United States v. Pattee

14-2163-cr
U.S. v. Pattee

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2015

(Argued: January 29, 2016 Decided: April 21, 2016)

Docket No. 14-2163-cr

UNITED STATES OF AMERICA,

Appellee,

— v. —

BRADLEY W. PATTEE,

Defendant-Appellant.

B e f o r e:

CALABRESI, LYNCH, and LOHIER, Circuit Judges.
__________________

Bradley W. Pattee appeals from a judgment of conviction on several counts
of producing, distributing and possessing child pornography, and from his
sentence principally to 47 years’ imprisonment, arguing that the court’s failure to
comply fully with Federal Rule of Criminal Procedure 11 requires us to vacate his
plea of guilty to production, distribution, and possession of child pornography,
and that the sentence imposed by the district court is procedurally and
substantively unreasonable. The district court’s unobjected-to failure to comply
strictly with all aspects of Rule 11 was not plain error affecting substantial rights,
and Pattee’s admission that the hard drives on which the child pornography was
found had traveled in interstate commerce provided sufficient factual basis to
meet the commerce element of the child pornography production statute, so we
find no reason to vacate the plea. The district court did not commit procedural
error in connection with his sentence, nor was the sentence substantively
unreasonable given the serious nature of Pattee’s crime. We therefore AFFIRM
the judgment of the district court.

CHARLES F. WILLSON, Federal Public Defender’s Office, District
of Connecticut, Hartford, CT, for Defendant-Appellant
Bradley W. Pattee.

JOSEPH J. KARASZEWSKI, Assistant United States Attorney, Of
Counsel, (Warren W. Griffin, Student Law Clerk, on the
brief), for William J. Hochul, Jr., United States Attorney for
the Western District of New York, Buffalo, NY.

GERARD E. LYNCH, Circuit Judge:

Defendant-appellant Bradley W. Pattee appeals from a judgment of

conviction, entered in the United States District Court for the Western District of

New York (Frank P. Geraci, Jr., C.J.) following his plea of guilty to one count of

producing child pornography, in violation of 18 U.S.C. § 2251(a); four counts of

distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and

eight counts of possessing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B), and from his sentence principally to 47 years’ imprisonment.

2
He argues on appeal (1) that his plea was invalid because in accepting his guilty

plea the district court failed to adhere strictly to Rule 11 of the Federal Rules of

Criminal Procedure and because there was insufficient factual basis for finding

the interstate commerce element of the production of child pornography count

satisfied, and (2) that his sentence is procedurally and substantively

unreasonable. We conclude that the failure to comply strictly with all aspects of

Rule 11 was not plain error affecting Pattee’s substantial rights, that there was

sufficient factual basis for the plea, and that there was no procedural or

substantive error in his sentence, and therefore affirm the judgment of the district

court.

BACKGROUND

In April 2012, after using a peer-to-peer file sharing program to retrieve

images constituting child pornography from an IP address associated with

Pattee, law enforcement officers obtained a search warrant for Pattee’s residence.

During the ensuing search Pattee admitted to an officer that he had downloaded

and viewed child pornography. The authorities ultimately recovered over 7,000

images and at least 17 videos depicting child pornography from seven hard

drives seized during the search. Additionally, photographic evidence on the

3
hard drives tended to show that Pattee had sexually abused a child who lived in

a neighboring apartment and had photographed the abuse. The victim later

confirmed that Pattee had abused her over a period of approximately two years,

while she was six to seven or eight years old, and photographed his actions.

Pattee was arrested on July 20, 2012, and appeared before a magistrate

judge with retained counsel. The magistrate judge advised Pattee of “important

rights in connection with the charges that are pending against you. First and

most importantly, you have the right to the assistance of a lawyer. If you cannot

afford to hire a lawyer, you have the right to ask the Court to appoint a lawyer

for you.” Transcript of Proceedings at 4 (Docket No. 67).1

An indictment followed, charging Pattee with the various counts of

producing, distributing, and possessing the child pornography described above.

