United States v. Gary Peterson ( 2020 )

Case: 19-11143 Document: 00515591607 Page: 1 Date Filed: 10/06/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 6, 2020
No. 19-11143 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gary Glenn Peterson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:19-CR-20-1
Before Higginbotham, Jones, and Higginson, Circuit Judges.*
Stephen A. Higginson, Circuit Judge:
Gary Glenn Peterson was convicted by a jury of attempted enticement
of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b) and
sentenced to 240 months’ incarceration. Peterson appeals his conviction and
sentence on three grounds. First, he argues there was insufficient evidence
to prove the enticement element of § 2422(b). Second, Peterson argues that
the district court erred when it declined to give his requested jury instruction
*
Judge Jones does not join infra note 2.
Case: 19-11143 Document: 00515591607 Page: 2 Date Filed: 10/06/2020
No. 19-11143
on the definition of enticement. Finally, Peterson challenges the procedural
reasonableness of his sentence on two grounds: he argues that the district
court erred when it failed to adequately consider a departure under U.S.S.G.
§ 4A1.3 prior to imposing an upward variance based on criminal history, and
that it also erred by considering clearly erroneous facts at sentencing. We
AFFIRM.
I.
On March 5, 2015, Peterson responded to an online advertisement in
the personals section of Craigslist posted by Investigator John Graham of the
Taylor County, Texas, Sheriff’s Office, who was posing as a 19-year-old
woman named “Nikki.”
Over the course of the next five days, “Nikki” and Peterson’s
conversation proceeded from e-mails to text messages. Peterson sent
“Nikki” photographs of himself, and Investigator Graham as “Nikki” sent
Peterson two images: a darkened picture of the body of a 25-year-old woman
and a picture of a woman that had been age-regressed to look like a 13-year-
old girl. During their text conversations, “Nikki” implied several times that
she was not 18 years old, and she ultimately told Peterson that she was 13
years old. Despite learning that “Nikki” was 13 years old, Peterson
continued the text conversation. They discussed her sexual experiences,
potential meetings, and prospective sexual encounters. At one point,
Peterson suggested he would purchase “Nikki” a cell phone if she met with
him in person so she could send him sexual videos and photos.
On March 18, 2015, “Nikki” told Peterson to meet her at a local park.
Peterson arrived at the meet-up location with an empty condom box, erectile
dysfunction medication, and a Victoria’s Secret bag containing two pink
pajama sets in size Petite Small and a receipt showing he had purchased the
items that morning at the local mall. Peterson was arrested upon his arrival.
2
Case: 19-11143 Document: 00515591607 Page: 3 Date Filed: 10/06/2020
No. 19-11143
In February 2019, Peterson was indicted on a single count of
attempted enticement of a child in violation of 18 U.S.C. § 2422(b) and, after
trial, a jury convicted him. The district court sentenced Peterson to 240
months’ incarceration followed by a life term of supervised release. Peterson
timely appealed.
II.
Peterson’s first argument on appeal is that the evidence at trial was
insufficient to support his conviction of attempted enticement of a minor
under 18 U.S.C. § 2422(b).
To support a conviction under 18 U.S.C. § 2422(b), the Government
must prove that Peterson (1) “used a facility of interstate commerce to
commit the offense,” (2) “was aware that [the victim] was younger than
eighteen,” (3) “could have been charged with a criminal offense” by
“engaging in sexual activity with [the victim],” and (4) “knowingly
persuaded, induced, enticed, or coerced [the victim] to engage in criminal
sexual activity.” United States v. Rounds, 749 F.3d 326, 333 (5th Cir. 2014).
To prove attempted coercion or enticement of a minor, “the Government
must establish beyond a reasonable doubt that the defendant (1) acted with
the culpability required to commit the underlying substantive offense, and
(2) took a substantial step toward its commission.” United States v.
Broussard, 669 F.3d 537, 547 (5th Cir. 2012) (quoting United States v. Barlow,
568 F.3d 215, 219 (5th Cir. 2009)).
Peterson preserved the sufficiency issue when he moved for judgment
of acquittal under Federal Rule of Criminal Procedure 29 at the close of the
Government’s case, which was also the close of all evidence. United States v.
