United States v. Jason Ehret

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18- 41159

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JASON MICHAEL EHRET,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-801-1

Before JOLLY, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Jason Michael Ehret appeals his sentence for possession of child
pornography, contending that two of his sentence enhancements are
inapplicable and that certain aspects of his supervised release are
unreasonable. We find his challenges either waived or otherwise unsuccessful
and AFFIRM.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 31, 2020

Lyle W. Cayce
Clerk
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BACKGROUND
Pursuant to a written plea agreement, Jason Michael Ehret pled guilty
to one count of possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). In January 2017, Ehret was sentenced to 87 months in
prison, a lifetime term of supervised release, and a $10,000 fine. Ehret did not
file a direct appeal.
In February 2018, Ehret filed a pro se 28 U.S.C. § 2255 motion, seeking
vacatur of his sentence on the ground that he had, in several ways, received
ineffective assistance of counsel at sentencing. The district court determined
that counsel had in fact rendered ineffective assistance in advising Ehret not
to appeal. The district court dismissed Ehret’s § 2255 motion without prejudice
and ordered that the original criminal judgment be reentered so that Ehret
could proceed with an out-of-time appeal. Ehret filed a timely notice of appeal
from the reentered judgment.
STANDARD OF REVIEW
“This court reviews a sentencing decision for reasonableness using a two-
step process. First, the court determines whether the district court committed
any significant procedural error. Under the first step, this court reviews ‘the
district court’s interpretation or application of the sentencing guidelines de
novo, and its factual findings for clear error.’ If there is no procedural error or
the error is harmless, this court then reviews the substantive reasonableness
of the sentence imposed for abuse of discretion.” United States v. Groce,
784 F.3d 291, 294 (5th Cir. 2015) (citations omitted). In sentencing as
elsewhere, however, “[f]orfeited errors are reviewed under the plain error
standard; waived errors are entirely unreviewable.” See United States v.
Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006).
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DISCUSSION
On appeal, Ehret contests the application of two sentence enhancements.
He also faults the duration, and certain conditions, of his supervised release.
These challenges are unsuccessful.
I. Sentence Enhancements
At the time of Ehret’s sentencing, as at present, the Sentencing
Guidelines stated, regarding offenses under 18 U.S.C. § 2252A(a)(5):
If the offense involved material that portrays .
. . sadistic or
masochistic conduct or other depictions of violence . . . increase by
4 levels.
U.S. Sentencing Guidelines Manual § 2G2.2 (b)(4) (U.S. Sentencing
Comm’n 2016).
If the defendant knowingly engaged in distribution, . . . increase
by 2 levels.
Id. § 2G2.2(b)(3)(F).
The presentence report recommended these enhancements, among
others. At sentencing, Ehret objected to them, but then withdrew his
objections. Now, he challenges both enhancements on appeal, but the
government responds that he has waived his right to appeal on these bases.
We agree with the government.
This court has held, “By abandoning [an] objection to [a] sentencing
enhancement, [a defendant] waive[s] his right to appeal on this basis.” United
States v. Conn, 657 F.3d 280, 286 (5th Cir. 2011). The government contends
that this principle clearly applies to Ehret’s sentencing objections. Ehret
counters, unpersuasively, that two exceptions protect him against the waiver
doctrine.
Ehret contends first that his waiver was “not entirely voluntary.” He
maintains that he withdrew his objections to the relevant sentence
enhancements “based on the sentencing court’s statements that pursuing these
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objections would result in [his] losing any reduction in offense level for
acceptance of responsibility” under Guidelines section 3E1.1.
1
Yet the
sentencing court’s first statement about acceptance of responsibility came only
after Ehret’s counsel withdrew the objection to the masochism-related
enhancement.
2
And Ehret did not withdraw his objection to the knowing-
distribution enhancement immediately following that statement. Instead, his
counsel withdrew the objection after a witness—on whose report counsel had
relied in denying that Ehret knowingly shared or deliberately saved child
pornography—abandoned a previous statement that Ehret had inadvertently
downloaded child pornography. In this light, counsel seems to have withdrawn
objections to the relevant enhancements because he thought he could not
substantiate them, not because of the sentencing court’s statements.
3

1
That provision states:
§3E1.1. Acceptance of Responsibility
(a) If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is level
16 or greater, and upon motion of the government stating that the
defendant has assisted authorities in the investigation or prosecution
of his own misconduct by timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and the court to
allocate their resources efficiently, decrease the offense level by 1
additional level.

2
Ehret also points to comments made by the court at re-arraignment, and these, too,
he might characterize as “statements that pursuing these objections would result in
appellant losing any reduction in offense level for acceptance of responsibility.” Even
accepting that characterization arguendo, however, these comments came at re-arraignment,
before the initial and final presentence reports, and well before the sentencing hearing. They
could not have been reasonably taken to be the court’s final position on sentencing, and Ehret
did not so take them, for he raised a written objection to the masochism-related enhancement
two months after re-arraignment.

