author: EDITH BROWN CLEMENT, Circuit Judge:

text:
    IN the MATTER OF: Lisa Ann GALAZ, Debtor Alfred Galaz, Appellant v. Lisa A. Katona, formerly known as Lisa Ann Galaz, Appellee
    No. 15-50919
    United States Court of Appeals, Fifth Circuit.
    FILED October 28, 2016

      David Clay Snell, Bayne, Snell & Krause, San Antonio, - TX, for Appellant.

      Royal B. Lea, III, Bingham & Lea, P.C., San Antonio, TX, for Appellee.
    Before WIENER, CLEMENT, and COSTA, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

The bankruptcy court enjoined Alfred Galaz (“Galaz”) from pursuing any claims related to Worldwide Subsidy Group against his former daughter-in-law, Lisa Katona (“Katona”). Galaz appealed the bankruptcy court judgment to the district court. The district court affirmed, finding that the bankruptcy court had jurisdiction to decide the case and that the bankruptcy court properly barred Galaz’s claims. Galaz appeals to this court. We AFFIRM.

I.

Raul Galaz (“Raul”) and his legal assistant, Marian Oshita (“Oshita”), formed two limited liability companies, collectively called Worldwide Subsidy Group (“WSG”), to collect royalties owed to film and television distributors. Raul owned a 75 percent interest in WSG, and Oshita owned a 25 percent interest in WSG. At the time of WSG’s formation, Raul was married to Lisa Katona (formerly Galaz). When Raul and Katona subsequently divorced, Katona received half of Raul’s interest in WSG. Raul then sold his remaining 37.5 percent WSG interest to Oshita for $50,000. She paid for his interest from WSG’s accounts as an offset against unreimbursed expenses purportedly owed to her. After Raul transferred his remaining interest to Oshita, Katona owned a 37.5 percent interest in WSG and Oshita owned a 62.5 percent interest in WSG.

Shortly thereafter, Katona learned that Oshita’s claim for unreimbursed expenses was fraudulent, and Katona filed suit against her in California state court. Following a jury trial, the state court awarded Katona the 37.5 percent interest that Raul had sold to Oshita, as well as $18,750 in damages—which Oshita failed to pay. This judgment left Katona with a 75 percent interest and Oshita with a 25 percent interest in WSG.

After the judgment, Katona assigned half of her interest to Raul’s sister, Denise Vernon (“Vernon”). Vernon then filed suit against Katona in Texas state court to determine ownership and control of WSG. Vernon and Raul, a third-party defendant in the case, argued that Oshita had withdrawn from the company and was not entitled to her 25 percent interest.

Before the case was resolved, Katona filed for Chapter 13 bankruptcy and the WSG litigation was removed to bankruptcy court as a separate adversary proceeding. The bankruptcy court approved a settlement between Raul, Vernon, and Katona regarding that litigation (“2008 Settlement Agreement”). The 2008 Settlement Agreement provided for: (1) a one-time distribution from WSG of $50,000 to Katona; (2) monthly payments from WSG of $4,300 to Katona; (3) a one-time distribution from WSG of $83,000 to Vernon; (4) monthly payments from WSG of $5,000 to Vernon; and (5) an annual salary of $67,500 and back-pay of $221,000 from WSG to Raul. As part of the settlement, Brian Boydston was appointed Business Manager of WSG. The bankruptcy court confirmed Katona’s Chapter 13 plan.

Katona and Vernon disagreed over WSG’s operations, and Katona brought another adversary proceeding against WSG and Vernon. Katona requested that the bankruptcy court remove Boydston as Business Manager, appoint a receiver for WSG, and liquidate the company. Katona and Vernon reached a settlement in that action (“2011 Settlement Agreement”). The 2011 Settlement Agreement provided, in part, that Vernon purchase Katona’s interest in WSG and “any unliquidated claims against third parties relating to WSG, including claims against Marian Oshita.” Ra-tona was thus “deemed to have sold, transferred, and assigned to Denise Vernon any and all of [her] rights, title, and interest in WSG, including but not limited to ... any claims against third parties relating to WSG, including claims against Marian Oshita.” The 2011 Settlement Agreement also provided that Vernon release all present and future claims against and rights to sue Ratona. After the bankruptcy court approved the 2011 Settlement Agreement, Vernon assigned all claims against Oshita that she received under the agreement to her and Raul’s father, Alfred Galaz. In 2012, Ratona received a discharge and her bankruptcy case was closed.

Galaz then filed suit in California state court to enforce Ratona’s unpaid money judgment against Oshita, which he believed he had received through Vernon’s assignment. The state court found in his favor and foreclosed on Oshita’s WSG interest to satisfy the judgment. As - successor-in-interest to Oshita, Galaz then sued Ratona in Texas state court, alleging that Ratona owed past monetary distributions on Oshita’s interest in WSG (“Oshita claims”). Ratona removed the ease to bankruptcy court as an adversary proceeding in her Chapter IS bankruptcy suit. Galaz then moved to remand. The bankruptcy court granted Galaz’s motion, finding that it did not have jurisdiction because Galaz’s complaint raised only state-law claims. The bankruptcy court noted, however, that it arguably would have jurisdiction if Ratona had sued for declaratory judgment.

Ratona thus began an adversary proceeding against Galaz in bankruptcy court, seeking to enjoin him from pursing the Oshita claims. The parties filed cross-motions for summary judgment. The bankruptcy court granted Ratona’s motion, in part, and enjoined Galaz from pursuing any WSG-related actions against her. Specifically, the- bankruptcy court found that the 2011 Settlement Agreement, which discharged Vernon and Ratona’s rights to sue one another, barred Galaz’s claims. Galaz appealed to the district court, challenging the bankruptcy court’s jurisdiction and its determination that his claims were barred. The district court affirmed. Galaz appeals.

II.

“Subject-matter jurisdiction is a question of law which we review de novo.” Beitel v. OCA, Inc. (In re OCA, Inc.), 551 F.3d 359, 366 (5th Cir. 2008). ‘When reviewing a district court’s affirmance of a bankruptcy court’s judgment, this court applies the same standard of review to the bankruptcy court decision that the district court applied.” Galaz v. Galaz (In re Galaz), 765 F.3d 426, 429 (5th Cir. 2014) (internal quotation marks’ omitted). We review findings of fact for clear error and legal conclusions de novo. Id.