At Pattee’s arraignment, the magistrate judge ordered a continuance and

exclusion of time under the Speedy Trial Act, so that Pattee and his attorney

would have sufficient time to prepare and file motions “and to assure that Mr.

1
Transcripts of proceedings in the district court not found in the parties’
appendices are identified by the docket entry number for that transcript on the
docket of the district court case, United States v. Pattee, No. 12-CR-6183-FPG-JWF
(W.D.N.Y. Dec. 13, 2013).

4
Pattee has the continued assistance of counsel throughout that process.”

Transcript of Proceedings at 7 (Docket No. 65).

Pattee moved through counsel to suppress his incriminating statements

and the evidence recovered from his residence, and in due course the district

court denied the motion. The government moved to set a trial date, and a

conference for that purpose was held on December 20, 2013.

At the December 20 hearing, Pattee’s retained counsel advised the district

court that because Pattee did not have sufficient funds to retain him for trial or to

hire a forensic expert necessary for his defense, Pattee wished to apply for

appointed counsel pursuant to the Criminal Justice Act (“CJA”). The court

directed Pattee to file a financial affidavit in order to establish his financial

eligibility for assigned counsel under the CJA, and adjourned the matter until

January 6, 2014.

On January 6, the district court reviewed the financial affidavit and

questioned Pattee regarding, among other things, gold coins found during the

search of his residence and the possibility of obtaining information regarding

Pattee’s assets from Pattee’s brother and longtime girlfriend. The court then

adjourned the matter until January 30, 2014 for further inquiry, noting that “the

5
interest of justice and the defendant having counsel for this matter . . . outweighs

the interest of the public in a speedy trial.” Transcript of Proceedings at 12

(Docket No. 61).

At the hearing on January 30, 2014, Pattee’s counsel advised the court that

Pattee wished to change his plea to guilty to all counts of the indictment. The

district court scheduled the plea hearing for the next day, and instructed the

government to file a statement pursuant to United States v. Pimentel, 932 F.2d 1029

(2d Cir. 1991), regarding the government’s expectations as to the guideline

sentencing range.

On January 31, 2014, the district court held the plea hearing. The court

specifically questioned whether Pattee understood that it was the government’s

burden to prove all elements of the charges beyond a reasonable doubt, that he

had a right to proceed to trial, and that by pleading guilty he was “giving up” his

right to a trial, “to have the prosecution prove these charges beyond a reasonable

doubt,” “to allow [his] attorney to cross-examine witnesses on [his] behalf,” and

“to testify or produce evidence on [his] behalf,” and received Pattee’s affirmation

6
that he did. D.A. 10.2 The district court further assured that Pattee understood

that “your plea of guilty is the same as if we had a bench trial or a jury trial and

there was returned against you a verdict of guilty.” Id. at 10–11. Pattee also

affirmed that he had not been forced or coerced in any way to plead guilty.

The district court also discussed with Pattee other matters not specifically

required by Rule 11. For example, the court asked whether Pattee was satisfied

with his retained counsel’s representation, to which Pattee replied that he was,

and whether he had any mental or physical condition which affected his ability

to knowingly plead guilty, to which Pattee replied that he did not. Moreover, the

court specifically inquired about an incident in the county jail, in which Pattee

apparently had attempted suicide, and asked whether that was “in any way

affecting [his] ability to understand anything that’s occurring.” Id. at 4. Pattee

replied that it was not.

Regarding the child pornography production charge, Pattee stated that he

understood the elements of the crime, including “that the visual depiction was

produced using materials that had been mailed, shipped or transported in

2
The Defendant’s Appendix and Government’s Appendix are cited as “D.A.”
and “G.A.” respectively.

7
interstate or foreign commerce.” Id. at 8–9. The court reviewed the factual basis

for the plea, relying primarily on the government’s Pimentel letter. Regarding the

production count, Pattee admitted that he engaged in the prohibited conduct

with a child, took photographs of the child engaged in the conduct, and “stored

the images on digital media that [he] possessed.” Id. at 11. Pattee acknowledged

that “the digital media, including the desktop computer and the seven external

hard drives, were produced outside the State of New York.” Id. at 14.