3
In any event, the record supports that the sentencing court meant to deny the
acceptance-of-responsibility reduction, if at all, on the ground that Ehret was falsely denying
relevant conduct that the court had determined to be true. That was a permissible ground
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Ehret’s second argument against application of the waiver doctrine
points to developments in law occurring after his sentencing. Regarding the
masochistic-conduct enhancement, Ehret notes United States v. Nesmith,
characterizing its holding as “this enhancement should only apply when
contemporaneous violence to the child was depicted on the video.” Regarding
the knowing-distribution enhancement, Ehret suggests that United States v.
Lawrence first recognized a new knowledge requirement for this enhancement.
Contending that he “could not waive a future change in the law,” Ehret
maintains that he did not waive his arguments from Nesmith and Lawrence.
It is doubtful that a defendant cannot waive appeals of sentencing
enhancements based on future developments in law. See United States v.
Barnes, No. 18-60497, 2020 WL 1332927, at *2–4 (5th Cir. Mar. 23, 2020).
Either way, though, Ehret’s argument fails. Neither Nesmith nor Lawrence
changed the law in a way relevant to Ehret’s case.
In Nesmith, the court held that, for purposes of Guidelines section
2G2.2(b)(4), “an image portrays sadistic conduct where it depicts conduct that
an objective observer would perceive as causing the victim in the image
physical or emotional pain contemporaneously with the image’s creation.”
866 F.3d 677, 681 (5th Cir. 2017).
4
Ehret contends that the court in his case
applied the sentence enhancement because an objective observer would
perceive it as causing the victim emotional pain in the future. He suggests

for denial of the reduction. Guidelines, § 3E1.1 cmt. n.1(a) (“a defendant who falsely denies,
or frivolously contests, relevant conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility”). A defendant who acts in response
to a court’s intention to deny a sentence reduction on a permissible ground does not act
involuntarily.

4
Nesmith does not distinguish between depiction of pain-causing conduct toward
oneself (masochism) and depiction of pain-causing conduct toward others (sadism).
Consequently, although it refers to “sadistic conduct,” its holding may be taken to apply
equally to masochistic conduct.
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that, if Nesmith had existed at the time of sentencing, he would have objected
based on its holding rather than withdrawing his objection. In fact, though,
the record supports that the court applied the sentence enhancement because
the conduct portrayed would be perceived as causing the child
contemporaneous emotional pain. Thus, Nesmith’s holding would have been
no help to Ehret, and its nonexistence at the time of Ehret’s sentencing does
not invalidate his waiver.
5

There is even less reason to think that Lawrence would have affected
Ehret’s decision to withdraw his objection. In Lawrence, the court merely
applied the knowledge requirement of Guidelines section 2G2.2(b)(3)(F), which
went into effect two months before Ehret’s sentencing. See 920 F.3d 331 (5th
Cir. 2019). Ehret’s counsel highlighted this very change in the law while
objecting to the presentence report’s recommendation of the enhancement, and
in no way did Ehret link his withdrawal of that objection to the court’s
unawareness of the knowledge requirement. Later application of that
requirement in Lawrence is no reason to invalidate Ehret’s waiver.
6

5
If Ehret had not waived appeal of this issue, then the issue would receive plain-error
review. See Arviso-Mata, 442 F.3d at 384. Under that standard, a defendant must show an
error that is plain, United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir. 2010), and
in this circuit, precedent supports that sexual penetration of a child is, by law, sadistic
conduct, e.g., United States v. Lyckman, 235 F.3d 234, 237–40 (5th Cir. 2000); United States
v. Canada, 110 F.3d 260, 264 & n.5 (5th Cir. 1997). It reasonably follows that sexual
penetration of a child by herself would be masochistic conduct. Accordingly, it was not plainly
erroneous for the district court to conclude that Ehret’s possession of a video portraying
sexual self-penetration of a prepubescent girl, was an “offense involv[ing] material that
portrays .
. . masochistic conduct,” Guidelines § 2G2.2(b)(4). Even if not waived, then,
Ehret’s appeal would have failed.

6
Here again, if not waived, Ehret’s appeal would receive plain-error review. See
Arviso-Mata, 442 F.3d at 384. Ehret alleges that the court was unaware of the knowledge
requirement for the distribution enhancement and that Ehret lacked such knowledge. At
sentencing, though, the court adopted the presentence report, and noted that “now [Ehret]
admits that he knew he was distributing.” In that light, the first allegation fails.
To the second allegation, Ehret admitted that he searched for and installed
BitTorrent. The installation of BitTorrent requires agreement by the installer (by clicking “I
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Because Ehret fails to establish an applicable exception, his waiver
prevents our review of his sentence-enhancement challenges.
II. Supervised Release
In addition to contesting his sentence enhancements, Ehret also faults
his supervised release. First, he challenges the reasonableness of its duration.
Second, he denies the reasonableness of some of its conditions. Ehret failed to
ra ise these challenges at sentencing, and thus he must “show (1) error (2) that
is plain and (3) that affects his substantial rights.” United States v. Castillo-
Estevez, 597 F.3d 238, 240 (5th Cir. 2010). Then, this court will correct any
such errors “only if they seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Id.
A. Duration
The district court imposed on Ehret a lifetime term of supervised release,
which he challenges, first, as inadequately explained. He alleges that there
was inadequate explanation of why a maximum supervised release was
imposed while a minimum prison sentence was imposed and that there was no
explanation of why a lesser term was not imposed. The court, however,
explained that it was determining the sentence based on the sentencing factors
in 18 U.S.C. § 3553, including deterrence of future criminal conduct and, “first
and foremost,” protection of the public. In this circuit, “little explanation is

