# United States v. Rubalcava

> Court of Appeals for the Fifth Circuit · December 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11213364

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 3, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Direct Criminal
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11213364

## How later opinions describe it (automated extraction)

- reasoning that even if an error in a Sentencing Guidelines calculation is established, “such error shall nevertheless be disregarded if it is harmless, i.e., if it does not affect substantial rights” (quoting FED. R. CRIM. P. 52(a))

## Opinion text

Case: 24-40463 Document: 102-1 Page: 1 Date Filed: 12/03/2025

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

____________ FILED
December 3, 2025
No. 24-40463 Lyle W. Cayce
____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Ulysses Rubalcava,

Defendant—Appellant.
______________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:22-CR-111-1
______________________________

Before Smith, Stewart, and Haynes, Circuit Judges.
Carl E. Stewart, Circuit Judge:
In October 2023, Ulysses Rubalcava pleaded guilty to one count of
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B),
and two counts of sexual exploitation of children, in violation of 18 U.S.C.
§ 2251(a). The district court sentenced him within the guidelines range to
concurrent terms of 240 and 360 months of imprisonment, followed by a
term of supervised release. The district court further imposed criminal
monetary penalties and restitution in the total amount of $55,300. For the
following reasons, we AFFIRM.
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I. FACTUAL & PROCEDURAL BACKGROUND1
In June 2021, Jazmine Rubalcava (“Jazmine”) discovered her then-
husband Rubalcava in the room of his eleven-year-old stepdaughter, Mary
Doe, lying on his stomach between Mary’s legs, attempting to pull her pants
down. Jazmine confronted Rubalcava, searched his cellphone, and
discovered multiple photographs of him sexually assaulting their eight-year-
old daughter, Jane Doe. Rubalcava subsequently admitted that he had forced
Jane to engage in oral and anal sex and that he had sexually assaulted both
Jane and Mary in numerous ways. He also acknowledged that he had
photographed both Jane and Mary naked and had videoed them engaging in
sexual acts.
Jazmine alerted authorities and Rubalcava was arrested. A subsequent
search of his cellphone and electronic devices revealed 194 images and one
video depicting his sexual abuse of Jane and Mary. During a forensic
interview, Mary recounted that Rubalcava’s abuse began one or two years
prior and that it occurred on a weekly basis. In her forensic interview, Jane
reported that Rubalcava began abusing her at age five, forcing his penis into
her genitals and mouth and inserting a pink toy into her genitals and anus.
Jane further explained that Rubalcava recorded the sexual abuse of both her
and Mary and forced them to watch the videos as well as other pornographic
videos. Both Jane and Mary reported that the sexual abuse caused them
physical pain and that they would always ask Rubalcava to stop but he would
continue the abuse.

_____________________
1
The names of the minor victims involved in this appeal have been changed for
their privacy protection. See 18 U.S.C. §§ 3509(a)(2), (d).

2
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Rubalcava was charged with one count of possessing child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count one), and
two counts of sexual exploitation of children, in violation of 18 U.S.C. §
2251(a) (Counts two and three). He pleaded guilty to the charges without the
benefit of a plea agreement.
The Presentence Investigation Report (“PSR”) determined that the
combined total offense level for Rubalcava’s counts of conviction, including
several sentencing enhancements and a multi-count adjustment, was 50. His
offense level was then reduced to 43 as the highest offense level available
under the Guidelines. With a criminal history score of I, he faced a guidelines
range of life imprisonment, reduced to the applicable statutory maximum
sentences of 240 months on Count one and 360 months on Counts two and
three.
Under the heading “Financial Condition: Ability to Pay,” the PSR
noted that Rubalcava had assets totaling $415,000. His assets included a
vehicle worth $5,000, a residence valued at $287,848, and $122,152 in a trust
account at Cadence Bank. According to the record, in 2003, when he was a
minor, Rubalcava was injured in a car accident and subsequently awarded an
unspecified amount of money as a result of an ensuing lawsuit. The money
was then placed in a special needs trust account at Cadence Bank. The PSR
further indicated that appraisal records listed the Cadence Bank NA Trustee
as the registered owner of Rubalcava’s residence, and that a financial records
request was pending at Cadence Bank.
Rubalcava objected to the PSR on several grounds, including its
findings related to his financial condition and ability to pay. He asserted that
the assets listed were controlled by the committee of trustee officers at
Cadence Bank and he had no authority over the funds in the court-ordered
special needs trust account. The Probation Officer recommended that the

