Filed: Aug. 24, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4519 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANNY BRACHTENDORF, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:07-cr-00250-MR-1) Argued: March 24, 2009 Decided: August 24, 2009 Before DUNCAN and AGEE, Circuit Judges, and David A. FABER, Senior United States District Judge for the Southern Distri
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4519 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANNY BRACHTENDORF, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:07-cr-00250-MR-1) Argued: March 24, 2009 Decided: August 24, 2009 Before DUNCAN and AGEE, Circuit Judges, and David A. FABER, Senior United States District Judge for the Southern Distric..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY BRACHTENDORF,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00250-MR-1)
Argued: March 24, 2009 Decided: August 24, 2009
Before DUNCAN and AGEE, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Ross H. Richardson, Emily Marroquin, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Brachtendorf, a German citizen, appeals from a
conviction and sentence imposed in the Western District of North
Carolina for illegal entry into the United States after
deportation. Finding no reversible error, we affirm.
I.
On August 5, 2000, Brachtendorf, who was living in Oakdale,
Minnesota, sent to an undercover Ohio detective by e-mail a
photograph of a juvenile female undressed and exposing her
vaginal area. The hard drive of a computer subsequently seized
from Brachtendorf’s residence under a search warrant contained
additional images of children in suggestive sexual poses. One
of the items was titled “World Children Porn Archive” and
depicted juveniles engaged in sexual intercourse.
Brachtendorf pleaded guilty in the state court to Count Two
of a two-count complaint charging him with violating Minnesota
Statue § 617.247, Subdivision 4, Possession of Pictorial
Representations of Minors, which reads in pertinent part as
follows:
(a) A person who possesses a pornographic work or a
computer disk or computer or other electronic,
magnetic or optical storage system or a storage system
of any other type, containing a pornographic work,
knowing or with reason to know its content and
character, is guilty of a felony and may be sentenced
to imprisonment for not more than five years and a
fine of not more than $5,000 for a first offense . . .
.
2
Minnesota Statute § 617.246, Subdivision 1(f) defines
“pornographic work” as follows:
“Pornographic work” means:
(1) an original or reproduction of a picture, film
photograph, negative, slide, videotape, videodisc, or
drawing of a sexual performance involving a minor; or
(2) any visual depiction, including any photograph,
film, video, picture, drawing, negative, slide, or
computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means
that:
(i) uses a minor to depict actual or simulated
sexual conduct;
(ii) has been created, adapted, or modified to
appear that an identifiable minor is engaging in
sexual conduct; or
(iii) is advertised, promoted, presented,
described, or distributed in such a manner that
conveys the impression that the material is or
contains a visual depiction of a minor engaging
in sexual conduct.
For the purposes of this paragraph, an identifiable
minor is a person who was a minor at the time the
depiction was created or altered, whose image is used
to create the visual depiction.
During the state plea hearing, Brachtendorf acknowledged
that the authorities had found between two and five obscene
pictures of children on his computer. When asked, “And you had
some knowledge that those were there?” Brachtendorf responded,
“I had some knowledge of it.” (JA 104.) As a result of this
state conviction Brachtendorf was ordered deported on September
1, 2004.
3
Subsequently, on October 17, 2007, Brachtendorf was
arrested at the Charlotte-Douglas International Airport
attempting to re-enter the country. He was traveling with his
wife and children, who are all U.S. Citizens, ostensibly just to
“drop them off” and return to Germany. A federal criminal
complaint was filed alleging that Brachtendorf had attempted to
re-enter the United States after having been deported, in
violation of 8 U.S.C. § 1326(a). Although the complaint said
nothing about the prior aggravating conviction, the affidavit
accompanying the complaint sets forth details about the
Minnesota conviction. An indictment was returned on October 24,
2007, charging Brachtendorf under 8 U.S.C. § 1326(a), with no
mention of a sentencing enhancement under § 1326(b) for a prior
aggravated felony conviction.
Brachtendorf pleaded guilty before the magistrate judge on
January 29, 2008, without benefit of a plea agreement. No
mention was made of the prior conviction during the plea
hearing, and the magistrate judge advised appellant that the
charge he was pleading to carried “a two year maximum term of
imprisonment and a fine of up to $250,000.” (JA 15.) No
objections were made by either side to the magistrate judge’s
description of the maximum penalties.
The Presentence Report (“PSR”) prepared by the probation
office gave the statutory maximum sentence as a term of
4
imprisonment for not more than 20 years pursuant to 8 U.S.C.