III.

A.

Galaz first argues that the bankruptcy court lacked jurisdiction to enjoin his state-law claims. His arguments rest primarily on the fact that the bankruptcy court closed Ratona’s Chapter 13 bankruptcy in 2012. Ratona contends that the bankruptcy court had jurisdiction because Galaz violated her discharge rights under title 11. A bankruptcy court’s jurisdiction extends to “all civil proceedings arising under title 11, or arising in or related to cases under title 11.” See 28 U.S.C. § 1334(b). Before confirmation of the bankruptcy plan, a proceeding is related to the bankruptcy case if the “outcome could conceivably have any effect on the estate being administered in bankruptcy.” Fire Eagle, L.L.C. v. Bischoff (In re Spillman Dev. Grp., Ltd.), 710 F.3d 299, 304 (5th Cir. 2013) (internal quotation marks omitted). After confirmation, “the debtor’s estate, and thus bankruptcy jurisdiction, ceases to exist, other than for matters pertaining to the implementation or execution of the plan.” Newby v. Enron Corp. (In re Enron Corp. Sec.), 535 F.3d 325, 335 (5th Cir. 2008) (quoting Craig’s Stores of Tex., Inc. v. Bank of La. (In re Craig’s Stores of Tex., Inc.), 266 F.3d 388, 390 (5th Cir. 2001)).

A bankruptcy court maintains “jurisdiction to interpret and enforce its own prior orders.” Travelers Indem. Co. v. Bailey, 557 U.S. 137, 151, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009). Subject matter jurisdiction remains in the bankruptcy court, even after a bankruptcy case is closed, “to assure that the rights afforded to a debtor by the Bankruptcy Code are fully vindicated.” Padilla v. Wells Fargo Home Mortg., Inc. (In re Padilla), 379 B.R. 643, 652 n.4 (Bankr. S.D. Tex. 2007) (relying on Bradley v. Barnes (In re Bradley), 989 F.2d 802, 804 (5th Cir. 1993)).

Here, Galaz’s underlying state court action alleges that Katona controlled WSG’s finances and failed to pay out proceeds from WSG in accordance with Oshi-ta’s membership interest. Even viewed through the narrower lens of post-confirmation bankruptcy jurisdiction, Galaz’s Oshita claims relate principally to pre-con-firmation activity between the parties. There was discord between Oshita. and Katona during the reorganization as to the respective ownership interests in WSG. Indeed, that dispute formed-the basis of the 2008 Settlement Agreement, which provided funds for Katona to pay off her debts under the plan. Galaz’s cause of action for nonpayment is a preconfirmation claim that—according to Katona—was subject to the bankruptcy court’s discharge order.

Galaz’s suit in state court is arguably a violation of Katona’s discharge rights, directly implicating the bankruptcy court’s “arising under” jurisdiction. See Ins. Co. of N. Am. v. NGC Settlement Trust & Asbestos Claim Mgmt. Co. (In re Nat’l Gypsum Co.), 118 F.3d 1056, 1064 (5th Cir. 1997). The state law causes of action asserted by Galaz bear on the interpretation and execution of Katona’s plan. Even though-. Katona’s bankruptcy case was closed, the bankruptcy court retains jurisdiction to consider violations of the discharge order; the order of discharge necessarily implicates the implementation or execution of the plan. See Bradley, 989 F.2d at 804. The alleged violation of Kato-na’s discharge rights brings this case within the bankruptcy court’s post-confirmation jurisdiction. See Local Loan Co. v. Hunt, 292 U.S. 234, 241, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (“[It is] the authority of the bankruptcy court to entertain the present proceeding, determine the effect of the adjudication and [discharge] order, and enjoin petitioner from its threatened interference therewith.”).

B.

Galaz next contends that the bankruptcy court lacked statutory authority to enter final judgment because these proceedings do not constitute a “core” claim. Katona counters that her action for declaratory relief and an injunction is a core proceeding that provides the bankruptcy court statutory authority. “A bankruptcy court’s statutory authority derives from 28 U.S.C. § 157(b)(1), which designates certain matters as ‘core proceedings’ and authorizes k bankruptcy court to determine the matters and enter final judgments.” Galaz, 765 F.3d at 431. “If the proceeding involves a right created by the federal bankruptcy law, it is a core proceeding.” Spillman Dev. Grp., 710 F.3d at 305. For non-core proceedings, a bankruptcy judge shall “submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge....” 28 U.S.C. § 157(c)(1)!

Galaz argues that the claims asserted here are state-law defenses that cannot constitute core proceedings. “[B]ut even such claims may be considered core if they are dependent upon the rights created in bankruptcy.” Spillman Dev. Grp., 710 F.3d at 305 (internal quotation marks omitted) (quoting Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir. 1987)). Katona alleges in her claim for declaratory relief that her discharge rights—statutory rights provided for under the Bankruptcy Code—are being violated. The bankruptcy court decided that the 2011 Settlement Agreement, which the bankruptcy court approved and is the source of Galaz’s ownership to the Oshita claims, bars his suit, This action presents a core proceeding over which a bankruptcy court may enter final judgment. See Nat’l Gypsum, 118 F.3d at 1063-64 (“Although a discharge in bankruptcy can constitute an affirmative defense to a state law contract claim, [a debtor’s] action to enforce the discharge injunction ... assert[s] a statutory right under the Bankruptcy Code .... ”); Harris v. Wittman (In re Harris), 590 F.3d 730, 741 (9th Cir. 2009) (reasoning that a dispute over a post-petition settlement agreement “is much more like a public rights case than a private rights case” and is a “core” proceeding). The, bankruptcy court’s interpretation of the 2011 Settlement Agreement is determinative of Katona’s claim, and the bankruptcy court’s order was within its statutory authority.

C.

Galaz next argues that the bankruptcy court was required by the mandatory abstention provision to abstain from adjudicating this case. This court reviews the decision not to abstain for abuse of discretion. See Edge Petroleum Operating Co. v. GPR Holdings, L.L.C. (In re TXNB Internal Case), 483 F.3d 292, 299 (5th Cir. 2007). This court has interpreted 28 U.S.C. § 1334(c)(2) to mandate federal court abstention where, among other things, “the claim is a non-core proceeding.” Id. at 300. Here, the bankruptcy-court did not abuse its discretion in refusing to abstain because, as previously discussed, the proceeding at issue is “core” under § 157(b). See Gober v. Terra + Co. (In re Gober), 100 F.3d 1195, 1206 (5th Cir. 1996) (“Mandatory abstention applies only to non-core proceedings .... ”).

