IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41242

c/w No. 17-41253

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN KEVIN WALDRIP,

Defendant-Appellant

Cons w/No. 17-41253

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN KEVIN WALDRIP, also known as DVD Man,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 3:16-CR-16-1

United States Court of Appeals

Fifth Circuit

FILED

August 9, 2019

Lyle W. Cayce

Clerk

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Before JOLLY, HIGGINSON, and HO, Circuit Judges.

PER CURIAM:*

John Kevin Waldrip appeals the within-guidelines, 175-month sentences

imposed following his convictions for distribution, receipt, and possession of 

child pornography. He contends that the district court erred by finding that 

he is non-indigent for purposes of 18 U.S.C. § 3014 and, consequently, by 

imposing a total of $15,000 in special assessments under § 3014(a)(3). Waldrip 

also appeals his consecutive, 18-month revocation sentence, contending that 

the district court erred by holding that he committed a Grade A violation as 

defined by U.S.S.G. § 7B1.1. 

We review for clear error the district court’s determination that Waldrip 

is not indigent for purposes of § 3014. See United States v. Graves, 908 F.3d 

137, 140 (5th Cir. 2018), cert. denied, 139 S. Ct. 1360 (2019). In making the 

determination, the district court could consider Waldrip’s future earning 

capacity and whether he will be capable of paying the assessments over the 

span of 20 years following his release from prison. See Graves, 908 F.3d at 141-

43; § 3014(g); 18 U.S.C. § 3613(b). Given the record evidence of Waldrip’s 

education, his past record of employment and earnings, his identified monthly 

expenses, and his prospects for future employment as set forth in a letter 

written by his most recent employer, Waldrip fails to leave us “with the definite 

and firm conviction that a mistake has been made.” Graves, 908 F.3d at 144 

(internal quotation marks and citation omitted).

Because Waldrip failed to object to the classification of his supervised 

release violations under § 7B1.1, we review for plain error. See Puckett v.

 

* 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.

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United States, 556 U.S. 129, 135 (2009). To demonstrate plain error, Waldrip 

must show a forfeited error that is clear or obvious and that affects his 

substantial rights. See id. If he makes such a showing, we have the discretion 

to correct the error, but only if it seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. See id. We agree with the parties 

that Waldrip has made the necessary showing for the reasons below. 

Waldrip’s violative conduct does not constitute a crime of violence or 

controlled substance offense and does not involve possession of a firearm or 

destructive device. See § 7B1.1(a)(1)(A). Further, since Waldrip has no 

qualifying prior convictions, his violations of Texas Penal Code § 43.26 and 18 

U.S.C. §§ 2252A do not constitute Grade A violations because they are not 

punishable by terms of imprisonment exceeding 20 years. See § 7B1.1(a)(1)(B); 

§ 43.26(d) and (g) (providing that, absent prior § 43.26 convictions, violations 

of § 43.26 constitute second or third degree felonies under Texas law); 

§ 2252A(b)(1) and (2) (prescribing 20-year maximum sentences absent prior, 

enhancement-qualifying convictions). The district court thus committed clear 

or obvious error by holding that Waldrip had committed a Grade A violation. 

See Puckett, 556 U.S. at 135. 

The error affects Waldrip’s substantial rights since it incorrectly 

increases his guidelines range. See Molina-Martinez v. United States, 136 S. 

Ct. 1338, 1345 (2016). We exercise our discretion to correct the error. See 

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018); Puckett, 556 

U.S. at 135.

Waldrip’s convictions and sentences for distribution, receipt, and 

possession of child pornography are AFFIRMED. The revocation sentence is 

VACATED, and the revocation case is REMANDED for resentencing.

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