USCA1 Opinion
August 23, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1090
RICHARD I. BARBER,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Richard I. Barber on brief pro se.
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A. John Pappalardo, United States Attorney, and Kevin
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O'Regan, Assistant United State Attorney, on brief for appellee.
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Per Curiam. This is an appeal from the district
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court's denial of appellant's motion under 28 U.S.C. 2255
for post-conviction relief. We affirm.
I. Background
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On January 18, 1991, appellant-defendant Richard I.
Barber pleaded guilty to the sexual exploitation of a child
in violation of 18 U.S.C. 2251(a). The underlying facts
are uncontested. On August 7, 1990, Postal Inspector
Terrence A. Loftus was informed that a commercial photography
lab in Virginia had developed pornographic photographs of a
child. The film bore a return address of Barber
Publications, P.O. Box 892 in North Adams, Massachusetts.
Appellant retrieved the film at the post office in North
Adams on August 9, 1990. Inspector Loftus followed appellant
home and arrested him. During a subsequent search of
appellant's home, Loftus discovered the child depicted in the
photographs. She indicated that she was eleven years old and
had been living with appellant. Inspector Loftus instructed
appellant to appear in court in Springfield, Massachusetts on
August 10, 1990. He failed to appear and was arrested almost
two weeks later in Connecticut.
On October 2, 1990, appellant was indicted on one
federal charge of the sexual exploitation of a child. He
originally pleaded not guilty, but offered a change of plea
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on January 18, 1991.1 Appellant was represented by counsel
at his change of plea hearing and at his sentencing hearing.
The plea agreement provided that in return for appellant's
guilty plea, the government would recommend a sentence at the
lower end of the sentencing guidelines range. The pre-
sentence report ["PSR"] identified the applicable base
offense level ["BOL"] as 25, pursuant to 2G2.1 of the
Guidelines. The PSR recommended that the BOL be increased
by 2 levels because the victim was under 12 years of age,
pursuant to 2G2.1(b)(1). It further increased the BOL by 2
levels because appellant had abused a position of public and
private trust, and by 2 levels for his obstruction of justice
by failing to appear in court as instructed at the time of
his arrest and fleeing to Connecticut. Finally, the PSR
recommended a 2 level reduction for appellant's acceptance of
responsibility, resulting in a total offense level of 29.
Applying a criminal history category of I, the PSR arrived at
an applicable guideline sentencing range of 87 to 108 months.
At the sentencing hearing on March 15, 1991, the government
recommended a sentence of 87 months and three years of
supervised release. The district court, in consideration of
the severe circumstances and the hardship to the child,
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1. In addition to the federal charge, appellant also pleaded
guilty to state charges of non-forcible rape of a child,
child pornography, indecent assault and battery on a child
under 14 and unnatural and lascivious acts.
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imposed a sentence of 108 months, plus three years'
supervised release.
Appellant filed a motion for resentencing on the
grounds that the district court failed to ask him if he had
read the PSR before sentencing and if he had any objections
thereto. The district court denied the motion. Appellant
then filed a motion under 28 U.S.C. 2255 for post-conviction
relief on the following grounds: 1) the court lacked
jurisdiction because appellant did not intend the film to be
placed in interstate commerce; 2) appellant was coerced into
consenting to a search of his home in violation of the Fourth
Amendment; 3) appellant received ineffective assistance of
counsel at the pretrial and sentencing phases of the case;
and 4) the court violated Fed. R. Crim. P. 11. The district
court denied the motion. On appeal, appellant re-asserts his
jurisdictional, ineffective assistance of counsel, and Rule
11 arguments. We reject each argument in turn.
II. Jurisdiction
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Appellant argues that 18 U.S.C. 2251(a) requires,
as an element of the offense, intent that the visual
depictions at issue be transported in interstate commerce.
