           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 25, 2009

                                       No. 08-10782                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

JACK EARL ROBINSON,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 2:08-CR-13-ALL


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
           Jack Earl Robinson appeals following his guilty-plea conviction for
misprision of a felony, to wit: distribution of child pornography. We AFFIRM for
the following reasons:
       1. Robinson argues that the factual basis for his plea was insufficient to
       show that he concealed the underlying felony because there was no
       evidence that he knew at the time of purchase that his credit card
       payment for access to the child pornography website would be billed by a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                           No. 08-10782

third party. See United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992)
(holding that conviction for misprision requires inter alia showing that the
defendant took an affirmative step to conceal the underlying felony).
Because Robinson did not object in the district court to the sufficiency of
the factual basis, we review for plain error. See United States v. Castro-
Trevino, 464 F.3d 536, 541 (5th Cir. 2006). Robinson admitted that he
knew the website was illegal and that he accessed it to view child
pornography. The factual basis to which Robinson agreed further stated
that “The website required subscribers to purchase a twenty-day
membership for the fee of $79.99 using a credit card. The credit card
processor for the Illegal.CP website charge was identified as ‘ADSOFT’.
Individuals that purchased subscriptions to the Illegal.CP website were
then billed by ADSOFT.” We see nothing clearly or obviously erroneous
in reading this statement to mean that Robinson knew at the point of sale
that he would not be billed directly by the illegal website. By agreeing to
be billed by a third-party, which necessarily obscured the illicit nature of
the transaction, Robinson gave the false impression that the transaction
was innocuous and concealed the underlying felony of distribution of child
pornography. The factual basis was therefore sufficient.
2. Robinson argues, without citation to supporting authority, that the
sentencing scheme under U.S.S.G. §§ 2G2.2 and 2X4.1 is unconstitutional,
unfair, and cruel and unusual punishment because the Guideline range
is determined based on the conduct of the perpetrators of the underlying
felony rather than on his own purportedly minimal conduct. Reviewing
the district court’s application of the Guidelines de novo and its factual
findings for clear error, see United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008), we are not persuaded. The Guidelines account
for the lesser culpability of a defendant who commits misprision rather

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    than the substantive offense by requiring that the offense level be nine
    points lower than the offense level for the substantive offense and by
    capping the offense level at 19. See § 2X4.1(a). We find nothing improper
    about the Guidelines’ treatment of the misprision offense.
    3. Robinson further argues that the district court improperly assessed an
    enhancement for pecuniary gain because, unlike the operators of the
    website, he derived no pecuniary gain from his purchase of access to child
    pornography.      Robinson is mistaken.      The Guideline for misprision
    requires reference to the offense level of the underlying offense, including
    any specific offense characteristics that were known, or reasonably should
    have been known, by the defendant. See § 2X4.1(a) & cmt. n.1. The
    Guideline for distribution of child pornography provides an enhancement
    when      the   offense   “involved”   distribution   for   pecuniary    gain.
    § 2G2.2(b)(3)(A). Robinson knew the distribution involved pecuniary gain
    because he paid the fee to gain access to the illegal material. There is no
    error.
    4. Finally, Robinson argues that he improperly received enhancements for
    an offense involving between 150 and 300 images and for images depicting
    prepubescent minors.       See § 2G2.2(b)(2) & (b)(7)(B). He contends there
    was no evidence of how many images, or their nature, that he actually
    viewed.    The enhancements are more than adequately supported by
    information contained in the presentence report, however.               Absent
    contrary evidence from Robinson, the district court was entitled to rely on
    this information when determining the offense level. See United States v.
    Arviso-Mata, 442 F.3d 382, 385 n.10 (5th Cir. 2006).
AFFIRMED.




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