United States v. Larry Caillier, II , 608 F. App'x 294 ( 2015 )

Case: 14-31241 Document: 00513103114 Page: 1 Date Filed: 07/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31241
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 2, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LARRY CAILLIER, II, also known as Larry Callier, II,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:10-CR-76-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Larry Caillier, II, pleaded guilty to knowingly and intentionally
receiving child pornography through interstate commerce. See 18 U.S.C.
§ 2242(a)(2)(A). The district court sentenced him to 168 months of
imprisonment and 15 years of supervised release. In this out-of-time appeal,
Caillier challenges the application of a higher offense level under U.S.S.G.
§ 2G2.1 by operation of U.S.S.G. § 2G2.2(c)(1).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31241 Document: 00513103114 Page: 2 Date Filed: 07/02/2015
No. 14-31241
Because the district court did not reenter the judgment of conviction
upon granting Caillier leave to file an out-of-time appeal, Caillier’s appeal was
“both late and premature.” See United States v. West, 240 F.3d 456, 457-59
(5th Cir. 2001). The Government, however, expressly waives the untimeliness
of the appeal and we, therefore, address the merits. See United States v.
Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007); United States v. Haynes, 469
F. App’x 317, 318 (5th Cir. 2012).
Caillier has not shown that he is entitled to relief. The record before the
district court at sentencing confirms that the district court did not clearly err
in finding that Caillier requested that a minor female send him sexually
explicit photographs of herself. See United States v. Rodriguez-Mesa, 443 F.3d
397, 401 (5th Cir. 2006); United States v. Flores, 887 F.2d 543, 546 (5th Cir.
1989).
Additionally, the district court properly determined that Caillier’s
conduct fell within the ambit of § 2G.2.2(c)(1), which we construe broadly. See
§ 2G2.2(c)(1) & comment. (n. 5) (2009); Rodriguez-Mesa, 443 F.3d at 401. The
record shows that Caillier’s request to his minor student to provide him with
sexually explicit photos of herself had the effect of the student producing the
images and providing them to Caillier. Thus, in the ordinary meaning of the
word “cause,” Caillier’s request caused the minor to engage in prohibited
sexual conduct and the district court did not err in applying the higher offense
level of § 2G2.1. See § 2G2.2(c)(1); United States v. Carbajal, 290 F.3d 277, 283
(5th Cir. 2003); BLACK’S LAW DICTIONARY (9th ed. 2009).
The judgment of the district court is AFFIRMED.
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