### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 10082

UNITED STATES OF AMERICA,

Plaintiff

– Appellee,

v. RONALD ERIC ARY,

Defendant

– Appellant.

Appeal from the United States District Court for the Northern District of Texas

Before ELROD, COSTA, and HO, Circuit Judges

. JENNIFER WALKER ELROD, Circuit Judge: Ronald Ary appeals his sentence following a conviction for distributing a visual depiction of a minor engaged in sexually explicit conduct. He argues that the district court erred in determining that his Texas deferred adjudications qualify as prior convi ction s for the purpose of 18 U.S.C. § 2252(b)(1)’s sentencing enhancemen t and in sentencing him to a term of imprisonment that exceeded the statutory maximum term of imprisonment charged in his indictment. Because the district court did not err, we AFFIRM

. I. Ary pleaded guilty to distributing a visual depiction of a minor engaged in sexually expl icit conduct. Under 18 U.S.C. § 2252(b)(1 ), Ary was subject to United States Court of Appeals Fifth Circuit 

### FI LED June 14, 2018 Lyle W. Cayce Clerk Case: 17-10082 Document: 00514514051 Page: 1 Date Filed: 06/14/2018No. 17

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2 a maximum term of imprisonment of 20 years unless he had a prior conviction involving the sexual exploitation of a minor. 18 U.S.C. § 2252(b)(1). The United States Probation Office prepared a presentence report, which noted that Ary had pleaded guilty in Texas state court to one charge of aggravated sexual assault and one charge of indecency with a child. For both offenses, Ary was granted deferred adjudication and placed on ten years of probation with a condition to serve 90 days of imprisonment. With a total offense level of 42 and a criminal history c ategory of III , Ary’s range was 360 months to life imprisonment under the United States Sentencing Guidelines

. T he presentence report explained that the applicable maximum term of imprisonment depended on whether Ary had any qualifying prior convictions for the se xual exploitation of children. Se e 18 U.S.C. § 2252(b)(1). Ordinarily, for an offense under § 2252, the statutory minimum term of imprisonment is 5 years, and the maximum term of imprisonment is 20 years. See § 2252(b) (1) . However, if a defendant has a previous conviction for sexual exploitation under certain federal statutes or “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipmen t, or transportation of child pornography, or sex trafficking of children,” the statutory minimum and maximum term s of imprisonment increase to 15 years and 40 years , respectively

. 18 U.S.C. § 2252(b)(1).
The presentence report noted Ary’s G uidelines rang e would be 360 to 480
months if the district court determined that he had a qualifying prior
conviction. 1 If not, the Guidelines term of imprisonment would be 240

1 The statutory maximum sentence (480 months) is less than the maximum G uideline s term (life), so the Guidelines maximum term of imprisonment becomes 480 months. U.S.S.G. § 5G1.1(a). Case: 17-10082 Document: 00514514051 Page: 2 Date Filed: 06/14/2018No. 17

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3 months. 2 Responding to the presentence report , the government argued that
the enhanced stat utory maximum term in § 2252(b)(1) should be applied in Ary’s case because his deferred adjudication s qualified as prior convictions. In his objections to the presentence report , inter alia , Ary argued that the enhanced statutory maximum term should not be used to calculate his Guidelines range because : (1) Texas deferred adjudications do not qualify as convictions for purposes of § 2252(b)(1); and (2) his prior convictions were not alleged in his indictm ent or admitted by him. The district court determined that Ary’s deferred adjudications qualified

as p rior convictions and applied the enhanced minimum and maximum terms of imprisonment set forth in § 2252(b)(1). It sentenced Ary t o 360 mont hs of imprisonment and a life term of supervised release. Ary timely appealed.
II. Because Ary preserved his argument s for appell ate review, we review
his claims de novo

. See United States v. Hubbard , 480 F.3d 341, 344 (5th Cir. 2007).
III. According t o Ary, the district court erred in treating Ary’s deferred adj udications as prior convictions because they are not conviction s under § 2252(b)(1). Section 2252(b)(1) provides that a defendant who has a “prior conviction under . . . the laws of any State r elating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children” is subject to

2 The statutory maximum sentence (2 4 0 months) is less than the maximum Guidelines term ( 360 months ), so the Guidelines term of imprisonment becomes 240 months. U.S.S.G. § 5G1.1(a). Case: 17-10082 Document: 00514514051 Page: 3 Date Filed: 06/14/2018No. 17

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4 a term of imprisonment of at least 15 years but not more than 40 years. 18 U.S.C. § 2252(b)(1). “Conviction” is not defined for the purpose of the § 2252(b)(1) sentencing enhancement

. See 18 U.S.C. § 2256. And neither party has identified any Fifth Circuit cases addressing the question of whether a deferred adjudication qualifies as a “prior con viction” for the purposes of this
enhancement

. One issue is whether we should consult state or federal law to defi ne

“ conviction

. ” 3 T he language of § 2252(b)(1) specifies that this sentencing
enhancement a pplies if the defendant has a prior conviction, inter alia , “under the laws of any State relating to” the sexual exploitation of minors. 18 U.S.C. § 2252(b)(1) (emphasis added). T here is a list of federal crimes between “ prior
conviction ” and “under the law s of any State,” but the prepositional phrase beginning with “under the laws of any State” refe rs to prior conviction.
A bsent “a plain indication to the con trary

. 

### . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.” NLRB v. Nat. Gas Utility Dist. of Hawkins Cty. , 402 U.S. 600, 603 (1971). Here , there is arguably a “plain indication to the contrary” in the text of the statute. Section 2252(b)(1) appears to instruct us
to analyze whether the defendant has a prior conviction under “the laws of any State

. ” “[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd. v. United States , 541 U.S. 176, 183 (2004). The statutory language suggests that we should consult state law to
determine whether a deferred adjudication qualifies as a prior conviction under § 2252(b)(1).

