IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10982

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ADAM DONALD BENNETT,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-96-1

Before JONES, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Adam Donald Bennett pleaded guilty to one count of sexual exploitation 

of children, in violation of 18 U.S.C. §§ 2251(a) and (e). The district court 

sentenced him to, inter alia, a within-Sentencing Guidelines term of 600-

months’ imprisonment. Bennett asserts five claims of error in the district 

court’s determining his sentence.

* 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

August 17, 2020

Lyle W. Cayce

Clerk

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He, however, failed to preserve in district court four of those five claimed 

errors. Review of the first four of the following five issues, therefore, is only 

for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 

2012). Under that standard, Bennett must show a forfeited plain error (clear 

or obvious error, rather than one subject to reasonable dispute) that affected 

his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009) 

(citations omitted). If he makes that showing, we have the discretion to correct 

such reversible plain error but generally should do so only if it “seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.

(citation omitted).

First, Bennett contends the court erred by using his prior deferred 

adjudication for indecency with a child, in violation of Texas Penal Code 

§ 21.11(a)(2), to apply the enhanced sentencing penalties set forth in 18 U.S.C. 

§ 2251(e) (enhancing penalty for defendant’s violating § 2251(a) when 

defendant has previous “conviction . . . under the laws of any State relating to”, 

inter alia, “aggravated sexual abuse, sexual abuse, [or] abusive sexual contact 

involving a minor or ward”). According to Bennett, “deferred adjudication is 

not a conviction” under Texas law, and “federal courts defer to state law when 

assessing a ‘conviction’” for purposes of § 2251(e).

Bennett (as he concedes) did not raise this issue in district court. For the 

resulting plain-error review, he has not shown the requisite clear or obvious 

error because, as he correctly recognizes, his contention is foreclosed by United 

States v. Ary, 892 F.3d 787, 790 (5th Cir.) (noting deferred adjudication for 

indecency with a child is a “conviction” under the Texas Penal Code and federal 

law), cert. denied, 139 S. Ct. 394 (2018).

Second, Bennett asserts this previous Texas offense does not qualify as 

a prior conviction under 18 U.S.C. § 2251(e) because Texas Penal Code 

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§ 21.11(a)(2) defines a minor more broadly than the generic definition. As 

Bennett concedes, he did not raise this issue in district court. 

For our plain-error review, and as Bennett correctly recognizes, his 

contention is foreclosed by our precedent. See United States v. ZavalaSustaita, 214 F.3d 601, 604 (5th Cir. 2000) (“The best ‘ordinary, contemporary, 

common’ reading of the phrase ‘sexual abuse of a minor’ [from 18 U.S.C. 

§ 2251(a)] is that it encompasses a violation of Texas Penal Code § 21.11(a)(2). 

The victim of a § 21.11(a)(2) offense, ‘a child younger than 17 years,’ is clearly 

a ‘minor.’”). Further, his assertion that we should reconsider Zavala-Sustaita

in the light of the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 

137 S. Ct. 1562 (2017), lacks merit. Unlike the immigration statute at issue in 

Esquivel-Quintana, 18 U.S.C. § 2256 unambiguously defines “minor”, as used 

in § 2251(a), as “any person under the age of eighteen years”. 18 U.S.C. 

§ 2256(1); see also Esquivel-Quintana, 137 S. Ct. at 1567. There is, therefore, 

no need to rely on Esquivel-Quintana’s generic definition of minor. See 

Esquivel-Quintana, 137 S. Ct. at 1568. In short, there is no clear or obvious 

error. 

Third, Bennett contends his previous Texas offense does not qualify as a 

prior conviction under 18 U.S.C. § 2251 because Texas Penal Code § 21.11(a)(2) 

does not require the offender make physical contact with the minor. Once 

more, Bennett (as he concedes) failed to preserve this issue in district court. 

Under our limited plain-error review, and as Bennett again correctly 

recognizes, this contention is also foreclosed by our precedent. See Contreras 

v. Holder, 754 F.3d 286, 294 (5th Cir. 2014) (“[A] sexual act does not require 

physical contact with a minor to be abusive, since psychological harm may 

occur even without such contact and can be equally abusive”. (citing ZavalaSustaita, 214 F.3d at 604–05)). Additionally, to the extent Bennett asserts we 

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should reconsider Contreras in the light of Esquivel-Quintana, our court has

previously held that Esquivel-Quintana did not abrogate our court’s precedent 

that physical contact with a minor is not required for a sexual act to be abusive. 

See Shroff v. Sessions, 890 F.3d 542, 545 (5th Cir. 2018). Once again, there 

was no clear or obvious error. 