D.

Galaz argues that the bankruptcy court erred in finding his Oshita claims barred by res judicata, compromise and settlement, and accord and satisfaction because (1) Katona did not raise these defenses in her pleadings and (2) these defenses are meritless. We address each of Galaz’s arguments in turn.

1.

“Bankruptcy Rule 8006 provides that in an appeal to a district court, the appellant must file a statement of the issues to be presented.” McClendon v. Springfield (In re McClendon), 765 F.3d 501, 506 (5th Cir. 2014). “It is clear under the law of this circuit that an issue that is not designated in the statement of issues in the district court is waived on appeal .... ” Id. (internal quotation marks omitted). Bankruptcy Rule 8006 serves a specific purpose: it enables a redesignation of the appellate record assembled in the bankruptcy court. See M.A. Baheth & Co. v. Schott (In re M.A. Baheth Const. Co.), 118 F.3d 1082, 1085 n.2 (5th Cir. 1997). “After an immediate appeal, a party may well narrow the focus of its efforts on the second appeal and a redesignation of the record may eliminate unnecessary material.” Id.

When Galaz appealed to the district court, he filed a Bankruptcy Rule 8006 statement of the issues that raised, in relevant part, this question:

Whether the Bankruptcy Court erred by rendering judgment in favor of Plaintiff and against Defendant Alfred Galaz where Plaintiff failed to meet her summary judgment burden of establishing the grounds presented in her Motion for Summary Judgment and where Defendants raised a genuine, material issue of fact as to Plaintiffs claims against them.

Galaz argues that this issue naturally encompasses the argument that he later briefed before the district court: Whether “the bankruptcy court erred in granting summary judgment based upon res judica-ta, compromise and settlement, and accord and satisfaction because these defenses were never raised in Katona’s pleadings.” But this assertion construes his statement of the issues too broadly. The purpose of Bankruptcy Rule 8006 is to narrow the record on appeal. Drafting a sweeping statement of issues flouts that purpose. The statement of the issues need not “be precise to the point of pedantry” to avoid waiver. In re Am. Cartage, Inc., 656 F.3d 82, 91 (1st Cir. 2011). There is no indication in Galaz’s statement of the issues, however, that he intended to challenge the bankruptcy court’s grant of summary judgment on grounds not urged by Kato-na. His statement of the issues concerns only whether Katona met her summary judgment burden. His statement of the issues does not fairly encompass his later argument that the bankruptcy court should not have granted summary judgment on arguments that Katona did not raise. See McClendon, 765 F.3d. at 506. Galaz failed to identify the particular issue that he sought to appeal: whether the bankruptcy court erred in granting summary judgment on defenses not presented in Katona’s motion for summary judgment. We hold that Galaz waived that issue.

2.

“Once a.final judgment on the merits of a prior action is entered, the parties and those in privity with them may not relitigate issues that either were or at least could have been brought in the action.” Cooper v. Int'l Offshore Servs., L.L.C., 390 Fed.Appx. 347, 351 (5th Cir. 2010) (relying on Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009)). “[A] bankruptcy order is entitled to the effect of res judicata ....” Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1051 (5th Cir. 1987). The bankruptcy court here found that the 2011 Settlement Agreement provided a broad release of liability to Katona and thus res judicata, compromise and settlement, and accord and satisfaction functioned to bar Galaz from, bringing the Oshita claims. Galaz argues that these defenses are inapplicable because he brings his claims as a successor-in-interest to Oshita, not a successor-in-interest to Vernon, and thus the 2011 Settlement Agreement does not bar his claims. Because Galaz’s claims arose through rights assigned from Vernon, however, this court finds that his claims are barred by res judicata.

Galaz was awarded Oshita’s ownership interest in WSG by a foreclosure judgment in California state court on Katona’s unpaid money judgment. -He inherited the right to foreclose against Oshita through Vernon’s assignment. Vernon inherited those rights from Katona by virtue of the 2011 Settlement Agreement, which also provided that Vernon release all present and future claims against and rights to sue Katona. This broad and exhaustive release included any claims related to or arising out of any event, act, omission, or condition involving WSG. As the district court correctly identified, this assignment -history presents two issues: (1) whether Vernon’s release carries over to Galaz; and (2) if so, whether the ownership interest in WSG that Galaz obtained is a substitute for the unpaid money judgment or a legally distinct right.

Under Texas law, an assignment is a “transfer of some right or interest.” Shipley v. Unifund CCR Partners, 331 S.W.3d 27, 28 (Tex. App. 2010). It “operates to transfer to the assignee no greater right or interest than was possessed by the assignor .,” Fla. Bahamas Lines, Ltd. v. The Steel Barge “Star 800” of Nassau, 433 F.2d 1243, 1246 (5th Cir. 1970). But “[a]n assignee’s rights are also subject to defenses existing at the time of the assignment that would have been available against the assignor had there been no assignment.” Forex Capital Mkts., LLC v. Crawford, No. 05-14-00341-CV, 2014 WL 7498051, at *2 (Tex. App. Dec. 31, 2014). Galaz received his right to the unpaid money judgment upon assignment from Vernon subject to the release of liability against Katona.

Galaz maintains that, even if he took subject to release, the claims he is now asserting never belonged to Vernon. Acknowledging that Vernon “might have been precluded from bringing certain claims against Katona due to the release,” he argues that he is instead “stepping into Oshita’s shoes” and asserting her rights. But Galaz cites no authority for the proposition that this foreclosure judgment allows him to kick off Vernon’s shoes and the accompanying liability release. Nor does he point to any precedent that this judgment grants him a distinct legal right. An assignee of a claim may not receive more than the assignor woüld have been entitled to. See Fla. Bahamas Lines, Ltd., 433 F.2d at 1246. Galaz took Vernon’s interest subject to the legal and equitable defenses that existed at the time of the assignment; the transfer does not function to deprive Katona of defenses that she has against Vernon, the original assignor. Galaz’s claims are barred by res judicata, compromise and settlement, and accord and satisfaction.