Jaras, 86 F.3d 383, 388 n.5 (5th Cir. 1996). We therefore review de novo
whether “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Romans, 823 F.3d
3
Case: 19-11143 Document: 00515591607 Page: 4 Date Filed: 10/06/2020
No. 19-11143
299, 311 (5th Cir. 2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). We review the evidence, both direct and circumstantial, as well as
any reasonable inferences drawn from the evidence, in “a light most
favorable to the verdict.” United States v. Rose, 587 F.3d 695, 702 (5th Cir.
2009) (per curiam) (quoting United States v. Harris, 420 F.3d 467, 470 (5th
Cir. 2005)).
Peterson challenges the sufficiency of the evidence only as to the
fourth element of § 2422(b). Citing case law from other circuits, Peterson
argues that the element of persuasion, inducement, or enticement requires a
showing that he made an effort to “alter” or “affect” the minor’s mental
state, and that it is insufficient to show that he simply arranged, asked for, or
made sexual activity “more appealing.”
“Whether there was inducement, persuasion, or enticement is a
question of fact for the jury to decide. All this court must decide is whether
or not enough evidence was presented for a reasonable jury to come to the
conclusion that there was some form of inducement.” United States v.
Lundy, 676 F.3d 444, 450 (5th Cir. 2012). Sending sexually explicit messages
is probative evidence of intent to induce, persuade, entice, or coerce a minor
to engage in illegal sex. United States v. Howard, 766 F.3d 414, 425 (5th Cir.
2014); Rounds, 749 F.3d at 333.
This court has also rejected arguments similar to Peterson’s argument
that the Government must show that the minor was unwilling until the
defendant’s actions persuaded the minor to engage in sexual activity. For
example, in United States v. Lundy, the defendant argued that the
Government had failed to prove persuasion because the minor was “willing.”
Lundy, 676 F.3d at 449. This court rejected the defendant’s argument in light
of the evidence that he had “made contact with and engaged in a string of
sexually laced text message and phone conversations with a girl he thought
4
Case: 19-11143 Document: 00515591607 Page: 5 Date Filed: 10/06/2020
No. 19-11143
to be 15 year[s] old” and, after conversations over the course of a week,
“agreed to meet” at a restaurant and “then travel to her house to have sex.”
Id. at 447, 450.
Similarly, in United States v. White, 1 the defendant also argued that the
Government had failed to prove inducement. 636 F. App’x 890, 892 (5th
Cir. 2016) (unpublished opinion). This court again rejected the defendant’s
argument in light of the evidence that he had “responded to a Craigslist
advertisement posted by law enforcement agents,” “communicated with
agents posing as a 13-year-old girl,” “suggested sex more than once during
[a] text conversation” even “[a]fter learning [the victim’s] age and viewing
an age regressed photograph of an undercover officer,” “suggested
meeting,” and “appeared at the arranged location and brought condoms with
him.” Id. at 893.
Peterson engaged in conduct similar to the defendants’ conduct in
Lundy and White. He responded to a Craigslist advertisement posted by a
law enforcement agent, exchanged sexually explicit text messages for two
weeks with the law enforcement agent posing as a minor female named
“Nikki,” continued these explicit text conversations even after “Nikki” told
Peterson she was a 13-year-old girl and sent him a photo of a woman that had
been age-regressed to look like a 13-year-old girl, suggested he would
purchase “Nikki” a cell phone if she met with him in person so she could
send him sexual videos and photos, agreed to meet “Nikki” at a public park
to have sex, and arrived at the meet-up location with an empty condom box,
erectile dysfunction medication, and a Victoria’s Secret bag containing two
pink pajama sets in size Petite Small and a receipt showing he had purchased
1
Unpublished opinions issued in or after 1996 “are not precedent” except in
limited circumstances, 5th CIR. R. 47.5.4, but they “may be persuasive authority,” Ballard
v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
5
Case: 19-11143 Document: 00515591607 Page: 6 Date Filed: 10/06/2020
No. 19-11143
the items that morning at a local mall. Given this evidence, we conclude that
a rational trier of fact could have found that Peterson knowingly attempted to
induce or entice a minor to engage in sexual activity.