He alleges that he mailed the film to an address in
Massachusetts and did not know or intend that it would be
transported in interstate commerce. The language of the
statute, however, clearly does not require intent with
respect to the requirement that the film be transported in
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interstate commerce or mailed. Section 2251 provides, in
relevant part, as follows:
Any person who . . . uses . . . any minor
to engage in, with the intent that such
minor engage in any sexually explicit
conduct for the purpose of producing any
visual depiction of such conduct, shall
be punished as provided under subsection
(d), if such person knows or has reason
to know that such visual depiction will
be transported in interstate or foreign
commerce or mailed, or if such visual
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depiction has actually been transported
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in interstate or foreign commerce or
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mailed.
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Appellant does not deny that the pictures were actually
mailed and transported in interstate commerce. Therefore,
appellant's offense is clearly punishable under 2251 and
the district court did not err in rejecting appellant's
argument that jurisdiction was lacking.2
III. Ineffective Assistance of Counsel
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Appellant argues that representation was inadequate
in three respects, asserting that: 1) counsel failed to
determine whether 2251(a) was applicable to his offense,
resulting in a denial of due process; 2) counsel failed to
object to the trial court's alleged failure to comply with
the requirements of Fed. R. Crim. P. 11 in accepting
appellant's change of plea; and 3) counsel failed to object
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2. Appellant suggests that a requirement of scienter with
respect to the mailing or interstate commerce element of the
offense is constitutionally required. We reject that
argument. See United States v. Esch, 832 F.2d 531, 536 (10th
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Cir. 1987) (fact that 2251 does not require intent
regarding the mailing element does not render statute
unconstitutional), cert. denied, 485 U.S. 908 (1988).
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to the court's application of the sentencing guidelines in
imposing appellant's sentence.
In Hill v. Lockhart, 474 U.S. 52, 57 (1985), the
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Court held that the two-part test adopted in Strickland v.
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Washington, 466 U.S. 668 (1984), also applied to ineffective
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assistance claims arising out of the plea process. As
applied to such claims, Strickland requires appellant to
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show, first, that counsel failed to provide assistance
"within the range of competence demanded of attorneys in
criminal cases." McMann v. Richardson, 397 U.S. 759, 771
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(1970) (quoted in Hill v. Lockhart, 474 U.S. at 56). Second,
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to satisfy the prejudice requirement, appellant "must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S.
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at 59.
A. Application of 2251
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Appellant first argues that his counsel was remiss
in failing to advise him that his conduct did not fall within
the charge. Since we find appellant's actions to be well
within the scope of 2251 this argument fails.
Appellant seems to contend - although his brief on
appeal is unclear - that he was not properly charged with
violating 2251 because he did not "exploit" a child, he
lacked the requisite mens rea, the photographs were not
pornographic, and he did not intend the photographs to be
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reproduced or sold. Therefore, he asserts that he was not
involved in the production and trade of commercial
pornography that the statute was intended to curb.
Appellant was charged with using a minor to engage
in sexually explicit conduct for the purpose of producing
photographs of such conduct, which photographs were
transported in interstate commerce and mailed. Appellant's
conduct, as described by the government at the change of plea
hearing and uncontested by appellant, clearly fell within
this charge. See Rodriguez v. Clark Color Laboratories, 921
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F.2d 347, 349 (1st Cir. 1990) ("The language of Sections 2251
and 2252 has been held to be clear and unambiguous.") The
district court viewed the photographs at the hearing and
determined that they were pornographic. Contrary to
appellant's argument, 2251(a) does not require that a
defendant intend the photographs to be reproduced or sold.
It is sufficient that the defendant intend to use a minor to
engage in sexually explicit conduct for the purpose of
producing photographs. See United States v. Esch, 832 F.2d
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531, 536 (10th Cir. 1987) (18 U.S.C. 2251(a) contains a
scienter requirement in that it requires proof that defendant
used a minor to engage in sexual conduct "for the purpose of"
producing a picture of such conduct), cert. denied. 485 U.S.
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908 (1988). Since appellant does not dispute that he had
such an intent his activities were properly found to be
within the statute's scope.
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B. Application of Rule 11
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Appellant's second argument supporting his
ineffective assistance claim concerns his attorney's failure
to object that the district court did not comply with several
subsections of Fed. R. Crim. P. 11 at his change of plea
hearing. Since we find that the district court fully
complied with the requirements of Rule 11, this argument also
fails. We address each alleged violation separately.
