* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40725

UNITED STATES OF AMERICA

Plaintiff - Appellant

v.

WESLEY ADAM TAYLOR

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas, Tyler

USDC No. 6:06-CR-113

Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

Wesley Adam Taylor pleaded guilty to one count of possessing visual

depictions involving the sexual exploitation of minors. In sentencing Taylor, the

district court applied a substantial downward variance from the sentence

recommended by the presentence report. Under the United States Sentencing

Guidelines (“Sentencing Guidelines”), Taylor could have received a sentence of

120 months of imprisonment. The district court, however, sentenced Taylor to

United States Court of Appeals

Fifth Circuit

F I L E D

June 4, 2008

Charles R. Fulbruge III

Clerk
No. 07-40725

2

sixty months of imprisonmentfollowed by three years of supervised release. The

government appealed. After reviewing the sentence for plain error, we AFFIRM.

I.

On July 11, 2006, Taylor was arrested for trading child pornography.

Responding to an internet advertisement to trade child pornography placed by

an undercover government official, Taylor sent the official DVDs containing

thousands of sexually explicitimages along with countless pornographic movies,

most of which involved children. A month later, government agents executed a

controlled mail delivery of videos containing child pornography to Taylor’s

residence. After Taylor’s wife accepted the package, the agents exercised a

search warrant and seized Taylor’s computer. The computer contained a

plethora of child pornographic materials, including hundreds of movies and

thousands of images. The computer also showed that Taylor frequented

numerous web sites containing child pornography. During questioning, Taylor

confessed to possessing and trading child pornography. Taylor also admitted

that he had taken sexually explicit photographs of his brother’s sixteen-year-old

girlfriend and that he had cajoled his twelve-year-old sister into letting him take

pictures of her breasts for money.

On December 13, 2006, Taylor was indicted on six counts. The first count

charged Taylor with producing sexually explicit images of a minor in violation

of 18 U.S.C. § 2251(a) and (d). The second and third counts alleged that Taylor

had distributed pornographic materials involving minors in violation of 18

U.S.C. § 2252(a)(2) and (b)(1). Finally, the fourth, fifth, and sixth counts charged

Taylor with possessing child pornographic materials in violation of 18 U.S.C. §

2252(a)(4)(B) and (b)(2).

Pursuant to a plea agreement, Taylor pleaded guilty to Count Four of the

indictment and agreed to the application of various adjustments under the

Sentencing Guidelines. In accordance with the plea, Taylor admitted to
No. 07-40725

3

possessing materials involving a prepubescent minor and distributing the

materials with the expectation of receiving a thing of value in return. Moreover,

Taylor acknowledged that his offense involved materials that were sadistic or

masochistic in nature, the use of a computer, and 600 or more images. Given

these admissions,the presentence reportfound that the proper sentencing range

under the Sentencing Guidelines was 235-293 months. Because the statutory

maximum for a violation of § 2252(a)(4)(B) and (b)(2) is 120 months, the

presentence report recommended a 120-month sentence.

On June 21, 2007, the district court sentenced Taylor to sixty months of

imprisonment followed by three years of supervised release. In explaining its

decision, the district court took note of Taylor’s admissions and the seriousness

of his offense but found the following factors justified the downward variance

from the recommended sentence: (1) the absence of a prior criminal record, (2)

Taylor’s youth and “impressive employment history,” (3) the supportive

testimonies of Taylor’s wife, mother, and step-father, and (4) the needs of

Taylor’s newborn son. After handing down the sentence, the district court asked,

“[I]s there anything else from the government?” The government replied, “No.”

II.

Ordinarily, we review sentences for “reasonableness” by applying an

abuse-of-discretion standard of review. United States v. Gall, -- U.S. --, 128

S.Ct. 586, 594 (2007). Because the government did not object to the downward

variance, however, Taylor argues that we should review his sentence for plain

error. We agree.

