Filed: Dec. 11, 2007
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 07-10741 December 11, 2007 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 06-00055-CR-FTM-99-DNF UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHARLES JONAS GREEN, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (December 11, 2007) Before BIRCH, DUBINA and MARCUS, Circuit Judges. PER CURIA
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 07-10741 December 11, 2007 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 06-00055-CR-FTM-99-DNF UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHARLES JONAS GREEN, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (December 11, 2007) Before BIRCH, DUBINA and MARCUS, Circuit Judges. PER CURIAM..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10741
December 11, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00055-CR-FTM-99-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES JONAS GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 11, 2007)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Charles Jonas Green appeals his convictions and concurrent 97-month
sentences, imposed after he pled guilty to possessing (Count One) and receiving
(Count Two) materials involving a depiction of a minor engaged in sexually
explicit activity, violations of 18 U.S.C. § 2252 (a)(2), (a)(4)(B), (b)(1) and (b)(2).
On appeal, Green argues that his plea was invalid because the district court failed
to establish at the plea colloquy that actual minors were depicted in the images,
that Green understood that he could not appeal the denial of his motion to suppress,
and that Green actually committed the offenses. He also contends that the district
court violated his Eighth Amendment right against cruel and unusual punishment
when it sentenced him at the low-end of the applicable Guidelines range. After
careful review, we affirm.1
1
Because Green entered an unconditional guilty plea, which we conclude below was
knowing and voluntary, he waived all nonjurisdictional defects, including his various constitutional
challenges to the application of 18 U.S.C. § 2252(a), which criminalizes the intrastate possession
and receipt of child pornography. See United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003).
In order to preserve a nonjurisdictional challenge, a defendant must, with the consent of the court
and the government, enter a conditional plea under Fed. R. Crim. P. 11 which reserves, in writing,
the right to have an appellate court review an adverse determination of a specified pretrial motion.
Fed. R. Crim. P. 11(a)(2). The district court expressly advised Green on the effect of an
unconditional plea, by virtue of the court’s denial of Green’s motion to file a conditional guilty plea
pursuant to Rule 11, and the magistrate judge’s statement, at the plea colloquy, that Green was
waiving the right to appeal the adjudication of his guilt. Because Green’s constitutional arguments
do not challenge any jurisdictional defect in the proceedings, Green has waived the right to raise
these issues on appeal, and we cannot consider them.
Patti, 337 F.3d at 1320. To the extent Green
characterizes his Commerce Clause challenge to the application of § 2252(a) to his case, the claim
is squarely foreclosed by our prior precedent concerning Congress’s Commerce Clause power to
regulate the internet. See United States v. Ballinger,
395 F.3d 1218, 1225 (11th Cir.) (en banc)
(“Plainly, congressional power to regulate the channels and instrumentalities of commerce includes
the power to prohibit their use for harmful purposes, even if the targeted harm itself occurs outside
the flow of commerce and is purely local in nature.”), cert. denied,
126 S. Ct. 368 (2005); United
States v. Hornaday,
392 F.3d 1306, 1311 (11th Cir. 2004)(“Congress clearly has the power to
regulate the internet, as it does other instrumentalities and channels of interstate commerce, and to
prohibit its use for harmful or immoral purposes regardless of whether those purposes would have
a primarily intrastate impact.”), cert. denied,
125 S. Ct. 2951 (2005); see also United States v.
Maxwell,
446 F.3d 1210, 1217-18 (11th Cir. 2006) (emphasis added) (holding “it is within
Congress’s authority to regulate all intrastate possession of child pornography, not just that which
2
The relevant facts are straightforward. On April 12, 2006, Green was
indicted on one count of possession (Count One) and one count of receipt (Count
Two) of one or more matter(s) containing a visual depiction of a minor engaged in
sexually explicit conduct that had been transported in interstate and foreign
commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) and (a)(2), respectively. He
filed a motion to suppress allegedly involuntary statements made during a
post-arrest interview at the Collier County Sheriff's Office. After an evidentiary
hearing, the district court denied the motion. Green then requested that the district
court allow him to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2),
reserving the right to appeal the denial of his suppression motion. The district
court denied this motion. Both parties subsequently consented to having Green
enter a guilty plea before a magistrate judge.
At the plea colloquy, the magistrate judge first confirmed that Green was
competent, was acting knowingly and voluntarily, and was pleading guilty because
he was in fact guilty. After informing Green of the statutory maximum penalties,
the role of the Sentencing Guidelines, and his rights as a criminal defendant, the
magistrate judge told Green that if he pled guilty, he would give up his right to
appeal from the adjudication of guilt. The magistrate judge then recited the
has traveled in interstate commerce or has been produced using materials that have traveled in
interstate commerce”;applying Gonzalez v. Raich, 545 U.S. 1 (2005)).
