Case: 20-50765 Document: 00516028625 Page: 1 Date Filed: 09/24/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-50765 September 24, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Derek Loyd Ward,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-179-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Derek Loyd Ward appeals the sentence imposed following his guilty
plea conviction for possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). On appeal, Ward argues that the district court erred in
applying a two-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(F) for
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-50765
the knowing distribution of child pornography, and also that the district court
abused its discretion by upwardly departing from the Guidelines and
imposing the maximum sentence allowed by Ward’s statute of conviction.
First, Ward argues that the factual findings on which the district court
based the two-level sentencing enhancement were clearly erroneous. Even if
the district court erred, however, we “may affirm the sentence . . . if that
error [wa]s harmless.” United States v. Robinson, 741 F.3d 588, 601 (5th Cir.
2014). A sentencing error is harmless “if the proponent of the sentence
convincingly demonstrates both (1) that the district court would have
imposed the same sentence had it not made the error, and (2) that it would
have done so for the same reasons it gave at the prior sentencing.” United
States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).
Here, the Government carried its burden of showing that any error
was harmless. The applicable range of sentences established by the federal
Guidelines was 97 to 121 months’ imprisonment after application of the two-
level enhancement pursuant to § 2G2.2(b)(3)(F); without the enhancement,
the range would have been 78 to 97 months. See U.S.S.G. Ch. 5, Pt. A. The
district court, however, sentenced Ward to 240 months’ imprisonment—the
maximum permitted by his statute of conviction. The judge explained that he
considered Ward’s conduct so egregious as to warrant the maximum term of
incarceration, and even expressed doubt about whether the maximum was
severe enough given the seriousness of the offense. The judge also ordered
that Ward’s sentence be served consecutively to whatever sentence may be
imposed for the state charges pending against him for aggravated child abuse,
rejecting Ward’s counsel’s request that the sentences run concurrently. It
follows from all of this that, even if the district court had found that the
shorter range set by the Guidelines applied, it would have imposed the same
240-month sentence for the same reasons. We have recognized that “the fact
that [a] district court departed up to the statutory maximum sentence . . .
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supports the conclusion that [it] would have imposed the same sentence
under an advisory sentencing scheme.” United States v. Jones, 435 F.3d 541,
544 (5th Cir. 2006). Moreover, “the chosen sentence” in this case “is not a
multiple or derivative of either the minimum or maximum of the incorrect
Guideline range, which suggests that the Guideline range did not influence
the sentence.” United States v. Villarreal, 577 F. App’x 299, 301 (5th Cir.
2014). For the foregoing reasons, we hold that any error in determining the
applicable Guidelines range was harmless, and we therefore need not decide
whether any of the district court’s findings were clearly erroneous. See United
States v. Rajwani, 476 F.3d 243, 248 (5th Cir. 2007).
Next, Ward argues that the district court’s upward departure from the
range of sentences set by the Guidelines was substantively unreasonable. We
review such claims for abuse of discretion. United States v. Zuniga-Peralta,
442 F.3d 345, 347 (5th Cir. 2006). A district court’s upward departure from
the Guidelines is not an abuse of discretion if the district court’s reasons for
departing advance the objectives set forth in 18 U.S.C. § 3553(a)(2) and the
departure is justified by the facts. See Zuniga-Peralta, 442 F.3d at 347.
Here, the district court’s imposition of a 240-month prison sentence
meets those criteria. The judge explained that “an upward departure under
. . . Section 3553 would . . . reflect the seriousness of [Ward’s] offense,”
“promote respect for the law,” “provide just punishment for the offense,”
and “afford adequate deterrence.” These factors correspond to the
sentencing considerations laid out in § 3553(a)(2). Moreover, the district
court adopted the presentence report, and was entitled to rely on that
report’s findings, see United States v. Alaniz, 726 F.3d 586, 619 (5th Cir.
2013), which included substantial and unrebutted evidence that Ward had
sexually abused his eight-year-old niece, as well as a letter from Ward to the
victim that suggested he did not appreciate the wrongful character of his
conduct. The Guidelines make clear that “an upward departure may be
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No. 20-50765
warranted” if a “defendant engaged in the sexual abuse or exploitation of a
minor at any time (whether or not such abuse or exploitation occurred during
the course of the offense or resulted in a conviction . . .).” U.S.S.G. § 2G2.2,
comment. (n.9). Furthermore, even assuming that the shorter Guidelines
range of 78 to 97 months applied, the extent of the court’s departure (just shy
of 2.5 times the maximum Guidelines sentence) was reasonable, as we have
upheld upward departures of comparable or greater magnitude in the past.
See, e.g., United States v. Smith, 417 F.3d 483, 492–93 & n.40 (5th Cir. 2005)
(citing cases); United States v. Saldana, 427 F.3d 298, 315 (5th Cir. 2005).
The judgment of the district court is AFFIRMED.
4
United States v. Ward
Combined Opinion