### 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 . G yde asserts that the district court erred in ove rruling 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 13, 2018 Lyle W. Cayce Clerk Case: 17-30748 Document: 00514554544 Page: 1 Date Filed: 07/13/2018No. 17

- 30748

2 finding that Gyde committed a sex offense against a minor while in failure

- to

register status

. Sentences are reviewed for procedural err or 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 i n unregistered status r eviewed for clear err or ) ; 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 sup port 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 tra nsferred 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 Case: 17-30748 Document: 00514554544 Page: 2 Date Filed: 07/13/2018No. 17

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3 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 o r 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 con duct. See L A

. R EV

. S TAT

. A NN

. 14:81.3(A)(1) (West, Westlaw through Acts 2014) ; L A

. R EV

. S TAT

. A NN

. 14:81(A)(2) (West, Westlaw through Acts 2010). Because the findings in the presentence report were unrebutted, the district court could accept them withou t further inquiry. See Ochoa

- Gomez , 777 F.3d at 282

. We hold that t he 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) an d 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

. Case: 17-30748 Document: 00514554544 Page: 3 Date Filed: 07/13/2018