IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-31136

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BOBBY C. ODOM,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before KING, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:

Bobby C. Odom appeals his 264-month sentence following his guilty plea

to sexual exploitation of children, in violation of 18 U.S.C. § 2251(a), (e) and § 2. 

Odom’s sole contention on appeal is that the district court erred in applying a

two-level enhancement for distribution of explicit materials involving a minor

under § 2G2.1(b)(3) of the U.S. Sentencing Guidelines Manual. For the reasons

stated below, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant–Appellant Bobby C. Odom pleaded guilty to Count One of an

indictment charging him and Richard A. Franklin with the sexual exploitation

of children, in violation of 18 U.S.C. § 2551(a), (e) and § 2. The district court

imposed a Guidelines sentence, beginning with a base offense level of 32 under

United States Court of Appeals

Fifth Circuit

F I L E D

September 6, 2012

Lyle W. Cayce

Clerk

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U.S. Sentencing Guidelines Manual § 2G2.1(a). The district court increased the

offense level by two levels under § 2G2.1(b)(1)(B) based on its conclusion that

Odom’s offense involved a minor who had attained the age of 12 years but not

attained the age of 16 years, and the court imposed another two-level increase

under § 2G2.1(b)(2)(A) because the offense involved the commission of a sexual

act or sexual contact. The district court then imposed an additional two-level

increase under § 2G2.1(b)(3) based on its finding that Odom’s “offense involved

distribution.” Because Odom’s offense involved two minor victims, the district

court then calculated a combined offense level of 40 under § 3D1.4. Finally, the

district court applied a three-level reduction based on Odom’s acceptance of

responsibility under § 3E1.1(b), resulting in a total offense level of 37. Based on

the total offense level of 37 and Odom’s criminal history category of III, the

Guidelines imprisonment range was 262 to 327 months. The district court

imposed a sentence of 264 months’ imprisonment, followed by a supervised

release term of 10 years.

At sentencing, Odom objected to the imposition of the enhancement for

distribution under § 2G2.1(b)(3). The Guidelines define “distribution” as “any

act, including possession with intent to distribute, production, transmission,

advertisement, and transportation, related to the transfer of material involving

the sexual exploitation of a minor.” U.S. SENTENCING GUIDELINES MANUAL

§ 2G2.1 cmt. n.1. Odom contended that there was no evidence that any explicit

materials had been distributed, and that his assistance in producing the images

did not make out “distribution” under the Guidelines. However, the district

court adopted the finding in Odom’s Presentence Investigation Report (“PSR”)

that Franklin, Odom’s co-defendant, had “advised [lawenforcement]that several

adults had seen the [explicit] pictures [at issue].” The district court did not

expressly rule on Odom’s “production” argument, stating only that“the two-point

enhancement is not improperly applied in this particular case under those

factual circumstances set forth in the presentence report.” Odom timely

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appealed, reiterating his contention that the district court improperly applied

the enhancement for distribution under § 2G2.1(b)(3).

II. DISCUSSION

A. Standard of Review

Odom properly preserved his challenge to the district court’s imposition

of an enhancement under § 2G2.1(b)(3), and thus the district court’s adjustment

is reviewed for abuse of discretion. See United States v. Gutierrez, 635 F.3d 148,

154 (5th Cir. 2011). This court reviews the district court’s interpretation and

application of the Guidelines de novo, and the district court’s factual findings are

reviewed for clear error. United States v. Cisneros–Gutierrez, 517 F.3d 751, 764

(5th Cir. 2008). “There is no clear error if the district court’s finding is plausible

in light of the record as a whole.” Id. (citation and internal quotation marks

omitted). A factual “finding will be deemed clearly erroneous if, based on the

record as a whole, [this court is] left with the definite and firm conviction that

a mistake has been committed.” United States v. Ekanem, 555 F.3d 172, 175

(5th Cir. 2009) (citation and internal quotation marks omitted). 

Pursuant to Gall v. United States, 552 U.S. 38, 49–51 (2007), this court

engages in a bifurcated review process of the sentence imposed by the district

court. United States v. Delgado–Martinez, 564 F.3d 750, 752 (5th Cir. 2009). 

First, this court considers whether the district court committed a “significant

procedural error,” such as miscalculating the advisory Guidelines range. Id. If

there is no error or the error is harmless, this court may proceed to the second

step and review the substantive reasonableness of the sentence imposed for an

abuse of discretion. Id. at 753. Odom, however, does not challenge the

substantive reasonableness of his sentence on appeal.

B. Enhancement under U.S. Sentencing Guidelines Manual § 2G2.1(b)(3)

Odom contends that, in calculating his sentence, the district court erred

by imposing a two-level enhancement under § 2G2.1(b)(3). Odom challenges the

district court’s finding that Franklin distributed the explicit images Odom

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helped to produce. The district court based its finding on the statement in

Odom’s PSR that Franklin admitted that he allowed several adults to view the

images at issue. According to Odom, however, there is no evidence that Franklin

showed the images to anyone other than Odom. 

We conclude that the district court did not commit clear error in

concluding that, as set out in the PSR, Franklin had shown the images at issue

to several adults. As this court has stated,

[g]enerally, a PSR bears sufficient indicia of reliability to permit the

sentencing court to rely on it at sentencing. The defendant bears

the burden of demonstrating that the PSR is inaccurate; in the

absence of rebuttal evidence, the sentencing court may properly rely

on the PSR and adopt it.

United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (citation and internal

quotation marks omitted). At the sentencing hearing, counsel for Odom objected

to the enhancement under § 2G2.1(b)(3), and indicated that he had not seen

evidence that Franklin had shown the images at issue to anyone other than

Odom. However, “rebuttal evidence must demonstrate thatthePSR information

is materially untrue, inaccurate or unreliable.” United States v. Parker, 133 F.3d

322, 329 (5th Cir. 1998) (internal quotation marks omitted). In addition, “[m]ere

objections do not suffice as competent rebuttal evidence.” Id. Thus, Odom failed

to demonstrate that the PSR was inaccurate, and the district court did not

clearly err in finding that Franklin had shown the explicit images to several

adults.

Odom further argues that the § 2G2.1(b)(3) enhancement does not apply

because he did not distribute the images in question, and his help in producing

the images does not make out “distribution” as defined in the Guidelines. See

§ 2G2.1 cmt. n.1. Whether Odom personally “distributed” the images is

inapposite, however, because the district court implicitly determined that

Franklin’s act of distribution was fairly attributable to Odom as “relevant

conduct.” Under the Guidelines, the relevant conduct used to determine a

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defendant’s advisory sentencing range includes “all harm that resulted from” “all

acts and omissions committed . . . by the defendant.” § 1B1.3(a)(1), (a)(3). The

record shows that Franklin’s distribution of the images—the contemplated

“harm” to the minor victims—resulted from Odom’s help in producing them. 

United States v. Valenzuela-Contreras, 340 F. App’x 230, 236 (5th Cir. 2009)

(applying Guidelines enhancement where harm indirectly resulted from the

defendant’s acts). On appeal, Odom does not dispute thatFranklin’s distribution

of the explicit images constituted harm to the victims, or that Odom’s assistance

in producing the images ultimately resulted in their distribution. Odom

contends only that there was no evidence of distribution. However, as discussed

above, the district court’s factual finding that Franklin distributed the images

was not clearly erroneous. Consequently, we conclude that the district court

properly determined thatFranklin’s distribution of the images that Odom helped

to create was relevant conduct attributable to Odom.

III. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district

court.

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