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objection be overruled, explaining that the special needs trust account in
question had been established in 2005 by court order, that Rubalcava was the
primary beneficiary of the account, and that, pursuant to the order, he was
entitled to recover all of the trust principal.
Upon receipt of the financial records requested from Cadence Bank, a
revised PSR was prepared. The PSR explained that “[a]ccording to the
statement period ending on September 30, 2023, the asset valuation of the
special needs trust account managed by Cadence Asset Management and
Trust bank was $458,364.40.” The PSR further noted that “[a]ccording to
financial records obtained from Cadence Asset Management and Trust bank,
the market value cost of the residence is $230,000.00; therefore, the equity
of the home is approximately $57,848.00.” Rubalcava’s total assets were
listed as $521,211.40, reflecting the current balance of the trust account as
$228,363.40.
At sentencing, the district court overruled Rubalcava’s objections to
the PSR’s guidelines calculations, adopted the PSR’s findings and
conclusions, and sentenced him within the guidelines range to 240 months of
imprisonment on Count one and 360 months on Counts two and three, to be
served concurrently, followed by an eight-year term of supervised release.
With respect to restitution and the financial assessments, the government
acknowledged that there was an outstanding question as to whether the trust
account funds could be considered as part of Rubalcava’s financial resources
and ability to pay. It then requested and received a continuance to research
and submit a brief on the issue.
In its later-filed supplemental brief in support of its request for
restitution, the government asserted that Rubalcava’s child victims would
incur reasonably foreseeable future losses for counseling necessitated by his
criminal conduct. It included a victim impact statement that was provided by

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Jazmine, describing how Rubalcava’s conduct had affected Jane and Mary. It
further submitted an estimate of the costs of such counseling from a local
licensed therapist.
The government also requested that Rubalcava be ordered to pay an
assessment under the Amy, Vicky, and Andy Child Pornography Victim
Assistance Act of 2018 (“AVAA”)2 in an unspecified amount not to exceed
$50,000, in light of the factors set forth in 18 U.S.C. §§ 3553(a) and 3572. It
attached an unsigned, unexecuted copy of the special needs trust account
order (“the trust document”), establishing a spendthrift trust fund account
for Rubalcava’s sole benefit in 2004. The government acknowledged that the
trust document provided that the trust assets could not be assigned by the
beneficiary to others or otherwise attached in satisfaction of any debt or
liability.
At the continued sentencing hearing, Rubalcava advised that, as part
of his pending divorce settlement, he would have access to proceeds from the
sale of his home. The district court found such proceeds relevant for
purposes of the AVAA assessment and questioned whether the trust account
funds could also be considered in determining the amount of that assessment.
Rubalcava argued that the trust account funds could not be considered
because he had no authority to compel the trustee to distribute any funds, no
lien could attach to the trust principal, and there was no provision in the trust
document compelling any annual or regular distributions—only distributions
for his special needs as approved by the trustee in its discretion.
The district court ultimately determined that Rubalcava was not
indigent and imposed a total of $55,300 in criminal monetary penalties.
These included a $5,000 assessment per count of conviction under the
_____________________
2
See 18 U.S.C. § 2259A.

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Justice for Victims of Trafficking Act of 2015 ($15,000 total),3 and restitution
in the amount of $5,000 per victim ($10,000 total)4 for each victim’s
reasonably foreseeable future losses due to the offenses. The district court
further concluded that a special assessment under the AVAA of $10,000 per
count of conviction was warranted, for a total assessment of $30,000.5 In
imposing the $30,000 assessment under the AVAA, the district court stated
that it did so upon considering the relevant statutory factors set forth in
18 U.S.C. §§ 3553(a) and 3572, specifically Rubalcava’s financial resources,
potential future earnings or lack thereof given the length of the sentence
imposed, and the particularly serious nature of his offense.6 Rubalcava filed
this appeal.
II. DISCUSSION
On appeal, Rubalcava advances six challenges to his sentence.
Specifically, he contends that the district court erred in (1) imposing
restitution in the amount of $10,000; (2) imposing a special assessment
under the AVAA in the amount of $30,000; (3) applying a four-point
sentencing enhancement under U.S.S.G. § 2G2.1(b)(4)(A); (4) applying a
four-point sentencing enhancement under U.S.S.G. § 2G2.1(b)(2)(B); (5)
cross-referencing Count one under U.S.S.G. § 2G2.2(c)(1); and (6) due to
its erroneous application of the sentencing enhancements and the cross-
reference, it erred in calculating and imposing concurrent sentences of 240
and 360 months. We address each of his arguments in turn.

