IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-10435
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRY WAYNE HESSON,
Defendant - Appellant.
______________________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas, Abilene Division
USDC No. 1:00-70-CR-ALL
______________________________________________________________________________
July 22, 2002
Before JOLLY, DeMOSS and PARKER, Circuit Judges:*
E. GRADY JOLLY, Circuit Judge:
Terry Wayne Hesso n (“Hesson”) pled guilty to a single count of sexual exploitation of a
minor, in violation of 18 U.S.C. § 2251(a). On appeal , Hesson argues that the district court
erroneously considered his other uncharged acts of sexual exploitation with other minors as “relevant
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
conduct” under United States Sentencing Guideline (“U.S.S.G.”) § 1B1.3 (2000), on the basis of
which the district court increased Hesson’s offense level under U.S.S.G. §§ 2G2.1(c)(1) and 3D1.4.
Hesson also argues that the district court abused its discretion in additionally departing upward to the
statutory maximum sentence pursuant to U.S.S.G. § 5K2.0. Although we agree with Hesson that
the district court erred in considering his uncharged acts of sexual exploitation that were not part of
the same offense to be relevant conduct under § 1B1.3, we find that the district court would have
imposed the same sentence notwithstanding this error. We therefore AFFIRM Hesson’s sentence.
I
Hesson transported a twelve-year old male from Abilene, Texas to a motel in Ruidoso, New
Mexico, and made a videotape of the boy engaged in sexually explicit conduct. As a result, Hesson
was charged with and pled guilty to one count of sexual exploitation of a minor, in violation of 18
U.S.C. § 2251(a), pursuant to a plea agreement. During a search of Hesson’s residence, the police
found the videotape of the boy in New Mexico, numerous other sexually explicit videos of underage
males made by Hesson, and other evidence of child pornography. The district court found, based on
the videotapes, that Hesson had sexually exploited and videotaped at least seventy-four other minor
males over a period of at least fifteen years.
In the plea agreement, Hesson and the government entered into several stipulations as to the
applicability of several of the sentencing guideline sections. However, the plea agreement specifically
stated that Hesson and the government did not agree on the applicability of U.S.S.G. § 2G2.1(c) to
Hesson’s sentence. Section 2G2.1(c) provides that if the “offense” involved the exploitation of more
than one minor, then Chapter III, Part D of the Sentencing Guidelines (Multiple Counts), “shall be
applied as if the exploitation of each minor had been contained in a separate count of conviction.”
2
Application Note 1, Part (l), to U.S.S.G. § 1B1.1 defines “offense” as “the offense of conviction and
all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is
otherwise clear from the context.” Section 1B1.3(a) defines relevant conduct, in applicable part, as
follows:
(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant . . .
that occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility for that
offense.
The district court considered Hesson’s uncharged conduct in videotaping seventy-four other minor
males engaged in sexually explicit activities as “relevant conduct” under § 1B1.3. Therefore,
pursuant to § 2G2.1(c), the district court relied on the multiple count provisions of § 3D1.4
(Determining the Combined Offense Level) to increase Hesson’s base offense level by five. Under
§ 3D1.4, the district court can depart upward by five offense levels if it calculates that the defendant
has more than five “units.” “Units” are computed by taking into consideration the “groups” of
offenses for which the defendant is responsible when there are multiple counts involved. According
to the PSR, there were a total of sixty-nine units in this case.1 The district court increased Hesson’s
offense level by two additional levels under the background language in § 3D1.4 authorizing a
1
The PSR calculated that there were sixty-nine additional units, based on seventy-one victims.
The PSR assigned one unit each to sixty-seven of the victims, based on these offenses being as serious
or one to four levels less serious than the conduct to which Hesson pled guilty. See U.S.S.G. §
3D1.4(a). The PSR assigned half a unit each to four of the victims, because the levels for these
offenses were five to eight levels less serious than highest offense level. See U.S.S.G. § 3D1.4(b).
The difference between the seventy-one victims calculated in the PSR and the seventy-four victims
found by the district court would result in a slightly different calculation of the number of units
involved, but the difference is not significant.
3
departure “in the unusual case where the additional offenses resulted in a total of significantly more
than 5 Units.”