E.

Galaz argues that the bankruptcy court erred in finding his Oshita claims barred by judicial estoppel because (1) Katona did not raise this defense in hér pleadings, (2) neither Galaz nor Oshita took inconsistent positions as to Oshita’s ownership interest, and (3) Katona took inconsistent positions as to Oshita’s ownership interest and her “unclean hands” prohibit judicial estoppel. For the reasons discussed, we hold that Galaz’s Bankruptcy Rule 8006 statement of the issues does not encompass Galaz’s argument that the bankruptcy court erred in considering judicial estoppel when Katona did not raise it. We hold that Galaz waived this issue.

This court reviews a determination of judicial estoppel for abuse of discretion. Love v. Tyson Foods, Inc., 677 F.3d 268, 262 (6th Cir. 2012). “The doctrine of judicial estoppel is equitable in nature and can be invoked by a court to prevent a party from asserting a position in a legal proceeding that is inconsistent with a position taken in a previous proceeding.” Id. at 261. This court looks to the following elements in deciding whether to apply judicial estoppel: “(1) the party against whom judicial estoppel is sought has asserted a legal position which is plainly inconsistent with a prior position; (2) a court accepted the prior position; and (3) the party did not act inadvertently.” Reed v. City of Arlington, 650 F.3d 571, 574 (6th Cir. 2011) (en banc). These elements, however, are neither inflexible nor exhaustive and “numerous considerations may inform the doctrine’s application in specific factual contexts.” Love, 677 F.3d at 261 (internal quotation marks omitted).

Here, the bankruptcy court took judicial notice of all the filings in the bankruptcy case, the adversary proceedings, the filings and decisions in the appeals of the bankruptcy case, and the decisions in the California state court litigation. Upon review, the bankruptcy court noted several instances where Vernon asserted that Oshita did not have an ownership interest in WSG. Because Galaz is Vernon’s successor-in-interest, he inherits the positions that she has taken throughout the litigation. See Adelphia Recovery Tr. v. Goldman, Sachs & Co., 748 F.3d 110, 120 (2d Cir. 2014) (finding appellants judicially es-topped by actions of predecessors in interest). He'cannot now contend that Oshita has an ownership interest in WSG, because that position is plainly inconsistent with Vernon’s prior position. The bankruptcy court did not abuse its discretion in finding Galaz judicially estopped.

A party cannot rely on judicial estoppel if it comes to the court with unclean hands. Reg’l Props., Inc. v. Fin. & Real Estate Consulting Co., 752 F.2d 178, 183 (5th Cir. 1985). Galaz contends that Katona similarly took inconsistent positions regarding Oshita’s ownership interest and thus judicial estoppel cannot apply. The bankruptcy court reviewed these allegedly inconsistent statements made by Katona, but found that Katona had maintained that Oshita s interest was disputed, whereas-Vernon had definitively asserted that Oshita had no interest. Because Galaz provides no basis for concluding that the bankruptcy court erred in its factual findings, this court holds that the bankruptcy court did not abuse its discretion in applying judicial estoppel.

F.

As a final argument, Galaz contends that the bankruptcy court erred in denying his motion for summary judgment and requests that this court reyerse and render judgment in his favor. Galaz reiterates, as the basis for rendering judgment in his favor, the many arguments that he levied against the bankruptcy court’s ■ order granting Katona’s motion for summary judgment. For the reasons set forth above, Galaz’s arguments fail. - > - .

IV.

We AFFIRM the judgment of the district court.

      . The parties dispute whether, as part of the settlement, Katona assigned her right to the money judgment against Oshita.

      . The bankruptcy court explicitly declined to make any findings on whether the Oshita claims were discharged, and dismissed Kata-na's claims for discharge violations without prejudice. But jurisdiction to hear and decide a proceeding attaches before—and regardless of how—a court rules on the merits of the claim. See Bradley, 989 F,2d at 804-05 (finding that the bankruptcy court had subject matter jurisdiction even though the bankruptcy court did not rule on the merits of the disputed debt). When a federal claim appears on the face of the complaint, dismissal for want of jurisdiction’ is proper only when the claim is “patently without merit.” Young v. Hosemann, 598 F.3d 184, 188 (5th Cir. 2010). Katona alleges that the Oshita claims were discharged in her bankruptcy proceedings, in part, because Oshita had constructive or actual notice of her bankruptcy and failed to assert a claim, We hold that Katona’s allegations meet the low pleading burden sufficient to establish jurisdiction.

      . Galaz also argues that the bankruptcy court should have abstained from hearing this case under the permissive abstention statute. See 28 U.S.C. § 1334(c)(1). This court, however, lacks jurisdiction to review that decision. Id. § 1334(d); see Baker v. Simpson, 613 F.3d 346, 352 (2d Cir. 2010) ("[D]ecisions on permissive abstention, which lie within the discretion of the bankruptcy court, are not subject to review by the court of appeals. We therefore lack jurisdiction to decide whether the district court's decision on permissive abstention was correct.”).

      . As part of the December 2014 amendments to the Federal Rules of Bankruptcy, Rule 8006 became Rule 8009. Galaz filed his statement of issues before the amendments and thus the parties and courts below refer to Rule 8006.


source: Caselaw Access Project

author: EDWARD C. PRADO, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Aaron WIKKERINK, Defendant-Appellant.
    No. 15-30152
    United States Court of Appeals, Fifth Circuit.
    Filed October 31, 2016

      Carol Mignonne Griffing, U.S. Attorney’s Office, Shreveport, LA, for Plaintiff-Appellee.
    John Harvey Craft, Esq., New Orleans, LA, Brian David Landry, Esq., Weems, Schimpf, Gilsoul, Haines, Landry & Car-mouche, Shreveport, LA, for Defendant-Appellant.
    Aaron Wikkerink, Pro Se.
    Before CLEMENT, PRADO, and OWEN, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Aaron Wikkerink pleaded guilty to one count of receipt of child-pornography in violation of 18 U.S.C. § 2252A(a)(2). In calculating the range applicable to Wikker-ink’s offense under the U.S. Sentencing Guidelines (the “Guidelines”), the district court applied sentencing enhancements pursuant' to § 2252A(b)(l) and U.S.S.G. § 4B1.5(a). On appeal, Wikkerink argues the district court erred in applying these sentencing enhancements to the calculation of his Guidelines range. Although the district court made a clear and obvious error that affected Wikkerink’s substantial rights, we hold that the error does not seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus we AFFIRM.

