United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3111
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Casey Bastian, *
*
Defendant - Appellant. *
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Submitted: April 14, 2010
Filed: May 10, 2010
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Before RILEY, Chief Judge, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Casey J. Bastian pled guilty to one count of sexual exploitation of a child in
violation of 18 U.S.C. §§ 2251(a) and (e), and one count of receipt of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1). Five days after
the district court1 accepted his plea, Bastian moved to withdraw it. This motion was
denied following an evidentiary hearing. Bastian was sentenced to 600 months’
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the report and recommendation of the
Honorable Jon S. Scoles, United States Magistrate Judge for the Northern District of
Iowa.
imprisonment. He appeals the denial of the motion to withdraw his plea, and his
sentence. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this
court affirms.
I.
Bastian was indicted for sexual exploitation of a child (count 1), receipt of child
pornography (count 2), and possession of child pornography (count 3). On December
2, 2008, the government sent Bastian a proposed plea agreement. Later that day, it
sent an amended plea agreement. On December 3, Bastian and his attorney signed the
amended plea agreement, to plead guilty to counts 1 and 2.
On December 8, a change-of-plea hearing was scheduled before the magistrate
judge. At the hearing, however, Bastian said he did not want to plead guilty. Later
that day, Bastian decided to plead guilty, but shortly before a second hearing, he
decided not to. Bastian asked that another plea hearing be scheduled before the time
expired (under the plea agreement) for receiving a third level for acceptance of
responsibility.
On December 11, another change-of-plea hearing was held. Bastian again
expressed hesitancy about pleading guilty, but after a brief recess he proceeded. The
judge explained to Bastian the rights he was giving up, and obtained a factual basis
for both counts. Bastian stated that he had reviewed the plea agreement with his
attorney before signing it, and had no questions about its terms. The judge advised
Bastian of the possible sentencing consequences, and questioned him about the
voluntariness of his plea. Bastian entered guilty pleas to counts 1 and 2. The judge
issued a report and recommendation that Bastian’s plea be accepted, advising him that
he had 10 days to object. Bastian did not file any objections. On December 31, the
district judge accepted the report and recommendation, and Bastian’s guilty plea.
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Bastian wrote a letter dated January 5, 2009, to the district judge, requesting
withdrawal of his guilty plea and appointment of a new attorney. Bastian complained
that his attorney had made misrepresentations, they had poor communication, and he
was pressured by his attorney to plead guilty. He also claimed that he left voice
messages for his attorney asking him to move to withdraw his plea before it was
accepted by the district court, but his calls were not returned.
The court appointed new counsel for Bastian, and held a hearing on his motion
to withdraw his plea. Bastian’s former attorney testified that he had no record of any
calls from Bastian between December 11 and January 5 that he did not return. He
stated that Bastian’s mother left a message on December 29, saying that Bastian had
changed his mind again and wanted to withdraw his plea. However, he testified that
on December 30, he spoke with Bastian by phone, who assured him that he did not
want to withdraw his plea.
The magistrate judge recommended that Bastian’s motion to withdraw his
guilty plea be denied. The judge found credible the testimony of Bastian’s former
attorney, that Bastian did not instruct him to move to withdraw the plea before it was
accepted by the district court. The judge found no fair and just reason to withdraw his
plea. The district judge adopted the report and recommendation.
This court reviews a denial of a defendant’s motion to withdraw a guilty plea
for abuse of discretion. United States v. Gamble, 327 F.3d 662, 663 (8th Cir. 2003).
A defendant may withdraw his plea of guilty “before the court accepts the plea, for
any reason or no reason.” Fed. R. Crim. P. 11(d)(1). Before the district court
accepted the plea, Bastian did not move for leave to withdraw it. Bastian argues that
he should not be penalized for failed attempts to communicate his instructions to his
attorney. The district court found that Bastian specifically told his attorney he did not
want to withdraw his plea the day before it was accepted by the court. Bastian was
not entitled to withdraw his plea as a matter of right.
