UNITED STATES OF AMERICA v. GEORGE DANIEL MCGAVITT
No. 20-20575
United States Court of Appeals for the Fifth Circuit
March 11, 2022
Appeal from the United States District Court for the Southern District of Texas USDC 4:19-CR-649-1
Before HIGGINBOTHAM, STEWART, and WILSON, Circuit Judges.
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 wаs 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 obtainеd 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
On August 15, 2019, McGavitt wаs 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 indiсtment 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
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
McGavitt‘s base offense level of 32 under
McGavitt objected that (1) the two-level enhancement for sexual contact, the four-level enhancement for sadistic or masochistic content, аnd 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
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) therе 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 rеputation 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
Section
This court has found that the enhancement “is warranted when the sexual act depictеd 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 appliсation 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)).
B.
McGavitt next contends that the district court erred by applying a two-level enhancement under
Under
McGavitt admitted that he coerced MV1 to produce child pornography and then send it “through [Facebook] to his cellular telephone.” From this, the district court concluded that McGavitt “knowingly engaged in distribution of child pornography (including aiding, abetting, inducing and willfully causing distribution),” and enhanced his sentence pursuant to the Guideline. McGavitt maintains that the district court erred in doing so because his conduct constituted “mere solicitation.” He emphasizes that “there was no evidence that [he] transferred images ofthe sexual exploitation of a minor to another person or otherwise made them available for public viewing.” But even assuming an error, McGavitt must establish that the error was “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).
As a whole, Section 2G2.1‘s text and relevant commentary support the district court‘s application of the enhancement. The court found that the principal act of distribution was MV1 taking and sending pornographic images and videos to McGavitt‘s cellular telephone through Facebook. Though this was done by MV1, not McGavitt, it nonetheless appears to fall under Application Note 1‘s broad definition of distribution as “any act, including... production, transmission ... and transportation, related to the transfer of material involving the sexual exploitation of a minor.”
While there is arguably some conflict between Application Note 1‘s exclusion of “mere solicitation,” uрon which McGavitt relies, and Application Note 3‘s various inclusions, that tension only demonstrates that any error here is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. In this circuit, a “lack of binding authority is often dispositive in the plain error context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015); see also United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010) (“An error is not plain ‘unless the error is clear under current law.‘“) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). “[E]ven where an argumentmerely requires extending existing precedent, the district court‘s failure to do so cannot be plain error.” Jimenez v. Wood Cty., Tex., 660 F.3d 841, 847 (5th Cir. 2011). Though we have found, for example, that “making the images available to others constitutes distribution[,]” United States v. Richardson, 713 F.3d 232, 235 (5th Cir. 2013), this court has not previously considered whether a defendant‘s coercing a minor to take and send images of child pornography qualifies as “distribution” under
And even if he demonstrated a clear or obvious error on this point, McGavitt cannot show that it affected his substantial rights. To satisfy the third prong of plain-error review, McGavitt “must show a reasonable probability that, but for the district court‘s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. Islas-Saucedo, 903 F.3d 512, 520 (5th Cir. 2018) (quoting United States v. Martinez-Rodriguez, 821 F.3d 659, 663–64 (5th Cir. 2016)). The other two challenged enhancements, which we affirm, raised McGavitt‘s total offense level from 38 to 44. The distribution enhancement raised it to 46. Removing that two-level enhancement, thereby reducing the total offense level from 46 to 44, would still result in the Guidelines maximum total offense level of 43. McGavitt thus cannot show that any error in applying the
C.
McGavitt next challenges his two-level enhancement under
Section
McGavitt pled guilty to Count 2, which charged that from approximately November 1, 2018, until May 26, 2019, he sexually exploitedMV1, by coercion and enticement, for the purpose of producing child pornography. The district court used Count 2 as the offense of conviction, and enhanced McGavitt‘s sentence under
The district court did not plainly err in applying the
McGavitt also contends that the district court‘s sexual intercourse finding was connected to his conviction for coercion and enticement for the purpose of rape (i.e., Count 1), so applying an adjustment for that conduct under
Here, the district court grouped Counts 1 and 2 together pursuant to
D.
Finally, McGavitt challenges the district court‘s application of the Guidelines grouping rules. He asserts that the court erred by selecting Count 2 as the “highest offense level,” and thus the offense level applicable to the group, without first determining the offense levels of the other counts in the group (Counts 1 and 3). Because McGavitt failed to preserve this argument, we review for plain error. See Pittsinger, 874 F.3d at 450–51.
Under “the [G]uidelines, a court should first determine the base level for an offense, then apply any appropriate specific offense characteristics or enhancements.” United States v. Dickson, 632 F.3d 186, 190 (5th Cir. 2011) (citing
It is unclear from the record whether the district court applied specific offense characteristics or enhancements to each count before grouping them together and determining the highest offense level in the group. Though the PSR states that “Count 2 results in the highest offense level and becomes the count for the group,” it does not include offense-level calculations (i.e., base offense level + enhancements - reductions) for Counts 1 and 3. But even assuming the district court erred by either misapplying the grouping rules оr simply failing to show its work, McGavitt‘s argument on this point lacks merit.
Because we affirm the four-level
IV.
We discern no reversible error in the district court‘s application of the four-level
AFFIRMED.