_____________________
3
See 18 U.S.C. § 3014.
4
See 18 U.S.C. § 2259(a).
5
See 18 U.S.C. § 2259A.
6
The district court also imposed a $100 special assessment for each count ($300
total). See 18 U.S.C. § 3013.

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A. Restitution ($10,000)
Rubalcava first argues that the district court erred in ordering him to
pay restitution in the amount of $5,000 per victim for a total of $10,000 under
18 U.S.C. § 2259(a). He contends that the government failed to meet its
burden of proof by providing the district court with record evidence showing
the costs incurred or losses sustained by the victims as a result of his offenses.
We review the legality of the district court’s restitution order de novo
and its amount for abuse of discretion. United States v. Villalobos, 879 F.3d
169, 171–72 (5th Cir. 2018). Under 18 U.S.C. § 2259(a), a district court “shall
order restitution for any offense under this chapter.” Section 2259(b)(1)
further provides that the order of restitution must cover “the full amount of
the victim’s losses” as determined by the court. “Losses under the statute
comprise costs incurred for psychiatric and psychological care, rehabilitation,
necessary transportation, lost income, attorneys’ fees, and any other losses
suffered by the victim as a proximate result of the offense.” Villalobos, 879
F.3d at 171. It is the government’s burden to prove “the amount of the loss
sustained by [the] victim as a result of the offense.” Id. (citing 18 U.S.C.
§ 3664(e); see also 18 U.S.C. § 2259(b)(2) (incorporating 18 U.S.C. §§ 3363A
and 3664)). Although the district court’s restitution order is not required to
be exact, it “should represent an application of law, not a decisionmaker’s
caprice.” Id. at 172 (citing Paroline v. United States, 572 U.S. 434, 461 (2014)).
Once it determines the total amount of the victim’s losses, “the court shall
order restitution in an amount that reflects the defendant’s relative role in
the causal process that underlies the victim’s losses, but which is no less than
$3,000.” 18 U.S.C. § 2259(b)(2)(B).
The district court held a sentencing hearing on restitution in June
2024. With respect to restitution under § 2259(a), the district court stated:

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Based on the victim impact statements, the nature of the crime
as described in the PSR and the government’s brief, I find that
Mr. Rubalcava’s conduct did cause, will continue to cause each
of the victims to incur some form of loss. At the very least, in
anticipated counseling because of the trauma that they have
suffered. The question is whether there is evidence before the
court to award more than the $3,000 minimum—minimum
amount.
The district court then inquired whether the government could provide
evidence justifying an award of restitution above the $3,000 minimum. The
government responded that it did not have “any bills or receipts of therapy”
that the mother had paid on behalf of the victims because they were currently
reluctant to revisit the trauma of the sexual abuse they endured through
therapy or counseling. Nevertheless, the government averred that it would
be “inevitable” for the children “to need some therapy in the future” so they
could “learn how to cope with their new reality.” In support of this
argument, the government referenced the memorandum it had filed in
advance of the restitution hearing from the local licensed professional
counselor recommending that both minors receive long-term therapy given
the facts of the case. Therein, it provided the counselor’s estimate of the
frequency and cost of the counseling sessions explaining that each minor
would likely need an hour of counseling per week for the first year and
biweekly thereafter at a weekly rate of $120 per hour. Based on this
calculation the counselor projected that the minors would incur future losses
of $9,360 each for a total of $18,720 for both minors. Upon considering the
government’s arguments, the district court agreed that a restitution award
exceeding the minimum amount of $3,000 per victim was appropriate. In
support of its conclusion, the district court explained:
At the end of the day, based on the full record and the—the
reasonable inferences that I make about the need for each of the
victims to undergo therapy and counselling in the future,

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medications that may be involved with any form of treatment,
I find that an award of $5,000 in restitution per victim for each
of the two victims is an appropriate award.
We agree that the district court’s restitution award of $5,000 per
victim is adequately supported by the evidence presented by the government.
As the record reflects, the government provided evidence in the form of a
detailed memorandum from a local licensed professional counselor that
allowed the district court to estimate the losses that were “reasonably
projected to be incurred by the victim[s]” as a result of Rubalcava’s conduct.
18 U.S.C. § 2259(b)(2)(A) (“The court shall determine the full amount of
the victim’s losses that were incurred or are reasonably projected to be
incurred by the victim as a result of the trafficking in child pornography
depicting the victim.”). The district court then relied on that evidence, along
with the victim impact statements and the information in the PSR regarding
the nature of the crime to calculate a conservative estimate of both victims’
projected losses in the form of future counseling and treatment costs. As this
court has recently acknowledged in the context of restitution, the
government is tasked with the “burden of providing the court with enough
evidence to estimate the victim’s losses with some reasonable certainty.”
United States v. Etheridge, No. 22-40516, 2023 WL 5347294, at *4 (5th Cir.
Aug. 21, 2023) (citing United States v. Reese, 998 F.2d 1275, 1282–84 (5th Cir.
1993)); see also Villalobos, 879 F.3d at 172 (the district court’s restitution
order “need not be exact”). The government has done so here. Accordingly,
we affirm the district court’s $10,000 restitution award issued under 18
U.S.C. § 2259(a).
B. AVAA Assessment ($30,000)
At the continued sentencing hearing, the district court heard
arguments from both Rubalcava and the government pertaining to whether it
should impose an assessment under the AVAA, and if so, in what amount.

