United States v. Hewitt

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 7, 2009
No. 07-30670
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GAYLAND BRUCE HEWITT

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:06-CR-20022-1

Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gayland Bruce Hewitt appeals his guilty plea conviction for possession of
child pornography. The district court sentenced Hewitt to 80 months of
imprisonment and five years of supervised release. First, Hewitt argues that his
computer was illegally searched and seized in violation of the Fourth
Amendment. Hewitt does not challenge the validity of his guilty plea, and a
voluntary and unconditional guilty plea waives the right to challenge any
nonjurisdictional defects arising before the plea was entered, including a claim

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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of illegal search and seizure. See United States v. Wise, 179 F.3d 184, 186 (5th
Cir. 1999). Because Hewitt’s plea was voluntary and his plea agreement did not
reserve the right to assert a challenge to illegal search and seizure on appeal, his
argument is unavailing. See United States v. Coil, 442 F.3d 912, 914-15 (5th Cir.
2006). Hewitt’s contention that the waiver of his challenge to illegal search and
seizure relates to his failure to make a pretrial motion to suppress, as governed
by F ED. R. C RIM. P. 12, is incorrect. See Wise, 179 F.3d at 186.
Second, Hewitt argues that the Government should not have been
permitted to file objections to Hewitt’s presentence report (PSR) beyond the 14-
day limitations period provided in F ED. R. C RIM. P. 32(f)(1). Because Hewitt did
not object on this ground in the district court, this issue is reviewed for plain
error only. See United States v. Baker, 538 F.3d 324, 331 (5th Cir. 2008), cert.
denied, 129 S. Ct. 962 (2009). To show plain error, Hewitt must show an error
that is clear or obvious and that affects his substantial rights. See id. at 332.
If Hewitt makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
In its out-of-time objections, the Government sought the assessment of a
four-level enhancement under U.S.S.G. § 2G2.2(b)(4) because Hewitt possessed
images involving sadistic conduct and the Government opposed awarding Hewitt
an adjustment under the Sentencing Guidelines for acceptance of responsibility.
The district court applied the § 2G2.2(b)(4) enhancement, and the district court
awarded Hewitt a two-level reduction for acceptance of responsibility pursuant
to § 3E1.1(a) but did not award the additional one-level reduction under
§ 3E1.1(b).
While Rule 32(f)(1) requires PSR objections to be filed within 14 days of
receipt of the PSR, Rule 32(b)(2) permits the district court to change, for good
cause, any time limitations prescribed in Rule 32. Hewitt’s sentencing hearing
did not take place until nearly six months after the Government filed its out-of-

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time objections, and Hewitt has not shown that he was prejudiced in his ability
to adequately prepare for sentencing. See United States v. Angeles-Mendoza, 407
F.3d 742, 749 & nn.11-12 (5th Cir. 2005). Moreover, Hewitt’s substantial rights
were not affected because the district court could have imposed the same rulings
even absent the Government’s objections, as Hewitt was aware of the underlying
images supporting the § 2G2.2(b)(4) enhancement as well as the facts supporting
the Government’s opposition to the § 3E1.1(b) reduction. See id. at 749 & n.13;
Baker, 538 F.3d at 332.
Third, Hewitt argues for the first time on appeal that the district court
erred in applying the four-level enhancement under § 2G2.2(b)(4) because the
Government’s objection concerning this enhancement was based on his results
on the Abel Assessment of Sexual Interest (AASI), which results were ultimately
excluded from the record by the district court. The Government’s objection
concerning the enhancement under § 2G2.2(b)4) was not based on the AASI
results. The § 2G2.2(b)(4) enhancement applies “[i]f the offense involved
material that portrays sadistic or masochistic conduct or other depictions of
violence.” The images possessed by Hewitt included images of “prepubescent
females” having “sexual intercourse” with adult males, a “minor female” having
“sexual intercourse” with a dog, and children performing “oral sex.” The district
court did not commit any error, plain or otherwise, in applying the § 2G2.2(b)(4)
enhancement. See United States v. Lyckman, 235 F.3d 234, 240 (5th Cir. 2000).
Fourth, Hewitt argues for the first time on appeal that he should have
been granted an additional one-level reduction to his offense level pursuant to
§ 3E1.1(b) for acceptance of responsibility because the Government’s basis for
opposing this reduction was invalid as it stemmed from nothing other than his
results on the AASI. We review the Government’s refusal to move for the
additional level decrease under § 3E1.1(b) to determine whether that refusal was
based on an unconstitutional motive or was not rationally related to a legitimate

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government end. United States v. Newson, 515 F.3d 374, 378 (5th Cir.), cert.
denied, 128 S. Ct. 2522 (2008).
In its filings in the district court, the Government indicated that it opposed
the § 3E1.1(b) reduction on the ground that Hewitt possessed child pornography
because he had a sexual interest in children and that Hewitt was a poor
candidate for treatment because he was denying this interest. The Government
contends that it was required to expend additional time and resources to refute
evidence to the contrary that Hewitt sought to present at sentencing. Current
law does not make clear whether the Government’s basis for refusing to file a
§ 3E1.1(b) motion satisfies the standard set forth in Newson, 515 F.3d at 378.
Thus, any error would not have been clear or obvious, and there was no plain
error with respect to this newly raised issue. See United States v. Salinas, 480
F.3d 750, 756 (5th Cir. 2007).
Fifth, Hewitt argues for the first time on appeal that the district court
failed to comply with Rule 32(i)(1)(A) and (i)(3). Hewitt’s challenge is unavailing
because he has not demonstrated that such errors affected his substantial rights.
See Baker, 538 F.3d at 332.
Sixth, Hewitt argues for the first time in his appellate reply brief that he
received ineffective assistance of trial counsel. We do not consider a new claim
raised for the first time in an appellate reply brief. United States v. Prince, 868
F.2d 1379, 1386 (5th Cir. 1989). Regardless, the record is not sufficiently
developed to allow a fair evaluation of the merits of Hewitt’s claims, see United
States v. Stevens, 487 F.3d 232, 245 (5th Cir.), cert. denied, 128 S. Ct. 336 (2007);
United States v. Kizzee, 150 F.3d 497, 502-03 (5th Cir. 1998), and thus we do not
consider them.
AFFIRMED.

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