III.
Peterson’s second argument on appeal is that the district court erred
when it rejected his proposed jury instruction clarifying the definition of
“enticement.”
We review a district court’s refusal to give a requested jury instruction
for abuse of discretion. United States v. Bennett, 874 F.3d 236, 242 (5th Cir.
2017). A district court errs in rejecting a requested jury instruction if the
instruction “(1) is substantively correct;2 (2) is not substantially covered in
2
Several arteries of instructional error caselaw branch from the imperative that
juries are properly instructed on the law. The aorta is that instructions must be
substantively correct. Contributing to this requirement, courts, often with assistance of
scholars, promote “pattern jury instructions,” drawn and refined from statutory exegesis
and settled doctrine.
Notably, however, pattern jury instructions do not themselves have the force of
law except to the extent that they recite what is controlling law. Our pattern instructions
do not “presume to be a legal treatise” but rather the Committee’s “attempt[] to make
accurate statements of law,” and they even note that certain instructions cover topics
where our law is unsettled or in tension. See FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS, at 0 (CRIMINAL CASES) (“[T]he Committee has attempted to make
accurate statements of the law.”); id. § 2.73A (2019) (noting “Fifth Circuit jurisprudence
reveals tension regarding the degree of proof required to establish” an element described
in the pattern instructions); id. § 2.32 (noting the pattern instruction touches on an
unsettled area of Fifth Circuit law). This is why our caselaw unerringly requires that even
if an instruction is drawn from our court’s studied and recommended pattern instructions,
it, independently, must be confirmed to be “a correct statement of the law.” Richardson,
676 F.3d at 507; United States v. Turner, 960 F.2d 461, 464 (5th Cir. 1992).
As this court recently probed in United States v. Cessa, a separate artery of caselaw
is implicated when an instruction is given and confirmed on appeal to be a correct statement
of the law, perhaps taken from our pattern instructions, yet the defendant preserved a
request for “an additional instruction that is also an accurate description of the law.” 856
F.3d 370, 376 (5th Cir. 2017). When a district court declines to give that additional
6
Case: 19-11143 Document: 00515591607 Page: 7 Date Filed: 10/06/2020
No. 19-11143
the charge given to the jury; and (3) concerns an important point in the trial
so that the failure to give it seriously impairs the defendant’s ability to present
effectively a particular defense.” Id. at 243 (quoting United States v.
Sheridan, 838 F.3d 671, 673 (5th Cir. 2016)).
instruction, it is well-settled that we assess that decision using a three-part test: failing to
give a defendant’s requested instruction is abuse of discretion if the proposal “(1) is
substantively correct; (2) is not substantially covered in the charge given to the jury; and
(3) concerns an important point in the trial so that the failure to give it seriously impairs the
defendant’s ability to present effectively a particular defense.” Bennett, 874 F.3d at 243.
In Cessa—as in earlier cases, e.g., United States v. Sheridan, 838 F.3d 671, 673 (5th
Cir. 2016) (Higginson, J.)—our court determined that “the district court’s instruction
tracked this circuit’s pattern jury instruction,” and then proceeded to consider “only . . .
whether the charge is a correct statement of the law.” Cessa, 856 F.3d at 376 (quoting
Richardson, 676 F.3d at 507); see also Sheridan, 838 F.3d at 673 (“Because the district court
followed the Fifth Circuit Pattern Jury Instructions, the only issue is whether the charge is
a correct statement of the law.” (citing Richardson, 676 F.3d at 507)). In our view, these
converging lines of authority do not imply that the three-part test is truncated or disappears
if a district court tracks a pattern instruction. The two tests are separate, albeit often
overlapping. Reciting a pattern instruction thus gives “safe harbor,” Cessa, 856 F.3d at
377, when the pattern instruction itself is confirmed to be correct. But even if so, a
defendant can still be entitled to an additional instruction if that defendant’s instruction
also is correct, the defendant’s instruction is not substantially covered by the pattern
instruction, and the omission of the defendant’s instruction would seriously impair
presentation of his defense.