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Arguing in favor of the assessment, the government pointed to Rubalcava’s
various financial resources which included his home, his vehicle, and the
special needs trust that had been established for him at Cadence Bank.
Rubalcava countered that the trust should not be considered as a financial
resource because he did not have unconditional control over the trust funds.
Upon considering the parties’ arguments and affording Rubalcava an
opportunity to allocute, the district court stated:
I do look at the factors in 3553(a) and 3572, so I am considering
your income and financial resources, Mr. Rubalcava, your
potential for future earnings or the lack thereof given the length
of the prison sentence but I also am considering the nature of
the crime and the quite serious nature of—of the crime and the
other factors in Section 3553(a). Based on all these factors, I
impose a special assessment of $10,000 per count under 18
U.S.C. 2259(A) due instanter for a total of $30,000 which,
when combined with the other awards or other restitution,
special assessments that I have made, I think totals $55,300 if
my calculation is correct.
On appeal, Rubalcava contends that the district court erred in
imposing the $30,000 assessment under the AVAA. He argues that in doing
so, the district court mistakenly applied the relevant statutory factors,
particularly his income and financial resources. According to Rubalcava, he
does not own the trust account, and he has no right to any of the funds or
assets in the trust until it has been irrevocably and unconditionally placed in
his control. He further contends that any notion from the court that the
AVAA assessment could be paid from the funds of the trust would be in
violation of the terms of the trust itself. Thus, it is his position that the district
court erred in considering the trust as a financial resource available to him
when it imposed the $30,000 assessment under the AVAA.

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The government counters that the record is insufficient to establish
that any trust exists, noting that the only trust document in the record is
unsigned and there is no evidence that it was ever filed. It further points out
that, even if a valid trust document was executed, the terms of the trust
appear to mandate that it automatically dissolved, with all remaining funds to
be transferred to Rubalcava, when he turned twenty-five.7 Alternatively, the
government asserts that the district court did not err in considering the trust
fund account as a financial resource because Rubalcava was the primary
beneficiary of the trust, and the fact that the assets were not liquid did not
shield them from consideration as a financial resource. The government
further contends that Rubalcava’s argument is misplaced that the district
court cannot penetrate the trust or mandate payment from the trust because
the court did no such thing. Rather, it merely considered the trust account as
one of Rubalcava’s financial resources under 18 U.S.C. § 3572.8
For preserved challenges to the imposition of a special assessment, we
review the district court’s factual findings for clear error and questions of law
de novo. United States v. Barrera, No. 23-50043, 2024 WL 957480, at *3 (5th
_____________________
7
Rubalcava was born on July 5, 1989, and turned twenty-five on July 5, 2014.
8
The government draws our attention to a Fourth Circuit case, United States
v. Gresham, 964 F.2d 1426, 1427–30 (4th Cir. 1992), wherein a defendant convicted of
insurance fraud argued that the district court could not consider, in assessing the § 3572
factors for purposes of determining the appropriate fine, a home he co-owned with his wife
because the government would not be able to enforce a judgment lien against the home
under Maryland law. The Gresham court rejected the defendant’s argument, concluding
that regardless of whether the government would be entitled to the defendant’s interest in
proceeds from the sale of the jointly owned residence, his interest in the residence was a
“financial resource” that the court could validly consider under § 3572(a)(1) for purposes
of determining a fine as part of his criminal penalty for his offense. Id. at 1430. The court
explained that “[t]he government’s inability to collect a fine from a defendant because of
the defendant’s inability to transfer an asset in payment of the fine does not affect the
legitimacy of the fine.” Id. According to the government, the same logic should apply to
the AVAA assessment here.

