IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50892

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOHN RODGER HUGHES, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:14-CR-72

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant John Rodger Hughes (“Hughes”) appeals his 

criminal sentence for using a cellular telephone and the Internet to knowingly 

transfer obscene matter to a minor under the age of sixteen, as prohibited by 

18 U.S.C. § 1470. Hughes challenges the district court’s imposition of a sixlevel sentence enhancement under U.S.S.G. § 2G3.1(b)(1)(D) (2013). We find 

no reversible error and AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2015

Lyle W. Cayce

Clerk

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I.

The facts of the case are essentially undisputed. Hughes first 

encountered MV-1 on the Internet in 2009. Hughes and MV-1 frequently

played the same online video game, which allowed them to converse using the 

in-game chat application. Hughes and MV-1 struck up an online friendship. At 

the time they first became acquainted, MV-1 was 11 or 12 years old and lived 

in Michigan, while Hughes was 16 or 17 years old and lived in Texas. MV-1 

informed Hughes that she was under the age of 16.

Hughes’s online relationship with MV-1 continued over the course of five 

years. As far as the record reflects, Hughes and MV-1 never met in person. As 

the years passed, Hughes’s online interactions with MV-1 became increasingly 

sexual in nature. Hughes sent MV-1 pictures of his erect penis over the 

Internet on multiple occasions. In return, MV-1 sent Hughes pornographic 

images of her breasts, buttocks, and vagina. MV-1 sent Hughes so many nude 

photos of herself over a period of several years that she lost count. At Hughes’s 

rearraignment hearing, he described this arrangement – whereby he and MV1 would exchange images of their private parts – as “a mutual thing between 

us.” When Hughes last sent a sexual image to MV-1, he was 20 years old and 

MV-1 was 15. At that time, Hughes knew that MV-1 was a minor below the 

age of 16.

In 2013, Hughes mailed MV-1 a wallet filled with cash so that MV-1 

could repair her broken phone. MV-1’s parents discovered the wallet and 

questioned her about it. She informed her parents about her interactions with 

Hughes. MV-1’s father confiscated the wallet and the iPod Touch device that 

MV-1 used to communicate with Hughes and turned the items over to 

Homeland Security agents. The agents searched the iPod Touch and discovered

hundreds of nude images of MV-1, as well as an image of Hughes’s erect penis.

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The agents traced the wallet back to Hughes’s address and executed a 

search warrant at his house. In an interview with the agents, Hughes 

identified MV-1 as his girlfriend and admitted mailing her the cash-filled 

wallet. Hughes further admitted that he sent images of his penis to MV-1 and 

that MV-1 would send naked photographs to him in return. Hughes also 

admitted that he knew that MV-1 was a minor under the age of 16.

A grand jury charged Hughes in a one-count indictment with sending 

obscene material – specifically an image of his erect penis – to a minor under 

16 years old. The indictment alleged that Hughes used a facility of interstate 

and foreign commerce – namely, a cellular telephone and the Internet – to 

knowingly transfer obscene matter to MV-1 with full knowledge that MV-1 had 

not yet attained the age of 16 years.

Hughes ultimately pleaded guilty to the indictment without a plea 

agreement. At his rearraignment hearing, Hughes swore under oath that all 

of the facts of the case described above were accurate.

A probation officer then prepared a presentence investigation report 

(“PSR”). The PSR recommended that Hughes’s total offense level be increased 

by six levels pursuant to U.S.S.G. § 2G3.1(b)(1)(D), which applies when the 

offender distributes obscene matter to a minor “that was intended to persuade, 

induce, entice, or coerce the minor to engage in illegal activity” other than 

“prohibited sexual conduct.”

Hughes timely objected to the six-level enhancement. Hughes disputed 

that he intended MV-1 to commit illegal activity. Hughes further contended

that, because MV-1 lived in Michigan and he lived in Texas, “[t]he distance 

between Hughes and the minor militates against the specific offense 

characteristic.”

In response, the probation officer argued that the six-level enhancement 

was proper. The probation officer reasoned that 

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the defendant sent obscene material to [MV-1] in an effort to 

persuade, induce, entice, or coerce the minor to engage in illegal 

activity, specifically the production and distribution of child 

pornography. Hughes admitted to sending images of his penis to 

[MV-1] via the Skype application. He would, in turn, receive sexual 

images from [MV-1], where she would expose her vagina and 

breasts.

At Hughes’s sentencing hearing, the district court adopted the PSR in its 

entirety. The court found by a preponderance of the evidence that Hughes sent 

MV-1 the image of his penis to persuade, induce, or entice her to produce child 

pornography and send it to him. The court therefore overruled Hughes’s 

objection and applied the six-level enhancement. The court sentenced Hughes 

to 18 months imprisonment and ten years supervised release.

Hughes now appeals that sentence. He challenges only the district 

court’s imposition of the six-level enhancement under U.S.S.G. § 

2G3.1(b)(1)(D).

II.

When reviewing a criminal sentence, we first consider whether the 

district court committed a significant procedural error, such as improperly 

calculating the Guidelines range.1 We review the district court’s interpretation 

and application of the Sentencing Guidelines de novo2 and its factual findings 

for clear error.3 Even if the district court commits a procedural error, we will 

not reverse the sentence if the error is harmless.4 Then, if the district court 

 

1 United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009) (citing Gall v. 

United States, 552 U.S. 38, 51 (2007)).

2 United States v. Pringler, 765 F.3d 445, 451 (5th Cir. 2014) (citing United States v. 

Richardson, 713 F.3d 232, 237 (5th Cir. 2013)).

