United States v. Reinhart , 70 F. App'x 757 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 15, 2003
Charles R. Fulbruge III
Clerk
No. 02-30697
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT RANDALL REINHART,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-1518
USDC No. 97-CR-60030-1
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Randall Reinhart, federal prisoner # 77187-079, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion. This
court granted a certificate of appealability (COA) solely on the
issue whether Reinhart’s attorney was ineffective on appeal for
failing to argue that Reinhart should not have been held
accountable for minor males #2 and #4, who were depicted in a
*
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opinion should not be published and is not precedent except under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.
videotape having sex with Reinhart’s co-conspirator, Matthew
Carroll.
Reinhart argues that he did not participate in creating the
videotape or in the sexual exploitation of males #2 and #4 depicted
therein, that the tape was created before the dates of the
conspiracy to which he pleaded guilty, and that Carroll’s creation
of the tape was not reasonably foreseeable to Reinhart and was thus
not relevant conduct under U.S.S.G. § 1B1.3.
With respect to a claim that his attorney failed to brief an
issue on direct appeal, Reinhart must show with reasonable
probability that had his attorney briefed the issue the appeal
would have had a different outcome. See United States v. Dovalina,
262 F.3d 472, 474-75 (5th Cir. 2001). The sentencing court’s
determination that Reinhart could be held accountable for males #2
and #4 as relevant conduct would have been reviewed for clear
error. See United States v. Wall, 180 F.3d 641, 644 (5th Cir.
1999).
Though Reinhart may not have participated in the creation of
the tape and the tape may have been created before the time of the
conspiracy, the record indicates that Reinhart assisted in the
interstate transportation of the videotape during the pendency of
a conspiracy to violate section 2251(a) involving minor males #2
and #4. He has therefore not shown clear error in the sentencing
court’s determination that he could be held accountable for males
#2 and #4 as relevant conduct, see U.S.S.G. § 1B1.3(a)(1); United
States v. Sirois, 87 F.3d 34, 37-39 (2d Cir. 1996), nor has he
shown that the failure to raise this issue on direct appeal
constituted ineffective assistance of counsel. The district
court’s denial of 28 U.S.C. § 2255 relief for this issue is,
therefore,
AFFIRMED.