The court in both Sheridan and Cessa probed this point with reference to United
States v. Richardson, specifically the excerpted sentence: “Because the district court’s
instruction tracked this circuit’s pattern jury instruction, we need only determine whether
the charge is a correct statement of the law.” Richardson, 676 F.3d at 507; see also Cessa,
856 F.3d at 376 (quoting Richardson); Sheridan, 838 F.3d at 673 (citing Richardson).
However, Richardson, and the authority on which it relies, namely United States v. Turner,
960 F.2d 461 (5th Cir. 1992), only merged the two aforementioned tests because the pattern
instructions were “sufficient” to “cover” the requested additional and correct one not
given. Richardson, 676 F.3d at 507; Turner, 960 F.2d at 464. In other words, the pattern
instruction was a “safe harbor” but only because giving it subsumed—“substantially
covered”—the otherwise correct statement of law supplementally requested by the
defendant.
7
Case: 19-11143 Document: 00515591607 Page: 8 Date Filed: 10/06/2020
No. 19-11143
Here, Peterson requested a jury instruction clarifying that the words
“persuade,” “induce,” and “entice” should be given their ordinary
meaning: “the idea conveyed is of one person leading or moving another by
persuasion or influence, as to some action or state of mind.” The district
court denied Peterson’s request, overruled his objection to that denial, and
ultimately charged the jury with instructions that were consistent with this
circuit’s pattern jury instructions. FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS (CRIMINAL CASES) § 2.91 (2015).
The district court did not abuse its discretion in rejecting Peterson’s
requested jury instruction because it is not a “substantively correct”
statement of Fifth Circuit law. Bennett, 874 F.3d at 243. Peterson’s
requested instruction focused on the state of mind of the victim; to convict
him, the jury would have needed to find that he “lead[] or mov[ed] another
by persuasion or influence.” But our circuit’s caselaw “focuses on the
defendant’s intent, not the minor’s.” Rounds, 749 F.3d at 334; cf. United
States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012) (affirming a conviction
under § 2422(b) when the defendant communicated only with a law
enforcement agent posing as a minor’s father and did not have any direct
communication with a minor).
IV.
Peterson’s third argument on appeal is that his sentence was
procedurally unsound in two ways. First, he argues that the district court
erred by failing to adequately consider a departure under § 4A1.3 for
underrepresentation of his criminal history before imposing an upward
variance. Second, he argues that the district court erred by considering
clearly erroneous facts alleged in the Presentence Report (“PSR”) regarding
allegedly “predatory behavior” for which he was never arrested or charged.
8
Case: 19-11143 Document: 00515591607 Page: 9 Date Filed: 10/06/2020
No. 19-11143
A.
The parties dispute the applicable standard of review for considering
the procedural reasonableness of the district court’s sentence.
Typically, “[i]n considering the procedural unreasonableness of a
sentence, we review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its findings of fact for clear error.”
United States v. Nguyen, 854 F.3d 276, 280 (5th Cir. 2017). If, however, the
defendant fails to preserve a claim of procedural error in the district court,
plain error review applies. United States v. Williams, 620 F.3d 483, 493 (5th
Cir. 2010).
Here, Peterson argues that he properly preserved both his claims of
procedural error in the district court, so we should review the district court’s
interpretation and application of the Guidelines de novo and its findings of fact
for clear error. The Government, however, argues that Peterson failed to
preserve either of his procedural error claims in the district court, so plain
error review applies.
To determine the applicable standard of review, we must first
determine whether Peterson properly preserved each of his procedural error
claims.
B.
First, we consider whether Peterson preserved his claim that the
district court erred by failing to adequately consider a departure under §
4A1.3 for underrepresentation of his criminal history before imposing an
upward variance.
