[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 24, 2009
No. 08-10917 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00163-CR-T-27-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN WILCOX,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 24, 2009)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Brian Wilcox (“Wilcox”) appeals his convictions and sentences for
producing, possessing, and transporting child pornography. He contends that his
guilty plea was not knowing and voluntary, and that his total sentence of forty-five
years of imprisonment was unreasonable. Wilcox also questions the validity of his
conditions of supervised release. Finally, Wilcox asserts that his trial counsel was
ineffective. After a careful review of the record and briefs, we AFFIRM both his
convictions and sentences.
I. BACKGROUND
Wilcox was charged in a three-count indictment with production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (2); possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4); and transportation of child
pornography in interstate and foreign commerce by means of a computer, in
violation of 18 U.S.C. § 2252(a)(1). At his guilty plea hearing, Wilcox stated that
he intended to plead guilty but asked if he could “plead no contest or in the
alternative some sort of form of altered plea.” R3 at 2. The magistrate judge
replied that he would not accept a no-contest plea and rejected Wilcox’s request for
an alternative plea. The judge then asked Wilcox whether he “still want[ed] to go
forward and plead guilty,” and Wilcox answered “Yes.” Id. at 4. The judge
informed Wilcox that:
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If at any time during the hearing you decide you don’t want to plead
guilty, all you need to do is let me know and the hearing will be
stopped. If you do decide to plead guilty, however, and if your plea is
accepted by the district judge, at that point it becomes much more
difficult, if not impossible, to change your mind. Do you understand
that, sir?
Id. at 5. Wilcox confirmed that he understood. The judge also asked Wilcox if he
was “fully satisfied with the advice and representation” provided by his defense
attorney, to which Wilcox again responded affirmatively. Id. at 10.
The government presented the following factual basis in support of the
guilty plea. In February 2007, the National Center for Missing and Exploited
Children reported to local law enforcement in Hillsborough County, Florida, that
an individual was posting child pornography to a website server located in Denver,
Colorado called Photobucket. Authorities identified that individual as Wilcox.
Wilcox admitted to law enforcement agents that he took and posted on
Photobucket the pornographic pictures of an eleven-year-old girl. He further
admitted that the fingers seen in the images were his. Approximately one hundred
and twenty images of child pornography were found on his computer and other
media, including a sadistic image of a five-year-old child being vaginally
penetrated.
Although Wilcox could not recall at the plea hearing the exact number of
pornographic images stored on his computer, he confirmed there were more than
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ten. He otherwise conceded the truth of the government’s factual basis for the
charges. The magistrate judge found that Wilcox’s guilty plea was “knowing,
intelligent and voluntary.” Id. at 25. The judge advised Wilcox that he would have
ten days to object to the magistrate judge’s written recommendation that the guilty
plea be accepted. Wilcox never objected to the magistrate judge’s report and
recommendation, which reiterated the ten-day requirement for filing a written
objection. The district court subsequently accepted the guilty plea the following
month.
At the sentencing hearing, Wilcox objected to a two-level sentencing
enhancement based on the commission of a sexual act. The government
acknowledged that the image supporting this enhancement did not reveal who was
engaging in the sexual act. The district court ultimately sustained Wilcox’s
objection after the government advised that imposition of that sentencing
enhancement would not affect the maximum sentence that Wilcox could receive
under the guidelines. Wilcox then presented mitigating evidence. He argued that a
fifteen-year sentence was appropriate based on his age (fifty years old), his diabetic
condition, his lack of prior criminal history, and his willingness to be treated for
his pornography addiction. Various family members, including his two sons, also
testified that Wilcox had been a good father. In rebuttal, the government submitted
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evidence, without objection, demonstrating that Wilcox was attempting to gain
commercially from taking pictures of his victim. Included in this evidence were
chat logs recovered from Wilcox’s computer in which he discussed having sexual
relations with a specific victim.
The district court calculated that Wilcox was eligible for a maximum total
sentence of sixty years of imprisonment under the applicable statutes and
sentencing guidelines. The court found that sixty years was greater than necessary,
though, given Wilcox’s age and medical concerns. The court thus reduced his
sentence to thirty years on count one, ten years on count two, and five years on
count three, for a total term of forty-five years of imprisonment. The court based
Wilcox’s sentence on the factors listed in 18 U.S.C. § 3553(a), including the
following considerations: (1) seriousness of the crimes; (2) nature and
circumstances of the offenses; (3) deterrence; (4) protection of the public; and (5)
respect for the law. The court emphasized the serious nature of child pornography
and the fact that it was never a victimless crime. The court further noted that one
of the images on Wilcox’s computer, depicting a young child wearing a dog collar
while having intercourse with an adult, was the same depraved image discussed in
United States v. Pugh, 515 F.3d 1179, 1193 (11th Cir. 2008).
