United States v. Raylin Richard
901 F.3d 514
5th Cir.2018Background
- In 2015 Richard was charged by indictment with multiple counts (production/attempted production and possession of child pornography); later he waived indictment and pleaded guilty to one count in a bill of information: knowingly transporting child pornography in interstate commerce under 18 U.S.C. § 2252A(a)(1).
- The factual proffer: nude videos and images of a 12-year-old (victim lived with Richard and her mother) were found on Richard’s phone and the same media were found on a laptop in his vehicle after a forensic exam.
- The PSR applied a cross-reference from U.S.S.G. § 2G2.2 to § 2G2.1 (causing a minor to engage in sexually explicit conduct) and recommended a base offense level of 32, plus specific enhancements (minor under 16, custodial relationship) and a two-level obstruction enhancement for threatening/interfering via a jail call concerning a different 16-year-old.
- After a three-level acceptance reduction, Richard’s total offense level was 35, with Criminal History III, yielding an advisory Guidelines range of 210–240 months but capped by the 20-year statutory maximum; the district court sentenced him to 210 months and 15 years supervised release.
- On appeal Richard challenged (1) factual basis sufficiency for "transportation," (2) the § 2G2.1 cross-reference, (3) the § 3C1.1 obstruction enhancement, and (4) Eighth Amendment disproportionality; the Fifth Circuit affirmed.
Issues
| Issue | Richard's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of factual basis for § 2252A(a)(1) ("transportation") | Transfer of files phone→computer is not "transportation"; factual basis insufficient | Richard waived challenge to plea’s factual sufficiency by not moving to withdraw plea and seeking to preserve acceptance credit | Waived; no review on merits |
| Application of U.S.S.G. § 2G2.1 cross-reference under § 2G2.2(c)(1) | Cross-reference improper because he did not cause the minor to engage in sexually explicit conduct | Conduct resembles cases where recording/causing sexual conduct supported cross-reference | No clear error; cross-reference properly applied |
| § 3C1.1 obstruction-of-justice enhancement | Jail call to threaten/interfere with mother re: another minor did not obstruct justice for the instant offense | The threats related to investigation and to closely related conduct (texts with another minor); obstruction enhancement applies | Enhancement proper |
| Eighth Amendment excessive sentence | Sentence is grossly disproportionate | Issue waived on appeal for lack of briefing | Waived |
Key Cases Cited
- United States v. McCall, 833 F.3d 560 (5th Cir. 2016) (recording a minor in a bathroom supported finding defendant caused sexually explicit conduct)
- United States v. Palmer, 456 F.3d 484 (5th Cir. 2006) (plain-error review of plea sufficiency)
- United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (definition of waiver by affirmative choice)
- United States v. Arviso-Mata, 442 F.3d 382 (5th Cir. 2006) (waived errors are unreviewable)
- United States v. Serfass, 684 F.3d 548 (5th Cir. 2012) (clear-error standard for sentencing factual findings)