IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30387

UNITES STATES OF AMERICA

Plaintiff - Appellant

v.

DAVID VINCENT DUHON

Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

David Duhon pleaded guilty to one court of possessing child pornography

in violation of 18 U.S.C. § 2252A(a)(5). The district court applied a substantial

downward variance from the Sentencing Guidelines (“Guidelines”) and

sentenced him to sixty months of probation. The Government appealed Duhon’s

non-Guideline sentence. In light of the recent United States Supreme Court

opinion in Gall v. United States, 128 S. Ct. 596 (2007), we AFFIRM.

I.

After Duhon was arrested for downloading fifteen images of child

pornography from the internet, he pleaded guilty to possessing child

United States Court of Appeals

Fifth Circuit

F I L E D

August 18, 2008

Charles R. Fulbruge III

Clerk
No. 05-30387

1 The district court also held a sentencing hearing for Duhon in August 2004 but

continued the hearing until after the United States Supreme Court decided United States v.

Booker, 543 U.S. 220 (2005), which was then pending before the Court. 

2

pornography. Starting from a base offense level of fifteen, the presentence

report (“PSR”) recommended three two-level enhancements because: (1) the

images depicted minors under twelve years old; (2) the offense involved ten or

more images; and (3) Duhon used a computer. In the factual stipulation that

Duhon submitted with his plea, he admitted only the last allegation. After

subtracting three levels for acceptance of responsibility, the PSR found that the

total offense level was eighteen and calculated the Guideline range at twentyseven to thirty-three months of imprisonment.

On February 28, 2005, the district court held a sentencing hearing for

Duhon.1 Because the district court believed that, under United States v. Booker,

543 U.S. 220 (2005), it could enhance Duhon’s sentence using only facts that he

had admitted, it refused to apply the enhancements based on the age of the

minors and the number of images involved in the offense. Therefore, the district

court determined that the total offense level was fourteen instead of eighteen

and that the Guideline range was fifteen to twenty-one months of imprisonment

instead of twenty-seven to thirty-three months of imprisonment. The

Government objected to the district court’s interpretation of Booker. 

After calculating the Guideline range, the district court stated its intent

to apply a downward variance based on the 18 U.S.C. § 3553 factors. While

acknowledging the seriousness of Duhon’s offense and the importance of

fostering “respect for the law,” the district court nonetheless concluded that

incarceration was unnecessary and inappropriate in this case. The district court

based its decision on the following findings: (1) Duhon did not have a criminal

history; (2) there was no indication that Duhon posed a threat to the public; (3)

Duhon would benefit most from continuing his psychologicaltreatment with Dr.
No. 05-30387

3

Brennan, whom the Government acknowledged was well regarded; (4)

incarceration would cause Duhon to lose his Social Security disability benefits;

and (5) Duhon’s codefendant received probation for similar conduct. Accordingly,

the district court sentenced Duhon to sixty months of probation. After the

Government objected to “the Court’s variance and deviation from the guideline

range,”the district court made clear thatit would have so sentenced Duhon even

if it erred by refusing to apply all the enhancements recommended by the PSR.

We originally vacated and remanded Duhon’s sentence in United States

v. Duhon, 440 F.3d 711 (5th Cir. 2006). But after the United States Supreme

Court issued its opinion in Gall, it granted Duhon’s petition for writ of certiori

and vacated and remanded the case to us for further consideration. Duhon v.

United States, 128 S. Ct. 853 (2008). We now revisit this case and affirm.

II.

Our review of district court sentencing decisions is bifurcated. United

States v. Rowan, – F.3d –, 2008 WL 2332527, at *1 (5th Cir. June 4, 2008).

“[We] must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, . . . failing to consider the § 3553 factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen

sentence . . . .” Gall, 128 S. Ct. at 597. We review the district court’s

interpretation of the Guidelines de novo and its findings of fact for clear error.

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

“Provided that the sentence is procedurally sound, [we] then consider[] the

‘substantive reasonableness of the sentence imposed under an abuse-ofdiscretion standard.’” Id. (quoting Gall, 127 S. Ct. at 597). 

III.
No. 05-30387

4

The Government challenges the procedural soundness of Duhon’s

sentence. According to the Government, the district court committed reversible

error when it miscalculated the Guideline range. Moreover, the Government

asserts that the district court improperly considered the sentence that Duhon’s

codefendant received in its analysis. Finally, the Government contends that the

district courtfailed to consider relevant Guideline provisions. After considering

the Government’s arguments, we are not convinced that the district court’s

sentencing decision should be disturbed.

A.