3 It is true that “[w]hether the Sentencing Guidelines apply to a prior conviction is a question of federal law.” United States v. Mills , 843 F.3d 210, 213 (5th Cir. 2016). Here, we are interpreting a federal statute , not a provision of the Sentencing Gui delines , and so Sentencing Guidelines enhancement cases do not control. Case: 17-10082 Document: 00514514051 Page: 4 Date Filed: 06/14/2018No. 17

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5 The Eighth Circuit has said otherwise. Sitting en banc , the Eighth Circuit consulted federal law to decide whether a juvenile deferred adjudication is a “conviction” under § 2252(b)(1). United States v. Gauld , 865 F.3d 1030, 1032 (8th Cir. 2017) (en banc). Gauld cites to an earlier Eighth Circuit case that held that a similar statute

— 18 U.S.C. § 2252A(b)(2)

— looks to federal law to determine what is a “ conviction ,” but Gauld itself does not address the state versus federal issue in detail. See i d. (“Even though Gauld’ s adjudication occurred under state law, we look to federal law to define this
term .” (citing United States v. Storer , 413 F.3d 918, 921 (8th Cir. 2005)) )

. 4 However, we need not decide whether federal or state law defines “conviction” under § 2252(b )(1 ). Under either state or federal law, Ary’s deferred adjudications qualify as prior conviction s. Ordinarily, “[u] nder Texas law, deferred adjudication probation is neit her a conviction nor a sentence .” United States v. Mondragon

- Santiago , 564 F.3d 35 7, 368 n.9 (5th Cir. 2009) (citing Hurley v. State , 130 S.W.3d 501, 506 (Te x. App.

— Dallas 2004, no pet.)). However, there are exceptions to this general rule

. Prior d eferred adjudications for certain offenses , including aggravated sexual a ssault and
in de cency with a child , are counted as prior convictions under the
enhancement scheme for repeat and habitual offenders

. Tex. Penal Code § 12

. 42(g); see also Scott v. State , 55 S.W.3d 593, 595

– 96 (Tex. Crim. App. 2001). As such, Ary’s two deferred adjudication s , for aggravated sexual assault and indecency with a child, would be considered convictions u nder the Texas Penal Code. If we were writing on a blank slate, the question of whether a deferred adjudication qualifies as a prior conviction unde r federal law would be more

4 Interpreting 18 U.S.C. § 2252A(b)(2), t he Eleventh Circuit has also consulted federal law to determine what qualifies as a conviction

. United States v. Maupin , 520 F.3d 1304, 1306

– 0 7 (11th Cir. 2008). Case: 17-10082 Document: 00514514051 Page: 5 Date Filed: 06/14/2018No. 17

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6 difficult. We are not. As we have observed in a number of cases , 5 “[f] ederal law counts Texas’s deferred adjudication probation as a conviction.” Mondragon

- Santiago , 564 F.3d at 368; s ee also United States v. Mills , 843 F.3d 210, 216 (5th Cir. 2016) (discussing “our treatment of deferred adjudication as the functional equivalent of a final conviction in various other contexts” under federal law). I n United States v. Cisneros , we held that a defendant’s deferred adjudication was a prior conviction “for purposes of sentence enhancement under § 841(b)(1)(A).” 112 F.3d 1272, 1282 (5th Cir. 1997)

. W e reasoned that the state trial court “had to find the evidence substantiated” the defendant’s guilt even though it did not e nter an adjudication of guilt, and so the defendant’s guilty plea that resulted in a deferred adjudication qualified as a prior conviction

. Id. Here, Ary plea ded guilty to these two offense s ; the district
court d etermined that there was sufficient evidence of Ary’s guilt and entered orders of deferred adjudication. Therefore , Ary’s deferred adjudications qualify

as convictions under federal law as well as state law

. Accordingly , the district court did not err in applying § 2 2 52(b)(1)’s sentencing enhancement based on Ary’s deferred adjudications

. IV. Ary also argues that his due process rights were violated because his indictment did not allege a prior conviction, and his sentence exceeds the statutory maximum t erm of imprisonment under § 2252(b)(1) for a defendant without a qualifying prior convicti on. As Ary acknowledges, his argument is

5 We have repeatedly treated Texas deferred adjudications as “convictions” under federal law. See, e.g., Mills , 843 F.3d at 215 (holding a Texas deferred adjudication is a prior conviction for purposes of section 4B1.5(a) of the Sen tencing Guidelines); DeLeon v. City of Corpus Christi , 4 88 F.3d 649, 653

– 56 (5th Cir. 2007) (holding that a Texas deferred adjudication is a conviction for purposes of a dismissal of a § 1983 action); United States v. Stauder , 73 F.3d 56, 56

– 57 (5th Cir. 1996) (determining that a Texas deferred adjudication is a prior conviction when calculating the defendant’s criminal history score under the Sentencing Guidelines). Case: 17-10082 Document: 00514514051 Page: 6 Date Filed: 06/14/2018No. 17

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7 foreclosed by Almendarez

- Torres v. United States , 523 U.S. 224 (1998). See
also Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) (“ Other than the fact of a prior conviction , any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and pro ved beyond a reasonable doubt.” (emphasis added))

. We are bound by our preceden t, and Ary’s due process c laim fails

. AFFIRMED. Case: 17-10082 Document: 00514514051 Page: 7 Date Filed: 06/14/2018