IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50809

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTHONY PATRICK CAUDILL,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:09-CR-203-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Anthony Patrick Caudill appeals the 240-month

prison sentence he received after his guilty plea conviction for knowingly

transporting child pornography through interstate commerce. Caudill contends

that the district court erred in applying U.S.S.G. § 2G2.2(c)(1)’s cross reference

to § 2G2.1 to obtain his base offense level. He further asserts that the district

court erred in enhancing his offense level pursuant to §§ 2G2.1(b)(5) and

2G2.1(b)(2)(A).

United States Court of Appeals

Fifth Circuit

F I L E D

June 1, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-50809 Document: 00511494237 Page: 1 Date Filed: 06/01/2011
No. 10-50809

We review a district court’s interpretation or application of the Guidelines

de novo, and its factual findings for clear error. United States v. Lopez-Urbina,

434 F.3d 750, 762-63 (5th Cir. 2005). The applicable cross reference at issue in

this case is triggered if the “offense involved causing, transporting, permitting,

or offering or seeking by notice or advertisement, a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such conduct.”

See § 2G.2.2(c)(1). The cross reference is to be construed broadly, see § 2G2.2,

comment. (n.5), and the term “offense,” as used in the cross reference includes

both charged and uncharged conduct. See U.S.S.G. §1B1.1, comment. (n.1(H))

(defining “offense” to include “the offense of conviction and all relevant conduct

under § 1B1.3").

The district court properly considered the taking of nude photographs of

an underage victim as relevant conduct pursuant to § 1B1.3(a)(2) because

Caudill’s action was part of the same course of conduct as the offense of

conviction. See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009);

United States v. Canada, 110 F.3d 260, 264; § 1B1.3(a)(2); § 1B1.3, comment.

(n.9(A), (B)). Furthermore, while taking the illicit photographs, Caudill touched

the victim’s vagina, causing harm. See § 1B1.3(a)(3). Accordingly, the district

court did not clearly err in applying the cross reference. See Lopez-Urbina, 434

F.3d at 763.

Likewise, because Caudill’s actions were properly considered relevant

conduct and the offense involved sexual contact, the district court did not err in

applying a two-level sentencing enhancement pursuant to §2G2.1(b)(2)(A). See

Lopez-Urbina, 434 F.3d at 763. Moreover, Caudill admitted on several occasions

that he actually babysat the victim. Therefore, his objection to the district

court’s application of a two-level sentencing enhancement pursuant to §

2G2.1(b)(5) because the minor was in his care or custody is without merit. See

§ 2G2.1(b)(5), comment. (n.3(A)). Accordingly, the judgment of the district court

is AFFIRMED.

2

Case: 10-50809 Document: 00511494237 Page: 2 Date Filed: 06/01/2011