Fourth, Bennett contends the district court erred in considering the 

conduct underlying his previous arrest for indecency with a child because the 

Texas grand jury “no-billed” the criminal charge. Bennett (as he concedes) did 

not raise this contention in district court. 

For this final plain-error review, Bennett contends this issue is 

foreclosed by United States v. Fields, 932 F.3d 316 (5th Cir. 2019), cert. denied, 

140 S. Ct. 1299 (2020). In Fields, our court stated: a no-bill under Texas law 

is “nothing more than the decision by a particular grand jury that the specific 

evidence before it did not convince it to charge the defendant with an offense”; 

and “[b]y itself, the no-bill cannot transform a factual recitation with sufficient 

indicia of reliability into one that lacks such indicia”. Id. at 323.

It is not clear, however, that Fields squarely governs the result here. As 

stated in Fields, that appeal “d[id] not require [our court] to address whether 

a grand jury no-bill precludes a sentencing court’s ability to find by a 

preponderance that the defendant committed the particular no-billed offense, 

and neither party [in Fields had] ask[ed] us to do so”. Id. at 324 (emphasis 

added). Rather, “[t]he district court relied on sufficiently reliable evidence to 

find that [defendant] had committed the underlying activities and [determined 

defendant’s sentence] in part upon those activities”. Id. (emphasis added). 

Bennett, by contrast, asserts, inter alia, “[t]he district court had an inadequate 

factual basis to conclude that [he] committed two offenses for which he had 

been no-billed”. (Emphasis added.)

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In any event, “[i]t is well-established that prior criminal conduct not 

resulting in a conviction may be considered by the sentencing judge”. United 

States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (per curiam)

(citation omitted). As discussed, this includes activities underlying a Texas nobilled offense. See Fields, 932 F.3d at 323–24.

By adopting Bennett’s presentence investigation report (PSR), the court 

implicitly found that, even though the Texas grand jury did not indict Bennett 

for indecency with a child, a preponderance of the evidence showed that he 

engaged in the conduct the PSR described. For that description, the PSR relied 

on an offense report generated by local law enforcement and a report from 

Child Protective Services. These documents provided “an adequate 

evidentiary basis with sufficient indicia of reliability”, and Bennett “d[id] not 

present rebuttal evidence or otherwise demonstrate that the information in the 

PSR [was] unreliable”. United States v. Harris, 702 F.3d 226, 230 (5th Cir. 

2012) (per curiam) (citation omitted). Accordingly, Bennett has not shown the 

requisite clear or obvious error in the district court’s considering the PSR’s 

description of the conduct underlying his prior arrest for indecency with a 

child. See id. (citation omitted). 

Finally, for the only issue not reviewed for plain error, Bennett contends

his 600-month sentence, at the top of his advisory Guidelines sentencing range, 

is substantively unreasonable because the court failed to give adequate weight 

to the abuse his pastor inflicted on him while a youth. Although post-Booker 

the Guidelines are advisory only, the district court must avoid significant 

procedural error, such as improperly calculating the Guidelines sentencing 

range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural 

error exists, a properly preserved objection to an ultimate sentence, as in this 

instance, is reviewed for substantive reasonableness under an abuse-of-

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discretion standard. Id. at 51; see also, e.g., United States v. Delgado-Martinez, 

564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, the district court’s 

application of the Guidelines is reviewed de novo; its factual findings, only for 

clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th 

Cir. 2008) (citation omitted).

Additionally, we “appl[y] a rebuttable presumption of reasonableness to 

a properly calculated, within-[G]uidelines sentence”. United States v. Cooks, 

589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). “The presumption is 

rebutted only upon a showing that the sentence does not account for a factor 

that should receive significant weight, it gives significant weight to an 

irrelevant or improper factor, or it represents a clear error of judgment in 

balancing [the] sentencing factors” in 18 U.S.C. § 3553(a). Id. (citation 

omitted). Defendant’s “mere belief that the mitigating factors presented for 

the court’s consideration should have been balanced differently is insufficient 

to disturb this presumption”. United States v. Alvarado, 691 F.3d 592, 597–98 

(5th Cir. 2012) (citation omitted).

In this instance, the district court: adopted the findings and calculations 

in Bennett’s PSR; considered Bennett’s abuse as a youth and other mitigating 

circumstances; expressed concern regarding the “disturbing” and “dangerous” 

nature of Bennett’s offense and prior conduct; and considered the 18 U.S.C. 

§ 3553(a) sentencing factors. Bennett, consequently, has not rebutted the 

presumption of reasonableness afforded his within-Guidelines sentence. See 

Cooks, 589 F.3d at 186 (citations omitted).

AFFIRMED.

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