United States v. Commander

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-40846
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FORREST DALE COMMANDER, JR,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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October 2, 2000
Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Pursuant to a written plea agreement, Forrest Dale Commander,
Jr., pleaded guilty to knowingly receiving child pornography in
violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The Government
agreed to recommend that Commander be given a reduction for
acceptance of responsibility and that he be sentenced at the lowest
end of the applicable guideline imprisonment range.
*
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this opinion should not be published and is not precedent except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.
The probation officer’s presentence report (PSR) recommended,
inter alia, that Commander’s sentence be increased two levels under
§ 2G2.2(b)(1), which provides that “[i]f the material involved a
prepubescent minor or a minor under the age of twelve years,
increase by 2 levels.” At sentencing, Commander objected to this
enhancement on the ground that he did not intend to receive
material involving depiction of a minor who was “prepubescent” or
under the age of 12. After an evidentiary hearing, the district
court overruled Commander’s objection because “the evidence
presented by the Customs official and by the NCIS official are
explanatory of the other exhibits . . . that show other
prepubescent minors and that circumstantial evidence of these
possessions and receipts is persuasive of this particular exhibit
together with the title and appearance of the victim in that case.”
The court sentenced Commander to 51 months in prison and to three
years of supervised release. Commander now appeals his sentence.
Commander first argues that the district court erred by
increasing his sentence two levels pursuant to § 2G2.2(b)(1)
because the government failed to show that he intended to receive
a depiction of a prepubescent minor. Specifically, Commander
argues that the district court should not have relied on conduct
that occurred subsequent to his receipt of the image in addressing
his intent. However, the sentencing guidelines provide that “[i]n
resolving any dispute concerning a factor important to the
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sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable
accuracy.” § 6A1.3 (emphasis added). Commander does not suggest
that his subsequent conduct lacks “sufficient indicia of
reliability” but he does contest the relevance of such conduct.
Generally, evidence of prior bad acts may be admissible to prove
intent. See e.g., United States v. Gonzalez-Lira, 936 F.2d 184,
189 (5th Cir. 1991); United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc). This Court has held that evidence of a
“subsequent similar act” is admissible for the same purpose.
United States v. Webb, 625 F.2d 709, 710 (5th Cir. 1980); see also
United States v. Latney, 108 F.3d 1446, 1449 (D.C. Cir. 1997)
(citing 2 JACK B. WEINSTEIN ET AL., WEINSTEIN’S EVIDENCE ¶ 404[08],
at 404-49 to 404-50 & n. 22 (1996)). We therefore reject
Commander’s argument that the district court erred in considering
evidence of his subsequent similar acts.
In light of the evidence that: (1) Commander committed
subsequent similar acts; (2) the name of the document was
“11BLODAD.JPG”; and (3) Commander downloaded and stored the image
of the prepubescent minor involved in a sexual act on his hard
drive, we hold that the district court did not commit clear error
in determining the government proved by a preponderance of the
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evidence that Commander intended to receive a depiction of a
prepubescent minor.
Commander next argues that the district court erred in
increasing his offense level pursuant to § 2G2.2(b)(3). This
section provides that “[i]f the offense involved material that
portrays sadistic or masochistic conduct or other depictions of
violence, increase by 4 levels.” He argues that the depiction of
an adult performing a sexual act with a child is not in and of
itself violent, sadistic, or masochistic. Commander, however,
raises this objection for the first time on appeal. Thus, we
review it only for plain error. United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994) (en banc). Under Rule 52(b), this
Court may correct forfeited errors only when the appellant shows
the following factors: (1) there is an error (2) that is clear or
obvious and (3) that affects his substantial rights. Id. If these
factors are established, the decision to correct the forfeited
error is within the sound discretion of the court, and we will not
exercise that discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 736 (1993).
The Eleventh Circuit has held that photographs depicting
children under twelve years of age being penetrated sexually by
adult males or by a glass bottle warranted the enhancement of which
Commander complains. See United States v. Garrett, 190 F.3d 12204
(11th Cir. 1999). Not surprisingly, Commander has not pointed us
to any holding under similar circumstances that is contrary to the
Eleventh Circuit’s pronouncement. Accordingly, Commander has not
shown that any error was “clear or obvious.” Calverley, 37 F.3d at
162-65.
For the above reasons, Commander’s sentence is AFFIRMED.
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