3
elements of both counts in the indictment, and Green responded that he understood
those elements. With respect to Count One, the magistrate confirmed that Green
actually possessed the images by downloading them through the internet, that they
showed a minor engaging in sexually explicit conduct, that Green knew the
production of those images used a minor engaging in sexually explicit conduct, and
that they were produced using materials that had been transported in interstate and
foreign commerce. With respect to Count Two, the magistrate judge confirmed
that Green knowingly downloaded images containing a minor engaged in sexually
explicit conduct, that Green believed the images did in fact depict actual minors,
and that Green knew at least one of the performers in the depiction was a minor
engaged in sexually explicit conduct. The magistrate judge found that the
foregoing facts established a sufficient basis to accept the guilty plea, and accepted
Green’s guilty plea. Green then proceeded to sentencing.
The pre-sentence investigation report (“PSI”) stated that Green received
visual depictions involving a minor engaged in sexually explicit conduct through
the use of his computer on March 18, 2005. In February 2006, Green’s spouse
brought the computer to a computer store for repair, and during the repair, the
technician discovered videos and images of children engaged in sexually explicit
conduct. The technician alerted the authorities, and they confirmed that Green was
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using an online peer-to-peer file sharing program and that his hard drive contained
over 150 child pornography files labeled with sexually explicit titles. The hard
drive also contained a “keeper file” containing 30 child pornography sub-files.
Law enforcement further confirmed that Green had received one such file on
March 18, 2005, and moved that file into the “keeper file.” The technician placed
a new hard drive in the computer and Green’s spouse retrieved it.
Approximately two weeks later, the authorities executed a search warrant
and seized the computer, its new hard drive, and CDs. They also discovered a hard
drive located in a truck registered to Green and his spouse. The new hard drive
installed by the technician contained over 20 child pornography files. A CD
located on the computer desk contained over 100 child pornography images, dating
back to 2002. The hard drive found in the truck contained in excess of 100 child
pornography files dating back to 2004, primarily videos depicting infants engaged
in sexually explicit conduct. During a post-arrest interview, Green admitted to
downloading child pornography using the file-sharing program. The PSI further
revealed that Green had worked as a law enforcement officer since the age of 19
and, at the time of his arrest, was serving as a deputy.
The probation officer calculated Green’s Guidelines range as follows.
Green’s base offense level was 22, pursuant to U.S.S.G. § 2G2.2(a)(2). The PSI
5
recommended a 2-level reduction, pursuant to § 2G2.2(b)(1), because Green did
not intend to traffic the child-pornographic materials; a 2-level enhancement,
pursuant to § 2G2.2(b)(2), due to the involvement of prepubescent minors; a
4-level enhancement, pursuant to § 2G2.2(b)(4), for sadistic or masochistic
conduct; a 2-level enhancement, pursuant to § 2G2.2(b)(6), for the use of a
computer; and a 5-level enhancement, pursuant to § 2G2.2(b)(7)(D), because the
offense involved over 600 images. The PSI also recommended a 3-level reduction
for acceptance of responsibility. With an adjusted offense level of 30 and a
criminal history category I, Green faced a Guidelines range of 97-121 months’
imprisonment. The statutory maximum for Count One was 10 years’
imprisonment and the statutory maximum for Count Two was 20 years’
imprisonment. On Count Two, Green also faced a 5-year mandatory minimum.
See 18 U.S.C. § 2252(b)(1).
Over Green’s objections, the district court adopted the PSI’s factual
statements and Guidelines recommendations. Before the court imposed sentence,
it heard the statements of several of Green’s family members, who generally
described Green as a good man despite this mistake. The family members, and
Green’s counsel, urged the district court to impose a lenient sentence in light of
Green’s many years serving the public as a law enforcement officer. Green then
6
personally addressed the court, apologized for his actions, which he maintained
were accidental, and told a story about how, as a law enforcement officer, he had
prevented a young boy from being sent back to an abusive household.
The government requested the district court to impose a sentence within the
Guidelines range, emphasizing that, from 2002 to 2006, Green knowingly and
continuously downloaded and kept hundreds of images of child pornography that
were found on three hard drives and a CD. The government also noted that, within
less than a month after Green received a new hard drive, there were 20 more
images on that hard drive. Counsel for Green requested that the court impose the
statutory minimum, emphasizing Green’s long career as a law enforcement officer,
his lack of criminal history, and the nature of his conduct, which posed no harm to
the community.
The district court stated that it had considered the factors set forth in the
“statute,” including that Green’s career as a law enforcement officer was both an
aggravating and mitigating factor and that Green’s conduct went beyond mere
accidental use. The court then imposed a low-end Guidelines sentence of 97
months’ imprisonment, based primarily on Green’s lack of criminal history and
career as a law enforcement officer. Before convening the sentencing hearing, the
district court asked the parties whether there were any objections to the sentence
7
imposed. Green’s counsel stated that he had no objections other than those
previously stated. This appeal followed.
First, Green argues that his guilty plea was invalid because the district court
failed to establish at the plea colloquy that actual minors were depicted in the
images, that Green understood that he could not appeal the denial of his motion to
suppress, and that Green actually committed the offenses. Because Green did not
object to the sufficiency of the plea colloquy in the district court, we review his
arguments for plain error. United States v. Vonn, 535 U.S.55, 59 (2002); United
States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under plain-error review,
the defendant has the burden to show that there is an: (1) error; (2) that is plain; (3)
that affects substantial rights. United States v. Olano,
507 U.S. 725, 732 (1993). If
these three elements are met, we may exercise our discretion to correct the error (4)
if it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”
Id. (quotation marks and alteration omitted).