At sentencing, the district court announced a sentence of 240 months,
which it said was “an upward variance and it is justifiable under 18 U.S.C. §
3553(a) when considering the egregious nature and the circumstances of the
9
Case: 19-11143 Document: 00515591607 Page: 10 Date Filed: 10/06/2020
No. 19-11143
offense and the history and characteristics of this Defendant.” Peterson then
objected:
The Court’s reasoning for the upward variance centers
primarily upon his prior criminal history. The prior criminal
history is addressed under the Guidelines under the Criminal
History score. The Court has not taken into consideration the
prior criminal action and articulated why the criminal history
score that was found to be appropriate was not adequate. The
Court has varied upward based on a criminal history score --
criminal history rather than factoring that into the criminal
history category and, therefore, we object that the sentence is
based on procedural error.
The Government argues that Peterson’s objection “was insufficient
to alert the court as to the true nature of the purported procedural error”—
i.e., that “the court was required to formally calculate an upward departure
under U.S.S.G. § 4A1.3 and explain its rejection of the resulting guidelines
range before it could impose a non-guidelines sentence.” Citing United
States v. Nesmith, 866 F.3d 677, 679 (5th Cir. 2017), Peterson argues that his
objection in the district court and the argument on appeal “need not be
identical” to preserve error, but that the objection need only have “given the
district court the opportunity to address the gravamen of the argument
presented on appeal.” Although he did not cite the relevant Guidelines
provisions in the district court that he now cites on appeal, Peterson argues
that he “used similar enough language to apprise” the district court of the
“essence” of his claim.
A sentencing court must follow a three-step process. U.S.S.G. §
1B1.1; Gall v. United States, 552 U.S. 38, 49–50 (2007). First, the court must
determine the Guidelines range. U.S.S.G. § 1B1.1(a). Second, the court
must determine whether any of the Guidelines’ departure policy statements
warrant consideration in imposing the sentence. Id. § 1B1.1(b). Third, the
10
Case: 19-11143 Document: 00515591607 Page: 11 Date Filed: 10/06/2020
No. 19-11143
court must consider all the factors set forth in 18 U.S.C. § 3553(a), including
whether a variance is warranted. Id. § 1B1.1(c). One of the Guideline
departures a sentencing court may consider at step two is U.S.S.G. § 4A1.3,
departures based on the inadequacy of the defendant’s criminal history
category.
While Peterson’s objection at sentencing did not cite the specific
Guidelines on which his appellate argument relies, he did assert that the
district court found his criminal history score “not adequate” and argued
that the court committed a “procedural error” by “var[ying] upward” on
that basis “rather than factoring that into the criminal history category.”
Because Peterson’s objection suggested that the district court follow a
procedure consistent with finding a departure under U.S.S.G. § 4A1.3(a)(4)
using the three-step process set out in U.S.S.G. § 1B1.1, we accept that
Peterson’s objection was “sufficiently specific to alert the district court to
the nature of the alleged error and to provide an opportunity for correction,”
United States v. Wooley, 740 F.3d 359, 367 (5th Cir. 2014), and that he thus
properly preserved this claim.
C.
Next, we consider whether Peterson preserved his claim that the
district court erred by considering clearly erroneous facts alleged in the PSR
regarding allegedly “predatory behavior” for which he was never arrested or
charged.
11
Case: 19-11143 Document: 00515591607 Page: 12 Date Filed: 10/06/2020
No. 19-11143
At sentencing, the district court relied on two incidents in the PSR
describing “predatory behavior”: (1) an incident with a 16-year-old girl at a
mall 3 and (2) an incident with a 32-year-old woman. 4
Regarding the incident with the 16-year-old girl, Peterson has properly
preserved his claim. “[O]nce a party raises an objection in writing, even if he
subsequently fails to lodge an oral on-the-record objection the error is
nevertheless preserved for appeal.” United States v. Gomez-Alvarez, 781 F.3d
787, 791 (5th Cir. 2015) (internal quotation marks omitted) (quoting United
States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir. 2003)). Peterson filed
a written objection to the PSR’s inclusion of the paragraph detailing the
incident with the 16-year-old girl, and he renewed this objection at
sentencing. Thus, Peterson properly preserved this claim and we review for
clear error.
