Filed: Nov. 07, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 12-16036 Date Filed: 11/07/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16036 Non-Argument Calendar _ D.C. Docket No. 2:11-cr-00112-JES-SPC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM BOKERMAN, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (November 7, 2013) Before TJOFLAT, MARCUS and JORDAN, Circuit Judges. PER CURIAM: William Bokerman appeals his con
Summary: Case: 12-16036 Date Filed: 11/07/2013 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16036 Non-Argument Calendar _ D.C. Docket No. 2:11-cr-00112-JES-SPC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM BOKERMAN, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (November 7, 2013) Before TJOFLAT, MARCUS and JORDAN, Circuit Judges. PER CURIAM: William Bokerman appeals his conv..
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Case: 12-16036 Date Filed: 11/07/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16036
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cr-00112-JES-SPC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM BOKERMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 7, 2013)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
William Bokerman appeals his convictions and total 324-month sentence for
transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1) and (b)(1),
and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and
Case: 12-16036 Date Filed: 11/07/2013 Page: 2 of 7
(b)(2). The written plea agreement under which Bokerman pled guilty contained a
sentence-appeal waiver that foreclosed his right to appeal his sentence, subject to
four limited exceptions, including Eighth Amendment challenges. On appeal,
Bokerman argues that: (1) the magistrate judge’s failure to warn him of a cross-
referencing guideline provision during the plea colloquy rendered his guilty plea
not knowing and voluntary; (2) his sentence constituted cruel and unusual
punishment; and (3) his sentence was procedurally and substantively unreasonable.
After careful review, we affirm in part and dismiss in part.
When a defendant fails to object to a Rule 11 violation before the district
court -- as Bokerman failed to do here -- we review only for plain error. United
States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005). To establish plain
error, the defendant must show: (1) there is error; (2) that is plain; and (3) affected
his substantial rights; and if those three prongs are met, we have discretion to
correct an error (4) that seriously affected the fairness, integrity or public
reputation of judicial proceedings.
Id. at 1019. As to the third prong, “a defendant
who seeks reversal of his conviction after a guilty plea, [on the basis of plain
error], must show a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
The validity of a sentence-appeal waiver is reviewed de novo. United States v.
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Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We also review de novo the
legality of a sentence under the Eighth Amendment.
Moriarty, 429 F.3d at 1023.
First, we are unpersuaded by Bokerman’s claim that his plea was not made
knowingly and voluntarily. Rule 11 requires district courts, when accepting a
guilty plea, to ensure that the defendant (1) enters the plea free from coercion, (2)
understands the nature of the charges, and (3) understands the consequences of his
guilty plea. See Fed.R.Crim.P. 11; Moriarty, 429 F.3d at 1019. With respect to the
Sentencing Guidelines, where the court confirms that a defendant is aware of the
Guidelines and has discussed the effect of the Guidelines on his sentence with his
attorney, Rule 11 compliance has occurred. See United States v. Mosley,
173 F.3d
1318, 1327-28 (11th Cir. 1999); see also Fed.R.Crim.P. 11(b)(1)(M). Rule 11 does
not require the court to specify particular guideline provisions applicable to the
defendant during his colloquy. See United States v. Bozza,
132 F.3d 659, 661-62
(11th Cir. 1998) (sentence appeal concerning U.S.S.G. § 2J1.7 enhancement).
Moreover, there is a strong presumption that statements made during a plea
colloquy are true. United States v. Medlock,
12 F.3d 185, 187 (11th Cir. 1994).
The guideline imprisonment ranges for child pornography offenses in
violation of 18 U.S.C. § 2252 are calculated under § 2G2.2. U.S.S.G. § 2G2.2 &
App. A. However, if the offense involved causing, transporting, permitting, or
offering or seeking by notice or advertisement, a minor to engage in sexually
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explicit conduct for the purpose of producing a visual depiction of such conduct, a
cross-reference directs the application of § 2G2.1 instead -- so long as the resulting
offense level is greater than that determined under § 2G2.2. Id. § 2G2.2(c)(1).
Section 2G2.1 provides for a base offense level of 32.