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Cir. Mar. 6, 2024) (citing United States v. Graves, 908 F.3d 137, 140 (5th Cir.
2018)). “A factual finding will be deemed clearly erroneous if, based on the
record as a whole, this court is left with the definite and firm conviction that
a mistake has been committed.” United States v. Odom, 694 F.3d 544, 547
(5th Cir. 2012) (cleaned up). “There is no clear error if the district court’s
finding is plausible in light of the record as a whole.” Id.
The AVAA mandates that, in addition to “any other criminal penalty,
restitution, or special assessment,” the district court is required to assess
“not more than $17,000 on any person convicted of an offense under . . . [§]
2252A(a)(5),” and “not more than $50,000 on any person convicted of
a child pornography production offense.” 18 U.S.C. § 2259A(a)(1), (3).
“Special assessments paid pursuant to Section 2259A do not go to a specific
victim but rather are deposited and pooled in the ‘Child Pornography
Victims Reserve’ established in 18 U.S.C. § 2259B.” United States v. Madrid,
978 F.3d 201, 206 (5th Cir. 2020). Consequently, such assessments do not
require proof of a victim or of a victim’s losses. Id. Instead, to determine the
amount of the assessment, the district court “shall consider the factors set
forth in [§§] 3553(a) and 3572.” § 2259A(c).
Section 3353(a) sets out the factors that a sentencing court is to
consider in determining an appropriate sentence in every case, including the
nature and circumstances of the offense, the defendant’s history and
characteristics, the need to provide just punishment, and the need for
adequate deterrence and public protection. 18 U.S.C. § 3553(a)(1), (a)(2).
Section 3572 in turn lists the factors to be considered in determining matters
related to the imposition of a fine, including the defendant’s income and
financial resources, the burden the fine will impose on the defendant,

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whether restitution has been ordered, and the amount of such restitution.9 18
U.S.C. § 3572(a).
As an initial matter, we note that at the continued sentencing hearing
Rubalcava stated that his residence was being sold as part of his pending
divorce proceedings and that “the sale of the home that [Rubalcava and
Jazmine] shared potentially could act as resolution of what it is that the
government seeks the court to impose in this case.” In response, the district
court reasoned that “the interest of Mr. Rubalcava in the home, the potential
sale of the home certainly bears relevance[,] and I can consider that amount
or—or those potential resources to determine what is the right—what is the
appropriate special assessment.” Based on Rubalcava’s statements
indicating that the proceeds of the sale of his marital home could likely be
used to satisfy his criminal monetary penalties, and the PSR’s note that the
equity of the home is approximately $57,848, we conclude that the district
court did not err in considering his residence as a financial resource for
purposes of the AVAA assessment. See 18 U.S.C. §§ 3572, 2259A.
Turning to the issue of the special needs trust, we agree that it is not
clear from the record if the terms of the original trust are still in effect.
However, we assume arguendo that the trust still exists as Rubalcava asserts
on appeal. At the original sentencing hearing, Rubalcava’s counsel stated:
My understanding of the trust, Your Honor, and how that it
works is it is for the benefit of Ulysses Rubalcava and for no one
else. There is—submissions have to be made to the special
needs trust, there is a group or a committee. . . . [T]he trust is
set aside for Mr. Rubalcava’s needs. Now, historically, when
Mr. Rubalcava reached the age of maturity and after getting

_____________________
9
Section 3572 further directs that any monetary penalty assessed should not impair
the defendant’s ability to make restitution to the victims of the offense. 18 U.S.C. § 3572(b).

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married, he did make requests of the trust for things such as a
van for his family, which his family still uses today; a home for
his family, which his family still has access to or uses as a result
of—of—of everything that has occurred.
***
Obviously it’s something for the court to consider. . . . There is
a special needs trust set aside for special needs that require
his—for his benefit and not for fines as—as sought by the
government.
Similarly, at the continued sentencing hearing, Rubalcava’s counsel stated
that “[e]very time money is distributed from that trust, it has to go before the
trustee; the trustee has to approve it that in fact it is for some special need
that qualifies.”
In viewing counsel’s statements at both sentencing hearings, it is clear
that the thrust of Rubalcava’s argument is that the trust is only for his
personal benefit—not for the benefit of a creditor or, in this particular
instance, for payment of restitution or an assessment under the AVAA. Even
if true, his argument still does not speak to whether the district court could
consider the trust as a financial resource. To be sure, counsel’s statements at
both sentencing hearings make three points clear: (1) Rubalcava has made
requests for funds from the trust in the past; (2) those requests have been
approved by the trustee; and (3) funds have been distributed to him from the
trust based on those requests. Whether the government can directly obtain
funds from the trust is irrelevant to our inquiry. The government has
emphasized that it is not attempting to impose a lien on the trust or siphon
funds directly from the trust for payment of Rubalcava’s criminal monetary
penalties. Indeed, as it argues on appeal, it is not convinced that the trust even
presently exists.