1. Rule 11(f)
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Appellant complains that the district court failed
to make "such inquiry as shall satisfy it that there is a
factual basis for the plea," as required by Rule 11(f). To
determine the plea's factual basis, the court asked appellant
himself whether he did the acts charged in the indictment.
Appellant responded in the affirmative. The court further
asked the government to present the evidence it would have
offered against the defendant had the case gone to trial.
Finally, the court viewed the photographs at issue and
determined that they were pornographic. The court thus fully
complied with Rule 11(f).
2. Rule 11(c)(1)
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Next, appellant argues that the district court
failed to inform him of "the nature of the charge to which
the plea is offered" and the "maximum possible penalty
provided by law, including the effect of any special parole
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or supervised release term," as required by Rule 11(c)(1).
The court informed appellant of the nature of the charge to
which the plea was offered by reading the one-count
indictment at the change of plea hearing. Appellant told the
court, in response to questioning, that he had been advised
by his attorney of the nature of the charges against him and
the maximum penalty provided by law. The court also informed
appellant of the maximum penalty provided by law. The court
did not inform appellant of "the effect of any special parole
or supervised release term," Fed. R. Crim. P. 11(c)(1), in
other words, that a supervised release term not exceeding
three years could be imposed. However, appellant has failed
to allege prejudice, that is, that he would not have pleaded
guilty if he had been informed of the supervised release
term. Therefore, counsel's failure to object that the court
had not complied with Rule 11(c)(1) did not constitute
ineffective assistance of counsel.
3. Rule 11(e)(4)
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Appellant also argues that the district court
failed to comply with Rule 11(e)(4). The rule requiresthat -
where the court rejects a plea agreement - the defendant
must be given an opportunity to withdraw his guilty plea.
That requirement did not come into play here because the
court did not reject the plea agreement. The court did
reject the government's recommendation that appellant be
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sentenced at the low end of the guideline range. However,
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the court's failure to follow the government's recommendation
is not the same as its rejection of the agreement. "[O]ur
cases clearly bar any relief merely because a judge refuses
to accept the sentence recommendations of a prosecutor, so
long as the defendant has not been misled." United States v.
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Valencia-Copete, 792 F.2d 4, 7 (1st Cir. 1986). The plea
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agreement specifically noted in paragraph 3 that "the
sentence imposed may be less severe or more severe than that
recommended by the United States Attorney's Office, and . . .
Mr. Barber may not withdraw his plea solely as a result of
the sentence imposed." Thus, the court did not violate Rule
11(e)(4).
4. Rule 11(d)
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Finally, appellant complains that the district
court failed to comply with its obligation to determine that
the plea was voluntary pursuant to Rule 11(d). At the change
of plea hearing, the court asked appellant a series of
questions to determine that the plea did not result from
threats or promises of leniency, that no specific sentence
had been promised and that appellant was not on medication
and had not been under psychiatric care. Appellant told the
court that his plea of guilty was "entirely free and
voluntary."
C. Application of Sentencing Guidelines
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Appellant's final argument in support of his
ineffective assistance of counsel claim is that his attorney
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erred in failing to object to the application of the
sentencing guidelines. Appellant contends that the court, in
sentencing him, erroneously applied the 1990 Guidelines, in
effect at the time of his sentencing (March, 1991), rather
than the 1989 Guidelines, in effect at the time of his
offense (August, 1990).3 He further argues that the court
applied the wrong BOL.
Ordinarily, the version of the sentencing
guidelines in effect at the time of sentencing controls.
However, "where the application of the Guidelines in effect
at the time of sentencing raises an ex post facto concern, .
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. . the court applies the version in effect at the time of
the crime's commission." United States v. Cousens, 942 F.2d
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800, 801 n.1 (1st Cir. 1991). The application of the
Guidelines raises an ex post facto concern where the
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Guidelines have changed in a way that disadvantages the
defendant. See Miller v. Florida, 482 U.S. 423, 430 (1987).