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A defendant may also withdraw a guilty plea “after the court accepts the plea,
but before it imposes sentence if . . . the defendant can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The defendant has the
burden to establish such a reason. United States v. Prior, 107 F.3d 654, 657 (8th Cir.
1997). Bastian states that the court was aware that he was dissatisfied with his
attorney on December 8, when he twice changed his mind about entering a plea. He
argues that the magistrate should have asked him whether he was satisfied with his
attorney and whether he had discussed all possible defenses with his attorney, before
taking his plea on December 11. Bastian also asserts that the number of failed
attempts to elicit his plea required the court to inquire whether his decision to plead
was knowing and voluntary.
Bastian does not contend the magistrate judge violated Rule 11 in taking his
plea. He explained the rights Bastian was giving up by pleading guilty. Bastian then
stated he had reviewed the plea agreement with his attorney before signing it and had
no questions about it. The magistrate obtained a factual basis for the plea. He also
asked Bastian whether anyone had forced or pressured him to plead guilty or made
any promises to induce his plea, other than those in the plea agreement. Bastian,
under oath, answered “No.”
Rule 11 does not require the court to ask a defendant whether he is satisfied
with his attorney. While such dissatisfaction may be considered in determining
whether a defendant has established a fair and just reason to withdraw his plea, see
United States v. McNeely, 20 F.3d 886, 888 (8th Cir. 1994), it is not dispositive.
Bastian’s alleged dissatisfaction with his attorney did not negate the voluntariness of
his plea, and the district court properly found that it did not provide a “fair and just
reason” for withdrawing it. Likewise, “the mere fact that he later changed his mind
is not among the fair and just reasons that [Rule 11(d)(2)(B)] contemplates for
allowing a defendant to withdraw a plea.” Gamble, 327 F.3d at 665. The district
court did not abuse its discretion in denying Bastian’s motion to withdraw his plea.
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II.
A.
Bastian argues the district court erred in several ways at sentencing. He
contends the district court should not have assessed a five-level upward adjustment
under U.S.S.G. § 2G2.2(b)(7)(D) based on the offense involving 600 or more images
of child pornography. Relying on Mistretta v. United States, 488 U.S. 361, 407
(1989), he claims this enhancement violates the separation-of-powers doctrine because
Congress, rather than the Sentencing Commission, promulgated it. See Pub. L. 108-
21, 117 Stat. 650, 672-73 (2003). Constitutional challenges to the Guidelines are
reviewed de novo. United States v. Martinez, 339 F.3d 759, 761 (8th Cir. 2003).
Bastian’s reliance on Mistretta is misplaced. Mistretta considered whether
Congress’ delegation to an independent Federal Sentencing Commission to
promulgate the Sentencing Guidelines violated the separation-of-powers doctrine.
Mistretta, 488 U.S. at 371. The Court held that it did not. Refuting Bastian’s
argument, Mistretta says that “the Commission is fully accountable to Congress,
which can revoke or amend any or all of the Guidelines as it sees fit.” Id. at 393-94.
B.
According to Bastian, the district court erred in denying him a two-level
downward adjustment for acceptance of responsibility under § 3E1.1(a). “A district
court’s factual determination of the defendant’s entitlement to an offense level
decrease for acceptance of responsibility is ‘entitled to great deference, and we will
reverse it only if it is so clearly erroneous as to be without foundation.’” United
States v. Canania, 532 F.3d 764, 772 (8th Cir. 2008), quoting United States v.
Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007). A defendant’s attempt to withdraw
his guilty plea may be evidence that he did not accept responsibility for his offense.
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See United States v. Smith, 422 F.3d 715, 727 (8th Cir. 2005); United States v.
Newson, 46 F.3d 730, 734 (8th Cir. 1995) (affirming the denial of an acceptance of
responsibility reduction where the defendant attempted to withdraw his guilty plea).
