IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30748

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GRAHAM COOPER GYDE,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CR-26-1

Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Graham Cooper Gyde was convicted of failing to register as a sex 

offender, and he was sentenced within the guidelines range to a 57-month term 

of imprisonment and to a 10-year period of supervised release. Gyde asserts 

that the district court erred in overruling his objection to imposition of an 8-

level guidelines adjustment under U.S.S.G. § 2A3.5(b)(1)(C) based on its 

 

* 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 13, 2018

Lyle W. Cayce

Clerk

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finding that Gyde committed a sex offense against a minor while in failure-toregister status. 

Sentences are reviewed for procedural error and substantive 

reasonableness under an abuse of discretion standard. United States v. 

Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010). “A district court’s interpretation 

or application of the Sentencing Guidelines is reviewed de novo, while its 

factual findings are reviewed for clear error.” United States v. Ochoa-Gomez, 

777 F.3d 278, 281 (5th Cir. 2015) (internal quotation marks, internal brackets, 

and citation omitted). We review the district court’s finding that Gyde 

committed a sex offense against a minor while on unregistered status for clear 

error. See United States v. Lacouture, 835 F.3d 187, 189-90 (1st Cir. 2016)

(reviewing determination that defendant committed a sex offense against a

minor while in unregistered status reviewed for clear error); see also United 

States v. Boudreau, 250 F.3d 279, 282-83 (5th Cir. 2001) (reviewing district 

court’s determination whether visual depiction of minor constituted lascivious 

exhibition of minor’s genitals or pubic area under 18 U.S.C. § 2256(2)(E) for 

clear error). Findings that are plausible, based on the record as a whole, are 

not clearly erroneous. Ochoa-Gomez, 777 F.3d at 282. The district court may 

base its findings at sentencing on any information having sufficient indicia of 

reliability to support their probable accuracy, such as unrebutted information 

contained in a presentence report. Id. 

The offense level of a defendant convicted of failing to register as a sex 

offender is increased by 8 levels if, while on failure-to-register status, the

defendant committed a sex offense against a minor. § 2A3.5(b)(1)(C). The term 

“sex offense” has the meaning given in 42 U.S.C. § 16911(5), which has been 

recodified and transferred to 34 U.S.C. § 20911. § 2A3.5, comment. (n.1). 

Under § 20911(5)(A), a “sex offense” is, inter alia, “(ii) a criminal offense that 

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is a specified offense against a minor.” The phrase “specified offense against a 

minor” means, inter alia, “[c]riminal sexual conduct involving a minor, or the 

use of the Internet to facilitate or attempt such conduct.” § 20911(7)(H). We 

have applied a circumstance-specific approach in considering whether the 

district court clearly erred in imposing the sentencing enhancement. See 

United States v. Gonzalez-Medina, 757 F.3d 425, 427-31 (5th Cir. 2014). 

The term “criminal offense” includes state and local offenses, § 20911(6), 

and conviction of a sex offense is not required. United States v. Lott, 750 F.3d 

214, 220-21 (2d Cir. 2014). Two Louisiana criminal statutes are implicated by 

Gyde’s conduct. See LA. REV. STAT. ANN. 14:81.3(A)(1) (West, Westlaw through 

Acts 2014); LA. REV. STAT. ANN. 14:81(A)(2) (West, Westlaw through Acts 

2010).

Because the findings in the presentence report were unrebutted, the 

district court could accept them without further inquiry. See Ochoa-Gomez, 

777 F.3d at 282. We hold that the district court did not clearly err in finding 

that Gyde’s social media solicitations of a minor constituted “criminal sexual 

conduct involving a minor” for purposes of § 20911(7)(H) and that, therefore, 

Gyde committed a sex offense against a minor for purposes of the 

§ 2A3.5(b)(1)(C) enhancement. See § 20911(5)(A)(ii), (6), (7)(H); Ochoa-Gomez, 

777 F.3d at 281-82. The judgment is AFFIRMED.

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