Case: 20-20575 Document: 00516234659 Page: 1 Date Filed: 03/11/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 11, 2022 No. 20-20575 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus George Daniel McGavitt, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC 4:19-CR-649-1 Before Higginbotham, Stewart, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: George Daniel McGavitt pled guilty to a three-count indictment charging him with coercion and enticement, sexual exploitation of a child, and possession of child pornography. McGavitt’s offenses were grouped together at sentencing and his Guidelines range was calculated using the sexual-exploitation count. After applying enhancements, the district court sentenced McGavitt to concurrent terms of life, 360 months, and 120 months of imprisonment, followed by concurrent 15-year terms of supervised release. McGavitt now appeals, challenging the application of three sentencing enhancements. We affirm. Case: 20-20575 Document: 00516234659 Page: 2 Date Filed: 03/11/2022 No. 20-20575 I. As part of his guilty plea, McGavitt admitted that the Government could prove the following facts. On May 26, 2019, the Washington County, Arkansas Sheriff’s Office was dispatched to the residence of a 13-year-old female (referred to as “MV1”).1 MV1 had confessed to her parents that she had been involved in an online relationship with Daniel McGavitt, a 45-year-old man, and that McGavitt had requested on several occasions that she send him nude photographs and videos of herself engaging in sex acts. MV1 also stated that on April 11, 2019, McGavitt traveled to Arkansas from his residence in Texas and engaged in sexual intercourse with her. The Washington County Sheriff’s Office relayed their report to the Federal Bureau of Investigation (FBI) in Little Rock for further investigation. Investigators were able to place McGavitt less than half a mile from MV1’s Arkansas residence on April 11, 2019, through the records of a local towing company that had been dispatched to remove McGavitt’s truck from a ditch. Subsequently, the FBI obtained a search warrant for three different Facebook accounts, including that of MV1 and a profile used by McGavitt. A review of these accounts uncovered a history of explicit communications between McGavitt and MV1 spanning at least nineteen different days from March 8 through May 22, 2019. Investigators also discovered three images of MV1, sent at McGavitt’s behest, that met the definition of child pornography under 18 U.S.C. § 2256.

Case: 20-20575 Document: 00516234659 Page: 3 Date Filed: 03/11/2022

No. 20-20575 On August 15, 2019, McGavitt was arrested in Texas on an unrelated state charge of aggravated sexual assault of a child under the age of 14. After McGavitt was transferred into federal custody several days later, federal investigators obtained a search warrant for a cellular phone that was seized during McGavitt’s arrest. The phone contained 71 images of MV1, 16 of which McGavitt conceded met the federal definition of child pornography. The phone also contained 13 videos of MV1, all of which McGavitt likewise conceded met the federal definition of child pornography. One video, 22 seconds in length, depicted MV1, whose face was visible throughout, “lying on a bed while completely nude . . . inserting the handle of a hairbrush into her vagina.” Two other videos of comparable length depicted MV1 “inserting her fingers into her vagina.” On September 5, 2019, an indictment was filed in the United States District Court for the Southern District of Texas, charging McGavitt with three counts: (1) “coercion and enticement of a minor for the purpose of rape, in violation of 18 U.S.C. § 2422(b)”; (2) “sexual exploitation of children by coercion and enticement for the production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e)”; and (3) “possession of child pornography, in violation of 18 U.S.C. [§]§ 2552A(a)(5)(B) and 2252A(b)(2).”2 McGavitt appeared with counsel before the district court in March 2020 and pled guilty to all three counts. Following his guilty plea, McGavitt faced sentencing. A probation officer compiled a Presentence Investigation Report (PSR). The PSR grouped McGavitt’s three counts pursuant to U.S.S.G. § 3D1.2(b), which requires grouping of counts that involve a common victim and objective, and Case: 20-20575 Document: 00516234659 Page: 4 Date Filed: 03/11/2022 Case: 20-20575 Document: 00516234659 Page: 5 Date Filed: 03/11/2022 Case: 20-20575 Document: 00516234659 Page: 6 Date Filed: 03/11/2022 Case: 20-20575 Document: 00516234659 Page: 7 Date Filed: 03/11/2022 Case: 20-20575 Document: 00516234659 Page: 8 Date Filed: 03/11/2022 Case: 20-20575 Document: 00516234659 Page: 9 Date Filed: 03/11/2022 Case: 20-20575 Document: 00516234659 Page: 10 Date Filed: 03/11/2022

No. 20-20575 F.3d 581, 589 (5th Cir. 2020) (finding no effect on substantial rights where correction “would still result in a total offense level of 43”). C. McGavitt next challenges his two-level enhancement under § 2G2.1(b)(2)(A) for the commission of a sexual act or sexual contact. He asserts that (1) there is no evidence that his sexual contact with MV1 was for the purposes of, during, or in preparation for the production of child pornography; and (2) the enhancement amounts to improper double- counting. Because McGavitt’s objections in the district court would not have alerted the court to these assertions of error,4 we review for plain error only. See Pittsinger, 874 F.3d at 450–51. Section 2G2.1(b)(2)(A) provides for a two-level enhancement when the offense involved “the commission of a sexual act or sexual contact.” The enhancement applies “whenever sexual contact (or sexual acts) can be considered relevant conduct to the offense of conviction.” United States v. King, 979 F.3d 1075, 1083 (5th Cir. 2020). “Relevant conduct” is defined as “all acts and omissions committed . . . by the defendant . . . during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection of responsibility for that offense[.]” U.S.S.G. § 1B1.3(a)(1)(A). McGavitt pled guilty to Count 2, which charged that from approximately November 1, 2018, until May 26, 2019, he sexually exploited Case: 20-20575 Document: 00516234659 Page: 11 Date Filed: 03/11/2022

