IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51069

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARL WADE BAILES,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:14-CR-211-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Carl Wade Bailes was convicted by a jury of two counts of distribution of 

child pornography, one count of receipt of child pornography, two counts of 

possessing material, i.e., a laptop computer, that contained an image of child 

pornography, and two counts of production of child pornography. The district 

court departed downwardly from the advisory guidelines range and sentenced 

him to a total of 1,620 months in prison.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2016

Lyle W. Cayce

Clerk

 Case: 15-51069 Document: 00513771520 Page: 1 Date Filed: 11/23/2016
No. 15-51069

2

Bailes challenges two evidentiary rulings that the district court made at 

trial. Bailes argues that the district court erred by allowing the Government 

to present testimony with regard to his long-term sexual abuse of his daughters

and allowing the Government to offer extrinsic evidence on a collateral matter 

during cross-examination of a character witness. We review the district court’s 

rulings for an abuse of discretion, subject to harmless-error analysis, United 

States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999). For the evidentiary rulings

to constitute reversible error, the admission of the evidence must have affected 

Bailes’s substantial rights and actually contributed to the jury’s verdict. Id. at 

206; FED. R. CRIM. P. 52(a).

The district court did not abuse its discretion in admitting evidence of 

Bailes’s prior sexual abuse of his prepubescent daughters, M.B. and A.B. The 

evidence was admissible under Federal Rule of Evidence 414, and its probative 

value was not substantially outweighed by the danger of unfair prejudice. See

FED. R. EVID. 403(b), 414(a). The evidence reflected Bailes’s deviant sexual 

attraction to young girls and his motive to commit crimes involving the sexual 

exploitation of children; the evidence was probative as to whether the child 

pornography found on his computer devices – which depicted acts similar to 

his conduct with his daughters – was knowingly possessed by him or placed 

there by mistake, accident, or someone else. See United States v. Caldwell, 586 

F.3d 338, 345-46 (5th Cir. 2009). Further, the evidence was probative as to the 

charge that he made videos of M.B. and A.B. engaging in sexual acts because 

it was consistent with, and indicative of, the conduct depicted in the videos and 

suggested his intent to translate his sexual exploitation of M.B. and A.B. to the 

production of child pornography involving them. See United States v. Hitt, 473 

F.3d 146, 159 (5th Cir. 2006). The evidence also was relevant as to the issue 

 Case: 15-51069 Document: 00513771520 Page: 2 Date Filed: 11/23/2016
No. 15-51069

3

of identity because Bailes disputed that he was the adult male in the videos of

his daughters and was reflective of his modus operandi. See id.

The above-detailed probative value of the evidence was not substantially 

outweighed by the risk of unfair prejudice. See FED. R. EVID. 403. Because of

the similarity between Bailes’s sexual conduct and the activities shown in the 

videos that were offered at trial, there is no indication that the jury would be

distracted or confused or induced to decide the case on an improper basis. See 

United States v. Dillon, 532 F.3d 379, 389 (5th Cir. 2008). The evidence was 

not so inflammatory as to divert unduly the jury’s attention from the issues of 

the case, which involved graphic evidence as to the child-pornography images 

that Bailes possessed and distributed and lurid evidence as to the conduct on 

the videos that Bailes produced. Moreover, the evidence was subject to crossexamination and rebuttal, and the district court instructed the jury that Bailes 

could be convicted only based upon the acts alleged and the crimes charged. 

See United States v. Crawley, 533 F.3d 349, 355 (5th Cir. 2008).

Bailes likewise is not entitled to relief on his claim that the district court 

improperly allowed the Government to introduce during the cross-examination 

of his mother, who testified as to her opinion of Bailes’s truthfulness, letters in 

which Bailes falsely stated that he received a Purple Heart. Even if the letters 

were improper rebuttal evidence under Federal Rule of Evidence 404(a)(2), and 

exceeded the inquiry allowed under Federal Rule of Evidence 405(a), any error 

was harmless. See Cantu, 167 F.3d at 203, 206. The evidence of Bailes’s guilt 

– which included, inter alia, the results of forensic reviews of Bailes’s computer

equipment showing that he possessed images and videos of child pornography, 

testimony from M.B. and A.B. asserting that Bailes produced child 

pornography involving them, and evidence of child pornography featuring M.B.

and A.B. – was overwhelming. Bailes’s credibility was not dispositive or 

 Case: 15-51069 Document: 00513771520 Page: 3 Date Filed: 11/23/2016
No. 15-51069

4

significant, and, thus, there is no indication that any evidence as to whether 

he was truthful about receiving a Purple Heart affected the jury’s assessment, 

i.e., Bailes not shown that introduction of evidence that he falsely informed

others that he received a Purple Heart affected the jury’s evaluation of the 

evidence and its ultimate determination of his guilt. See id. at 206; FED. R.

CRIM. P. 52.

Finally, Bailes argues that his sentence was substantively unreasonable. 

We typically review the substantive reasonableness of a sentence for an abuse 

of discretion. Gall v. United States, 552 U.S. 38, 46, 49-51 (2007). However, if 

a defendant fails to challenge the reasonableness of the sentence in the district 

court, our review is for plain error only. See United States v. Peltier, 505 F.3d 

389, 391-92 (5th Cir. 2007). Bailes seeks to preserve for possible further review 

the claim that, for the abuse-of-discretion standard to apply, a defendant need 

not object to the reasonableness of a sentence after its imposition. We need not 

resolve the standard of review because Bailes is not entitled to relief even if he 

preserved a challenge to the substantive reasonableness of his sentence. See 

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

The district court made an individualized sentencing decision based on 

the facts of the case and with reference to the 18 U.S.C. § 3553(a) factors. See 

Gall, 552 U.S. at 49-50. The district court considered the parties’ sentencing 

arguments – including, inter alia, Bailes’s claim that a 30-year sentence was 

adequate and that he should receive a lesser sentence due to his poor health –

and granted a downward departure under U.S.S.G. § 5H.11. The district court 

was authorized to run the sentences for each count consecutively to obtain the 

aggregate sentence that it found to be appropriate, see U.S.S.G. § 5G1.2(d); 

United States v. Heard, 709 F.3d 413, 426 (5th Cir. 2013), and Bailes has failed 

to show that his sentence was unjustifiably harsh relative to similarly situated

 Case: 15-51069 Document: 00513771520 Page: 4 Date Filed: 11/23/2016
No. 15-51069

5

defendants nationwide, see United States v. Candia, 454 F.3d 468, 476 (5th Cir. 

2006). Bailes’s disagreement with the district court’s sentencing decision and 

its weighing of the § 3553(a) factors is insufficient to rebut the presumption 

that his sentence was reasonable. See United States v. Ruiz, 621 F.3d 390, 398 

(5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Thus, 

he has not shown that his sentence is substantively unreasonable.

AFFIRMED.

 Case: 15-51069 Document: 00513771520 Page: 5 Date Filed: 11/23/2016