Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-31-2008
USA v. Long
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3549
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-3549
UNITED STATES OF AMERICA
v.
RODERICK LONG,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 04-CR-00159-001
District Judge: The Honorable Gustave Diamond
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 20, 2008
Opinion Issued May 28, 2008
Petition for Panel Rehearing Granted July 2, 2008
Submitted after Grant of Rehearing on December 29, 2008
Before: SMITH and NYGAARD, Circuit Judges,
and STAFFORD, District Judge *
(Filed: December 31, 2008)
OPINION
SMITH, Circuit Judge.
*
The Honorable William H. Stafford, Jr., Senior United States District Judge for
the Northern District of Florida, sitting by designation.
Roderick Long, pursuant to a plea agreement containing a waiver of his right to
appeal his conviction or sentence, pleaded guilty to count two of a four-count superceding
indictment on March 8, 2006. Count two charged Long with violating 18 U.S.C. §
2252(a)(2) by knowingly receiving by computer visual depictions of a minor engaging in
sexually explicit conduct. The United States District Court for the Western District of
Pennsylvania sentenced Long to 121 months of imprisonment. In addition, the District
Court imposed a term of supervised release, for life, with conditions, inter alia, that
limited Long’s access to computers and to certain materials depicting or describing
sexually explicit conduct as defined in 18 U.S.C. § 2256(2). This timely appeal
followed.1
Long’s opening brief raised two issues: (1) whether, pursuant to an explicit
reservation in his plea agreement, the District Court correctly calculated the offense level
used in computing his sentencing guideline range; and (2) whether the District Court
erred by imposing, as conditions of his period of supervised release, the limitations of his
computer use and his access to materials depicting or describing sexually explicit
conduct. The prosecution asserted that Long’s appellate waiver barred our review of the
terms of supervised release imposed by the District Court. With regard to the calculation
of the guideline range, the prosecution argued that there was no error.
1
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291, and 18 U.S.C. § 3742(a). See United States v.
Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
2
In a decision filed May 28, 2008, we determined that Long’s appellate waiver was
enforceable because he had failed to challenge it in his opening brief. That waiver
precluded us from reviewing his challenge to certain conditions of supervised release.
Because the appellate waiver specifically excepted any appeal concerning the District
Court’s guideline calculation, we did consider – and we rejected – Long’s argument that
the District Court had incorrectly calculated the offense level.
Thereafter, we granted panel rehearing to consider Long’s contention that he had
not forfeited his right to challenge the validity of the appellate waiver by failing to raise it
in his opening brief. Subsequently, in United States v. Goodson, 544 F.3d 529 (3d Cir.
2008), a panel of this Court held that “a defendant is not obliged in his opening brief to
acknowledge the existence of an appellate waiver and/or to explain why the waiver does
not preclude appellate review of the substantive issue raised.” Id. at 536. Accordingly,
Long’s failure to challenge the enforceability of the appellate waiver in his opening brief
was not by itself fatal to the viability of that issue. Because Long argues that the
appellate waiver is unenforceable due to a deficient Rule 11 colloquy, we review the
Court’s colloquy for plain error, mindful that it is Long who bears the burden of
persuasion with respect to whether the alleged Rule 11 error affected his substantial
rights. Id. at 539 (omitting citations).
The District Court’s Rule 11 colloquy was deficient inasmuch as it did not comply
with the directive in Federal Rule of Criminal Procedure 11(b)(N), requiring a district
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court to “inform the defendant of, and determine that the defendant understands . . . the
terms of any plea-agreement provision waiving the right to appeal.” Fed. R. Crim. P.
11(b)(1)(N). This omission constitutes error that was obvious in light of the clear
mandate of Rule 11(b)(1)(N). Goodson, 544 F.3d at 540. The question that remains is
whether the District Court’s error affected Long’s substantial rights and warrants setting
the appellate waiver aside.
In determining whether the District Court’s deficient colloquy affected Long’s
substantial rights, we must consider the “whole record.” Goodson, 544 F.3d at 540
(quoting United States v. Vonn, 535 U.S. 55, 59 (2002)). We begin by noting that the text
of the appellate waiver was broad, “waiv[ing] the right to take a direct appeal from his
conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,” subject to certain
exceptions. The first two exceptions were generic, preserving Long’s right to appeal (1)
if the Government filed an appeal, or (2) if the sentence exceeded the statutory limits or
unreasonably exceeded the guideline range determined by the District Court. The third
exception, however, preserved Long’s right to take a direct appeal of the District Court’s
guideline calculation or any upward departure from the guidelines. This exception was
significant because the parties disagreed regarding the application of U.S.S.G. §
2G2.2(c)’s cross reference. If applied, it would result in a ten-level increase in Long’s
offense level.