I. BACKGROUND

In October 2014, Wikkerink entered into an agreement in which he pleaded guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), A presentence report (“PSR”) was subsequently prepared to assist the district court in determining the appropriate sentence. The PSR revealed that Wikkerink’s only previous conviction was for the Louisiana offense of aggravated incest, for which he had been sentenced to an eight-year term of imprisonment. Wikkerink had committed the Louisiana offense by sexually molesting his seven-year-old niece. Based on this prior conviction, the PSR indicated that § 2252A(b)(l) imposed a minimum term of imprisonment of 15 years and a maximum term of 40 years. The PSR also found that Wikkerink was a “repeat and dangerous sex offender against minors” within the meaning of U.S.S.G. § 4B1.5, which gave him an offense level of 34 and a criminal history category of V. After a three-level reduction for acceptance of responsibility, the PSR concluded that Wikkerink’s total offense level was 31. Based on this total offense level and a criminal history category of V, the Guidelines range would have been 168 to 210 months. Because the statute of conviction impósed a mandatory minimum sentence, however, the PSR stated that the Guidelines range was 180 to 210 months.

During the sentencing hearing, the district court considered the recommendations made in the PSR and adopted the PSR’s factual findings. The district court also stated that the maximum sentence under the Guidelines was 240 months, even though the PSR had calculated the maximum sentence as 210 months. The district court then imposed a sentence of 360 months of imprisonment and a five-year term of supervised release. The district court explained that this sentence, which was significantly above the Guidelines range, was just and reasonable under either U.S.S.G. § 5K2.0(a)(3) or 18 U.S.C. § 3553(a) because of Wikkerink’s previous sex offense involving a child and the “very disturbing nature” and “high number” of pornographic videos and still images. Wik-kerink orally objected to the sentence during the hearing, but he gave no reasons for his objection. After the sentence was imposed, Wikkerink timely appealed.

II. STANDARD OF REVIEW

Wikkerink asserts that this Court should conduct a de novo review of the sentencing enhancements applied to the calculation of his Guidelines range. “To preserve an issue for review on appeal, the defendant’s objection must fully apprise the trial judge of the grounds for the objection so that evidence can- be taken and argument received on the issue.” United States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995). Wikkerink did not object to the PSR, which stated he was subject to sentencing enhancements under 18 U.S.C. § 2252A(b)(l) and U.S.S.G. § 4B1.5(a). At sentencing, Wikkerink’s counsel stated that her client was “looking at, under the statutory guidelines or mandates, 15 to 40 years.” And Wikkerink’s generic objection after the district court imposed the sentence did not apprise the district court of the enhancement issues he raises on appeal. See Musa, 45 F.3d at 924 & n.5.

In cases such as this,«where “the defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error.” United States v, Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). “Plain error occurs when: ‘(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.’ ” United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008) (quoting United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005)). “If each of these conditions is satisfied, we may exercise our discretion to correct the error only if ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005)).

III. DISCUSSION

Wikkerink argues that his previous Louisiana conviction for aggravated incest did not clearly constitute a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(l) or a “sex offense conviction” under U.S.S.G. § 4B1.5(a). Thus, he contends that the district court erred by applying sentencing enhancements to the calculation of his Guidelines range based on his previous state conviction.

Generally, courts employ a categorical approach when classifying a previous conviction for sentence enhancement purposes. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant’s specific conduct.” United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc). A court must compare the elements of the statute of conviction for the prior offense with the elements of the “generic crime” warranting a sentencing enhancement. Descamps v. United States, — U.S. ——, 133 S.Ct. 2276, 2281, 2284, 186 L.Ed.2d 438 (2013). The prior conviction qualifies the defendant for a sentencing enhancement “only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Id. at 2281.

When the statute of conviction is “divisible”—that is, “comprises multiple, alternative versions of the crime”—a court may apply the modified categorical approach “to determine which alternative formed the basis of the defendant’s prior conviction.” Id. at 2281, 2284. In doing so, a court may review “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). “The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps, 133 S.Ct. at 2281.

In the present case, the district court made a clear and obvious error when it relied solely on the PSR in concluding that Wikkerink’s previous state conviction warranted sentencing enhancements under 18 U.S.C. § 2252A(b)(l) and U.S.S.G. § 4B1.5(a). See United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006); Garza-Lopez, 410 F.3d at 274. However, we must ask “whether there is plain error at the time of appellate consideration.” Martinez-Vega, 471 F.3d at 562. Therefore, this Court can consider the statute of conviction and the record as supplemented on appeal to determine whether the Louisiana offense of aggravated incest falls within the definitions of a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(l) and a “sex offense conviction” under U.S.S.G. § 4B1.5(a). See United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008).

A. Enhancement Pursuant to § 2252A(b)(l)

First, Wikkerink argues that the district court erred in concluding that his aggravated incest conviction was a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(l). Section 2252A(b)'(l) generally mandates a sentence of at least 5 years and not more than 20 years of imprisonment, but the statutory minimum increases to 15 years and the statutory maximum increases to 40 years if the defendant has a qualifying “prior conviction.” A qualifying prior conviction under § 2252A(b)(l) includes a conviction “under the laws of any State relating to ,.. sexual abuse.” The term “sexual abuse” is not defined in § 2252A(b)(l), but this Court has previously held that sexual abuse is a generic term that must be given its ordinary, common meaning. United States v. Hubbard, 480 F.3d 341, 348 (5th Cir. 2007). “We have repeatedly endorsed the definition of ‘sexr ual abuse’ set forth in Black’s Law Dictionary, which is ‘an illegal or wrongful sex act, esp. one performed against a minor by an adult.’ ” United States v. Vigil, 774 F.3d 331, 334 (5th Cir. 2014) (quoting Sexual Abuse, Black’s Law Dictionary (9th ed. 2009)).

