IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30546

UNITED STATES,

Plaintiff-Appellee,

versus

MATTHEW CARROLL,

Defendant-Appellant.

* * * * * * * * * * * * * * * * *

No. 98-30547

UNITED STATES,

Plaintiff-Appellee,

versus

ROBERT RANDALL REINHART,

Defendant-Appellant.

Appeals from the United States District Court for the Western District of Louisiana

September 18, 2000

Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges. PER CURIAM:

In these two cases defendants Carroll (our No. 98-30546) and

Reinhart (our No. 98-30547), having been jointly indicted and

convicted on their guilty pleas of one count of conspiring with

each other to sexually exploit children contrary to

(a) and (d), appealed their sentences to this Court. In our

September 14, 1999, opinion in both cases, United States V.

Carroll,

(5th Cir. 1999), we affirmed as to each

defendant. As more fully reflected in that opinion, both Carroll

and Reinhart contended before the panel that the district court

erred in considering for sentencing guidelines purposes their

conduct, on separate occasions, with each of two specific minors,

“male #1" and “male #3", as each constituting an instance of sexual

exploitation of children contrary to section 2251(a) in that they

used or induced said minors to engage in sexually explicit conduct,

as defined in

(2), for the purpose of producing a

visual depiction thereof.1 The defendants each contended that was

error because the facts relied on by the district court did not

reflect that either minor engaged in actual or simulated sexually

explicit conduct as defined in section 2256(2). The panel

unanimously rejected that contention as to male #3, and, by a

divided vote, likewise rejected that contention as to male #1. The

panel dissent took the position that no section 2251(a)

1 These were the only contentions raised on appeal.

2 exploitation of male #1 was made out because he never engaged in

any actual or simulated sexually explicit conduct, but rather only

“[a] picture of his face was taken and later–without his knowledge

or consent–superimposed on a picture exhibiting the genitals of one

not shown to be a minor.”

.

Carroll filed a petition for panel rehearing complaining only

of the ruling as to male #1. The panel overruled Carroll’s

petition for rehearing. He did not file a petition for rehearing

en banc. Reinhart filed a petition for rehearing en banc,

complaining only of the ruling as to male #1. He did not file a

petition for panel rehearing. The Court requested a response from

the Government to Reinhart’s petition for rehearing en banc. The

Government filed a response contending that the panel majority

ruling as to male #1 was correct. Thereafter, pursuant to “a poll

on the petition for rehearing en banc,” the Court ordered No. 98-

30547 reheard en banc. United States v. Reinhart,

(5th Cir. 2000) (en banc). The panel then issued an order in No.

98-30546 (Carroll) that “recalls the mandate previously issued in

this matter pending the outcome of the en banc rehearing in USA v.

Reinhart.”

In Reinhart’s en banc brief, filed well after his case was

taken en banc, he complained not only of the panel ruling as to

male #1, but also of the panel ruling as to male #3. Thereafter,

the Government filed its en banc brief in Reinhart. It maintained

3 that the panel did not err with respect to male #3. However, with

respect to male #1 the Government confessed error and conceded that

resentencing was appropriate.2

The en banc court then issued its unanimous per curiam order

stating that “in view of the concession of the United States . . .

that . . . Reinhart’s action in superimposing a photograph of the

face of an identifiable minor on an image of a nude body is not

conduct proscribed by

(a) and that remand for

resentencing is hence appropriate, en banc consideration is no

longer required and this case is remanded to the panel.” United

2 The Government’s en banc brief states in relevant part:

“After a thorough and searching review of the plain wording of

(a) and the legislative history addressing it at the time it was enacted, and other pertinent legislative history, the government concedes, that a violation of Section 2251(a) requires that the defendant employ, use, persuade, induce, entice or coerce the minor himself to engage in the actual or simulated sexually explicit conduct for the purpose of producing a visual depiction of the minor’s sexually explicit conduct.

The government has no evidence that defendant induced minor male #1 to engage in any actual or simulated ‘lascivious exhibition of the genitals.’ Without the minor’s knowledge, Reinhart manipulated the picture of the minor’s face with a computer and superimposed the minor’s face on a picture exhibiting the genitals of a person of unknown origin. Defendant did not induce minor male #1 to engage in any sexually explicit conduct as defined by

(2) for the purpose of producing a visual depiction of that conduct.

For this reason the government concedes that defendant’s sentence should be vacated and the case remanded for re- sentencing.”

4 States v. Reinhart, ___ F.3d ____ (5th Cir. 2000) (en banc).

Reinhart’s case (No. 98-30547) is now before this panel

pursuant to the remand from the en banc court. Carroll’s case (No.

98-30546) is now before this panel pursuant to our referenced prior

order recalling the mandate therein. We now take the following

action in both of these cases.

We withdraw and vacate all of the following portions of our

prior opinion herein (reported at

), namely: (1) the

last sentence of the first paragraph of the opinion; (2) all of the

opinion under the heading “Male #1" (except the first grammatical

paragraph thereunder), commencing with the second grammatical

paragraph in right hand column on page 293 of 192 F.3d and

continuing through the end of the carryover paragraph ending in the

left hand column on page 297 of 192 F.3d just before the heading

“Male #3;” (3) all of footnotes 5 and 6; and (4) all of the opinion

starting with “CONCLUSION” on page 298 and ending with “AFFIRM” on

that page. We likewise vacate our prior holding that the district

court did not err in its treatment for sentencing purposes of

defendants’ conduct respecting male #1.

We reinstate all the remainder of our prior opinion, and we

likewise reinstate our prior holding that the district court did

not err in its treatment for sentencing purposes of defendants’

conduct respecting male #3.

In light of the Government’s concession of error and the

5 remand order of the en banc court, we vacate the sentences of

Reinhart and Carroll and remand those cases to the district court

for resentencing consistent with the Government’s said concession.

VACATED AND REMANDED

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