The plea agreement was signed on the day of Long’s guilty plea by both Long and
4
his counsel. Their signatures were set forth immediately below a statement that
acknowledged that Long had read the agreement, discussed it with counsel, and accepted
that it fully “set forth my agreement” with the United States Attorney. Contrary to Rule
11's directive, the District Court did not personally review the terms of the appellate
waiver during the guilty plea colloquy and determine if Long understood its terms.
Nonetheless, the prosecution reviewed during the change of plea proceeding the terms of
the plea agreement and the fact that there was an appellate waiver. In fact, the
prosecution not only referred to the appellate waiver, it also described the particulars of
the three exceptions, including Long’s specific reservation of the right to take a direct
appeal of the District Court’s guideline calculation or any upward departure that might be
imposed. At the conclusion of the prosecution’s recitation of the terms of the plea
agreement, the Court asked Long if there was anything he wanted to add or if he had any
questions. Long responded: “No, Your Honor.” He then affirmed that he still intended to
plead guilty. After the prosecution offered a factual basis for count two of the
superseding indictment, Long acknowledged that he was guilty of count two of the
superceding indictment. The District Court determined that Long’s guilty plea was
knowing and voluntary, and accepted the plea.
Given the text of the appellate waiver, including its explicit exception allowing an
appeal of the District Court’s guideline computation, Long’s acknowledgment on the last
page of the plea agreement, and the prosecution’s reference to the waiver and description
5
of its exceptions, we conclude that Long has failed to demonstrate that the District
Court’s error precluded him from “knowing of and understanding the significance of the
binding appellate waiver in the plea agreement.” Goodson, 544 F.3d at 540. We are
persuaded by the prosecution’s argument that the exception in the appellate waiver
preserving Long’s right to appeal the guideline computation, which was of central
importance in light of the fact that application of the cross-reference resulted in a ten-
level increase in his offense level, demonstrates that he knew of the appellate waiver and
its terms, and comprehended its significance. Accordingly, the appellate waiver is
enforceable and we are precluded from reviewing Long’s challenge to the conditions of
his supervised release.1
Long’s appellate waiver, as noted above, does not bar our review of whether the
District Court erred in calculating his offense level inasmuch as the plea agreement
explicitly reserved that issue for appeal.2 Long contends that the District Court erred by
concluding that U.S.S.G. § 2G2.2(c)’s cross-reference applied. The cross-reference
1
Alternatively, Long argued that the conditions of his supervised release may be
considered on appeal because the appellate waiver, which must be strictly construed
under United States v. Khattak, 273 F.3d 557 (3d Cir. 2007), did not pertain to the
conditions of supervised release. In addition, Long asserted that conditions at issue here
were excepted from the appellate waiver because they do not appear among the
mandatory and discretionary conditions set forth in 18 U.S.C. § 3583(d). Neither
argument has merit in the wake of Goodson. 544 F.3d at 537–38.
2
Long’s petition for rehearing did not take issue with our determination that the
District Court did not err by applying U.S.S.G. § 2G2.2(c)’s cross reference. For that
reason, we reiterate our analysis from the earlier opinion, which was vacated by operation
of the grant of panel rehearing.
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comes into play “[i]f the offense involved causing, transporting, permitting or offering or
seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of such conduct . . . .” U.S.S.G. § 2G2.2(c).
According to Long, the cross-reference had no bearing on his offense level because his
instant messages neither caused the production of child pornography nor constituted a
“notice.”
We find no error in the District Court’s application of U.S.S.G. § 2G2.2(c)’s cross-
reference. The plain text of the guideline demonstrates that Long did not have to cause
the production of child pornography. Rather, the cross-reference applies to a broad range
of conduct, including “seeking by notice,” and this record establishes that Long’s instant
messages requested “pics” of the minor. See U.S.S.G. § 2G2.2(c), and application note 5.
We agree with the Tenth Circuit’s analysis in United States v. Garcia, 411 F.3d 1173
(10th Cir. 2005), which rejected a narrow interpretation of the cross-reference. The
Garcia Court explained that the “conduct the guideline seeks to punish is not only the
actual production of child pornography, but the active solicitation for the production of
such images.” Id. at 1179.
Long’s argument that his instant messages did not qualify as “notice” under the
cross-reference also lacks merit. As Long concedes, we rejected a similar argument in
United States v. Harrison, 357 F.3d 314 (3d Cir. 2004). There, we concluded that the
term “notice” encompassed “the communication of information to another party” and that
7
Harrison’s e-mail constituted a notice for purposes of a related provision in guideline
§ 2G2.2. Because Long’s instant messages requested “pics” of the minor and conveyed
information to another party, we conclude that these instant messages also constituted
“notice” under § 2G2.2(c)’s cross-reference.
We will affirm the judgment of the District Court.
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