This resulted in a total offense level of thirty-five. Hesson had a criminal history category of
I, resulting in a recommended imprisonment range of 168 to 210 months. However, the district court
further departed upward under § 5K2.0 and sentenced Hesson to the statutory maximum of twenty
years, based on the fifteen year o r longer period over which Hesson committed his crimes, the
existence of at least seventy-four victims, and Hesson’s extensive videotaping and documentation of
his acts of sexual exploitation, which the district court found took this case outside the heartland of
cases contemplated by the sentencing guidelines. The district court also sentenced Hesson to a three-
year term of supervised release, and ordered him to pay a special assessment of $100. Hesson timely
appealed his sentence.
II
The first question we consider is what the appropriate standard of review is in this case.
Hesson did not object to the inclusion of § 2G2.1(c)(1) in the Pre-Sentence Report, nor did he object
to its application at the sentencing hearing. Further, Hesson did not argue in his opening brief to this
court that the district court should not have applied §§ 2G2.1(c)(1) and 3D1.4, and the “relevant
conduct” provisions of § 1B1.3. He first raised this argument in his Supplemental and Reply Brief,
filed after he substituted new counsel for his former attorney. Nevertheless, Hesson argues that he
preserved the issue of the applicability of § 2G2.1(c)(1) by refusing to agree to its applicability in his
plea agreement.
We have held previously that when a defendant fails to object, at his sentencing hearing, to
an asserted lack of notice by the district court that it intended to depart upward from the
4
recommended guideline range based on factors contained in the PSR, and when the defendant fails
to move for a continuance at the sentencing hearing, we review any alleged errors for plain error only.
See United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002). Here, Hesson did not object to
the inclusion of § 2G2.1(c)(1) in the PSR or to its application at the sentencing hearing. Further, the
district court did notify Hesson in advance that it was considering an upward departure in his case.
Furthermore, we ordinarily do not consider issues raised for the first time in a reply brief. Therefore,
we review the district court’s application of § 2G2.1(c)(1) for plain error only.
III
In order for us to correct an unpreserved alleged error, there must have been, in the trial
court: (1) an error; (2) that was “plain,” i.e. clear or obvious; and (3) the error must have affected
substantial rights (generally, it must have been prejudicial). United States v. Olano, 507 U.S. 725,
732-33 (1993). A court of appeals need not always correct a plain error. It need only do so “if the
error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’" Id. at
735 (citation omitted).
Here, the district court did commit an error that was plain in its application of § 2G2.1(c)(1).
The language in § 2G2.1(c)(1) states that “[i]f the offense involved the exploitation of more than one
minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor
had been contained in a separate count of conviction” (emphasis added). There was only one offense
actually charged here, and it only involved one minor. Although the term “offense” includes relevant
conduct under § 1B1.3, see U.S.S.G. § 1B1.1, Commentary, Hesson’s uncharged acts with other
minors, which were not part of the same offense, cannot be considered relevant conduct under §
1B1.3.
5
Section 1B1.3(a) has four subparts that each provide for a different category of relevant
conduct. Section 1B1.3(a)(1) includes as relevant conduct “all acts and omissions committed . . .
by the defendant . . . that occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or responsibility for that offense .
. .” Hesson’s uncharged acts do not fall into this category, as they did not occur during the
commission of the offense of conviction, in preparation for the offense, or while trying to avoid
detection or respo nsibility for the offense. Section § 1B1.3(a)(2) includes as relevant conduct
offenses “of a character for which § 3D1.2(d) would require grouping of multiple counts,” but
Hesson’s offense is explicitly excluded from the grouping provisions. See U.S.S.G. § 3D1.2(d)
(excluding offenses under § 2G2.1 from the grouping provisions of § 3D1.2). Section § 1B1.3(a)(3)
includes as relevant conduct “all harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions.”
However, because Hesson’s conduct does not fall under §§ 1B1.3(a)(1) or (a)(2), it cannot fall under
§ 1B1.3(a)(3). Finally, section 1B1.3(a)(4) provides for adjusting the offense level for relevant
conduct based on “any other information specified in the applicable guidelines.” No other information
has been specified here. It follows that, for the purpose of this sentence, Hesson’s unrelated acts with
other minors therefore are not relevant conduct under § 1B1.3, and cannot be considered part of the
same offense under § 2G2.1(c)(1). Therefore, the district court should not have applied § 3D1.4 to
Hesson’s offense level, and to do so was an error that was plain.
