United States v. Cupples ( 2023 )

Case: 22-50726 Document: 00516828049 Page: 1 Date Filed: 07/20/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50726
Summary Calendar FILED
____________ July 20, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
James Robert Cupples,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-367-1
______________________________
Before Jolly, Smith, and Duncan, Circuit Judges.
Per Curiam: *
James Robert Cupples pleaded guilty to one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The district
court sentenced him to 198 months of imprisonment, to be followed by
10 years of supervised release. Cupples challenges the application of a higher
offense level under U.S.S.G. § 2G2.1 by operation of the cross-reference in
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50726 Document: 00516828049 Page: 2 Date Filed: 07/20/2023
No. 22-50726
U.S.S.G. § 2G2.2(c)(1), which “is to be construed broadly.” § 2G2.2,
comment. (n.7(A)). We review the district court’s interpretation and
application of the Guidelines de novo and its factual findings for clear error.
See United States v. Ferris, 52 F.4th 235, 239 (5th Cir. 2022), cert. denied, 143
S. Ct. 846 (2023).
The record supports the district court’s determination that the
Government proved, by a preponderance of the evidence, that Cupples
caused a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct. See § 2G2.2, comment.
(n.7(A)); United States v. Landreneau, 967 F.3d 443, 451 (5th Cir. 2020);
United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). And as Cupples
concedes, the court properly enhanced his sentence under § 2G2.1(b)(2)(A)
because the offense involved the commission of sexual contact. See United
States v. Butler, 65 F.4th 199, 201-03 (5th Cir. 2023); United States v. Salinas,
918 F.3d 463, 465 (5th Cir. 2019).
The judgment of the district court is AFFIRMED.
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