[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 97-6236 Non-Argument Calendar

________________________ D. C. Docket No. CR-96 B-285-NE

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus T. GLENN ANDERTON, a.k.a. Thomas Glenn Anderton, REBA SUE ANDERTON, Defendants-Appellants.

________________________ Appeals from the United States District Court for the Northern District of Alabama

_________________________ (March 4, 1998)
Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM: Appellants T. Glenn Anderton (“Mr. Anderton” ) and Reba Sue Anderton (“Mrs. Anderton”) were convicted by a jury of one count of receivi ng by mail a visual depiction of a minor engaged2 in sexually explicit conduct, in violation of 18 U. S.C. § 2252(a)(2), and one count of using the mail for delivery of nonmailable material, in violati on of 18 U.S.C. § 1461. In addition, Mr. Anderton was convicted of one count of possessing materi al involving minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). 1. Validity of the Government’s Search Warrant Mr. Anderton argues that the district court erre d in failing to suppress evidence seized during the search of his home. According to Mr. Anderton, postal inspector Beryl Hedrick either intentionally or recklessly included false statemen ts in his affidavit submitted in support of his application for a search warrant, and, without th ese allegedly false statements, no probable cause existed to issue the search warrant, making the search and its fruits illegal. Specifically, Mr. Anderton contends that Inspector Hedrick misled the magistrate judge into believing that he had personal knowledge of what was in the Andertons’ residence and that the contraband videotape had been received and was inside the residence. Rulings on motions to suppress evidence invol ve mixed questions of law and fact. We review factual findings for clear error and the application of the law to the facts de novo . United States v. Reid , 69 F.3d 1109, 1113 (11 thCir. 1995). If a defendant demonstrates by a preponderance of the evidence that an affidavit used to procure a search warrant contains intentionally or recklessly false statements and that, the false statements aside, the affidavit is insufficient to establish probable cause, the district court must void the search warra nt and exclude the fruits of the search. Franks v. Delaware , 438 U.S. 154, 155-56 (1978). A review of the record indicates that Mr. A nderton did not meet his burden of demonstrating that Inspector Hedrick made false statements in hi s affidavit. Inspector Hedrick’s affidavit fairly3 and accurately presented the information gathered in the investigation of the Andertons up to the time of the application. Among other things, Inspect or Hedrick stated that he had corresponded with the Andertons and they not only expressed an in terest in obtaining videotapes depicting minors engaged in sexual activity, but also indicated that they had some photographs and videotapes they would be willing to trade. In addition, the affida vit indicated that the Anderton investigation had uncovered an incident report and victim statemen t alleging that Mr. Anderton had raped a 15-yearold girl in the residence, dur ing which Mr. Anderton took at least one sexually explicit photograph of the minor. Furthermore, Inspector Hedrick averred that the information in his affidavit was based upon his own personal knowledge and “observa tions by and conversations with and reports of other law enforcement officers.” See United States v. Kirk , 781 F.2d 1498, 1505 (11 thCir. 1986) (stating that “[o]bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number” as long as the affiant states that he is relying on other officers in the affidavit). Contrary to Mr. Anderton’s assertions, Inspector Hedrick did not state that he had personal knowledge of the presence of child pornography in the Anderton reside nce. Reading the affidavit as a whole, it is clear the target of the search was not the contraband videotape sent to the Andertons as part of the sting operation. Instead, Inspector Hedrick sought a warrant to search the Andertons’ residence for: (1) a check stub or check register corresponding to the check used to purchase the contraband videotape, and (2) the sexually orient ed photograph and videotape collection offered for trade in the Andertons’ correspondence. In fact, Inspector Hedrick informed the magistrate judge that, although he had mailed a videotape containi ng child pornography to the Andertons’ post office box, he intended to execute the search warrant “whether or not the package is delivered....”4 Mr. Anderton presented no evidence that Insp ector Hedrick’s affidavit was misleading or false. Furthermore, the information in the affidavit was sufficient to establish probable cause to issue the warrant. Consequently, the district court’s decision to deny Mr. Anderton’s motion to suppress was not clearly erroneous. 2. Denial of Mrs. Anderton’s Motions for Judgment of Acquittal Mrs. Anderton argues that the district court erred in denying her motions for judgment of acquittal. According to Mrs. Anderton, the gove rnment did not establish beyond a reasonable doubt that the videotape she possessed depicted a minor, as opposed to an adult, engaging in sexually explicit conduct. We review a denial of a moti on for judgment of acquittal based on the sufficiency of the evidence, viewing the evidence in a light most favorable to the government. United States v. McKinley , 995 F.2d 1020, 1025 (11 thCir. 1993). If any reasonable construction of the evidence allowed the jury to find the defendant guilty beyond a reasonable doubt, we must affirm the conviction. Id. The government’s expert witness, Dr. Marsha Sturdevant, a medical doctor with expertise in adolescent growth and development, testified that, in her opinion, the children depicted in the videotape were between the ages of eleven and fi fteen and a half. The Andertons’ expert witness, Dr. Jack Turner, a clinical psychologist and sex th erapist, testified that, in his opinion, the ages of the individuals in the videotape could not be determined because the pornography industry is “notorious for picking young looking people.” However, Dr. Turner admitted on cross examination that he had no medical training or experience eval uating female adolescent growth and development. This evidence was sufficient to submit the matter to the jury for a determination. The jury was free to evaluate both experts’ testimony and conclude that the government’s expert was more1 At the sentencing hearing, numerous minor female witnesses recounted incidents in which the Andertons either engaged in sexual conduct with them or attempted to induce them to do so. 5 reliable and credible. See United States v. Parrado , 911 F.2d 1567, 1571 (11 thCir. 