United States v. McGavitt

28 F.4th 571

UNITED STATES of America, Plaintiff—Appellee,

v.George Daniel MCGAVITT, Defendant—Appellant.

No. 20-20575

United States Court of Appeals, Fifth Circuit.

FILED March 11, 2022

Andrew C. Sand, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Lewis A. Thomas, Lewis Thomas Law, P.C., Houston, TX, for Defendant-Appellant.

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

George Daniel McGavitt pled guilty to a three-count indictment charging him with coercion and enticement, sexual exploitation of a child, and possession of child pornography. McGavitt's offenses were grouped together at sentencing and his Guidelines range was calculated using the sexual-exploitation count. After applying enhancements, the district court sentenced McGavitt to concurrent terms of life, 360 months, and 120 months of imprisonment, followed by concurrent 15-year terms of supervised release. McGavitt now appeals, challenging the application of three sentencing enhancements. We affirm.

I.

As part of his guilty plea, McGavitt admitted that the Government could prove the following facts.

On May 26, 2019, the Washington County, Arkansas Sheriff's Office was dispatched to the residence of a 13-year-old female (referred to as "MV1").¹ MV1 had confessed to her parents that she had been involved in an online relationship with Daniel McGavitt, a 45-year-old man, and that McGavitt had requested on several occasions that she send him nude photographs and videos of herself engaging in sex acts. MV1 also stated that on April 11, 2019, McGavitt traveled to Arkansas from his residence in Texas and engaged in sexual intercourse with her.

The Washington County Sheriff's Office relayed their report to the Federal Bureau of Investigation (FBI) in Little Rock for further investigation. Investigators were able to place McGavitt less than half a mile from MV1's Arkansas residence on April 11, 2019, through the records of a local towing company that had been dispatched to remove McGavitt's truck from a ditch. Subsequently, the FBI obtained a search warrant for three different Facebook accounts, including that of MV1 and a profile used by McGavitt. A review of these accounts uncovered a history of explicit communications between McGavitt and MV1 spanning at least nineteen different days from March 8 through May 22, 2019. Investigators also discovered three images of MV1, sent at McGavitt's behest, that met the definition of child pornography under 18 U.S.C. § 2256.

On August 15, 2019, McGavitt was arrested in Texas on an unrelated state charge of aggravated sexual assault of a child under the age of 14. After McGavitt was transferred into federal custody several days later, federal investigators obtained a search warrant for a cellular phone that was seized during McGavitt's arrest. The phone contained 71 images of MV1, 16 of which McGavitt conceded met the federal definition of child pornography. The phone also contained 13 videos of MV1, all of which McGavitt likewise conceded met the federal definition of child pornography. One video, 22 seconds in length, depicted MV1, whose face was visible throughout, "lying on a bed while completely nude ... inserting the handle of a hairbrush into her vagina." Two other videos of comparable length depicted MV1 "inserting her fingers into her vagina."

On September 5, 2019, an indictment was filed in the United States District Court for the Southern District of Texas, charging McGavitt with three counts: (1) "coercion and enticement of a minor for the purpose of rape, in violation of 18 U.S.C. § 2422(b)"; (2) "sexual exploitation of children by coercion and enticement for the production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e)"; and (3) "possession of child pornography, in violation of 18 U.S.C. [§]§ 2552A(a)(5)(B) and 2252A(b)(2)."² McGavitt appeared with counsel before the district court in March 2020 and pled guilty to all three counts.

Following his guilty plea, McGavitt faced sentencing. A probation officer compiled a Presentence Investigation Report (PSR). The PSR grouped McGavitt's three counts pursuant to U.S.S.G. § 3D1.2(b), which requires grouping of counts that involve a common victim and objective, and § 3D1.2(c), which requires grouping "[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the Guideline applicable to another of the counts." The PSR then calculated McGavitt's Guideline range of imprisonment using U.S.S.G. § 2G2.1, the Guideline applicable to the sexual exploitation count, because it produced "the highest offense level in the group."

