebuttal proffers. Landreneau offered two witnesses to
demonstrate that the allegations made against him were false: one of the
alleged victim’s mothers, who self describes as Landreneau’s best friend, and
Landreneau’s current wife. The women claimed that the alleged victims were
lying when they made charges against Landreneau and that Landreneau’s ex-
wife was behind the false allegations.
Landreneau’s counsel then summarized the testimony of one of the
victims, EC, for the court. He, in an effort to discredit her testimony, described
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EC’s allegations that Landreneau sexually assaulted her every morning for
three years, threatened to shoot or taser her if she told anyone, and struck her
repeatedly. These are precisely the type of factual recitations of a defendant’s
conduct that render a pending charge sufficiently reliable to consider in
sentencing. Whatever issues with relying on a mere proffer to increase a
defendant’s sentence are absent when it is the defendant who makes the
proffer. See United States v. Rodriguez, 275 F. App’x 428, 431 (5th Cir. 2008)
(affirming application of enhancement based on defendant’s own proffer in an
attempt to rebut the enhancement). Moreover, though Landreneau’s counsel
proffered details of only one victim’s account, the pattern of abuse
enhancement does not require multiple victims, only multiple instances of
abuse. See U.S.S.G. § 2G2.2 cmt. n.1.
The Government then proffered, “that investigation included
interviewing a half a dozen young girls to whom disclosures had been made
about the sexual abuse and the sexual assault, including of the defendant's
own daughter, for a period of seven years.” Government counsel’s statement
without identifying which witness would testify to that information might lack
enough indicia of reliability to be considered at sentencing. See, e.g., United
States v. Torres-Magana, 938 F.3d 213, 217 (5th Cir. 2019) (“The court
generally should not consider a defendant’s unsworn objections and
argumentation ‘in making its factual findings.’”); United States v. Robinson,
101 F. App’x 389, 393 (4th Cir. 2004) (Michael, J., dissenting) (arguing that it
was a violation of the Guidelines to rely on statements by counsel because they
are not “relevant information” for resolving factual disputes at sentencing);
United States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000) (reversing
application of enhancement because “the only suggestion in this record [of the
conduct at issue] comes entirely from the mouth of the government’s attorney”
and “statements of counsel are not evidence”); but see U.S.S.G. § 6A1.3 cmt.
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(“Written statements of counsel or affidavits of witnesses may be adequate
under many circumstances.”). But the district court’s conclusion that
Landreneau committed a pattern of abuse is sound even without the
Government’s proffer.
After hearing the evidence, and taking into consideration evidence put
before it prior to the sentencing hearing, the district court first determined that
Landreneau’s witnesses were not credible. 5 We defer “to the credibility
determinations of the district court,” United States v. Juarez-Duarte, 513 F.3d
204, 208 (5th Cir. 2008), and there is no evidence to suggest that the district
court committed clear error in discrediting the women’s testimony. Second, the
court found that “preponderance of the evidence is met and exceeded” to show
that Landreneau engaged in a pattern of abuse of minors. This finding aligns
with our caselaw, which requires that a preponderance finding be based on
more than a bare indictment. Cf. United States v. Fields, 932 F.3d 316, 320
(5th Cir. 2019) (“[G]enerally, a sentencing court ‘may properly find sufficient
reliability on a presentence investigation report which is based on the results
of a police investigation,’ especially where the offense report is detailed and
includes information gathered from interviews with the victim and any other
witnesses.”) (quoting United States v. Fuentes, 775 F.3d 213, 220 (5th Cir.
2014)). The court showed as much when it stated:
[t]he Court has heard the evidence and will state that in addition
to the evidence, the Court has also reviewed the Presentence
Investigation Report but also the Memorandum for Restitution,
the statements from attorneys representing those victims. The --
5 The court found that Landreneau’s current wife was more credible than his “best
friend,” but noted that it had “some concern as to her credibility on other weighter [sic] issues”
discussed during the sentencing hearing. For instance, Nadine was purportedly unaware of
the email account that triggered the NCMEC alert and generally denied that her husband
had a proclivity f or indecent images of minors.
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and does take into consideration all of the evidence that I have, not
just what we’ve heard today.
Because information before the district court corroborated the
underlying conduct giving rise to the state charges of sexual assault, the
district court did not err in relying on those charges to apply the pattern of
abuse enhancement.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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