The district court found that Bastian’s reluctance to plead guilty and attempt to
withdraw his plea showed he had not accepted responsibility. The court also found
he made misrepresentations in both his pro se motion to withdraw and the attorney-
filed motion to withdraw. Additionally, the district court found that at allocution,
Bastian made statements inconsistent with acceptance of responsibility, denying that
his conduct hurt anyone and claiming that one minor victim consented. The district
court did not clearly err in denying a downward adjustment for acceptance of
responsibility.
C.
Bastian argues the district court should not have applied an upward adjustment
for distribution for the expectation of receipt of a thing of value under §
2G2.2(b)(3)(B). This court reviews “the district court’s construction and application
of the sentencing guidelines de novo, and we review its factual findings regarding
enhancements for clear error.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir.
2009). Section 2G2.2(b)(3)(B) provides for a five-level upward adjustment to the
base offense level if an offense involved “[d]istribution for the receipt, or expectation
of receipt, of a thing of value, but not for pecuniary gain.” The application notes
define “distribution for receipt, or expectation of receipt, of a thing of value, but not
for pecuniary gain” as:
any transaction, including bartering or other in-kind transaction, that is
conducted for a thing of value, but not for profit. “Thing of value” means
anything of valuable consideration. For example, in a case involving the
bartering of child pornographic material, the “thing of value” is the child
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pornographic material received in exchange for other child pornographic
material bartered in consideration for the material received.
§ 2G2.2(b)(3)(B), cmt. app. n.1.
This court has applied the enhancement in cases where the defendant
received and shared child pornography files through peer-to-peer file-sharing
networks. See United States v. Ultsch, 578 F.3d 827, 829-30 (8th Cir. 2009);
United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009); United States v.
Griffin, 482 F.3d 1008, 1012-13 (8th Cir. 2007). “[W]hether a defendant
qualifies for the five-level enhancement must be decided on a case-by-case basis,
with the government bearing the burden of proving that the defendant ‘expected
to receive a thing of value–child pornography–when he used the file-sharing
network to distribute and access child pornography files.’” Stults, 575 F.3d at
849, quoting Griffin, 482 F.3d at 1013. The government can meet its burden
with direct evidence, such as an admission by the defendant that he knew he was
using a file-sharing network, and could download files from others who could
download files from him. See Griffin, 482 F.3d at 1013. The government can
also meet its burden with indirect evidence, such as the defendant’s technical
sophistication in computers, inferring that he knew that by using a file-sharing
network, he could download files from others who could also access his files.
See Stults, 575 F.3d at 849.
Bastian used the peer-to-peer filing-sharing network Limewire to
download child pornography. He stored the downloaded images in a shared
folder, accessible by other Limewire users. Bastian argues there is no evidence,
direct or indirect, that he knew his files were available to others. He never
admitted such knowledge, nor is there evidence he was a sophisticated user of
Limewire. He also asserts there is no evidence that he expected others to share
files in exchange for those he made available.
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This court need not decide whether the district court erred in applying the
enhancement because any error was harmless. First, the district court concluded
that Bastian’s total adjusted offense level was 50. The Guidelines limit a
defendant’s total adjusted offense level to a maximum of 43. United States v.
Raplinger, 555 F.3d 687, 695 (8th Cir. 2009), citing U.S.S.G. Ch. 5, Pt. A, cmt.
app. n.2. Even if this five-level enhancement were removed, Bastian’s total
adjusted offense level is 43. Second, Bastian’s advisory Guideline range was life
imprisonment. Assessing the 18 U.S.C. § 3553(a) factors, the district court
stated that Bastian’s sentence would be 600 months “even if the court erred in
interpreting or applying the Guidelines.” Therefore, any error in assessing a five-
level upward adjustment under § 2G2.2(b)(3)(B) was harmless.
D.