McGavitt's base offense level of 32 under § 2G2.1 was enhanced by 17, as follows: two levels because MV1 was over 12 and under 16 years old; two levels because the offense involved the commission of a sexual act or sexual contact; two levels for knowingly engaging in distribution; four levels because the offense involved material that portrayed sadistic, masochistic, or other violent conduct; two levels for using a computer or interactive computer service; and five levels for engaging in a pattern of prohibited sexual conduct. Three levels were subtracted for McGavitt's acceptance of responsibility; another three levels were then subtracted to reduce his total offense level to 43, the maximum offense level under the Guidelines. See U.S.S.G. Ch. 5, Pt. A cmt. n.2.

McGavitt objected that (1) the two-level enhancement for sexual contact, the four-level enhancement for sadistic or masochistic content, and the five-level enhancement for engaging in a pattern of prohibited sexual conduct were factually unsupported; and (2) the district court should not consider allegations from the unadjudicated Texas complaint at sentencing. The district court overruled his objections and sentenced him to concurrent terms of life, 360 months, and 120 months of imprisonment on each respective count, followed by concurrent 15-year terms of supervised release. McGavitt filed a timely notice of appeal.

II.

This court "review[s] the district court's interpretation and application of the Guidelines de novo , and its factual findings for clear error." United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013) (per curiam). However, "[w]hen a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only." United States v. Medina-Anicacio , 325 F.3d 638, 643 (5th Cir. 2003). Reviewing for plain error

consists of four prongs: (1) there must be an error; (2) the error must be clear or obvious, rather than subject to reasonable dispute; (3) the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings; and (4) the court must decide in its discretion to correct the error because it seriously affects the fairness, integrity or public reputation of judicial proceedings.

United States v. McClaren , 13 F.4th 386, 413 (5th Cir. 2021) (internal quotation marks and citation omitted).

III.

A.

McGavitt first asserts that the district court erred by applying a four-level enhancement under § 2G2.1(b)(4)(A). His objection on this point was preserved, so we review de novo. See United States v. Nesmith , 866 F.3d 677, 679 (5th Cir. 2017).

Section 2G2.1(b)(4)(A) provides for a four-level sentencing enhancement when the "offense involved material that portrays ... sadistic or masochistic conduct or other depictions of violence." For the enhancement to apply, an image must "depict[ ] conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image's creation." Nesmith , 866 F.3d at 681. Our objective-observer inquiry "focus[es] on an observer's view of the image—what is portrayed and depicted—rather than the viewpoint of either the defendant or the victim." Id. at 680.

This court has found that the enhancement "is warranted when the sexual act depicted is likely to cause pain in one so young." United States v. Lyckman , 235 F.3d 234, 238 (5th Cir. 2000) (internal quotation marks and citation omitted). Specifically, we have upheld the enhancement in cases involving images of a child in bondage, United States v. Kimbrough , 69 F.3d 723, 734 (5th Cir. 1995), images "showing anal and vaginal penetration of minors through the use of sexual devices," United States v. Canada , 110 F.3d 260, 264 (5th Cir. 1997) (per curiam), and images "depict[ing] the physical penetration of a young child by an adult male," Lyckman , 235 F.3d at 240. And we have "twice upheld application of the enhancement where a young child was forced to orally copulate a parent on grounds that such conduct would humiliate and degrade the victim." United States v. Tanaka , No. 20-50171, 2021 WL 3355007, at *3 (5th Cir. Aug. 2, 2021) (per curiam) (unpublished) (citing United States v. Cloud , 630 F. App'x 236, 237–39 (5th Cir. 2015) (per curiam); United States v. Comeaux , 445 F. App'x 743, 745 (5th Cir. 2011) (per curiam)).

According to the PSR, the video in this case shows a child, age 12 or 13, lying completely nude, penetrating herself with a plastic hairbrush handle. Considering the standard articulated in Nesmith and the examples listed above, we conclude that an objective observer would perceive the conduct depicted in the video at issue "as causing [MV1] physical or emotional pain contemporaneously with the image's creation." Nesmith , 866 F.3d at 681. In so concluding, we underscore that the characteristics of the video—e.g., MV1's age and the object used—warrant application of § 2G2.1(b)(4)(A) in this case, rather than any per se rule applicable to self-penetration cases. Cf. United States v. Starr , 533 F.3d 985, 1001–02 (8th Cir. 2008) (adopting a per se approach). We...