No. 20-20575 MV1, by coercion and enticement, for the purpose of producing child pornography. The district court used Count 2 as the offense of conviction, and enhanced McGavitt’s sentence under § 2G2.1(b)(2)(A) on the ground that he drove to Arkansas in April of 2019 and engaged in “sexual intercourse with MV1, which is considered an act of rape.” McGavitt does not challenge the district court’s finding that he had intercourse with MV1 or that such conduct constituted “a sexual act or sexual contact”; rather, he asserts that “[t]here is no evidence that sexual intercourse took place for the production of child pornography, during the production of child pornography, [or] in preparation for the production of child pornography[.]” The district court did not plainly err in applying the § 2G2.1(b)(2)(A) enhancement. According to the indictment, the sexual exploitation offense occurred “[f]rom on or about November 1, 2018, through on or about May 26, 2019[.]” The record contains MV1’s statement that on April 11, 2019, McGavitt showed up at her church and home and engaged in sexual intercourse with her. Following that encounter, MV1 produced and sent at least three pornographic images at McGavitt’s behest. This sequence of events supports a finding that McGavitt committed the “sexual act or sexual contact” at issue “during the commission of” or “in preparation for” his sexual exploitation of MV1, U.S.S.G. § 1B1.3(a)(1)(A), as he demanded that MV1 continue sending him explicit images of herself after he had intercourse with her. McGavitt also contends that the district court’s sexual intercourse finding was connected to his conviction for coercion and enticement for the purpose of rape (i.e., Count 1), so applying an adjustment for that conduct under § 2G2.1, the Guideline for sexual exploitation of a child (i.e., Count 2), amounts to improper double counting. For support, McGavitt cites § 3D1.2, cmt. n.5, which discusses the grouping of counts under § 3D1.2(c). The commentary explains “that when conduct that represents a separate Case: 20-20575 Document: 00516234659 Page: 12 Date Filed: 03/11/2022

No. 20-20575 count . . . is also a specific offense characteristic in or other adjustment to another count, the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor.” U.S.S.G. § 3D1.2, cmt. n.5. This grouping is designed to “prevent[] ‘double counting’ of offense behavior.” Id. Here, the district court grouped Counts 1 and 2 together pursuant to § 3D1.2(c) because the rape conduct underlying Count 1 was “treated as a specific offense characteristic in, or other adjustment to, the [G]uideline applicable to” Count 2. This was nothing more than a straightforward application of § 3D1.2 and its relevant commentary. In fact, by grouping Counts 1 and 2, the district court did exactly what McGavitt complains it failed to do—it prevented double counting of offense behavior. McGavitt’s double counting argument is thus without merit. D. Finally, McGavitt challenges the district court’s application of the Guidelines grouping rules. He asserts that the court erred by selecting Count 2 as the “highest offense level,” and thus the offense level applicable to the group, without first determining the offense levels of the other counts in the group (Counts 1 and 3). Because McGavitt failed to preserve this argument, we review for plan error. See Pittsinger, 874 F.3d at 450–51. Under “the [G]uidelines, a court should first determine the base level for an offense, then apply any appropriate specific offense characteristics or enhancements.” United States v. Dickson, 632 F.3d 186, 190 (5th Cir. 2011) (citing U.S.S.G. § 1B1.1(a)). The court should repeat those steps for each count of conviction. U.S.S.G. § 1B1.1(a)(4). “Next, if necessary, the court should group the various counts according to § 3D and adjust accordingly.” Dickson, 632 F.3d at 190. Where, as here, counts are grouped together pursuant to § 3D1.2(a)–(c), “the offense that produces the highest total Case: 20-20575 Document: 00516234659 Page: 13 Date Filed: 03/11/2022

No. 20-20575 offense level, not the highest base offense level, sets the level for the group.” Id. at 191; accord U.S.S.G. § 3D1.3(a) and cmt. n.2. It is unclear from the record whether the district court applied specific offense characteristics or enhancements to each count before grouping them together and determining the highest offense level in the group. Though the PSR states that “Count 2 results in the highest offense level and becomes the count for the group,” it does not include offense-level calculations (i.e., base offense level + enhancements – reductions) for Counts 1 and 3. But even assuming the district court erred by either misapplying the grouping rules or simply failing to show its work, McGavitt’s argument on this point lacks merit. Because we affirm the four-level § 2G2.1(b)(4)(A) enhancement and the two-level § 2G2.1(b)(2)(A) enhancement, and discounting arguendo the distribution enhancement under § 2G2.1(b)(3), the total offense level for Count 2 would be 44. If McGavitt is correct that one of the other two counts would have resulted in a higher total offense level after adjustment, and therefore should have been used instead of Count 2, the district court’s failure to compute his Guidelines range of imprisonment using an even higher offense level would not have prejudiced him. Because McGavitt’s total offense level would have been the same (the Guidelines maximum of 43), he cannot show that any error in the district court’s grouping calculations affected his substantial rights. See Nava, 957 F.3d at 589. IV. We discern no reversible error in the district court’s application of the four-level § 2G2.1(b)(4)(A) sentencing enhancement under this court’s precedent. We find no plain error with regard to the district court’s application of the § 2G2.1(b)(3) enhancement, the § 2G2.1(b)(2)(A) Case: 20-20575 Document: 00516234659 Page: 14 Date Filed: 03/11/2022

No. 20-20575 enhancement, or the Guidelines grouping rules. The sentence imposed by the district court is AFFIRMED.