IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 25, 2009
No. 08-10782 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JACK EARL ROBINSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:08-CR-13-ALL
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jack Earl Robinson appeals following his guilty-plea conviction for
misprision of a felony, to wit: distribution of child pornography. We AFFIRM for
the following reasons:
1. Robinson argues that the factual basis for his plea was insufficient to
show that he concealed the underlying felony because there was no
evidence that he knew at the time of purchase that his credit card
payment for access to the child pornography website would be billed by a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10782
third party. See United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992)
(holding that conviction for misprision requires inter alia showing that the
defendant took an affirmative step to conceal the underlying felony).
Because Robinson did not object in the district court to the sufficiency of
the factual basis, we review for plain error. See United States v. Castro-
Trevino, 464 F.3d 536, 541 (5th Cir. 2006). Robinson admitted that he
knew the website was illegal and that he accessed it to view child
pornography. The factual basis to which Robinson agreed further stated
that “The website required subscribers to purchase a twenty-day
membership for the fee of $79.99 using a credit card. The credit card
processor for the Illegal.CP website charge was identified as ‘ADSOFT’.
Individuals that purchased subscriptions to the Illegal.CP website were
then billed by ADSOFT.” We see nothing clearly or obviously erroneous
in reading this statement to mean that Robinson knew at the point of sale
that he would not be billed directly by the illegal website. By agreeing to
be billed by a third-party, which necessarily obscured the illicit nature of
the transaction, Robinson gave the false impression that the transaction
was innocuous and concealed the underlying felony of distribution of child
pornography. The factual basis was therefore sufficient.
2. Robinson argues, without citation to supporting authority, that the
sentencing scheme under U.S.S.G. §§ 2G2.2 and 2X4.1 is unconstitutional,
unfair, and cruel and unusual punishment because the Guideline range
is determined based on the conduct of the perpetrators of the underlying
felony rather than on his own purportedly minimal conduct. Reviewing
the district court’s application of the Guidelines de novo and its factual
findings for clear error, see United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008), we are not persuaded. The Guidelines account
for the lesser culpability of a defendant who commits misprision rather
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No. 08-10782
than the substantive offense by requiring that the offense level be nine
points lower than the offense level for the substantive offense and by
capping the offense level at 19. See § 2X4.1(a). We find nothing improper
about the Guidelines’ treatment of the misprision offense.
3. Robinson further argues that the district court improperly assessed an
enhancement for pecuniary gain because, unlike the operators of the
website, he derived no pecuniary gain from his purchase of access to child
pornography. Robinson is mistaken. The Guideline for misprision
requires reference to the offense level of the underlying offense, including
any specific offense characteristics that were known, or reasonably should
have been known, by the defendant. See § 2X4.1(a) & cmt. n.1. The
Guideline for distribution of child pornography provides an enhancement
when the offense “involved” distribution for pecuniary gain.
§ 2G2.2(b)(3)(A). Robinson knew the distribution involved pecuniary gain
because he paid the fee to gain access to the illegal material. There is no
error.
4. Finally, Robinson argues that he improperly received enhancements for
an offense involving between 150 and 300 images and for images depicting
prepubescent minors. See § 2G2.2(b)(2) & (b)(7)(B). He contends there
was no evidence of how many images, or their nature, that he actually
viewed. The enhancements are more than adequately supported by
information contained in the presentence report, however. Absent
contrary evidence from Robinson, the district court was entitled to rely on
this information when determining the offense level. See United States v.
Arviso-Mata, 442 F.3d 382, 385 n.10 (5th Cir. 2006).
AFFIRMED.
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