The district court misinterpreted Booker when it refused to apply the

enhancements based on the age of the minors and the number of images

involved in the offense. Because Booker does not “impede a sentencing judge

from finding all facts relevant to sentencing,” district courts may make factual

findings relevant to sentencing under the preponderance-of-the-evidence

standard. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Therefore,

the district court was incorrect when it concluded that it could enhance Duhon’s

sentence using only Duhon’s admissions or jury findings. The facts in the PSR

supported applying the enhancements, and the district court erred when it

applied only one of the enhancements recommended by the PSR. See United

States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007) (“The district court may

adopt the facts contained in a [presentence report] without further inquiry if

those facts have an adequate evidentiary basis with sufficient indicia of

reliability and the defendant does not present rebuttal evidence or otherwise

demonstrate thatthe information in the PSR is unreliable.”) (internal quotation

marks and citation omitted).

But “[n]ot all errors in determining a defendant’s guideline sentence

require reversal.” United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008).

Even after Gall, we have found that an error in applying the Guidelines is
No. 05-30387

2 While Duhon does not argue that plain-error review applies, we may make this

determination sua sponte because “no party has the power to control our standard of review.”

United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992).

5

reversible error in cases involving non-Guideline sentences only if the sentence

resulted from the error. See id. Moreover, in Bonilla, we concluded that a nonGuideline sentence does not result from the district court’s miscalculation of the

Guideline range if the district court: (1) contemplated the correct Guideline

range in its analysis and (2) stated that it would have imposed the same

sentence even if that range applied. See id.

The facts in this case are indistinguishable from Bonilla. Here, the

district court was aware of the correct Guideline range because it was in the

PSR, and the Government had vehemently argued for the enhancements during

the sentencing proceeding. While it ultimately erred by failing to apply the

enhancements, the district court declared that it would have sentenced Duhon

to sixty months of probation even if it miscalculated the Guideline range. Under

Bonilla, the district court’s error is not reversible, and we cannot remand on this

basis. 

B.

As discussed above, the Government also contends that the district court

committed procedural error when it: (1) took into account the disparity between

Duhon’s sentence and his codefendant’s sentence under the Guidelines and (2)

failed to consider pertinent Guideline provisions. Because the Government

failed to preserve these objections, our review is limited to plain error.2

The plain-error standard of review applies when a party challenges a

district court’s sentencing decision on grounds it did not present to the district

court. See United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007). In

this case, the Government made only two objections to the district court. First,

it objected to a precise procedural error–the district court’s refusal to apply all
No. 05-30387

6

the enhancements recommended by the PSR. Second, it objected to “the Court’s

variance and deviation from the guideline range,” which seemingly challenged

the substantive reasonableness of Duhon’s non-Guideline sentence. Neither

objection sufficiently placed the district court on notice that the Government

thought that the district court had failed to consider all pertinent Guideline

provisions or that it had erroneously considered the sentence received by

Duhon’s codefendant. Therefore, we review these purported errors only for plain

error. See United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)

(finding that the defendant’s argument before the district court did not preserve

error because “it was not sufficient to put the district on notice” of his claim). 

When reviewing for plain error, “[w]e may correct the sentencing

determination only if (1) there is error (and in light of Booker, an ‘unreasonable’

sentence equates to a finding of error); (2) it is plain; and (3) it affects

substantial rights.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).

In addition, we cannot correct an error that was not preserved unless the error

“seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal

quotation marks and citation omitted) (alteration in original).

1.

The district court erred when it considered the sentencing disparity

between Duhon and his codefendant. In determining an appropriate sentence,

courts must consider the § 3553 factors. Gall, 128 S. Ct. at 596-97. Section

3353(a)(6) requires courts to take into account “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been

found guilty of similar conduct.” (emphasis added). Here, a sentencing disparity

between Duhon and his codefendant exists under the Guidelines because

Duhon’s codefendant received a downward departure for providing substantial

assistance in the Government’s prosecution of Duhon. But “[d]isparity in
No. 05-30387

7

sentences between a defendant who provided substantial assistance and one who

provided no assistance . . . is not unwarranted.” United States v. Gallegos, 480

F.3d 856, 859 (8th Cir. 2007); see also United States v. Bras, 483 F.3d 103, 114

(D.C. Cir. 2007) (finding that one reason the sentencing disparity between

defendant and his co-conspirators was not unwarranted was because the coconspirators “provided substantial assistance in the investigation of the

scheme”). Therefore, the district court’s consideration of the warranted

sentencing disparity between Duhon and his codefendant was improper.

Despite the district court’s error, however, we cannot remand under plainerror review because the Government failed to establish that the error affected

substantial rights. See Mares, 402 F.3d at 521. To show that an error affected

substantial rights, the appellant must demonstrate that the error “affected the

outcome of the district court proceedings,” Olano, 507 U.S. at 734, and therefore

sufficiently undermines the public’s confidence in the outcome. Mares, 402 F.3d

at 521. Although the district court impermissibly considered the sentencing

disparity between Duhon and his codefendant, it also made clear thatit believed

probation was appropriate because of a variety of characteristics particular to

Duhon’s case, including the absence of a criminal history and its belief that

Duhon would benefit from continuing treatment with his doctor. In fact, after

the Government objected to the variance, the district court reiterated that it

thought probation was appropriate by emphasizing the importance of allowing

Duhon to continue medical treatment. Because of the district court’s “strong

emphasis on [Duhon’s] general need for treatment and its reliance on other

proper factors,” we cannot conclude that the district court’s improper

consideration of the sentencing disparity between Duhon and his codefendant

was “so essential to the judgment as to affect. . . substantial rights.” Peltier, 505

F.3d at 393-94. Therefore, we cannot remand on this basis.