Regarding the incident with the 32-year-old woman, Peterson has not
properly preserved this claim because he did not make any formal objection
3
As described in the PSR: “Following the defendant’s arrest, agents received
information that a 16-year-old female reported being harassed and followed by a man
matching the defendant’s description while at the Mall of Abilene on March 17, 2015. The
minor contacted her mother by telephone and then notified mall security and requested an
escort to her vehicle. The Abilene Police Department was also notified. Further
investigation revealed that mall security had received several complaints from concerned
patrons regarding the same behavior by a man matching the same description. The mother
of the minor advised agents that her daughter recognized the defendant when his image
was shown during the news reporting his arrest.”
4
As described in the PSR: “During the defendant’s term of supervised release, his
supervision officer was contacted by a Taylor County Constable regarding a call received
in which a 32-year-old female reported being watched at a distance and followed by the
defendant in his vehicle. The Constable made contact with the defendant who was driving
his vehicle in the area.”
12
Case: 19-11143 Document: 00515591607 Page: 13 Date Filed: 10/06/2020
No. 19-11143
in the district court about its consideration of this paragraph in the PSR.
Therefore, as Peterson concedes in his reply brief, plain error review applies. 5
D.
Because Peterson preserved his claim that the district court erred by
failing to adequately consider a departure under § 4A1.3 for
underrepresentation of his criminal history before imposing an upward
variance, we review the district court’s interpretation and application of the
Guidelines de novo. Nguyen, 854 F.3d at 280. We conclude the district court
did not err.
“This court recognizes three types of sentences: (1) a sentence within
a properly calculated Guidelines range; (2) a sentence that includes an
upward or downward departure as allowed by the Guidelines; and (3) a non-
Guideline sentence . . . that is outside of the relevant Guidelines range.”
United States v. Gutierrez, 635 F.3d 148, 151 (5th Cir. 2011) (alteration in
original) (internal quotation marks omitted) (quoting United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008)). The 240-month sentence
imposed by the district court was a non-Guidelines sentence. 6 The district
5
Peterson raises his claim regarding the 32-year-old woman for the first time in his
reply brief. In general, this court will not consider an issue raised for the first time in a reply
brief. United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). Because, however, the
Government raised this issue in its appellee’s brief, and Peterson responded in his reply
brief, our consideration of this claim “avoids the more unfair scenario that occurs when an
appellant raises a completely new issue in its reply brief, disadvantaging the appellee, and
for which the procedural bar concerning initial briefs was properly developed and utilized.”
Id. at 361 (internal quotation marks omitted) (quoting United States v. Ramirez, 557 F.3d
200, 203 (5th Cir. 2009)). In keeping with this exception discussed in Rodriguez, we
exercise our discretion and consider this issue under a plain error standard of review.
6
Because the district court imposed a non-Guidelines sentence, Peterson’s
reliance on United States v. Gutierrez-Hernandez, 581 F.3d 251 (5th Cir. 2009), is misplaced.
As we discussed in Gutierrez, “[t]he decision in Gutierrez–Hernandez speaks to how a
district court must apply § 4A1.3 when it chooses to depart under the Guidelines, not
13
Case: 19-11143 Document: 00515591607 Page: 14 Date Filed: 10/06/2020
No. 19-11143
court did not err by imposing a variance without first performing an upward
calculation under § 4A1.3 7 because, as we have previously held, “a district
court is not required to employ the methodology set forth in § 4A1.3 before
imposing a non-Guidelines sentence.” Gutierrez, 635 F.3d at 152; see also
United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).
Peterson argues that Gutierrez “should not be considered to have
precedential value” because it “improperly” relies on our 2006 decision
United States v. Smith, 440 F.3d 704 (5th Cir. 2006), which he argues was
abrogated by the Sentencing Commission’s 2010 amendment to § 1B1.1 of
the Guidelines, referred to as Amendment 741. U.S. SENT’G GUIDELINES
MANUAL, app. C supp., at 352–54 (U.S. SENT’G COMM’N 2010). While an
amendment to a Guidelines provision can supersede our caselaw applying
earlier versions of that provision, see Stinson v. United States, 508 U.S. 36, 44–
45 (1993), we join our sister circuit in holding that Amendment 741 did not
materially change § 1B1.1 and thus is not an amendment that overrules our
prior case law. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1005–08
(9th Cir. 2012), cert. denied, 571 U.S. 837 (2013).
