United States of America v. Antonio Perez, Iii

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50204
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTONIO PEREZ, III
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-150-ALL
Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.
PER CURIAM:*
Antonio Perez III pleaded guilty to interstate transportation of child
pornography after he used his computer in Texas to send video clips to the email
address of his ex-girlfriend’s minor sister in California. He appeals his sentence
of 240 months’ imprisonment, contending that the district court erred when it
enhanced his sentence after deciding that materials he had transported
portrayed sadistic conduct or other depictions of violence. We affirm.
United States Court of Appeals
Fifth Circuit
F I L E D
February 4, 2008
Charles R. Fulbruge III
Clerk

-- 1 of 3 --

No. 07-50204
2
The video materials that Perez electronically transported to the minor
sister showed his ex-girlfriend, Ms. Bradley, sexually abusing her two-year-old
son in different ways. After Perez was arrested, investigators found over 3,600
additional pornographic images on his computer. Some of those additional
images were portrayals of sadistic conduct or other depictions of violence,
namely, depictions of adult males sexually penetrating children. According to
the PSR, which the district court adopted despite Perez’s attempt to rebut it by
testifying, Perez had electronically transmitted some of the additional images
from Texas to Bradley in California to lure her into producing pornographic
images of children for his enjoyment. At Perez’s request, Bradley then recorded
videos in which she had sex with her infant son; Perez sent some of those images
to her minor sister after Bradley left him.
A district court may rely on information contained in a presentence report
(“PSR”) in making factual determinations with regard to a sentence “so long as
the information has some indicium of reliability.” United States v. Shipley, 963
F.2d 56, 59 (5th Cir. 1992) (citations and quotations omitted). The defendant
bears the burden of showing by credible rebuttal evidence that the PSR is
inaccurate. United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). The district
court implicitly rejected Perez’s denials when it adopted the PSR over his
objections. See United States v. Richardson, 998 F.2d 1014 (5th Cir. 1993)
(unpublished opinion). The district court was not required to accept Perez’s self-
serving declarations, made with the purpose of reducing his sentence, about the
circumstances of his crime. See United States v. Buenrostro, 868 F.2d 135, 138
(5th Cir. 1989).
We conclude that Perez’s electronic transportation to Bradley of the
additional images involving adult men sexually abusing children constituted
relevant conduct within the meaning of Sentencing Guidelines § 2G2.2(b)(4). See
United States v. Buchanan, 485 F.3d 274, 286–87 (5th Cir. 2007); United States

-- 2 of 3 --

No. 07-50204
3
v. Lyckman, 235 F.3d 234, 239–40 (5th Cir. 2000). Consequently, Perez’s
sentence was properly enhanced because of those images.
The judgment of the district court is AFFIRMED.

-- 3 of 3 --