United States v. McBryde ( 2023 )

Case: 22-10485 Document: 00516768011 Page: 1 Date Filed: 05/30/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10485
Summary Calendar FILED
____________ May 30, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Clayton McBryde,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CR-135-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Defendant-Appellant Clayton McBryde pleaded guilty to possession
of child pornography involving a prepubescent minor, in violation of 18
U.S.C. § 2252A(a)(5)(b), (b)(2). The district court sentenced McBryde to
the statutory maximum of 240 months of imprisonment, followed by a life
term of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10485 Document: 00516768011 Page: 2 Date Filed: 05/30/2023
No. 22-10485
McBryde challenges two of the district court’s evidentiary decisions:
1) the denial of McBryde’s motion to compel a pdf version of the victim’s
cell phone data and 2) the denial of McBryde’s request to admit a hard drive
of his children’s cell phone data at sentencing. We review discovery orders
and the exclusion of sentencing evidence for abuse of discretion. See United
States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (sentencing); United
States v. Reeves, 892 F.2d 1223, 1226 (5th Cir. 1990) (discovery); see also Fed.
R. Crim. P. 32(i)(2).
McBryde has not shown that the district court abused its discretion in
either of those decisions. See United States v. Runyon, 290 F.3d 233, 245 (5th
Cir. 2002). The district court weighed the privacy interests of the minor
victim and other minors, see 18 U.S.C. § 3771(a)(1), (a)(8), and the parties do
not dispute that defense counsel could access and review the cellphone data
in question with the Government’s assistance. As for the hard drive, defense
counsel failed to persuasively explain the purpose of admitting all the data
from the McBryde children’s four cell phones. Carbajal, 290 F.3d at 287. The
record provides no indication that these rulings prejudiced McBryde’s ability
to submit rebuttal evidence.
McBryde also challenges the district court’s application of U.S.S.G.
§ 2G2.2(c)(1) in calculating his guidelines sentence. McBryde preserved this
issue for our review by objecting to the application of the § 2G2.2(c)(1) cross-
reference. See United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir.
2003). When considering a preserved claim of procedural error, we review
the district court’s interpretation and application of the guidelines de novo
and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008).
The record supports the district court’s determination that the pre-
sentence report had sufficient indicia of reliability and that the Government
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Case: 22-10485 Document: 00516768011 Page: 3 Date Filed: 05/30/2023
No. 22-10485
proved by a preponderance of the evidence that McBryde caused a minor to
engage in sexually explicit conduct for the purpose of producing a visual
depiction of such conduct. See United States v. Rodriguez, 630 F.3d 377, 380
(5th Cir. 2011); United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010).
Even if the district court committed procedural error regarding McBryde’s
sentence, the error was harmless. See United States v. Sanchez, 850 F.3d 767,
769 (5th Cir. 2017); see also United States v. Delgado-Martinez, 564 F.3d 750,
753 (5th Cir. 2009).
AFFIRMED.
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