In addition to incarceration, the district court imposed a lifetime of
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supervised release. Two of the special conditions of the supervised release prohibit
Wilcox from having any contact with a specified victim and any minor under the
age of eighteen, excluding his sons, without the express permission of the
probation officer.
II. DISCUSSION
A. Voluntariness of the Guilty Plea
Wilcox first argues that his guilty plea as to count one (production of child
pornography) was not knowing and voluntary. He asserts that he only wanted to
plead guilty to counts two and three of the indictment but the magistrate judge
incorrectly advised him that he must plead guilty to all three counts. Wilcox also
maintains that his guilty plea was induced by fear, coercion, and illness.1 We agree
with the government that Wilcox has waived his challenge to the validity of his
guilty plea because he failed to object to the magistrate judge’s report and
recommendation.
The failure to file written objections to a magistrate judge’s report and
recommendation within ten days after being served with the report, or by some
other date set by the court, “waives a party’s right to review.” Fed. R. Crim. P.
59(b)(2). Because waiver constitutes an “‘intentional relinquishment or
1
Wilcox’s appellate attorney acknowledges, however, that the record contains no
evidence of coercion or illness. See Initial Brief of Appellant at 32-34.
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abandonment of a known right’”, waived claims are not subject to plain error
review. United States v. Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (en banc)
(quoting United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993)).
Accordingly, we have declined to review challenges to a guilty plea where the
defendant did not timely object to the magistrate judge’s report and
recommendation. See United States v. Candelo, 292 Fed. Appx. 782, 783 (11th
Cir. 2008) (per curiam); United States v. Flores, 257 Fed. Appx. 164, 166 (11th
Cir. 2007) (per curiam); but see United States v. Louis, No. 08-10536, 2009 WL
368317, at *1 (11th Cir. Feb. 17, 2009) (per curiam) (concluding that defendant
waived his right to appellate review by not objecting to the magistrate judge’s
report and recommendation, but reviewing guilty plea for plain error).
We see no reason to depart from Rule 59(b)(2) here. The magistrate judge
orally advised Wilcox of the ten-day requirement at his guilty plea hearing and
repeated it in her written report and recommendation. Despite this notice, Wilcox
never filed any written objections to the magistrate judge’s written findings that his
guilty plea was knowledgeable and voluntary. He thereby intentionally waived his
right to appeal those findings and we need not review his claim for plain error. See
Fed. R. Crim. P. 59(b)(2); Lewis, 492 F.3d at 1221. Accordingly, we affirm his
convictions.
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B. Reasonableness of Wilcox’s Sentences
Wilcox next contends that his sentences were both procedurally and
substantively unreasonable. According to Wilcox, the district court committed
procedural error by relying on the pre-sentence report’s statements that he
committed sexual acts during the commission of his child pornography offenses,
even though the district court sustained his earlier objection to a sentencing
enhancement based on that allegation. Wilcox asserts that the government
presented no evidence of sexual acts. Wilcox also submits that the district court
procedurally erred by not considering his mitigation evidence. With respect to
substantive unreasonableness, Wilcox cites statistics that the median sentence
given to pornography/prostitution defendants nationally is seventy-eight months
whereas the median sentence in our circuit is ninety-eight months. Moreover,
Wilcox disputes the district court’s finding that he was a danger to the public. He
concludes that his forty-five-year total sentence is plainly unreasonable for a first-
time offender who is fifty years old.
We review a sentence for reasonableness “‘under a deferential abuse-of-
discretion standard.’” Pugh, 515 F.3d at 1189 (quoting Gall v. United States, 552
U.S. ___,128 S. Ct. 586, 591 (2007)). A sentence is procedurally unreasonable if
the district court failed to calculate or incorrectly calculated the guidelines, treated
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the guidelines as mandatory, failed to consider the § 3553(a) factors, selected a
sentence based on clearly erroneous facts, or failed adequately to explain the
chosen sentence. See id. at 1190. A sentence is substantively unreasonable if it
fails to achieve the sentencing goals set forth in § 3553(a).2 See id. at 1191. “The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (quotations marks, alterations, and citation omitted). Furthermore, the
party challenging the sentence must demonstrate the unreasonableness of the
sentence based on the record and the § 3553(a) factors. See id.
