Case: 10-50809 Document: 00511494237 Page: 1 Date Filed: 06/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 1, 2011
No. 10-50809
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTHONY PATRICK CAUDILL,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:09-CR-203-1
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Anthony Patrick Caudill appeals the 240-month
prison sentence he received after his guilty plea conviction for knowingly
transporting child pornography through interstate commerce. Caudill contends
that the district court erred in applying U.S.S.G. § 2G2.2(c)(1)’s cross reference
to § 2G2.1 to obtain his base offense level. He further asserts that the district
court erred in enhancing his offense level pursuant to §§ 2G2.1(b)(5) and
2G2.1(b)(2)(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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-50809 Document: 00511494237 Page: 2 Date Filed: 06/01/2011
No. 10-50809
We review a district court’s interpretation or application of the Guidelines
de novo, and its factual findings for clear error. United States v. Lopez-Urbina,
434 F.3d 750, 762-63 (5th Cir. 2005). The applicable cross reference at issue in
this case is triggered if the “offense involved causing, transporting, permitting,
or offering or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct.”
See § 2G.2.2(c)(1). The cross reference is to be construed broadly, see § 2G2.2,
comment. (n.5), and the term “offense,” as used in the cross reference includes
both charged and uncharged conduct. See U.S.S.G. §1B1.1, comment. (n.1(H))
(defining “offense” to include “the offense of conviction and all relevant conduct
under § 1B1.3").
The district court properly considered the taking of nude photographs of
an underage victim as relevant conduct pursuant to § 1B1.3(a)(2) because
Caudill’s action was part of the same course of conduct as the offense of
conviction. See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009);
United States v. Canada, 110 F.3d 260, 264; § 1B1.3(a)(2); § 1B1.3, comment.
(n.9(A), (B)). Furthermore, while taking the illicit photographs, Caudill touched
the victim’s vagina, causing harm. See § 1B1.3(a)(3). Accordingly, the district
court did not clearly err in applying the cross reference. See Lopez-Urbina, 434
F.3d at 763.
Likewise, because Caudill’s actions were properly considered relevant
conduct and the offense involved sexual contact, the district court did not err in
applying a two-level sentencing enhancement pursuant to §2G2.1(b)(2)(A). See
Lopez-Urbina, 434 F.3d at 763. Moreover, Caudill admitted on several occasions
that he actually babysat the victim. Therefore, his objection to the district
court’s application of a two-level sentencing enhancement pursuant to §
2G2.1(b)(5) because the minor was in his care or custody is without merit. See
§ 2G2.1(b)(5), comment. (n.3(A)). Accordingly, the judgment of the district court
is AFFIRMED.
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