When Wikkerink committed his prior offense of aggravated incest in May 1999, the statute of conviction criminalized “engaging in any [enumerated] prohibited act ... with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of [several] biological, step, or adoptive relatives.” La. Stat. Ann. § 14:78.1(A) (Supp. 1998) (repealed). The statute then enumerated a long list of prohibited acts. § 14:78.1(B). Wikkerink contends that this definition of aggravated incest is far broader than the qualifying prior convictions described in § 2252A(b)(l). However, the state court charging document and transcript of the plea colloquy show that Wikkerink pleaded guilty to aggravated incest for engaging in the following prohibited acts: “sexual battery,” “indecent behavior with juveniles,” and “molestation of a juvenile.” Accordingly, under the modified categorical approach, we must determine whether these specific versions of aggravated incest (not all of the acts described in the Louisiana statute) fall within the ordinary, common meaning of sexual abuse.

In May 1999, the Louisiana offense of sexual battery was defined as:

the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

La. Stat. Ann.. § 14:43.1(A) (1997). The plea colloquy indicates that Wikkerink committed aggravated incest by touching his seven-year-old niece on her vagina. Thus, the elements of the version of sexual battery Wikkerink committed are (1) an intentional (2) touching of the anus or genitals of a victim who is (3) not the spouse of the offender, (4) under age fifteen, and (5) at least three years younger than the offender. See Vigil, 774 F.3d at 336. In addition, the crime of aggravated incest imposes an additional element requiring that the victim is a relative of the defendant. See La. Stat. Ann. § 14:78.1(A). These elements align with the elements of the generic definition of sexual abuse—an illegal or wrongful sex act, especially one performed against a minor by an adult. See Vigil, 774 F.3d at 336.

Likewise, in May 1999, the Louisiana offense of indecent behavior with juveniles was defined as “any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.” La. Stat. Ann. § 14:81(A) (1986 & Supp. 1998). For purposes of this offense, a “lewd or lascivious act” is one “which is lustful, obscene, indecent,, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner,” State v. Holstead, 354 So.2d 493, 497-98 (La. 1977). When the elements of indecent behavior with juveniles are combined with the requirement that the victim and defendant are relatives, this form of aggravated incest undoubtedly constitutes an illegal or wrongful sex act performed against a minor by an adult and thus constitutes sexual abuse. See United States v, Duron-Rosales, 584 Fed.Appx. 218, 219 (5th Cir, 2014) (per curiam).

Finally, in May 1999, the Louisiana offense of molestation of a juvenile was defined as:

the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.

La. Stat. Ann. § 14:81.2 (1986 & Supp. 1998). In the context of this offense, Louisiana courts have defined a “lewd or lascivious act” as “an act which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent and related to sexual impurity or incontinence carried on in a wanton manner.” State v. Ragas, 607 So.2d 967, 972 n.2 (La. Ct. App. 1992). Thus, where the prohibited act is molestation of a juvenile, the elements of aggravated incest clearly fall within the generic definition of sexual abuse that this Court has previously endorsed—an illegal or wrongful sex act performed against a minor by an adult.

In summary, the elements of each of the versions of aggravated incest Wikkerink committed (sexual battery, indecent behavior with juveniles, and molestation of a juvenile) align with the elements of the generic definition of sexual abuse previously endorsed by this Court. Thus, Wikker-ink’s conviction for aggravated, incest constituted a prior conviction under state law relating to sexual abuse that warranted a sentencing enhancement under § 2252A(b)(l). We hold that the district court did not err in imposing a sentencing enhancement pursuant to § 2252A(b)(l) when it calculated Wikkerink’s Guidelines range.

B. Enhancement Pursuant to § 4B 1.5(a)

1. Existence of an Error

Wikkerink also contends that the district court erred in concluding his aggravated incest conviction was a prior'“sex offense conviction” under U.S.S.G. § 4B1.5(a). Section 4B1.5(a) provides for a sentencing enhancement “[i]n any, case in which the defendant’s instant offense of conviction is a covered sex crime, § 4B1.1 (Career Offender) does not apply, and the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction.” A prior “sex offense conviction” is defined by reference to 18 U.S.C. § 2426(b)(1), see U.S.S.G. § 4B1.5 cmt. 3(A)(ii), which defines the term as a conviction:

(A) under . this chapter [117], chapter 109A, chapter 110, or section 1591; or
(B) under State law for an offense consisting of conduct that would have been an offense under a chapter referred to in paragraph (1) if the conduct had occurred within the special maritime and territorial jurisdiction of the United States....

18 U.S.C. § 2426.

Applying the modified categorical approach, it is apparent that each version of aggravated incest to which Wikkerink pleaded guilty (sexual battery, indecent behavior with juveniles, and molestation of a juvenile) criminalized a broader range of conduct than the corresponding offenses currently enumerated in Chapters 117, 109A, and 110 and in § 1591 of Title 18. of the U.S. Code. The closest federal analogues to Wikkerink’s previous state offenses are aggravated sexual abuse (18 U.S.C. § 2241), sexual' abuse (18 U.S.C. § 2242), arid sexual abuse of a minor (18 U.S.C. § 2243(a)). Collectively, these federal offenses criminalize any “sexual act”: (1) with a child under age twelve, id. § 2241(c); (2) with another person of any age “by using force against that other person” or “by threatening or placing that other person in fear,” id. §§ 2241(a), 2241(c), 2242; (3) with another person of any age who is “incapable of appraising the nature of the conduct” or “physically incapable of declining participation,” id. § 2242; or (4) with a minor who “has attained the age of 12 years but has not attained the age of 16 years” and “is at least four years younger than the person so engaging,” id. § 2243(a).

When Wikkerink committed his prior offense in May 1999, the Louisiana offense of sexual battery covered a broader range of conduct than- all of these federal offenses. First, sexual battery—which, as discussed above, covered any intentional touching of anus or genitals, La. Stat. Ann. § 14:43.1(A)—was broader than the federal crimes of sexual abuse under § 2242 and aggravated sexual abuse under § 2241(a)—which only cover sexual acts that involve force, threat, or incapacity, 18 U.S.C. §§ 2241(a), 2242. Second, sexual battery covered minors who are age thirteen or fourteen, even in the absence of force, threat, and incapacity, La. Stat. Ann. § 14:43.1(A)—by contrast, aggravated sexual abuse only covers thirteen- or fourteen-year-olds if force, threat, or incapacity is involved, 18 U.S.C. § 2241(c). Third, sexual battery covered , minors who were three years younger than the perpetrator, La. Stat, Ann. § 14:43.1(A), but the federal offense of sexual abuse with a minor only applies if the minor is at least four years younger than the perpetrator, 18 U.S.C. § 2243(a).

