Case: 20-10457 Document: 00515799099 Page: 1 Date Filed: 03/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 29, 2021
No. 20-10457 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Tyrone Alexander Taylor,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-268-2
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Tyrone Alexander Taylor was convicted, pursuant to his guilty plea,
of two counts of sexual exploitation of children (in violation of 18 U.S.C.
§ 2251(a),(e)) and one count of possession of a visual depiction of a minor
engaged in sexually explicit conduct (in violation of 18 U.S.C.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10457 Document: 00515799099 Page: 2 Date Filed: 03/29/2021
No. 20-10457
§ 2252(a)(4)(B)). His guidelines range was life imprisonment. The district
court sentenced Taylor to consecutive statutory maximum sentences on all
three counts.
Taylor argues that a five-level enhancement pursuant to U.S.S.G.
§ 4B1.5(b)(1) should not have been applied because his conviction for
possession of a visual depiction of a minor engaged in sexually explicit
conduct is not a covered sex crime. Our review is for plain error because
Taylor did not object to the § 4B1.5(b)(1) enhancement on this ground in the
district court. See United States v. Medina-Anicacio, 325 F.3d 638, 643
(5th Cir. 2003).
To establish plain error, an appellant must show a forfeited error that
is clear or obvious and that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If the appellant makes this showing, “the
court of appeals has the discretion to remedy the error—discretion which
ought to be exercised only if the error seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. (internal quotation marks
and citation omitted).
Here, although Taylor’s conviction for possession of a visual
depiction of a minor engaged in sexually explicit conduct is not a covered sex
crime, his convictions for sexual exploitation of a minor, in violation of
18 U.S.C. § 2251(a), are covered sex crimes. See § 4B1.5, cmt. n.2 (2018).
Because Taylor has not demonstrated that application of the enhancement
was clear or obvious error, he has not satisfied the plain error standard. See
Puckett, 556 U.S. at 135.
In addition, Taylor renews his contention that the district court erred
by failing to group his counts pursuant to U.S.S.G. § 3D1.2(c). The
Government argues that the district court did not so err and, in the
alternative, contends that any grouping error was harmless. For the following
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No. 20-10457
reasons, we agree that the alleged error in failing to group counts would be
harmless and therefore we need not decide the grouping issue. See United
States v. Gutierrez-Mendez, 752 F.3d 418, 429-30 (5th Cir. 2014).
“A procedural error during sentencing is harmless if the error did not
affect the district court’s selection of the sentence imposed.” United States
v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (internal quotation
marks and citation omitted). The proponent of the sentence must show that
the sentence was in no way influenced by the erroneous guidelines
calculation. United States v. Ibarra-Luna, 628 F.3d 712, 718-19 (5th Cir.
2010).
Here, the probation officer determined that Taylor had a total offense
level of 47 after a reduction for acceptance of responsibility. By Taylor’s own
calculations, as set forth in his brief, if he is successful in his challenge to the
district court’s failure to group counts, the net effect of the grouping is that
he will accrue only four offense levels under U.S.S.G. § 3D1.4(a), whereas he
accrued five levels under § 3D1.4(a) in the probation officer’s calculations.
Thus, in the final analysis, were the grouping issue to be resolved in Taylor’s
favor, he would have a total offense level of 46 rather than 47. Because an
offense level greater than 43 is treated as an offense level of 43, the alleged
error in failing to group counts had no effect on Taylor’s total offense level;
it is 43 in either event. See U.S.S.G. Ch. 5, Pt. A cmt. n.2 (2018).
Thus, any error in failing to group counts was harmless because it did
not affect the ultimate determination that Taylor had 43 offense levels, which
resulted in a sentencing range of life imprisonment. See United States
v. Garcia-Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013).
AFFIRMED.
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