“One of the most familiar procedural rubrics in the administration of

justice is the rule that the failure of a litigant to assert a right in the trial court

likely will result in its forfeiture.” United States v. Calverley, 37 F.3d 160, 162
No. 07-40725

1 Contrary to the government’s assertion, United States v. Castillo, 430 F.3d 230 (5th

Cir. 2005), does not supportits argument. In Castillo, the “unique set of circumstances” ofthat

case deprived the government of any opportunity to object after the district court sentenced the

defendant. See id. at 234-35, 240. In this case, the district court gave the government an

opportunity to address the court after it sentenced Taylor, which the government inexplicably

declined. 

4

(5th Cir. 1994) (en banc), abrogated in part on other grounds by Johnson v.

United States, 520 U.S. 461, 468 (1997). Therefore, for example, if the defendant

failed to object to his sentence at the district court, we review an upward

variance from the Sentencing Guidelines for plain error. See United States v.

Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 

The government acknowledges that it did not explicitly object to Taylor’s

sentence. It asserts, however, that it properly preserved the error because,

before the district court sentenced Taylor, it had argued for the district court to

follow the presentence report. But in Peltier, the defendant had also argued his

case to the district court before sentencing, and we nonetheless found that the

defendant had failed to object. See id. at 390-92. This makes sense because only

an explicit objection gives the district courtthe invaluable opportunity to correct

errors before they are appealed, which we have found to serve a “critical

function” by “encourag[ing] informed decisionmaking.” Id. at 392. The

government does not contend–nor do we find appropriate–that the law applies

differently when the derelict litigant is the government instead of the criminal

defendant.1

In sum, we conclude that, because the government did not properly object

to Taylor’s sentence, we must apply the plain-error standard of review in this

case. Accordingly, “[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.” Id.
No. 07-40725

5

Moreover, we cannot correct a “forfeited error” 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

citations omitted) (alteration in original). 

III.

The sentencing decision of the district court must be both procedurally

sound and substantively reasonable. Gall, 128 S.Ct. at 597. “A district court

should begin all sentencing proceedings by correctly calculating the applicable

Guidelines range.” Id. at 596. Because it cannot assume that the Sentencing

Guidelines range is per se reasonable, the district court must also make an

“individualized assessment” by considering the factors reflected in 18 U.S.C. §

3553 and the facts presented. See id. “A sentence is unreasonable if it (1) does

not account for a factor that should have received significant weight, (2) gives

significant weight to an irrelevant or improper factor, or (3) represents a clear

error of judgment in balancing the sentencing factors.” Peltier, 505 F.3d at 392

(internal quotation marks and citation omitted). 

The government first argues that the district court erred because it failed

to consider the Sentencing Guidelines when it sentenced Taylor. This argument

lacks merit. In this case, the district court correctly calculated the Sentencing

Guidelines range, which was 235-293 months. But because of the statutory

maximum,the mostthat the district court could have sentenced Taylor to under

the Sentencing Guidelines was 120 months. Therefore, in deciding to impose a

sixty-month, non-Guideline sentence, the district court properly considered

whether this was reasonable in light of the 120-month sentence Taylor could

have received under the Sentencing Guidelines. See United States v. Grossman,

513F.3d 592, 595 (6th Cir. 2008) (reviewing a district court’s downward variance
No. 07-40725

2 Section 3553(a)(2) requires sentencing courts to consider:

[T]he need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and

to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner.

3 Section 3553(a)(5) requires sentencing courts to consider:

[A]ny pertinent policy statement--

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title

28, United States Code, subject to any amendments made to such policy

statement by act of Congress (regardless of whether such amendments have yet

to be incorporated by the Sentencing Commission into amendments issued

under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the

defendant is sentenced. 

4 U.S.S.G. § 5K2.0(b) provides:

Downward Departures in Child Crimes and Sexual Offenses.--Under 18 U.S.C.