accept,”) of a section stating, “Your use of the Software to download files will, in turn, enable
other users to download pieces of those files from you . . . . You consent to others’ use of your
network connection to download portions of such files from you.” Even before Ehret withdrew
his objection, he did not deny clicking, “I accept,” nor did he deny knowing that his use of
BitTorrent enabled him to share files. Instead, he denied knowingly “distributing” files and
denied knowing whether he signed the BitTorrent agreement. After withdrawing his
objection, he admitted knowing, at least then, that BitTorrent is a file-sharing program, that
it enabled him to share files, and that he made files available to others. Finally, Ehret’s
counsel stated, and Ehret himself confirmed, that they had agreed that it “wouldn’t be
genuine” to continue to object to the distribution enhancement. Based on this evidence, the
court plausibly found that Ehret knowingly distributed child pornography. The court did not
plainly err, and if Ehret had not waived his appeal on this issue, it would have failed.
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required” for a within-Guidelines sentence, United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005), and the court provided some explanation. Moreover,
it gave no reason to doubt that it had carefully considered all mitigation
arguments. Cf. United States v. Poulin, 745 F.3d 796, 801 (7th Cir. 2014) (“The
judge here explicitly stated that he did not know the exact context of [the
defendant’s] argument . . . .”). The court’s procedure was not significantly
erroneous.
Ehret challenges the lifetime term substantively, too, as excessive. Yet
in United States v. Scott, this court held that “a lifetime duration of supervised
release is not, itself, plainly erroneous” where “the Guidelines recommend it,
and there is no indication that the district court ‘impos[ed] that recommended
term blindly and without careful consideration of the specific facts and
circumstances of the case before it.’” 821 F.3d 562, 572 n.7 (5th Cir. 2016)
(alteration in original) (quoting United States v. Alvarado, 691 F.3d 592, 598
n.2 (5th Cir. 2012)). In this case, the Guidelines recommended a lifetime term,
see Guidelines § 5D1.2(b)(2) & cmt. n.1, and there is no indication of blind,
careless imposition by the court. In Scott, as in this case, a defendant was
convicted of one count of possession of child pornography, 821 F.3d at 565, and
in another case, this court affirmed the sentence of a 70-year-old defendant
with no criminal history to a lifetime term of supervised release after
downwardly departing from the recommended range for imprisonment, United
States v. Halverson, 897 F.3d 645, 650 (5th Cir. 2018). In light of these cases
alone, the court did not plainly err, if at all, in imposing a lifetime term of
supervised release,
7
and without plain error no reversal under plain-error
review is possible.

7
United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017), on which Ehret relies, does not
consider the reasonableness of a lifetime duration of supervised release in itself.
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B. Conditions
Ehret also objects to certain conditions as unreasonable. In particular,
he opposes restrictions on his internet access, his contact with minor children,
and his nighttime activities outside the home. Ehret argues that these
conditions are unreasonable because they were inadequately explained, but he
offers no additional argument against the court’s explanation, which is
adequate for the reasons stated above. Ehret also maintains that these
conditions are overbroad, like the conditions in United States v. Duke, 788 F.3d
392 (5th Cir. 2015).
Duke is a distinct case, however. The bans in Duke were absolute,
whereas the bans in this case may be lifted with the written approval of Ehret’s
probation officer. Because Duke is distinct from this case, and because Ehret
relies on Duke alone to establish that his supervised-release conditions are
overbroad, he has not shown that any error made by the court in imposing
these conditions was plain.
Even if Ehret had made this showing, though, his challenge would fall
for failure to show harm to the fairness, integrity, or reputation of judicial
proceedings. Ehret knew of the special conditions months in advance of
sentencing, and he confirmed that he had received them, read them, and
discussed them. He failed to object at sentencing, and indeed, his argument
on appeal is not robust. This is not a case in which the government supports
correcting the alleged error, cf. Scott, 821 F.3d at 571–72, and all the conditions
that Ehret challenges are modifiable upon his release, United States v. Prieto,
801 F.3d 547, 553–54 (5th Cir. 2015). This last point, in particular, “weighs
heavily in our consideration,” id. at 554, including as a “countervailing factor[]
. . . satisfy[ing] . . . that the fairness, integrity, and public reputation [would]
be preserved absent correction,” Rosales-Mireles v. United States, 138 S. Ct.
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1897, 1909 (2018). For this reason, then, as well as for lack of plain error,
reversal of the supervised-release conditions is unwarranted.
CONCLUSION
The judgment of the district court is AFFIRMED.
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