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What the government does argue, however, is that the district court
was within bounds to consider the trust as one of Rubalcava’s financial
resources, in addition to the value of his home and his vehicle, for purposes
of determining his ability to pay the AVAA assessment. The district court’s
consideration of the trust as part of Rubalcava’s financial picture is supported
by his statements at the sentencing hearings. As counsel repeatedly explained
at sentencing, the trust is “for the benefit of Ulysses Rubalcava,” the trust is
“set aside for Mr. Rubalcava’s needs,” and funds have been consistently
distributed from the trust in accordance with his various requests, including
but not limited to, funds for at least one residence and one vehicle. The fact
that a creditor may not be authorized to place a lien on the trust or directly
obtain funds from it for the payment of fines has no bearing on whether the
trust is a financial resource to Rubalcava. And as his counsel emphasized at
both sentencing hearings, the trust is exactly that—a financial resource
intended for Rubalcava’s sole benefit.10
In sum, when viewed in the context of the record as a whole, including
Rubalcava’s statements at sentencing, we conclude that the district court did
not clearly err in considering the trust as a financial resource under 18 U.S.C.
§ 3572. Even if the district court did clearly err in considering the trust as a
financial resource, the equity from the proceeds of the sale of his home
_____________________
10
In support of his argument that the district court erred in effectively directing
payments from the trust by ordering a $30,000 AVAA assessment, Rubalcava cites In re
Bass, 171 F.3d 1016, 1026–30 (5th Cir. 1999). There, this court held that the district court
erred in granting an injunction directing trustees of a spendthrift trust to furnish creditors
in a bankruptcy proceeding with advance notice of distributions to a beneficiary for
purposes of debt collection because the court could not interfere with the trustees’ free
exercise of their discretion in making distributions under the trust. Id. at 1030–31. However,
as the government correctly points out, that case has no bearing on the question of whether
a district court may consider trust account funds to which the defendant is the sole
beneficiary as financial resources for purposes of determining the appropriate amount of an
AVAA assessment. See id.

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($57,848) and the value of his vehicle ($5,000) are sufficient to support the
AVAA assessment, in addition to his other criminal monetary penalties
which altogether total $55,300. Thus, the district court’s imposition of the
AVAA assessment does not leave us with “the definite and firm conviction
that a mistake has been committed.” See Odom, 694 F.3d at 547. For these
reasons, we hold that the district court did not clearly err in imposing the
$30,000 AVAA assessment. See 18 U.S.C. §§ 3572, 2259A.
C. Sentencing Enhancements & Duration of Sentence
We now turn to Rubalcava’s arguments pertaining to the district
court’s calculation of the length of his sentence under the Guidelines. He
contends that the district court erred in applying a four-point sentencing
enhancement under U.S.S.G. § 2G2.1(b)(4)(A), a four-point sentencing
enhancement under U.S.S.G. § 2G2.1(b)(2)(B), and in cross-referencing
Count one under U.S.S.G. § 2G2.2(c)(1). He argues that based on these
errors, the district court miscalculated his sentence under the Guidelines by
seven offense levels and thus abused its discretion in imposing concurrent
sentences of 240 and 360 months. Nevertheless, he concedes that even
without the enhancements that he perceives are erroneous, his corrected
offense level of 44 would still result in a guidelines range of life.
The government counters that the record supports the district court’s
application of both sentencing enhancements, as well as the cross-reference
in Count one. Moreover, even if the enhancements or cross-reference
resulted in an error to its calculation of Rubalcava’s sentence under the
Guidelines, any error was harmless. This is because even without the
sentencing enhancements and the cross-reference, Rubalcava’s sentence
would not change, i.e., it would still result in a guidelines range of life. Thus,
he cannot show that his substantial rights were affected resulting in reversible
error.