' Likewise, the Louisiana offense of indecent behavior with juveniles was broader than all of the federal offenses. First, indecent behavior with juveniles—which covered any lewd or lascivious act, La. Stat. Ann. § 14:81(A)—-was broader than sexual abuse under § 2242 and aggravated sexual abuse under § 2241(a)—which only cover sexual acts involving force, threat, or incapacity, 18 U.S.C. §§ 2241(a), 2242. Next, indecent behavior with juveniles covered minors who were sixteen years of age, even in the absence of force, threat, and incapacity, La, Stat. Ann. § 14:81(A)—by contrast, sexual abuse of a minor only applies to minors under the age of sixteen, 18 U.S.C. § 2243(a), and aggravated sexual abuse does not cover children over the -age of eleven unless the sexual act involves force, threat, or incapacity, 18 U.S.C. § 2241.

Finally, the Louisiana offense of molestation of a juvenile covered a broader range of conduct than the' corresponding federal offenses. First, molestation of a juvenile covered sexual acts imposed on the juvenile not only by force, violence, and threat but also “by the use of influence by virtue of a position of control or supervision over the juvenile,” La. Stat. Ann. § 14:81.2—by contrast, sexual abuse under § 2242 and aggravated sexual abuse under § 2241(a) cover sexual acts involving force, threat, or incapacity but do not extend to sexual acts imposéd on a juvenile by using a position of control or supervision, 18 U.S.C. §§ 2241(a), 2242. Second, molestation of a juvenile covered minors who are age sixteen, even in the absence of force, threat, and incapacity, La. Stat. Ann. § 14:81.2, whereas sexual abuse of a minor only applies to minors under age sixteen, 18 U.S.C. § 2243(a), and aggravated sexual abuse does not cover children over the age of eleven unless the sexual act involves force, threat, or incapacity, 18 U.S.C. § 2241. .

This Court has not identified any federal offenses that encompass the elements of Wikkerink’s Louisiana conviction of aggravated incest. Accordingly, his previous conviction did not constitute a prior “sex offense conviction” under § 4B1.5(a), and the district court erred in applying the sentencing enhancement to the Guidelines range calculation. This error satisfies the first prong of the plain error analysis.

2. Clear and Obvious Error

In determining whether the district court’s error is clear and obvious, “it is enough that the error be ‘plain’ at the time of appellate consideration.” Garza-Lopez, 410 F.3d at 275 (quoting Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). In this case, the district court improperly relied on the PSR’s characterization of the previous conviction. See id. Had the district court reviewed the plain language of the relevant statutory provisions to determine whether Wikkerink’s previous state offense was a prior “sex offense conviction,” the error in the PSR’s calculation would have been apparent. Thus, the error was clear and obvious under the second prong of the plain error analysis.

3. Effect on Wikkerink’s Substantial Rights

Although the district court made a clear and obvious error, the Government contends that the error did not affect Wikker-ink’s substantial rights because the district court imposed a sentence well above either the appropriately or wrongfully calculated ranges and Wikkerink- has not shown that he would have received a lesser sentence if the correct range had been used. After improperly applying the sentencing enhancement under § 4B1.5(a), the PSR concluded that the Guidelines range was 180 to 210 months. Notably, the district court made an additional error during the sentencing hearing when it stated that the maximum sentence under the Guidelines was 240 months, instead of 210 months. Absent these errors, Wikkerink’s total offense level would have' been 26, rather than 31, and his criminal history category would have been II, rather than V. The correct total offense level and criminal history category would yield a Guidelines range of 70 to 87 months. U.S.S.G. ch. 5, pt. A. However, because of the mandatory minimum imposed by § 2252A(b)(l), Wik-kerink’s correct sentence according to the Guidelines would have been 180 months. U.S.S.G. § 5Gl.l(b). The district court ultimately imposed a sentence of 360 months because it found that the Guidelines failed to sufficiently account for the circumstances of the case and the “very disturbing nature” of the child pornography found in Wikkerink’s possession.

Ordinarily, to show that a clear and obvious error affected his substantial rights, a defendant “must" ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez v. United States, — U.S.-, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). In Molind-Martinez, the Supreme Court held that “[wjhen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345. The Supreme Court noted that district courts “must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Id. (quoting Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013)). “Even if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.” Id. (internal quotation marks omitted) (quoting Peugh, 133 S.Ct. at 2083).

Importantly, the Supreme Court in Mo-linar-Martinez explained that there are certain “unusual circumstances” wherein, “despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist.” Id. at 1346-47. “The record in a case may show, for example, that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range.” Id. at 1346. If the district court’s explanation for the sentence “make[s] it clear that the judge based the sentence he or she selected on factors independent of the Guidelines,” the application of an erroneous Guidelines range will be insufficient to show a reasonable probability of a different outcome absent the error. Id. at 1347.

This Court’s decision in United States v. Dickson is instructive. 632 F.3d 186 (5th Cir. 2011). In Dickson, the Guidelines range was incorrectly calculated as 360 to 840 months, and the district court imposed a sentence of 840 months, which was also the maximum sentence permitted under the statute of conviction. Id. at 188, 191. The correct Guidelines range was 235 to 293 months. Id. at 190-91. However, in imposing the sentence, the district court noted that the defendant had an extensive criminal history and was “one of the most vicious predators on children [the district court] had ever encountered.” Id. at 191 (internal quotation marks omitted). The district court “believed that no term of imprisonment would likely deter him from engaging in child molestation,” and therefore, “a reasonable sentence ... would be one that would ensure to the maximum possible extent that this defendant will never be free in society again.” Id. (internal quotation marks omitted). The fact that the district court believed the defendant should receive the maximum sentence allowed by the statute of conviction and imposed that maximum statutory sentence made clear that the district court had based the sentence it selected on factors independent of the Guidelines. See id. at 191-92. Accordingly, this Court held that the defendant had not shown there was “a reasonable probability that he would have received a lesser sentence absent the error.” Id.