2.
No. 05-30387

8

Finally, the Government contends that the district court procedurally

erred because it did nottake into accountthe Guideline provisions that preclude

probation in this case. The Government is correct that the Guidelines do not

authorize sentencing Duhon to probation. When the applicable Guideline range

is in Zone C or D of the Sentencing Table, the Guidelines dictate that probation

is inappropriate. See U.S.S.G. §§ 5B1.1 cmt. n.2, 5C1.1(f). Both Duhon’s correct

Guideline range and the range incorrectly used by the district court fall within

Zone D. See U.S.S.G. § 5A. Therefore, in this case, probation is not the “kind[]

of sentence” available under the Guidelines. See 18 U.S.C. § 3553(a)(4).

“[A] checklist recitation of the section 3553(a) factors is neither necessary

nor sufficient for a sentence to be reasonable.” United States v. Smith, 440 F.3d

704, 707 (5th Cir. 2006). But when the district court makes a sentencing

decision prohibited by Guideline provisions, we have previously found that it

must acknowledge these provisions so that we know thatit had considered them.

See United States v. Simmons, 470 F.3d 1115, 1131 (5th Cir. 2006); United

States v. Guidry, 462F.3d 373, 377 (5th Cir. 2006) (finding thatthe district court

ignored a Guideline policy statement stating thatfamily ties and responsibilities

are not ordinarily relevant because it did not acknowledge the policy statement

during sentencing). Because the district court did not acknowledge the

Guideline provisions precluding probation in this case, we ostensibly cannot

presume that it considered these provisions. 

But whether we can still require district courts to acknowledge Guideline

provisions given recent United States Supreme Court precedent is unclear. In

Rita v. United States,for example,the United States Supreme Court pronounced

that, in some circumstances, district courts applying a variance need only give

a brief explanation. 127 S. Ct. at 2468. Because our review is limited to plain

error, however, we need not decide this question here. As discussed above, it is

evident from the transcript of the sentencing hearing that the district court
No. 05-30387

3 The Government also contends that the district court improperly relied on Duhon’s

purported back problems and its seemingly erroneous conclusion that the Guidelines made no

distinction between possessors of child pornography and child molesters. After reexamining

the sentencing transcript, we find that the district court did not rely on these considerations

when it sentenced Duhon to probation. 

The Government is correct that the district court noted that Duhon had “some issues

with a disc.” But this statement was related to the district court’s finding that Duhon received

Social Security disability benefits and that Duhon would lose those benefits if he was

incarcerated. Therefore, the district court’s concern was that Duhon might lose his disability

benefits and not that Duhon suffered from back problems.

The Government is also correct that the district court observed that the Guidelines

purportedly did not distinguish possessors of child pornography from child molesters. But the

district court made this statement more than six months before the district court actually

sentenced Duhon. Therefore, we cannot credibly find that it was a factor in the district court’s

sentencing decision. 

9

strongly believed that probation was appropriate in this case given Duhon’s

unique circumstances. Therefore, we cannot say that any potential error was

outcome determinative and so affected substantial rights as to allow us to

remand the case to the district court.3

IV.

The Government also argues that Duhon’s sentence was substantively

unreasonable. The crux of the Government’s contention is that the district court

weighed too lightly the seriousness of the offense but weighed too heavily the

characteristics of the defendant. This argument lacks merit.

Because the Government explicitly objected to the variance in this case,

we review Duhon’s sentence for substantive reasonableness under an abuse-ofdiscretion standard of review. See Peltier, 505 F.3d at 391-92. In Gall, the

United States Supreme Court cautioned that, when reviewing the district court’s

sentencing decision for substantive reasonableness, we “must give due deference

to the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” 128 S. Ct. at 597. “The fact that the appellate court

might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Id.
No. 05-30387

10

In a similar case involving possession of child pornography, we found postGall that a sentence of sixty months of probation was substantively reasonable.

United States v. Rowan, – F.3d –, 2008 WL 2332527, at *1 (5th Cir. June 4,

2008). In contrast to Duhon who downloaded 15 images of child pornography,

the defendant in Rowan possessed over 400 images of hardcore child

pornography. The district court, however, believed probation was appropriate

because Rowan, like Duhon, did not have a criminal history and also would

benefit most from continuing his medical treatment with his psychologist.

Therefore, given that we affirmed the district court in Rowan, we conclude that

the district court in this case likewise did not abuse its discretion by sentencing

Duhon to sixty months of probation and that the sentence was substantively

reasonable. 

V.

For the reasons above, we AFFIRM.