The district court reviewed the sentencing guidelines calculations

contained in the Pimentel statement, advised Pattee of the statutory minimum and

maximum sentences, and established that Pattee understood that “the ultimate

sentence can be up to the Court just as long as you understand it can’t be below

the 15 years, but could be as high as the 190 years.” Id. at 22. Pattee then pled

guilty to all counts of the indictment. The district court found that Pattee’s plea

was “in all respects knowing and voluntary” and accepted the plea. Id. at 30.

Pattee’s counsel did not object to any deviation from the requirements of Rule 11,

nor did he seek or receive permission to reserve the right to appeal the denial of

the suppression motion.

In preparation for sentencing, the Probation Office prepared a pre-sentence

8
report pursuant to 18 U.S.C. § 3552(a), which concluded that the statutory

sentencing range was, as the district court had advised Pattee at the allocution

proceeding, 15 to 190 years in prison. In its written sentencing statement, the

government urged the district court to impose the maximum 190-year sentence,

because of Pattee’s extended abuse of a child and the volume of pornographic

images he had produced, distributed and possessed. Pattee asked the court to

impose the statutory minimum of 15 years.

During the sentencing hearing, the district court commented on Pattee’s

healthy relationships with his adult girlfriend and family, his lack of substance

abuse issues, and his lack of a criminal record. But the court described Pattee’s

actions as “despicable conduct” that was “beyond comprehension.” G.A. 55.

The court commented on the enormous harm to Pattee’s victim, as well as the

seriousness of the distribution and possession of child pornography, because the

photographed children are “victimized every time somebody looks at those

photos.” Id. at 55–56. The court also noted the volume of child pornography in

Pattee’s possession, and his deliberate attempt to evade detection by the use of

encryption. Concluding that “this is really an egregious case and an egregious

situation that deserves a severe sentence,” id. at 60, the court sentenced Pattee to

9
a total of 47 years in prison: 5-year consecutive terms for each of the four

distribution counts, a consecutive 20-year sentence for the production count, plus

7-year terms for the possession counts, to run concurrent to each other, but

consecutive to the distribution and production sentences.

DISCUSSION

Pattee argues that his guilty plea was invalid due to the asserted defects of

the plea proceedings and the lack of a factual basis for his plea to the production

of child pornography count. He also argues that his sentence was procedurally

and substantively unreasonable. We disagree.

I. The District Court’s Failure to Adhere Strictly to Rule 11 Was Not Plain
Error.

Rule 11 of the Federal Rules of Criminal Procedure explicitly requires a

court, before accepting a plea of guilty, to inform the defendant of a number of

specified matters. See Fed. R. Crim. P. 11(b)(1)(A)-(N). Rule 11 is “designed to

assist the district judge in making the constitutionally required determination

that a defendant’s guilty plea is truly voluntary.” United States v. Maher, 108 F.3d

1513, 1520 (2d Cir. 1997).

Pattee correctly points out that the district court omitted five of the

approximately fifteen rights of which a court is required to advise a defendant

10
before accepting a guilty plea: the right to persist in a not guilty plea (Rule

11(b)(1)(B)); the right to trial by jury (Rule 11(b)(1)(C)); the right to be represented

by counsel, including appointed counsel if necessary (Rule 11(b)(1)(D)); and the

rights to be protected from compelled self-incrimination and to compel the

attendance of witnesses (Rule 11(b)(1)(E)).

Rule 11 was originally both stricter and simpler. In its original form, Rule

11 was only three sentences long, and contained no harmless error provision. It

provided, in full:

A defendant may plead not guilty, guilty or, with the
consent of the court, nolo contendere. The court may
refuse to accept a plea of guilty, and shall not accept the
plea without first determining that the plea is made
voluntarily with understanding of the nature of the
charge. If a defendant refuses to plead or if the court
refuses to accept a plea of guilty or if a defendant
corporation fails to appear, the court shall enter a plea
of not guilty.