In its statement of reasons for Amendment 741, the Sentencing
Commission explained that its purpose in adopting the amendment was to
“resolve[] the circuit conflict and adopt[] the three-step approach followed
by a majority of circuits in determining the sentence to be imposed” and
listed the Fifth Circuit as being among the majority of circuits already
whether it must consider § 4A1.3 before selecting a non-Guidelines sentence.” Gutierrez,
635 F.3d at 153.
7
While the district court may not have performed a formal upward calculation
under § 4A1.3, we do not accept that the district court failed “to consider” § 4A1.3. The
PSR specifically identified § 4A1.3 as a potential ground for departure, and the district
court, after hearing argument from Peterson and the Government about this paragraph in
the PSR, overruled Peterson’s objection to the paragraph.
14
Case: 19-11143 Document: 00515591607 Page: 15 Date Filed: 10/06/2020
No. 19-11143
following the three-step approach the amendment was formally adopting.
U.S. SENT’G GUIDELINES MANUAL, supra, at 354. Further, the Commission
described the amendment to § 1B1.1 as a “restructur[ing],” not as a material
amendment to the provision. Id.
Moreover, as explained by the Ninth Circuit, the language changes
Amendment 741 made to § 1B1.1 were “relatively minor”:
First, the amendment made non-material adjustments to the
instructions to district courts for determining the correct
Guidelines range. Second, the amendment grouped the
instructions into three subsections (subsections (a) to (c) with
nested paragraphs (1) to (8)), rather than listing all instructions
in order as subsections (a) to (i). Finally, the amendment
added subsection (c), which, per Booker, requires the district
court to determine the substantive reasonableness of the
sentence by considering “the applicable factors in 18 U.S.C. §
3553(a) taken as a whole.” The Sentencing Commission also
amended the Commentary to § 1B1.1 to note that
“[s]ubsections (a), (b), and (c) are structured to reflect the
three-step process used in determining the particular sentence
to be imposed.”
Vasquez-Cruz, 692 F.3d at 1006 (citations and footnote omitted).
These immaterial changes do not amount to a change in this circuit’s
law in place before Amendment 741 and thus give us no basis for abrogating
United States v. Smith, 440 F.3d 704 (5th Cir. 2006) and the cases that rely
on it. Accord United States v. Longoria, 958 F.3d 372, 377 (5th Cir. 2020)
(“The Sentencing Commission’s amendment, however, must clearly
overrule our caselaw to warrant a departure from the rule of orderliness.”),
petition for cert. filed, No. 20-5715 (U.S. Sept. 16, 2020); United States v.
Fitzhugh, 954 F.2d 253, 254–55 (5th Cir. 1992) (holding that a Guidelines
amendment overruled Fifth Circuit caselaw interpreting the commentary to
15
Case: 19-11143 Document: 00515591607 Page: 16 Date Filed: 10/06/2020
No. 19-11143
U.S.S.G. § 4B1.2 because the Sentencing Commission “made clear” that it
“repudiated” controlling caselaw).
E.
Finally, we consider Peterson’s claim that the district court erred by
considering clearly erroneous facts alleged in the PSR regarding allegedly
“predatory behavior” for which he was never arrested or charged.
A district court’s reliance on a PSR is based on a finding of fact that
the PSR’s information contains indicia of reliability. See United States v.
Taylor, 277 F.3d 721, 724 (5th Cir. 2001). As determined in supra section
IV.C, we review the district court’s consideration of the incident with the 16-
year-old girl for clear error and the incident with the 32-year-old woman for
plain error. Under the clear error standard, “[a] factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. We will find clear
error only if a review of the record results in a definite and firm conviction
that a mistake has been committed.” United States v. Zuniga, 720 F.3d 587,
590 (5th Cir. 2013) (per curiam) (internal quotation marks and citation
omitted) (quoting United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir.