§ 3553(b)(2)(A)(ii), the sentencing court may impose a sentence below the range

established by the applicable guidelines only if the court finds that there exists

a mitigating circumstance of a kind, or to a degree, that--

(1) has been affirmatively and specifically identified as a permissible ground of

downward departure in the sentencing guidelines or policy statements issued

under section 994(a) of title 28, United States Code, taking account of any

6

for reasonableness in light of the recommended guidelines sentence after

accounting for the statutory maximum). 

The government also contends that the district court erred because it

failed to consider the factors provided under § 3553(a)(2) and § 3553(a)(5).

Under § 3553(a)(2), sentencing courts must consider the need for the sentence

imposed.2 Under § 3553(a)(5), sentencing courts must consider policy statements

issued by the Sentencing Commission.3In this case, the government contends

that the district court failed to consider the policy statement found in U.S.S.G.

§ 5K2.0(b), which cautions courts against departing from the Sentencing

Guidelines in cases involving “[c]hild crimes and [s]exual offenses,” except in

limited circumstances.4
No. 07-40725

amendments to such sentencing guidelines or policy statements by act of

Congress;

(2) has not adequately been taken into consideration by the Sentencing

Commission in formulating the guidelines; and

(3) should result in a sentence different from that described.

The grounds enumerated in this Part K of Chapter Five are the sole grounds

that have been affirmatively and specifically identified as a permissible ground

of downward departure in these sentencing guidelines and policy statements.

Thus, notwithstanding any other reference to authority to depart downward

elsewhere in this Sentencing Manual, a ground of downward departure has not

been affirmatively and specifically identified as a permissible ground of

downward departure within the meaning of section 3553(b)(2) unless it is

expressly enumerated in this Part K as a ground upon which a downward

departure may be granted.

5 Section 3553(a)(1) requires sentencing courts to consider “the nature and

circumstances of the offense and the history and characteristics of the defendant.”

7

The problem with the government’s argument is that it is pure

speculation. The government assumes that the district court did not consider

the factors listed under § 3553(a)(2) and 3553(a)(5) because the district court did

not explicitly address them in its analysis. But we have previously found that

“a checklist recitation of the section 3553(a) factors is neither necessary nor

sufficientfor a sentence to be reasonable.” United States v. Smith, 440 F.3d 704,

707 (5th Cir. 2006). In this case, the district court gave a long, meticulous

explanation for departing from the Sentencing Guidelines. From the district

court’s detailed discussion of the facts specific to this case, we find it is clear that

the district court considered all the concerns embodied in § 3553 and simply

determined that the variance was nonetheless appropriate. Because we conclude

that the district court considered all the § 3553 factors, the district court did not

err.

Finally, the government asserts that Taylor’s sentence was unreasonable

because the district court improperly weighed the factors provided under §

3553(a)(1).5 The gravamen of the government’s argument is that Taylor’s crime
No. 07-40725

8

is too despicable and his “mitigating” circumstances too unexceptional to

warrant the variance imposed. But “[w]e may not require district courts to find

‘extraordinary’ circumstances before they impose sentences outside of the

guidelines range.” United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008).

In this case, the district court explicitly took note of the “insidious” nature of

Taylor’s crime and the “irreparable harm” he caused, but it nonetheless decided

that a sixty-month sentence was appropriate because: (1) Taylor did not have a

prior criminal record; (2) Taylor was young and had an “impressive employment

history”; (3) Taylor’s wife, mother, and step-father wholeheartedly supported

him; and (4) Taylor had a newborn son. We “might reasonably have concluded

that a different sentence was appropriate,” but this “is insufficient to justify

reversal of the district court.” Gall, 128 S.Ct. at 597. Our review in this case is

also limited to plain error. Therefore, while the extent of the variance in this

case was admittedly substantial, we cannotfind thatthe district court so plainly

erred as to warrant reversal. 

IV.

For the reasons above, we AFFIRM.