3 Id. (citing United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012)).

4 See Delgado-Martinez, 564 F.3d at 752-53 (citations omitted).

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committed no significant procedural error, we review the substantive 

reasonableness of the sentence for abuse of discretion.5

III.

For the reasons explained below, even though the district court made no 

clearly erroneous factual findings, it committed a procedural error when 

calculating Hughes’s Guideline sentence. Reviewing the district court’s 

interpretation and application of the Guidelines de novo, we conclude that the 

district court applied the wrong subsection of the Guidelines. Nevertheless, 

that error was harmless because it enured to Hughes’s benefit. We therefore 

affirm Hughes’s sentence.

The district court did not clearly err when it found by a preponderance 

of the evidence that Hughes transmitted an obscene picture of his genitals to 

MV-1 in an attempt to persuade, entice, or induce her to produce child 

pornography and send it to him. First, the district court could reasonably 

conclude that at least some6 of the images MV-1 created and distributed to 

Hughes constitute child pornography because they depict the “lascivious 

exhibition” of MV-1’s genitals or pubic area.7 Furthermore, the district court 

could reasonably conclude that Hughes sent MV-1 the obscene picture of his 

penis to entice, persuade, or induce her to create child pornography. Hughes 

admitted at his rearraignment hearing that his arrangement to exchange nude 

 

5 Id. at 751 (quoting Gall, 552 U.S. at 51).

6 The pictures of MV-1’s breasts and buttocks might not constitute child pornography.

See United States v. Johnson, 639 F.3d 433, 438 (8th Cir. 2011). However, the images of MV1’s genitals and pubic area clearly fall within the statutory definition.

7 See 18 U.S.C. § 2256(8)(A) (defining child pornography); id. § 2256(2)(A)(v) (defining 

“sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area”);

United States v. Grimes, 244 F.3d 375, 380 (5th Cir. 2001) (citations omitted) (articulating 

standard governing whether a visual depiction of a minor’s genitals or pubic area is 

“lascivious”).

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pictures was “a mutual thing between us,” whereby Hughes would send MV-1 

pictures of his genitals and ask her to reciprocate. Thus, the district court’s 

factual findings were not clearly erroneous.

However, we must also consider whether the production of child 

pornography constitutes “illegal activity[] other than illegal activity covered 

under subdivision (E),” as required by U.S.S.G. § 2G3.1(b)(1)(D).8 Subdivision 

(E) of § 2G3.1(b)(1) governs the distribution of obscene matter to a minor with 

the intent to “persuade, induce, entice, coerce, or facilitate the travel of, the 

minor to engage in prohibited sexual conduct.”9 If persuading or enticing MV1 to produce pornographic pictures of herself constituted “prohibited sexual 

conduct,” then U.S.S.G. § 2G3.1(b)(1)(E), not (D), governs this case, and the 

district court committed a procedural error by imposing an inapplicable 

enhancement. This is a legal question that we review de novo.10

We conclude that enticing and persuading a minor victim to produce

child pornography does indeed constitute “prohibited sexual conduct” within 

the meaning of U.S.S.G. § 2G3.1(b)(1)(E). For the purposes of § 2G3.1, 

“‘[p]rohibited sexual conduct’ has the meaning given that term in Application 

Note 1 of the Commentary to § 2A3.1” of the Sentencing Guidelines,11 which 

“includes the production of child pornography.”12 Thus, because Hughes 

distributed obscene matter to MV-1 to encourage her to produce child 

pornography, he induced, enticed, or persuaded her to engage in prohibited 

 

8 (Emphasis added.).

9 (Emphasis added.).

10 See Pringler, 765 F.3d at 451 (citing Richardson, 713 F.3d at 237).

11 U.S.S.G. § 2G3.1, application note 1 (2013). 12 Id. § 2A3.1, application note 1. We note that “prohibited sexual conduct . . . does not

include trafficking in, or possession of, child pornography.” Id. We need not decide whether 

MV-1’s distribution of child pornography to Hughes or Hughes’s possession of that 

pornography would warrant the subdivision (E) enhancement, because it is sufficient that 

Hughes induced, persuaded, or enticed MV-1 to produce the pornographic images.

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sexual conduct. Because U.S.S.G. § 2G3.1(b)(1)(D) only governs illegal activity 

other than prohibited sexual conduct, the district court should not have 

imposed an enhancement under that subsection.

Nevertheless, the district court’s procedural error was harmless.13 If the 

district court had applied the U.S.S.G. § 2G3.1(b)(1)(E) enhancement as it 

should have, it would have increased Hughes’s offense level by seven levels, not 

six.14 Because the district court’s procedural error benefited Hughes, we find 

no reversible error.15

AFFIRMED.

 

13 See Delgado-Martinez, 564 F.3d at 752-53 (citations omitted).

14 Compare U.S.S.G. § 2G3.1(b)(1)(E) (2013) with id. § 2G3.1(b)(1)(D).

15 Cf. United States v. Sheridan, 304 F. App’x 742, 745 (10th Cir. 2008) (“[I]t is beyond 

peradventure that Mr. Sheridan persuaded, induced, or enticed a minor to engage in some

illegal activity. Assuming arguendo that the district court erred in applying the Guidelines 

enhancement, it actually did so by not adjusting Mr. Sheridan’s offense level high enough.

The district court seemingly should have applied the seven level increase for intending to 

induce a minor to engage in prohibited sexual conduct. It goes without saying that Mr. 

Sheridan cannot benefit from such an error.” (emphasis in original, internal citations 

omitted)).

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