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The change that appellant complains of in this case
is not to the language of the relevant Guideline section, but
to the commentary to that section. The section of the
Guidelines at issue is 3C1.1, which was applied to increase
appellant's offense level by two levels for "willfully
obstructing or impeding proceedings." Section 3C1.1 itself
is identical in the 1989 Guidelines in effect at the time of
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3. The PSR specifically noted that it applied the 1989
Guidelines because they resulted in a lower guideline
sentencing range than the 1990 Guidelines.
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the offense and the 1990 Guidelines in effect at the time of
sentencing. The application notes to that section, however,
are slightly different. The PSR, in recommending the
increase, specifically referred to application note 3(e) of
the 1990 Guidelines, which lists "escaping or attempting to
escape from custody before trial or sentencing, or willfully
failing to appear, as ordered, for a judicial proceeding" as
an example of the type of conduct to which the section
applies. That specific example is not listed in the 1989
version of the Guidelines in effect at the time that the
offense was committed. We have held, however, that "flight
after arrest constituted an obstruction of justice under the
1989 version of the Guidelines." United States v. McCarthy,
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961 F.2d 972, 980 (1st Cir. 1992). Therefore, there was no
error in the court's two-level upward adjustment of the
offense level under 3C1.1.
Appellant also argues that his attorney's failure
to object that the wrong BOL was applied in calculating his
guideline sentencing range constitutes ineffective assistance
of counsel. A BOL of 25 was used to calculate appellant's
guideline sentencing range. That BOL was dictated by
2G2.1, which applies a BOL of 25 to the offense of "sexually
exploiting a minor by production of sexually explicit visual
or printed material." The Guideline section specifically
refers to violations of 18 U.S.C. 2251(a) as within its
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ambit. Appellant argues that a BOL of 13, pursuant to
2G2.2, ought to have been applied.
Appellant's only ground for arguing that 2G2.1
was erroneously applied is that the commentary to 2G2.1 in
the 1989 Guidelines provided that "[t]his offense commonly
involves the production source of a child pornography
enterprise." Appellant argues that because he was not
involved in a child pornography enterprise, 2G2.1 was
inapplicable. We disagree. The commentary to the 1989
Guidelines explains that it is the exploitation of a minor,
rather than the involvement in a child pornography
enterprise, that justifies the higher BOL under 2G2.1 than
under 2G2.2, which imposes a BOL of 13 for the distribution
of sexually explicit material after production.4 Given that
the offense charged involved the exploitation of a minor, and
not merely the transportation of the photographs, the
district court did not err in applying 2G2.1 to arrive at
appellant's BOL of 25. Therefore, appellant's attorney did
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4. The commentary reads as follows:
This offense commonly involves the production
source of a child pornography enterprise. Because
the offense directly involves the exploitation of
minors, the base offense level is higher than for
the distribution of the sexually explicit material
after production. An enhancement is provided when
the conduct involves the exploitation of a minor
under age twelve to reflect the more serious nature
of exploiting young children.
U.S.S.G. 2G2.1, commentary (1989).
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not provide ineffective assistance by failing to object to
that application of the guidelines.
IV. Violation of Rule 11
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For the reasons explained above in connection with
appellant's claim that his attorney was remiss in failing to
object that the court had not complied with Fed. R. Crim. P.
11, we conclude that appellant's claim that the district
court violated Rule 11 is without merit. To justify habeas
relief, a violation of Rule 11 must result in a "complete
miscarriage of justice" or in a proceeding "inconsistent with
rudimentary demands of fair procedure." United States v.
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Timmreck, 441 U.S. 780, 784 (1979). The court's failure to
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comply with the technical requirement that appellant be
informed of the supervised release term did not entitle him
to habeas relief. See id. (holding that 2255 petitioner
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not entitled to relief where district court failed to
describe the mandatory special parole term required by
statute).
V. Conclusion
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We need go no further. For the foregoing reasons,
we affirm the district court's dismissal of appellant's
2255 petition.
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