IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30546
UNITED STATES,
Plaintiff-Appellee,
versus
MATTHEW CARROLL,
Defendant-Appellant.
* * * * * * * * * * * * * * * * *
No. 98-30547
UNITED STATES,
Plaintiff-Appellee,
versus
ROBERT RANDALL REINHART,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Louisiana
September 18, 2000
Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges.
PER CURIAM:
In these two cases defendants Carroll (our No. 98-30546) and
Reinhart (our No. 98-30547), having been jointly indicted and
convicted on their guilty pleas of one count of conspiring with
each other to sexually exploit children contrary to 18 U.S.C. §
2251(a) and (d), appealed their sentences to this Court. In our
September 14, 1999, opinion in both cases, United States V.
Carroll, 190 F.3d 290 (5th Cir. 1999), we affirmed as to each
defendant. As more fully reflected in that opinion, both Carroll
and Reinhart contended before the panel that the district court
erred in considering for sentencing guidelines purposes their
conduct, on separate occasions, with each of two specific minors,
“male #1" and “male #3", as each constituting an instance of sexual
exploitation of children contrary to section 2251(a) in that they
used or induced said minors to engage in sexually explicit conduct,
as defined in 18 U.S.C. § 2256(2), for the purpose of producing a
visual depiction thereof.1 The defendants each contended that was
error because the facts relied on by the district court did not
reflect that either minor engaged in actual or simulated sexually
explicit conduct as defined in section 2256(2). The panel
unanimously rejected that contention as to male #3, and, by a
divided vote, likewise rejected that contention as to male #1. The
panel dissent took the position that no section 2251(a)
1
These were the only contentions raised on appeal.
2
exploitation of male #1 was made out because he never engaged in
any actual or simulated sexually explicit conduct, but rather only
“[a] picture of his face was taken and later–without his knowledge
or consent–superimposed on a picture exhibiting the genitals of one
not shown to be a minor.” Id. at 298.
Carroll filed a petition for panel rehearing complaining only
of the ruling as to male #1. The panel overruled Carroll’s
petition for rehearing. He did not file a petition for rehearing
en banc. Reinhart filed a petition for rehearing en banc,
complaining only of the ruling as to male #1. He did not file a
petition for panel rehearing. The Court requested a response from
the Government to Reinhart’s petition for rehearing en banc. The
Government filed a response contending that the panel majority
ruling as to male #1 was correct. Thereafter, pursuant to “a poll
on the petition for rehearing en banc,” the Court ordered No. 98-
30547 reheard en banc. United States v. Reinhart, 204 F.3d 581
(5th Cir. 2000) (en banc). The panel then issued an order in No.
98-30546 (Carroll) that “recalls the mandate previously issued in
this matter pending the outcome of the en banc rehearing in USA v.
Reinhart.”
In Reinhart’s en banc brief, filed well after his case was
taken en banc, he complained not only of the panel ruling as to
male #1, but also of the panel ruling as to male #3. Thereafter,
the Government filed its en banc brief in Reinhart. It maintained
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that the panel did not err with respect to male #3. However, with
respect to male #1 the Government confessed error and conceded that
resentencing was appropriate.2
The en banc court then issued its unanimous per curiam order
stating that “in view of the concession of the United States . . .
that . . . Reinhart’s action in superimposing a photograph of the
face of an identifiable minor on an image of a nude body is not
conduct proscribed by 18 U.S.C. § 2251(a) and that remand for
resentencing is hence appropriate, en banc consideration is no
longer required and this case is remanded to the panel.” United
2
The Government’s en banc brief states in relevant part:
“After a thorough and searching review of the plain
wording of 18 U.S.C. § 2251(a) and the legislative
history addressing it at the time it was enacted, and
other pertinent legislative history, the government
concedes, that a violation of Section 2251(a) requires
that the defendant employ, use, persuade, induce, entice
or coerce the minor himself to engage in the actual or
simulated sexually explicit conduct for the purpose of
producing a visual depiction of the minor’s sexually
explicit conduct.
The government has no evidence that defendant induced
minor male #1 to engage in any actual or simulated
‘lascivious exhibition of the genitals.’ Without the
minor’s knowledge, Reinhart manipulated the picture of
the minor’s face with a computer and superimposed the
minor’s face on a picture exhibiting the genitals of a
person of unknown origin. Defendant did not induce minor
male #1 to engage in any sexually explicit conduct as
defined by 18 U.S.C. § 2256(2) for the purpose of
producing a visual depiction of that conduct.
For this reason the government concedes that defendant’s
sentence should be vacated and the case remanded for re-
sentencing.”
4
States v. Reinhart, ___ F.3d ____ (5th Cir. 2000) (en banc).
Reinhart’s case (No. 98-30547) is now before this panel
pursuant to the remand from the en banc court. Carroll’s case (No.
98-30546) is now before this panel pursuant to our referenced prior
order recalling the mandate therein. We now take the following
action in both of these cases.
We withdraw and vacate all of the following portions of our
prior opinion herein (reported at 192 F.3d 290), namely: (1) the
last sentence of the first paragraph of the opinion; (2) all of the
opinion under the heading “Male #1" (except the first grammatical
paragraph thereunder), commencing with the second grammatical
paragraph in right hand column on page 293 of 192 F.3d and
continuing through the end of the carryover paragraph ending in the
left hand column on page 297 of 192 F.3d just before the heading
“Male #3;” (3) all of footnotes 5 and 6; and (4) all of the opinion
starting with “CONCLUSION” on page 298 and ending with “AFFIRM” on
that page. We likewise vacate our prior holding that the district
court did not err in its treatment for sentencing purposes of
defendants’ conduct respecting male #1.
We reinstate all the remainder of our prior opinion, and we
likewise reinstate our prior holding that the district court did
not err in its treatment for sentencing purposes of defendants’
conduct respecting male #3.
In light of the Government’s concession of error and the
5
remand order of the en banc court, we vacate the sentences of
Reinhart and Carroll and remand those cases to the district court
for resentencing consistent with the Government’s said concession.
VACATED AND REMANDED
6