Rule 11 requires a district court “to conduct a searching inquiry into the
voluntariness of a defendant’s guilty plea.” United States v. Siegel, 102 F.3d 477,
481 (11th Cir. 1996). The district court must address the “three core objectives” of
Rule 11 to ensure that: (1) a guilty plea is not the product of coercion, (2) the
defendant understands the nature of the charges, and (3) the defendant understands
8
the consequences of pleading guilty. United States v. Camacho, 233 F.3d 1308,
1314 (11th Cir. 2000). However, there is no mechanical rule to apply in
determining whether the district court adequately informed the defendant of the
nature of the charges against him.
Id. Rather, the inquiry is case-specific and
depends on the complexity of the charges and “the defendant’s sophistication and
intelligence.”
Id. (citations omitted). “[A] defendant who seeks reversal of his
conviction after a guilty plea on the ground that the district court committed plain
error under Rule 11 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).
Green’s first basis for challenging his guilty plea -- that the district court did
not establish that the images he possessed depicted actual minors -- is without
merit. At the plea colloquy, the magistrate judge specifically established that
Green believed and knew that the images he downloaded were of minors engaging
in sexually explicit depicted conduct. At the plea colloquy, as to Count One, the
magistrate judge asked Green about whether the images depicted minors: “You
knew that [the images Green previously admitted he had downloaded] contained or
showed a minor engaging in sexually explicit conduct?” Green responded
9
affirmatively. The magistrate judge and Green also engaged in this colloquy about
Count Two:
GREEN: Well, that’s around March 18th, and I’m assuming that’s
when I downloaded a picture that was sexually explicit
involving a minor.
....
JUDGE: You knowingly received this depiction.
GREEN: That is correct, sir.
JUDGE: By computer?
GREEN: Yes, sir.
JUDGE: The production of the depiction involved the use of a
minor engaging in sexually explicit conduct?
GREEN: That’s correct, sir.
JUDGE: And you believe that it is, in fact, a minor engaged in
sexually explicit conduct?
GREEN: That is correct, sir.
JUDGE: And you knew that at least one of the performers was a
minor?
GREEN: That is correct, sir.
On this record, Green has established no error, let alone plain error, under Rule 11
based on whether the images were actual minors.
10
We likewise are unpersuaded by Green’s suggestion that the district court
failed to inform him that the denial of his motion to suppress would not be
appealable. At the plea colloquy, the magistrate judge told Green that, by pleading
guilty, he was giving up the right to appeal his adjudication of guilt. Moreover, the
district court denied Green’s motion to enter a conditional plea, in order to preserve
his ability to appeal the denial of the motion to suppress. Thus, we find it was
clear that by virtue of pleading guilty, Green was waiving his ability to challenge
the decision on his suppression motion.
From our careful review of the entire record, with particular attention to the
plea colloquy, we also reject Green’s assertion that the district court failed to
establish that he committed the acts charged in the indictment. At the plea
colloquy, the magistrate judge carefully reviewed each element of the two crimes
to which Green was pleading guilty. The magistrate judge asked Green if he
committed the underlying acts constituting each element of each offense. In short,
the court confirmed that Green was entering a knowing and voluntary plea, ensured
that Green was pleading guilty because he was in fact guilty, recited the elements
of both counts, and, after requiring Green to explain his underlying conduct,
confirmed that there was a sufficient factual basis for the charges. Green has
shown no plain error on this basis.
11
Finally, Green argues that his sentence violated the Eighth Amendment.
Because Green did not raise this issue before the district court, we review it for
plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “The
Eighth Amendment, which forbids cruel and unusual punishments, contains a
narrow proportionality principle that applies to noncapital sentences.” Ewing v.
California,
538 U.S. 11, 20 (2003) (quotations omitted). Outside the context of
capital punishment, the Supreme Court has made clear that successful challenges to
the proportionality of sentences are exceedingly rare.
Raad, 406 F.3d at 1323. We
have held that, “[i]n general, a sentence within the limits imposed by statute is
neither excessive nor cruel and unusual under the Eighth Amendment.” United
States v. Moriarty,
429 F.3d 1012, 1024 (11th Cir. 2005) (quotation omitted);
accord United States v. Johnson,
451 F.3d 1239, 1243-44 (11th Cir.), cert denied,
127 S. Ct. 462 (2006).
In the instant case, the district court sentenced Green to 97 months’
imprisonment -- a term that fell both at the lowest of the applicable Guidelines
range and well below the statutory maximums of 10 years’ imprisonment for
Count One and 20 years’ imprisonment for Count Two. See 18 U.S.C.
§ 2252(b)(1), (2). Because the district court sentenced Green well-within the
12
statutory limits, his sentence is neither excessive nor cruel and unusual, and does
not violate the Eighth Amendment.
AFFIRMED.
13