2011) (per curiam)). Under the plain error standard, Peterson must show a
plain (clear or obvious) error that affected his substantial rights and that “the
error has a serious effect on the fairness, integrity, or public reputation of
judicial proceedings.” Broussard, 669 F.3d at 546 (citing Puckett v. United
States, 556 U.S. 129, 135 (2009)).
“When making factual findings for sentencing purposes, district
courts may consider any information which bears sufficient indicia of
reliability to support its probable accuracy.” United States v. Harris, 702 F.3d
226, 230 (5th Cir. 2012) (per curiam) (internal quotation marks omitted)
(quoting United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002)). In general,
a PSR “bears sufficient indicia of reliability to be considered as evidence by
16
Case: 19-11143 Document: 00515591607 Page: 17 Date Filed: 10/06/2020
No. 19-11143
the sentencing judge in making factual determinations.” Id. (quoting United
States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010)). When a district court finds
that a factual recitation in a PSR “possesses sufficient indicia of reliability”
and considers it at sentencing, “the defendant may object and offer rebuttal
evidence challenging the truthfulness, accuracy, or reliability of the evidence
supporting the factual recitation in the PSR.” Id. at 231. “Mere objections”
are “generally insufficient” for a defendant to discharge his burden. Id. at
230. A defendant must “demonstrat[e] that the information cannot be relied
upon because it is materially untrue, inaccurate or unreliable.” United States
v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010) (quoting United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991)).
Here, the district court adopted the statements of fact in the PSR as
final findings of fact and noted the incidents involving the 16-year-old girl and
the 32-year-old woman as factors in imposing Peterson’s sentence. 8
We find that both factual recitations in the PSR contain “indicia of
reliability.” As to the incident with the 16-year-old girl at the mall, the factual
recitation is detailed as to time (March 17, 2015, one day before Peterson’s
arrest), place (the Mall of Abilene, where Peterson drove on the morning of
his arrest to make a purchase at Victoria’s Secret), and source (the minor
8
Peterson argues in his reply brief that the district court erred by considering the
incident with the 16-year-old girl because the court never made a specific finding, by a
preponderance of the evidence, that Peterson was the perpetrator in this incident. See
United States v. Randall, 924 F.3d 790, 797 n.7 (5th Cir. 2019) (“[U]ncharged conduct, if
established by a preponderance of the evidence . . . could provide a basis for a lawful non-
Guidelines sentence.” (emphasis added)). Because Peterson did not raise this argument in
his initial brief and even arguably acknowledged in his initial brief that the district court did
make such a finding (“[T]he Court draws a factual conclusion that law enforcement (and
the PSR) would not—that Mr. Peterson was, in fact, the individual exhibiting the
‘predatory behavior’ at the mall.”), we decline to exercise our discretion and consider this
argument on appeal. See United States v. Rodriguez, 602 F.3d at 360.
17
Case: 19-11143 Document: 00515591607 Page: 18 Date Filed: 10/06/2020
No. 19-11143
victim’s parent). In addition, the 16-year-old victim reported the incident to
mall security, requested an escort to her vehicle, and later identified Peterson
as the perpetrator to the Abilene Police Department based on the photograph
shown on the news following his arrest. As to the incident with the 32-year-
old woman, the victim reported being watched at a distance and followed by
Peterson to law enforcement, who arrived at the scene, made contact with
Peterson, and reported the incident to Peterson’s probation officer.
Because this evidence bears sufficient indicia of reliability, the burden
shifts to Peterson to present rebuttal evidence, which he has failed to do.
Harris, 702 F.3d at 230–31. In his written and oral objections to the PSR’s
inclusion of the incident with the 16-year-old girl, Peterson denied that he
engaged in the conduct described in that paragraph, but such a “mere
objection,” Harris, 702 F.3d at 230, fails to “demonstrat[e] that the
information cannot be relied upon because it is materially untrue, inaccurate
or unreliable,” Rodriguez, 602 F.3d at 363, and he presented no further
rebuttal evidence at sentencing. Likewise, Peterson made no objection—
either to the PSR or at sentencing—to the inclusion of the incident with the
32-year-old woman.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
18