UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-40846 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FORREST DALE COMMANDER, JR,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas ______________________________________________ October 2, 2000

Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Pursuant to a written plea agreement, Forrest Dale Commander,

Jr., pleaded guilty to knowingly receiving child pornography in

violation of

(a)(2) and (b)(1). The Government

agreed to recommend that Commander be given a reduction for

acceptance of responsibility and that he be sentenced at the lowest

end of the applicable guideline imprisonment range.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The probation officer’s presentence report (PSR) recommended,

inter alia, that Commander’s sentence be increased two levels under

§ 2G2.2(b)(1), which provides that “[i]f the material involved a

prepubescent minor or a minor under the age of twelve years,

increase by 2 levels.” At sentencing, Commander objected to this

enhancement on the ground that he did not intend to receive

material involving depiction of a minor who was “prepubescent” or

under the age of 12. After an evidentiary hearing, the district

court overruled Commander’s objection because “the evidence

presented by the Customs official and by the NCIS official are

explanatory of the other exhibits . . . that show other

prepubescent minors and that circumstantial evidence of these

possessions and receipts is persuasive of this particular exhibit

together with the title and appearance of the victim in that case.”

The court sentenced Commander to 51 months in prison and to three

years of supervised release. Commander now appeals his sentence.

Commander first argues that the district court erred by

increasing his sentence two levels pursuant to § 2G2.2(b)(1)

because the government failed to show that he intended to receive

a depiction of a prepubescent minor. Specifically, Commander

argues that the district court should not have relied on conduct

that occurred subsequent to his receipt of the image in addressing

his intent. However, the sentencing guidelines provide that “[i]n

resolving any dispute concerning a factor important to the

2 sentencing determination, the court may consider relevant

information without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has

sufficient indicia of reliability to support its probable

accuracy.” § 6A1.3 (emphasis added). Commander does not suggest

that his subsequent conduct lacks “sufficient indicia of

reliability” but he does contest the relevance of such conduct.

Generally, evidence of prior bad acts may be admissible to prove

intent. See e.g., United States v. Gonzalez-Lira,

(5th Cir. 1991); United States v. Beechum,

(5th Cir. 1978) (en banc). This Court has held that evidence of a

“subsequent similar act” is admissible for the same purpose.

United States v. Webb,

(5th Cir. 1980); see also

United States v. Latney,

(D.C. Cir. 1997)

(citing 2 JACK B. WEINSTEIN ET AL., WEINSTEIN’S EVIDENCE ¶ 404[08],

at 404-49 to 404-50 & n. 22 (1996)). We therefore reject

Commander’s argument that the district court erred in considering

evidence of his subsequent similar acts.

In light of the evidence that: (1) Commander committed

subsequent similar acts; (2) the name of the document was

“11BLODAD.JPG”; and (3) Commander downloaded and stored the image

of the prepubescent minor involved in a sexual act on his hard

drive, we hold that the district court did not commit clear error

in determining the government proved by a preponderance of the

3 evidence that Commander intended to receive a depiction of a

prepubescent minor.

Commander next argues that the district court erred in

increasing his offense level pursuant to § 2G2.2(b)(3). This

section provides that “[i]f the offense involved material that

portrays sadistic or masochistic conduct or other depictions of

violence, increase by 4 levels.” He argues that the depiction of

an adult performing a sexual act with a child is not in and of

itself violent, sadistic, or masochistic. Commander, however,

raises this objection for the first time on appeal. Thus, we

review it only for plain error. United States v. Calverley,

(5th Cir. 1994) (en banc). Under Rule 52(b), this

Court may correct forfeited errors only when the appellant shows

the following factors: (1) there is an error (2) that is clear or

obvious and (3) that affects his substantial rights.

If these

factors are established, the decision to correct the forfeited

error is within the sound discretion of the court, and we will not

exercise that discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

United States v. Olano,

(1993).

The Eleventh Circuit has held that photographs depicting

children under twelve years of age being penetrated sexually by

adult males or by a glass bottle warranted the enhancement of which

Commander complains. See United States v. Garrett,

(11th Cir. 1999). Not surprisingly, Commander has not pointed us

to any holding under similar circumstances that is contrary to the

Eleventh Circuit’s pronouncement. Accordingly, Commander has not

shown that any error was “clear or obvious.” Calverley,

.

For the above reasons, Commander’s sentence is AFFIRMED.

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