1990). Because a reasonable jury could have found that the evidence established Mrs. Anderton’s guilt beyond a reasonable doubt, the district court did not err in denying Mrs. Anderton’s motion for judgment of acquittal. 3. Increase in Both Andertons’ Offense Levels at Sentencing Both appellants challenge the district court’s decision to increase their offense levels by five levels because they “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” See U.S.S.G. § 2G2.2(b)(4). 1 The Andertons contend that the activities supporting the enhancement were unrelated to the offense of conviction because they did not involve exploitation of a minor for the purpose of producing a visual depiction of sexually explicit conduct, and, thus, cannot be considered under U.S.S.G. § 2G2.2(b)(4). We review the application of an enhancement under the Sentencing Guidelines de novo . United States v. Taylor , 88 F.3d 938, 942 (11 thCir. 1996). Section 2G2.2(b)(4) provides for a five level increase in a defendant’s offense level when the court finds that the defendant “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” The commentary to § 2G2.2, applicable at the time the Andertons committed their offenses, defined such a pattern as “any combination of two or more separate instances of the sexual abuse or exploitation of a minor, whether involving the same or different victims.” See U.S.S.G. § 2G2.2, cmt. n.4 (1995). However, effective November 1, 1996, this commentary was amended to clarify that the “patte rn of activity” may incl ude acts of sexual abuse2 Amended Application Note 1 to Section 2G2.2 states in relevant part: “Pattern of activity involving the sexual a buse or exploitation of a minor” means any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whet her or not the abuse or exploitation (A) occurred during the course of the offense.... U.S.S.G. § 2G2.2, cmt. n.1 (1996). Prior to this 1996 clarifying amendment, two circuit courts held that the conduct courts may consider under §2G2.2(b )(4) must relate to the offense of conviction. See United States v. Surratt , 87 F.3d 814, 817-19 (6 thCir. 1996); United States v. Chapman , 60 F.3d 894, 900-01 (1 st Cir. 1995). These courts relied in large part upon the fact that the application note did not state clearly that the conduct did not have to occur during the course of the offense, even though another application note under the same guideline did contain such a statement. See Chapman , 60 F.3d at 901. The 1996 amendment to the application note directly addressed this concern by inserting substantially the same statement. 6 or exploitation that were not committed during the c ourse of the offense or that did not result in a conviction. See U.S.S.G. § 2G2.2, cmt. n.1 (1996). 2 “It is now well-settled in this circuit that ‘the sentencing court should consider clarifying amendments when interpreting the guidelines, ev en when sentencing defendants convicted before the effective date of the amendments.’” United States v. Howard , 923 F.2d 1500, 1504 (11 th Cir. 1991) (quoting United States v. Marin , 916 F.2d 1536, 1538 (11 thCir. 1990) (per curiam)). Thus, the district court properly considered the amended commentary in interpreting §2G2.2. The district court found that the 1996 amendment made clear that the Sentencing Commission did not intend to limit the pattern of activ ity the court could consider to conduct related to the offense of conviction. (R17-48). We ag ree. Because the language of the clarifying amendment clearly permits an increased offense level for conduct unrelated to the offense of conviction, the district court did not err in increasing the Andertons’ offense levels. 4. Mr. Anderton’s Upward Adjustment at Sentencing3 Mr. Anderton also argues that the district court’s reliance on his stepdaughter’s statements deprived him of his Sixth Amendmen t right to confront witnesses. Because Mr. Anderton did not raise this argument before the dist rict court, however, he has waived it on appeal. See United States v. Simpson , 904 F.2d 607, 611 (11 thCir. 1990). 7 Mr. Anderton also argues that the evidence concerning his abuse of his five-year-old stepdaughter, introduced through the state child abuse investigator’s testimony, was unreliable hearsay and, therefore, not a proper basis for an upw ard departure. We review a district court’s decision to depart from the guidelines fo r abuse of discretion. Koon v. United States , 518 U.S. 81, __, 116 S. Ct. 2035, 2047 (1996). Even if the defendant received an offens e level increase under § 2G2.2(b)(4), the commentary to U.S.S.G. § 2G2.2 also permits an upward departure where a defendant engaged in the sexual abuse or exploitation of a minor. U. S.S.G. § 2G2.2, cmt. n. 5 (1995). Furthermore, a court may rely on hearsay at sentencing, as long as the evidence has sufficient indicia of reliability, the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence. United States v. Lee , 68 F.3d 1267, 1276 (11 thCir. 1995); United States v. Query , 928 F.2d 383, 384-85 (11 thCir. 1991). At the sentencing hearing, Anderton’s counsel had an opportunity to cross examine the investigator. Additionally, the court made explicit findings as to the credibility of the investig ator’s testimony and the reliability of the stepdaughter’s statements. These findings are not clearly erroneous. Accordingl y, the district court did not abuse its discretion in departing from the guidelines. 3 Although we find that appellants’ judgments and sentences are correct, we notice that there is a clerical error in the judgment and commitment order of Mr. Anderton, which states that he was convicted of possessing sexually explicit materials involving minors and cites 18 U.S.C. §8 2242(a)(4)(B). However, § 2242(a)(4)(B) defines sexual abuse. The crime of possessing sexually explicit materials involvi ng minors is codified at 18 U.S.C. § 2252(a)(4)(B), which is the code section cited in the PSI and indictment. Accordingly, we remand to the district court with directions to correct the clerical error contained in Mr. Anderton’s judgment and commitment order. AFFIRMED IN PART; REMANDED IN PART.