Id. § 2G2.1(a).
In this case, we find no plain error concerning whether Bokerman’s plea was
made knowingly and voluntarily. For starters, the magistrate judge did not fail to
warn Bokerman of § 2G2.2(c)(1), the cross-reference which mandated the use of §
2G2.1 to determine his guideline range. Rather, the magistrate judge ensured that
Bokerman understood the plea agreement, which explicitly designated a base
offense level of 32 under § 2G2.1, the application of which he now challenges. In
response to the magistrate judge’s questions, Bokerman confirmed twice that he
understood the potential penalties and that he had discussed the application of the
Guidelines with counsel. See Mosley, 173 F.3d at 1328. Bokerman also said that
he was entering a guilty plea freely and voluntarily, which creates a strong
presumption that these statements were true. See
Medlock, 12 F.3d at 187.
Notably, Rule 11 did not require the magistrate judge to specify the particular
guidelines applicable to Bokerman. See
Bozza, 132 F.3d at 661-62. Nor does the
record indicate that, but for failure to mention the cross reference, Bokerman
would not have entered his guilty plea. See Dominguez
Benitez, 542 U.S. at 83.
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We also reject Bokerman’s reasonableness challenge to his sentence, in light
of the sentence-appeal waiver in his plea agreement. To establish that a sentence-
appeal waiver was made knowingly and voluntarily, the government must show
either that (1) the district court specifically questioned the defendant about the
waiver during the plea colloquy, or (2) the record indicates that the defendant
otherwise understood the full significance of the waiver. Johnson, 541 F.3d at
1066. We have consistently enforced appeal waivers according to their terms
when the district court specifically questioned the defendant during the plea
colloquy about the appeal waiver, adequately explained its significance, and
confirmed that the defendant understood its full significance. See United States v.
Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir. 2005).
Here, the record indicates that Bokerman knowingly and voluntarily waived
his right to appeal the procedural and substantive reasonableness of his sentence as
part of the plea agreement. Not only did the plea agreement spell out the sentence-
appeal waiver with specificity, the magistrate judge expressly addressed the waiver
during the plea colloquy, listed its four limited exceptions, and explained the
significance of the waiver. See id. In response, Bokerman unambiguously
indicated that he understood the waiver and the plea agreement in general. Thus,
we do not address Bokerman’s procedural and substantive reasonableness
arguments and dismiss this part of his appeal of his sentence.
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Finally, we find no merit to Bokerman’s argument that his 324-month
sentence was unconstitutional. In making a cruel and unusual punishment claim
under the Eighth Amendment, a defendant must first show that his sentence was
grossly disproportionate to the offense committed. United States v. McGarity, 669
F.3d 1218, 1255-56 (11th Cir.), cert. denied,
133 S. Ct. 378 (2012). In general, a
sentence within an offense’s statutory limits is not grossly disproportionate.
United States v. Flores,
572 F.3d 1254, 1268 (11th Cir. 2009). The statutory
minimum and maximum sentences for transporting child pornography with a
relevant prior conviction are 15 to 40 years’ imprisonment. 18 U.S.C. §
2252(b)(1). We’ve never ruled that a sentence of imprisonment was grossly
disproportionate. United States v. Farley,
607 F.3d 1294, 1343 (11th Cir. 2010).
Bokerman’s total 324-month sentence fell within the statutory limits of the
offense and at the bottom of the guideline range of 324 to 405 months, which
suggests that his sentence complied with the Eighth Amendment. See 18 U.S.C. §
2252(b)(1); Flores, 572 F.3d at 1268. Bokerman, a registered sex offender, took
and transported images of 13 minor children, some under the age of 12, engaged in
sexually explicit conduct. On this record, his sentence is not grossly
disproportionate to his offenses when compared to other sentences that this Court
has affirmed. See
McGarity, 669 F.3d at 1255-56 (upholding life sentences for
various defendants who were convicted of child pornography offenses). In short,
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Bokerman has not demonstrated that the district court violated the Eighth
Amendment, plainly or otherwise, in imposing a total 324-month sentence.
AFFIRMED IN PART, DISMISSED IN PART.
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