Bastian claims that at sentencing, the district court erred in admitting three
video interviews of minor females who said he had sexually abused them. The
district court considered the tapes in applying upward adjustments under §
2G2.2(b)(5) (pattern of activity involving sexual abuse or exploitation of a
minor), and § 4B1.5(b)(1) (repeat and dangerous sex offender). “The rules of
evidence do not apply at sentencing, but information considered by the
sentencing court must have ‘sufficient indicia of reliability to support [its]
probable accuracy.’” United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005),
quoting United States v. Jones, 195 F.3d 379, 385 (8th Cir. 1999). This court
reviews a district court’s determination of whether hearsay evidence is
sufficiently reliable for sentencing purposes for abuse of discretion. United
States v. Stavig, 80 F.3d 1241, 1247 (8th Cir. 1996).
The district court found the testimony in the videotapes sufficiently
reliable. The court found that all three interviews were conducted by child
welfare professionals, who tested the girls on their ability to understand and tell
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the truth; each girl showed she could distinguish truth from dishonesty; the
interviewers asked open-ended questions and refrained from leading questions;
the girls provided consistent answers to questions posed in various forms; each
girl provided highly detailed information about Bastian’s conduct; and each story
contained remarkable similarities in the details of the abuse. Bastian argues the
tapes should not have been admitted because the state charges stemming from the
allegations by the three girls were dismissed. The district court stated that the
fact of the dismissals did not diminish the credibility of the statements in the
videos. The district court did not abuse its discretion by admitting the
videotapes. In any event, the district court also supported its imposition of the
enhancements under § 2G2.2(b)(5) and § 4B1.5(b)(1) with conduct unrelated to
the allegations in the videotapes (which Bastian does not challenge on appeal).
III.
The judgment of the district court is affirmed.
COLLOTON, Circuit Judge, concurring.
I concur in the opinion of the court, including its holding that any error in
the district court’s application of USSG § 2G2.2(b)(3)(B) was harmless. I write
separately regarding the government’s apparent interpretation of this specific
offense characteristic.
The five-level adjustment at issue applies when a defendant’s offense
involved distribution of child pornography “for the receipt, or expectation of
receipt, of a thing of value.” USSG § 2G2.2(b)(3)(B) (emphasis added). As the
court explains, this means “any transaction, including bartering or other in-kind
transaction, that is conducted for a thing of value, but not for profit.” USSG §
2G2.2, comment. (n.1) (emphasis added).
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The government’s position, as articulated in this case, seems to be that if
a defendant installs a file-sharing software program on his computer, knows that
the program allows both the distribution and the receipt of computer files, and
then distributes and receives images containing child pornography through use
of the software, the adjustment applies. This position admittedly finds some
support in United States v. Griffin, 482 F.3d 1008, 1012-13 (8th Cir. 2007). We
have tried to “clarify” Griffin in United States v. Ultsch, 578 F.3d 827, 829-30
(8th Cir. 2009), and United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009),
but probably have not sufficiently narrowed some of Griffin’s language and
reasoning.
The difficulty with the government’s position is that it seems to eliminate
the need for a “transaction.” If a file-sharing program allows the user to
download child pornography from other computers, whether or not the user
makes his own images available to other parties, then the user’s distribution is
gratuitous. It is not for the receipt of a thing of value, because it is unnecessary
to the receipt of a thing of value.
Other prosecutions have demonstrated that a defendant received a specific
“thing of value” in exchange for the distribution of images through a file-sharing
program. E.g., United States v. Geiner, 498 F.3d 1104, 1111 (10th Cir. 2007);
United States v. Rogers, 666 F. Supp. 2d 148, 153-54 (D. Me. 2009) (collecting
cases). But simply showing that a defendant made images available to others
through a file-sharing software program and downloaded images from others
through the same program, with knowledge that the software allowed such
distribution and receipt, is a tenuous basis on which to urge the application of §
2G2.2(b)(3).
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