Unlike the court in Dickson, however, the district court’s explanation in the instant case did not make clear that the district court based the sentence on factors independent of the Guidelines. The district court imposed a sentence of 360 months, a sentence which is halfway between what the district court apparently believed to be the top -of the Guidelines range (240 months) and the maximum sentence permitted under the statute of conviction (480 months). This suggests that the district court used the Guidelines range as a reference point in determining the appropriate sentence.

The district court did note that it would be reasonable to impose a “non-Guideline sentence” above the recommended range based on its consideration of 18 U.S.C. § 3553(a). Section 3553(a) lists the various factors a court should consider in imposing a sentence, only one of which is the applicable Guidelines range. But even a “district court contemplating a non-Guidelines sentence ‘must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.’ ” Peugh, 133 S.Ct. at 2083 (quoting Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Thus, in the normal course, a non-Guideline sentence still uses the Guidelines range as a reference point. See Molina-Martinez, 136 S.Ct. at 1345. Moreover, the district court indicated that U.S.S.G § 5K2,0(a)(3) was another potential basis for an upward departure from the Guidelines range calculated in the PSR. Section 5K2.0(a)(3) allows for an upward departure from the otherwise applicable range based on circumstances present to a degree not adequately taken into consideration by the range. An upward departure pursuant to § 5K2.0(a)(3) is undoubtedly based, on the Guidelines.

Thus, it appears that the district court used the Guidelines range as the beginning point to explain the decision to deviate from it, and the Guidelines appear to have been one of the bases for the sentence imposed, See Molina-Martinez, 136 S.Ct. at 1345. At the very least, the district court’s explanation did not make clear that the district court based the sentence it selected on factors independent of the Guidelines. See id. Accordingly, Molina-Martinez controls in this case, and we hold that the error in the calculation of the Guidelines range was sufficient by itself to show a reasonable probability of a different outcome absent the error. Thus, the error affected Wikkerink’s substantial rights under the third prong of, the plain error analysis.

4. Effect on the Fairness, Integrity, or Public Reputation of Judicial Proceedings

Having found the first three prongs satisfied, this Court may exercise its discretion to reverse the sentence only if the error seriously affects, the fairness, integrity, or public reputation of judicial proceedings. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). “[W]e do not view the fourth prong' as automatic if the other three prongs are met.” United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc). This Court has rejected “a blanket rule that once prejudice is found under the [third plain error prong], the error invariably requires correction.” Id. (quoting United States v. Reyna, 358 F.3d 344, 352 (5th Cir. 2004) (en banc)). Instead, this Court’s discretion to correct the sentence “should be employed in those circumstances in which a miscarriage of justice would otherwise result.” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “The fourth prong is meant to be applied on a case-specific and fact-intensive basis.” Puckett, 556 U.S. at 142, 129 S.Ct. 1423.

During Wikkerink’s sentencing hearing, the district court stated that the offense was “quite troubling” and explained, “I don’t know, frankly, that the Guidelines correctly captured the nature and extent of the behavior in this defendant’s collection of child pornography.” The district court described the disturbing images and videos found in connection with Wikker-ink’s internet protocol address and found on a computer seized from his residence. Moreover, the district • court noted that Wikkerink had previously been convicted of aggravated incest for molesting his seven-year-old niece. Accordingly, the district court concluded that the 360-month sentence was “a just and reasonable sentence under the history and .characteristics of this defendant, the nature and. circumstances of the instant offense, the need to afford adequate deterrence to future criminal conduct by this defendant, as well as the need to protect the public from further crimes of the defendant.”

We conclude that affirming the district court’s 360-month sentence would not result in a miscarriage of justice. The district court’s reasoning during the sentencing hearing suggests that it did not think a sentence within the erroneous Guidelines range of 180 to 240 months was sufficient in this case. Rather, the district court believed a sentence well above 240 months was just and reasonable based on Wikker-ink’s criminal history and the large number of disturbing images and videos. The district court also believed a 360-month sentence :was necessary to deter Wikker-ink from engaging in future criminal conduct and to protect the public from further crimes by Wikkerink. Thus, we are not convinced that the district court’s error in this case seriously affects the fairness, integrity, or public reputation of judicial proceedings. We decline to exercise our discretion to correct the error.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the sentence imposed by the district court.

      . The PSR indicated that Wikkerink had molested an eight-year-old niece as well, but the record as supplemented on appeal shows that Wikkerink pleaded guilty to aggravated incest with respect to only one of his nieces, who was seven years of age at the time of the offense.

      . The "generic crime” refers to "the offense as commonly understood” or as defined in the statute or Guideline warranting the sentencing enhancement, as applicable. See Descamps, 133 S.Ct. at 2281.

      . In addition, the court is "bound by the [state supreme court's] interpretation of state law, including its determination of the elements of [the crime of conviction].” Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

      . Notably, Louisiana courts have defined each of these acts by reference to state statutes specifically punishing the offenses. See, e.g., State v. Flores, 669 So.2d 646, 650-51 & n. 1 (La. Ct. App. 1996) (citing La. Stat. Ann. §§ 14:43.1, :81, :81.2).

      . The term "sexual act” is defined as:
      (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
      (B) contact, between the mouth and the penis, the mouth and- the vulva, or the mouth and the anus;
      (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, , or, arouse or gratify the sexual desire of any person; or
      (D)the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse. or gratify the sexual desire of any person.,,.
      18 U.S.C. § 2246(2),

      . In addition, the Government acknowledges that the instant offense of receiving child pornography does not constitute a "covered sex crime”- because the definition of covered sex crime does not include "trafficking in, receipt of, or possession of, child pornography.” See U.S.S.G. § 4B1.5 cmt. 2. Thus, the district court made a clear and obvious error when it applied § 4B1.5(a) to its calculation of the Guidelines range. Despite the Government’s concession, however, Wikkerink’s brief does not raise the argument that the instant offense was not a covered sex crime for purposes of § 4B1.5. Thus, Wikkerink has waived any argument that § 4B1.5 was inapplicable due to the nature of the instant offense. United States v. Montgomery, 747 F.3d 303, 312 n.8 (8th Cir. 2014) (holding that a party waived an argument by failing to brief it on appeal).