### 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 sentenc e.

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4

. United States Court of Appeals Fifth Circuit 

### FILED August 17, 2020

Lyle W. Cayce Cler k Case: 19-10982 Document: 00515529963 Page: 1 Date Filed: 08/17/2020No. 19

- 10982

2 He, however, f a iled 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 m ake s 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 cont ends 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 violati ng § 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 t his pr evious Texas offense does not qualify as a prior conviction under 18 U.S.C. § 2251 (e) because Texas Penal Code Case: 19-10982 Document: 00515529963 Page: 2 Date Filed: 08/17/2020No. 19

- 10982

3 § 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. Zavala

Sustaita , 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 a ssertion 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 . U nlike the immigration statute at issue in Esquivel

- Quintana , 18 U.S.C. § 2256 unambiguously defines “minor” , as used in § 2251 (a) , as “ a ny person under the ag e 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 o r obvious

error. Third, Bennett contends his pr evious 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, a nd 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 p sychological harm may occur even without such contact and can be equally abusive”. (citing Zavala

Sustaita , 214 F.3d at 604

– 05 ))

. Additionall y, t o the extent Bennett a sserts we Case: 19-10982 Document: 00515529963 Page: 3 Date Filed: 08/17/2020No. 19

- 10982

4 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 a ct 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 h is 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 Un ited States v. Fields , 932 F.3d 316 (5th Cir. 2019), cert. denied , 140 S. Ct. 1299 (2020)

. In Fields , our court st ate d : a no - bill under Texas law is “n othing more than the decision by a particular grand jury that the specific evidence before it did not c onvince 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. I t is not clear , however, that Fields squarely g overns 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 [determine d 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 .) Case: 19-10982 Document: 00515529963 Page: 4 Date Filed: 08/17/2020No. 19

- 10982

5 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 omi tted)

. As discussed , t his includes activities underlying a Texas no

billed offense. See Fields , 932 F.3d at 323

– 24

. B y 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 s howed that he engaged in the conduct the PSR described. For that description , the PSR relied on an off ense 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 demo nstrate 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 conside ring 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 G uidelines 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 properl y preserved objection to an ultimate sentence , as in this instance, is reviewed for substantive reasonableness under an abuse

- of

- Case: 19-10982 Document: 00515529963 Page: 5 Date Filed: 08/17/2020No. 19

- 10982

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

- Martinez , 564 F.3d 750, 751

– 53 (5th Cir. 2009). In t hat 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 r ebuttable 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 acc ount 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). D efendant’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 omitt ed). In this instance, t he 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. Case: 19-10982 Document: 00515529963 Page: 6 Date Filed: 08/17/2020