We find no procedural error here. Contrary to Wilcox’s assertion, the
government presented evidence of chat logs, admitted without objection,
establishing that Wilcox had engaged in sexual relations with a victim in this case.
The district court correctly considered this evidence in sentencing Wilcox. See
United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007) (noting that a district
court’s sentence may be based on evidence presented during the sentencing
2
Section 3553(a) provides that district courts must consider, among other factors, the
following: (1) the nature and circumstances of the offense; (2) the defendant’s history and
characteristics; (3) the need for the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (4) adequate
deterrence of criminal conduct; (5) protection of the public from further crimes of the defendant;
(6) the applicable guideline range; and (7) avoidance of unwarranted sentencing disparities. See
18 U.S.C. § 3553(a).
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hearing). The record also refutes Wilcox’s suggestion that the district court did not
adequately consider his mitigation evidence. Without this evidence, the district
court would not have granted him a fifteen-year downward variance.
Wilcox’s arguments as to substantive reasonableness are equally meritless.
Because Wilcox was sentenced within a properly calculated guideline range, his
sentence may be presumed reasonable. See Pugh, 515 F.3d at 1190. Wilcox’s
recitation of statistics concerning other pornography convictions does little to
overcome this presumption. Without discussion of the factual circumstances of
these other convictions, such “bare numbers” provide little insight into the
reasonableness of his own sentence. United States v. Campbell, 491 F.3d 1306,
1317 (11th Cir. 2007) (finding unpersuasive the defendant’s proffered statistics of
average sentences imposed for tax crimes). We also reject Wilcox’s challenge to
the district court’s finding that he is “a danger to young people.” R4 at 60. We
have recognized that the possession and distribution of child pornography
“undeniably create[s] the demand for more” pornography, thereby “increasing the
victimization of still more children.” Pugh, 515 F.3d at 1196. The district court
correctly acknowledged this fact in sentencing Wilcox. Thus, notwithstanding
Wilcox’s age and lack of criminal history, the seriousness of his crimes amply
justified a forty-five-year sentence. See id. at 1202 (reviewing cases upholding
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severe sentences for child sex offenses). Accordingly, the district court did not
abuse its discretion in sentencing Wilcox.
C. Special Conditions of Supervised Release
Next, Wilcox seeks clarification of the district court’s grant of supervised
release. One of the special conditions of that release prohibits Wilcox from having
direct contact with minors under the age of eighteen, excluding his biological sons,
without the written approval of his probation officer. Similarly, another special
condition prohibits contact, including by telephone or mail, with a specific victim
in this case unless the probation officer has given express permission. Wilcox is
concerned that the federal Bureau of Prisons might seek to prohibit him from
having contact with that victim while he is incarcerated. Thus, to the extent these
special conditions prohibit him from contacting that victim while he is in prison,
Wilcox contends they are overly broad. He believes the district court should
clarify its order and establish a set of procedures and rules regarding future contact
between Wilcox and the victim.
We find no ambiguity in the district court’s judgment. The special
conditions at issue apply to Wilcox’s supervised release after his release from
imprisonment. During his incarceration, however, any contact with the victim will
be determined by the Bureau of Prisons. See 18 U.S.C. § 4042(a) (“The Bureau of
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Prisons, under the direction of the Attorney General, shall – (1) have charge of the
management and regulation of all Federal penal and correctional institutions”). If
Wilcox ever wishes to challenge any decisions related to his confinement, he may
do so through an administrative proceeding. See 28 C.F.R. § 542.10.
D. Ineffective Assistance of Trial Counsel
As a final matter, Wilcox contends that his counsel at the guilty plea hearing
was ineffective. Wilcox’s counsel on appeal disagrees and believes that any such
claim appears to be frivolous. In any event, both Wilcox’s appellate attorney and
the government agree that the record is insufficiently developed for our review.
We will not consider on direct appeal a claim of ineffective assistance of
counsel unless the record is sufficiently developed. See United States v. Merrill,
513 F.3d 1293, 1308 (11th Cir. 2008). The preferable means for raising such a
claim is in a collateral proceeding under 28 U.S.C. § 2255. See id. Here, because
Wilcox never raised a claim of ineffective assistance of counsel in the district
court, there is insufficient evidence in the record for our review. We therefore
decline to address this issue on appeal.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Wilcox’s convictions and sentences.
AFFIRMED.
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