Nevertheless, this plain error did not affect Hesson’s substantial rights. Normally, if the
sentence “was imposed in violation of law or imposed as a result of an incorrect application of the
sentencing guidelines, the court shall remand the case for further sentencing proceedings with such
6
instructions as the court considers appropriate.” 18 U.S.C. § 3742. However, “[i]f the party
defending the sentence persuades the court of appeals that the district court would have imposed the
same sentence absent the erroneous factor, then a remand is not required under § 3742(f)(1), and the
court of appeals may affirm the sentence as long as it is satisfied that the departure is reasonable
under § 3742(f)(2).” Williams v. United States, 503 U.S. 193, 203 (1992) (applying harmless error
review). In order to determine if a departure is reasonable under § 3742(f)(2),
the [Sentencing Reform Act of 1984] directs a court of appeals to examine the factors
to be considered in imposing a sentence under the Guidelines, as well as the district
court's stated reasons for the imposition of the particular sentence. § 3742(e). A
sentence thus can be "reaso nable" even if some of the reasons given by the district
court to justify the departure from the presumptive guideline range are invalid,
provided that the remaining reasons are sufficient to justify the magnitude of the
departure.
Id. at 203-04. After the district court increased Hesson’s offense level under § 3D1.4 (erroneously),
the court concluded that the sentence was still not yet long enough. The court was determined to
sentence Hesson to the maximum that the statute would allow for one count in an indictment. It
therefore departed upward to the statutory maximum sentence of twenty years under U.S.S.G. §
5K2.0. Under this section, “the sentencing court may impose a sentence outside the range established
by the applicable guidelines, if the court finds ‘that there exists an aggravating or mitigating
circumstance of a kind, o r to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines . . . .’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).
The district court explicitly relied on the large number of other minors whom Hesson had exploited,2
the many years over which Hesson engaged in the exploitation, and Hesson’s extensive videotaping
2
Although Hesson contested the district court’s calculation of the exact number of victims
involved, Hesson did not argue that he had not sexually exploited other minor children. Further, the
district court’s finding as to the number of victims was not clearly erroneous.
7
and documentation of his offenses, to justify its departure under § 5K2.0. These factors are the same
regardless of whether the district court erroneously calculated the base offense level or not. Because
the district court imposed the statutory maximum sentence based on these factors and not “as a result
of” the erroneous application of §§ 1B1.3, 2G2.1(c)(1) and 3D1.4, the district court would have
imposed the same sentence even if Hesson’s offense level was not erroneously increased.
Further, we find that the sentence that the district court imposed was reasonable. The district
court’s stated reasons for departing upward to the statutory maximum (large number of victims, many
years of exploitation, and extensive videotaping and documentation) were eminently reasonable, and
were not otherwise adequately taken into consideration by the guidelines. Further, in the past we
have upheld departures from recommended sentencing guideline ranges that were even greater than
the departure here. With a criminal history category of I and a base offense level of twenty-eight (the
offense level that Hesson would have received absent the erroneous calculations), the guidelines call
for a sentencing range of seventy-eight to ninety-seven months. The upward departure from ninety-
seven months to 240 months (the statutory maximum, which Hesson received) would be an additional
143 months, or a sentence 2.47 times longer than the recommended maximum of ninety-seven
months. We have approved depart ures from the guidelines that were even greater. See, e.g.,
Davenport, 286 F.3d at 221 (approving upward departure from eighty-seven months to 240 months,
or 2.75 times the recommended sentence); United States v. Roberson, 872 F.2d 597, 606 (5th Cir.
1989) (affirming upward departure in sentence from guideline range of thirty to thirty-seven months
to 120 months, or 3.24 times the recommended sentence).
8
We hold that because the district court would have imposed the same sentence absent the
error and because the sentence was reasonable, Hesson’s substantial rights were not affected and
there was no plain error in the imposition of Hesson’s sentence.
IV
Hesson also argues that the district court abused its discretion in departing upward under §
5K2.0. However, as is clear from our discussion in part III, the district court did not abuse its
discretion in doing so.3
V
For the reasons stated, Hesson’s sentence is
AFFIRMED.
3
Hesson also argues in a short footnote in his brief that it was ineffective assistance of counsel
for his attorney to fail to object to the inclusion of § 2G2.1(c) in the PSR. However, Hesson does
not develop this argument and does not show how he was prejudiced. Given our finding that the
district court would have imposed the same sentence anyway and that the sentence was reasonable,
there is no prejudice. His argument is therefore meritless.
9