§ 1326(b)(2), and calculated the base offense level as 8 under
United States Sentencing Guidelines Manual § 2L1.2. The PSR
recommended a 16-level increase under § 2L1.2(b)(1)(A)(iv),
because the appellant “was previously deported after having been
convicted of a felony that is a child pornography offense.” 1 (JA
68.) The court applied this increase, overruling Brachtendorf’s
objection that the government had not demonstrated that the
prior conviction constituted a child pornography offense under
the guidelines. Brachtendorf received a three-level downward
adjustment for acceptance of responsibility, for a total offense
level of 21. Although his criminal history category was
calculated at II, for a sentencing range of 41 to 51 months, the
district court departed downward to category I on the basis that
category II overrepresented his criminal history. 2 His revised
1
Under this guidelines section, a “‘Child pornography
offense’ means (I) an offense described in 18 U.S.C. § 2251,
§ 2251(a), § 2252, § 2252A, or § 2260; or (II) an offense under
state or local law consisting of conduct that would have been an
offense under any such section if the offense had occurred
within the special maritime and territorial jurisdiction of the
United States.” U.S. Sentencing Guidelines Manual § 2L1.2, App.
Note (B)(iii).
2
Appellant’s criminal history was originally calculated at
category II because he committed the instant offense while on
supervised probation. The court concluded that the category
should be reduced, however, because appellant “was unable to
complete all of the requirements regarding his probation in
Minnesota because he had been deported.” (JA 46.)
5
guideline range was then 37 to 46 months, and he received a
sentence of 37 months, making no objection that it was in excess
of the statutory maximum for the underlying conviction.
Brachtendorf raises three points on appeal. First, he
contends that the district court incorrectly determined that his
prior Minnesota conviction was an aggravated felony and a child
pornography offense warranting a 16-level increase under 8
U.S.C. § 1326(b)(2) and U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(iv). Second, he maintains the court erred in
imposing a sentence above the two-year statutory maximum
provided by the unenhanced statute of conviction. Third, he
argues that the court could not properly impose a sentence above
the unenhanced statutory maximum because he was told at his plea
hearing that the maximum penalty he faced was two years in
prison.
II.
In considering the legality of Brachtendorf’s sentence
under his first assignment of error, the court reviews “legal
questions, including the interpretation of the guidelines, de
novo, while factual findings are reviewed for clear error.”
United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).
His other two contentions, asserted for the first time on
appeal, are subject to the plain error standard. United States
v. Higgs,
353 F.3d 281, 309 (4th Cir. 2003); Fed. R. Crim. P.
6
52(b). Plain error involves (1) an error, (2) which is plain,
(3), which affects substantial rights, and (4) which seriously
affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Brewer, 1 F.3d 1430, 1434-35 (4th
Cir. 1993) (citing United States v. Olano,
507 U.S. 725, 732-737
(1993)). The burden is on the defendant to prove that the error
was not harmless, and the requirement that an error affect
substantial rights “typically means that the defendant is
prejudiced by the error in that it affected the outcome of the
proceedings.” United States v. Stewart,
256 F.3d 231, 252 (4th
Cir. 2001).
III.
A.
The enhancement under 8 U.S.C. § 1326(b)(2) and U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(iv) may only be
applied if the Minnesota conviction fits the definition for the
offenses described in 18 U.S.C. § 2251, 2251A, 2252, 2252A, or
2260, apart from the jurisdictional requirements of those
statutes. The district court made no specific finding as to
which offense applied, instead concluding simply that
Brachtendorf’s prior offense was a child pornography offense.
The relevant statute here is 18 U.S.C. § 2252(a)(4), which
prohibits possession of “1 or more books, magazines,
periodicals, films, video tapes, or other matter which contain
7
any visual depiction . . . if . . . the producing of such visual
depiction involves the use of a minor engaging in sexually
explicit conduct[,] and such visual depiction is of such
conduct.”
Brachtendorf contends that the Minnesota statute
encompasses a broader range of conduct than does § 2252, as the
federal statute does not extend to a “drawing” generally, or to
a “drawing of a sexual performance involving a minor.”
(Appellant’s brief at 17.)
We disagree with Brachtendorf’s characterization of the
Minnesota statute as broader than the federal statute. The
Minnesota statute defines “pornographic work” to include “an
original or reproduction of a picture, film, photograph,
negative, slide, videotape, videodisc, or drawing of a sexual
performance involving a minor” and “any visual depiction,
including any photograph, film, video, picture, drawing,
negative, slide, or computer-generated image or picture . . .
that . . . uses a minor to depict actual or simulated sexual
conduct; . . . has been created, adapted, or modified to appear
that an identifiable minor is engaging in sexual conduct; or . .
. conveys the impression that the material is or contains a
visual depiction of a minor engaging in sexual conduct.” Minn.
Stat. § 617.246, Subd. 1(f).