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No. 24-40463

1. Sentencing Enhancement Under U.S.S.G. § 2G2.1(b)(4)(A)
We first address Rubalcava’s contention that the district court erred
in applying the enhancement under section 2G2.1(b)(4)(A) “because there
is no evidence that [he] obtained a sexual release through the infliction of
physical or emotional pain on another that is contemporaneous with the
creation of pornographic material involving minors.” Rubalcava preserved
his objection to the application of this sentencing enhancement, so in
considering whether the district court properly applied it, we review its
“interpretation of the Sentencing Guidelines de novo and its factual
determinations for clear error.” United States v. Hernandez, 48 F.4th 367, 372
(5th Cir. 2022) (quoting United States v. Garza, 587 F.3d 304, 308 (5th Cir.
2009)).
A four-level sentencing enhancement under section 2G2.1(b)(4)(A)
applies when the “offense involved material that portrays . . . sadistic or
masochistic conduct or other depictions of violence.” This court has held
that for the enhancement to apply, the image must “depict[ ] conduct that an
objective observer would perceive as causing the victim in the image physical
or emotional pain contemporaneously with the image’s creation.” United
States v. McGavitt, 28 F.4th 571, 575 (5th Cir. 2022) (quoting United States v.
Nesmith, 866 F.3d 677, 681 (5th Cir. 2017)). “Our objective-observer inquiry
focuses on an observer’s view of the image—what is portrayed and
depicted—rather than the viewpoint of either the defendant or the victim.”
Id. (cleaned up).
We have determined in previous cases that the enhancement “is
warranted when the sexual act depicted is likely to cause pain in one so
young.” Id. (quoting United States v. Lyckman, 235 F.3d 234, 238 (5th Cir.
2000)). We have also upheld the enhancement in cases involving images
“showing anal and vaginal penetration of minors through the use of sexual

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No. 24-40463

devices,” as well as images “depict[ing] the physical penetration of a young
child by an adult male.” Id. (quoting United States v. Canada, 110 F.3d 260,
264 (5th Cir. 1997) (per curiam); Lyckman, 235 F.3d at 240). Likewise, we
have “upheld application of the enhancement where a young child was forced
to orally copulate a parent on grounds that such conduct would humiliate and
degrade the victim.” Id. (citations omitted).
The circumstances in this case closely resemble those in the above
cases where this court has upheld the enhancement. As the record indicates,
Rubalcava’s two victims were very young. His daughter Jane was only eight
years old when he was apprehended and according to her forensic interview
in the PSR, she was likely five years old when the abuse began. Likewise, his
stepdaughter Mary was only eleven years old when he was apprehended and
approximately nine or ten years old when the abuse began. Both children
were forced to perform oral sex on the defendant, both children were raped
by the defendant, and both children were forced to endure the use of
penetration from a sexual device used by the defendant, oftentimes while
being photographed or videoed. Moreover, both children stated that they
experienced pain during all of these sexual encounters but that they could not
stop Rubalcava from continuing the abuse.
Based on this prior case law, there is little question that the district
court’s application of the enhancement under section 2G2.1(b)(4)(A) was
warranted in this case and we uphold it accordingly.
2. Sentencing Enhancement Under U.S.S.G. 2G2.1(b)(2)(B)
Rubalcava next contends that the district court erred in applying a
sentencing enhancement under section 2G2.1(b)(2)(B) “because there is no
evidence to suggest that weapons or force were used against the victims, that
they were placed in fear of or threatened with death, serious bodily injury, or
kidnapping, or that a drug or other substance was used to render them

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No. 24-40463

unconscious or impair their ability to appraise or control the conduct.”
Because he failed to object to the application of this enhancement in the
district court proceedings, we review his unpreserved claim for plain error.
McGavitt, 28 F.4th at 576. Under the plain error standard of review:
(1) there must be an error; (2) the error must be clear or
obvious, rather than subject to reasonable dispute; (3) the error
must have affected the appellant’s substantial rights, which in
the ordinary case means he must demonstrate that it ‘affected
the outcome of the district court proceedings’; and (4) the
court must decide in its discretion to correct the error because
it seriously affects the fairness, integrity or public reputation of
judicial proceedings.
Id. at 575 (quoting United States v. McClaren, 13 F.4th 386, 413 (5th Cir.
2021)).
Section 2G2.1(b)(2)(B) provides that “[i]f the offense involved . . . the
commission of a sexual act; and (ii) conduct described in 18 U.S.C. § 2241(a)
or (b), increase by 4 levels.” In turn, section 2241(a) states that:
Whoever . . . knowingly causes another person to engage in a
sexual act—(1) by using force against that other person; or (2)
by threatening or placing that other person in fear that any
person will be subjected to death, serious bodily injury, or
kidnapping; or attempts to do so, shall be fined under this title,
imprisoned for any term of years or life, or both.
“A defendant uses force within the meaning of § 2241 when he employs
restraint sufficient to prevent the victim from escaping the sexual conduct.”
United States v. Simmons, 470 F.3d 1115, 1121 (5th Cir. 2006) (quoting United
States v. Lucas, 157 F.3d 998, 1002 (5th Cir. 1998)). “Such force can be
‘implied from a disparity in size and coercive power between the defendant
and his victim.’” Id.

