Barber v. United States

August 23, 1993 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1090

RICHARD I. BARBER,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, U.S. District Judge]

Before

Selya, Boudin and Stahl,
Circuit Judges.

Richard I. Barber on brief pro se.

A. John Pappalardo, United States Attorney, and Kevin

O'Regan, Assistant United State Attorney, on brief for appellee.

Per Curiam. This is an appeal from the district

court's denial of appellant's motion under 28 U.S.C. 2255

for post-conviction relief. We affirm.

I. Background

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,

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

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

depiction has actually been transported

in interstate or foreign commerce or

mailed.

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

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

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

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

Court held that the two-part test adopted in Strickland v.

Washington, 466 U.S. 668 (1984), also applied to ineffective

assistance claims arising out of the plea process. As

applied to such claims, Strickland requires appellant to

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

(1970) (quoted in Hill v. Lockhart, 474 U.S. at 56). Second,

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.

at 59.

A. Application of 2251

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

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

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.

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

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)

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)

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)

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

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.

Valencia-Copete, 792 F.2d 4, 7 (1st Cir. 1986). The plea

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)

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

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, .

. . the court applies the version in effect at the time of

the crime's commission." United States v. Cousens, 942 F.2d

800, 801 n.1 (1st Cir. 1991). The application of the

Guidelines raises an ex post facto concern where the

Guidelines have changed in a way that disadvantages the

defendant. See Miller v. Florida, 482 U.S. 423, 430 (1987).

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

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,

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

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

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.

Timmreck, 441 U.S. 780, 784 (1979). The court's failure to

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

not entitled to relief where district court failed to

describe the mandatory special parole term required by

statute).

V. Conclusion

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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