8
The federal statute’s prohibited material is set forth as
“books, magazines, periodicals, films, video tapes, or other
matter which contain any visual depiction [where] the producing
of such visual depiction involves the use of a minor engaging in
sexually explicit conduct [and] such visual depiction is of such
conduct.” 18 U.S.C. § 2252(a)(4)(A) (emphasis added). The
federal statute’s prohibited material extends to any visual
depictions – including a drawing – that satisfied the remaining
requirements of the statute. Accordingly, the mere fact that
the Minnesota statute specifically lists a “drawing” among the
prohibited material would not preclude a drawing from being
prohibited material under the federal statute. While both the
Minnesota and federal statute are subject to constitutional
limitations regarding whether the depicted image constitutes
“child pornography,” both statutes allow for the medium to be a
“drawing.” Accordingly, Brachtendorf’s argument lacks merit. 3
3
Brachtendorf, citing United States v. X-Citement Video,
Inc., 513 U.S. 64 (1994), argues that the mens rea requirement
of the Minnesota statute under which he was convicted is lesser
than that of 18 U.S.C. § 2252, which requires that a defendant
act “knowingly.” It is unnecessary to address this particular
argument because Brachtendorf’s admission during the course of
the Minnesota proceedings that he had knowledge of the obscene
pictures found on his computer satisfies the mens rea
requirement of the federal statute.
9
B.
The indictment in this case charged Brachtendorf with a
violation of “§ 1362(a)” without reference to subsection (b) of
the statute. Under Almendarez-Torres v. United States, 523 U.S.
224 (1998), a statutory section like § 1362(b)(2) is considered
a “penalty provision, which simply authorizes a court to
increase the sentence for a recidivist. It does not define a
separate crime. Consequently, neither the statute nor the
Constitution requires the Government to charge the factor that
it mentions, an earlier conviction, in the indictment.”
Id. at
226-27.
Brachtendorf attempts to distinguish Almendarez-Torres on
the basis that the indictment in that case simply charged a
violation of “Section 1326” without reference to either
subsection. (Appellant’s brief at 26.) Moreover, it appears
that the prior aggravated felonies at issue in Almendarez–Torres
were discussed at that defendant’s plea hearing, whereas there
was no mention of them at Brachtendorf’s. The distinction
Brachtendorf tries to make is misplaced, given that subsections
(a) and (b) do not set forth different offenses. As Almendarez-
Torres holds, subsection (b) is a penalty provision, and someone
sentenced under it is necessarily convicted under subsection
(a), whether the indictment specifies it or not. See United
States v. Cheek,
415 F.3d 349, 352 (4th Cir. 2005)(reaffirming
10
validity of Almendarez-Torres following United States v. Booker,
543 U.S. 220 (2005)).
C.
It is well established that a court must inform a defendant
of the statutory maximum and mandatory minimum sentences he
faces before accepting his guilty plea. Fed. R. Crim. P.
11(b)(1); United States v. Good, 25 F.3d 218, 221 (4th Cir.
1994). The Fourth Circuit has found error in cases in which the
district court did not do so at a plea hearing, and has further
held that setting forth the statutory sentences in a PSR does
not cure the error. United States v. Goins,
51 F.3d 400, 405
(4th Cir. 1995). It does not follow that the error is
reversible, however, where the standard of review is for plain
error.
Essentially, Brachtendorf would have to prove under the
Olano plain error standard that he would not have pleaded guilty
had the magistrate judge properly informed him of the 20-year
maximum penalty he faced. See United States v. Dominguez-
Benitez, 542 U.S. 74, 81 (2004).
When determining whether a Rule 11 error affected a
defendant’s substantial rights, we consider what
information was provided to the defendant when he
pleaded guilty, what additional information would have
been provided by a proper rule 11 colloquy, and how
the additional information would have affected the
decision to plead guilty.
United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008).
11
The burden a defendant faces under Dominquez-Benitez
“should not be too easy”:
First, the standard should enforce the policies that
underpin Rule 52(b) generally, to encourage timely
objections and reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved
error. Second, it should respect the particular
importance of the finality of guilty pleas, which
usually rest, after all, on a defendant’s profession
of guilt in open court, and are indispensable in the
operation of the modern criminal justice system. And,
in this case . . . the violation claimed was of Rule
11, not of due process.
Dominquez-Benitez, 542 U.S. at 82-83.
In this case, Brachtendorf was aware of the aggravating
felony, as the federal criminal complaint described both the
prior conviction and his subsequent deportation. He thus had
notice that the conviction was relevant to this current case.
Additionally, the evidence against him was overwhelming, which
is relevant because “one can fairly ask a defendant seeking to
withdraw his plea what he might ever have thought he could gain
by going to trial.” Id. at 85. Additionally, Brachtendorf
received a lenient sentence – the court departed downward from
the guidelines finding that his criminal history was
overrepresented.
Id. Because appellant has failed to carry his
burden to show that he would not have pleaded guilty if properly
advised, the inaccurate advice given him at his plea hearing
does not amount to a reversible error under the plain error
standard.
12
For all these reasons, the judgment below is
AFFIRMED.
13