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No. 24-40463

Again, the record clearly supports the district court’s application of
this enhancement. As the government points out, at Rubalcava’s re-
arraignment, the district court directed the prosecutor to present the facts
that she was prepared to prove at trial. The prosecutor responded by
recounting the information obtained during the forensic interviews with both
children. She cited Mary and Jane’s statements that Rubalcava “forced”
them to perform oral sex on him and Jane’s statement that he “forced” her
to watch pornographic videos as well as videos of Rubalcava raping Mary.
After these and other similar facts related to his abuse were read into the
record, the district court asked Rubalcava, “Are those facts true?” to which
he responded, “Yes, Your Honor.” Additionally, both children indicated
during their forensic interviews that when they asked Rubalcava to stop the
abuse, he ignored their pleas. Mary additionally stated that he “would grab
her head back and forth” while forcing her to engage in oral sex, further
supporting that neither Mary nor Jane had the ability to stop the abuse and
were thus forced by Rubalcava to endure it. And as this court has held, force
can be implied from the “disparity in size and coercive power” between
Rubalcava and his two child victims. Id. at 1121.
Given this record evidence, we hold that the district court did not
plainly err in applying the enhancement under section 2G2.1(b)(2)(B) on
grounds that Rubalcava used force in perpetrating the abuse against Jane and
Mary as described under section 2241(a). See id.
3. Cross-Reference Under U.S.S.G. § 2G2.2(c)(1)
Rubalcava further argues that the district court erred in applying the
cross-reference under section 2G2.2(c)(1) because it “failed to make an
inquiry into [his] purpose or intent when photographing the alleged victims.”
Because he failed to object to the application of this cross-reference, our
review is for plain error. McGavitt, 28 F.4th at 576.

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No. 24-40463

Section 2G2.2(c)(1) is a cross-reference under the Guidelines that
provides that “[i]f the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such
conduct . . . apply § 2G2.1.” As explained in the PSR, upon applying
§ 2G2.1(a), Rubalcava’s base offense level was 32.
Once again, the record clearly supports application of the cross-
reference. As the government notes, at re-arraignment the prosecutor read
aloud the grand jury charges on Counts two and three which included a
statement that Rubalcava had engaged in the sexual abuse against his children
“for the purpose of producing a visual depiction of such conduct” and
Rubalcava verbally responded that he was guilty of the conduct that the
prosecutor had described. Additionally, as the PSR details, Rubalcava
admitted in his interview with law enforcement:
that he had performed oral sex on both Jane and Mary Doe and
that he had photographed both of his naked daughters with his
Samsung Galaxy S20 cellular telephone and transferred the
images to his desktop computer where he would create folders
to view them later. . . . [and] the evidence found on his cellular
telephone depicted Jane Doe performing sexual acts to him.
Accordingly, Rubalcava’s own statements in the record support the district
court’s application of the cross-reference under section 2G2.2. Prior
decisions of this court do as well. See United States v. Caudill, 427 F. App’x
301, 302 (5th Cir. 2011) (per curiam) (upholding the district court’s
application of the enhancement when the defendant took illicit photographs
of the victim while touching her vagina, causing harm).

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No. 24-40463

Consequently, we hold that Rubalcava has failed to show that the
district court plainly erred in applying the cross-reference under section
2G2.2(c)(1).11
III. CONCLUSION
For the foregoing reasons, we AFFIRM Rubalcava’s sentence in full.

_____________________
11
In light of our above holdings affirming the district court’s application of the
sentencing enhancements under sections 2G2.1(b)(4)(A) and 2G2.1(b)(2)(B), as well as its
application of the cross-reference under section 2G2.2(c)(1), we need not address
Rubalcava’s final argument that the district court’s improper application of the sentencing
enhancements and cross-reference caused it to miscalculate his sentence under the
Guidelines by seven offense levels resulting in its erroneous imposition of concurrent
sentences of 240 and 360 months. Assuming arguendo that Rubalcava’s arguments related
to the enhancements have merit, we nevertheless acknowledge and agree with his
concession that even without the enhancements, his corrected offense level would still
result in a guidelines range of life. Thus, he cannot show reversible error. See United States
v. Randall, 924 F.3d 790, 795 (5th Cir. 2019) (reasoning that even if an error in a Sentencing
Guidelines calculation is established, “such error shall nevertheless be disregarded if it is
harmless, i.e., if it does not affect substantial rights” (quoting FED. R. CRIM. P. 52(a))).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11213364. Public record. Not legal advice.