Fed. R. Crim. P. 11, 327 U.S. 842 (1945); see generally Julian A. Cook III, Federal

Guilty Pleas Under Rule 11: The Unfulfilled Promise of the Post-Boykin Era, 77 Notre

Dame L. Rev. 597, 606–07 (2002).

The 1975 amendments to the Rule “increased significantly the procedures

which must be undertaken when a defendant tenders a plea of guilty,” Fed. R.

11
Crim. P. 11, Advisory Comm. Note (1983), and added what are now sections

(b)(1)(B)–(F) to the Rule, specifying particular information that must be provided

to the defendant. Since then, additional required topics have been added to the

list, resulting in the present text of Rule 11(b)(1)(A)–(N). A harmless error

provision was added in 1983 to avoid reversals for “inadvertent[] deviat[ions] . . .

which a very literal reading of Rule 11 would appear to require.” Id.; see Fed. R.

Crim P. 11(h). Rule 11(h) “was enacted to make clear that guilty pleas should not

be overturned, even on direct appeal, when there has been a minor and technical

violation of Rule 11 which amounts to harmless error.” United States v. Westcott,

159 F.3d 107, 112 (2d Cir. 1998) (internal quotation marks omitted). Moreover,

the Supreme Court has held that when a defendant has failed to object in the

district court to a violation of Rule 11, reversal is appropriate only where the

error is plain and affects the defendant’s substantial rights. United States v. Vonn,

535 U.S. 55, 58–59 (2002).

This Court has stated time and again that “[w]e have ‘adopted a standard

of strict adherence to Rule 11.’” United States v. Rodriguez, 725 F.3d 271, 277 n.3

(2d Cir. 2013), quoting United States v. Livorsi, 180 F.3d 76, 78 (2d Cir. 1999). But

since “strict adherence” is subject to harmless error (and, in the absence of

12
objection, plain error) review, our scrutiny is strict only at the level of assessing

compliance, and does not frequently require vacatur of a plea. In the absence of

an objection (which is the usual situation on appeal, since district courts will

ordinarily correct any error that is pointed out to them), deviations from Rule 11

will not warrant appellate relief when the defendant’s “substantial rights” have

not been affected. Still, a district court’s failure to follow the basic requirements

of Rule 11 requires that this Court “examine critically even slight procedural

deficiencies to ensure that the defendant’s guilty plea was a voluntary and

intelligent choice, and that none of the defendant’s substantial rights has been

compromised.” Rodriguez, 725 F.3d at 277 n.3, quoting Livorsi, 180 F.3d at 78.

Thus, district court judges are required to adhere strictly to Rule 11's

requirements.

Luckily, compliance with Rule 11 is not a difficult task. The decision to

follow the Rule is not a discretionary decision, nor a judgment call that a district

court must make quickly and under pressure. Technical errors can be avoided if

a district or magistrate judge has a standard script for accepting guilty pleas,

13
which covers all of the required information.3 We have repeatedly so advised

district courts in previous cases. As we noted in Rodriguez, “it should be a simple

matter for district and magistrate judges to avoid any error by adhering literally

to the script required by the Rule, and for prosecutors and defense counsel to be

aware of the Rule’s requirements and point out to the court any failure to follow

them.” Id.

Yet failures to meet those requirements are a recurring issue. During 2015,

this Court heard at least two appeals that could have been avoided had the

district court adhered to the Rule. See United States v. Glass, 613 F. App’x 75,

77–78 (2d Cir. 2015) (summary order) (vacating and remanding because “the

District Court did not conduct the required voluntariness inquiry” and “[e]ven

the government conceded . . . that the court’s Rule 11 canvass of the defendant

was facially deficient”) (internal quotation marks omitted); United States v.

3
As we noted in United States v. Khan, “Rule 11 does not require the court to ‘read
the specified items in haec verba. Congress meant to strip district judges of
freedom to decide what they must explain to a defendant who wishes to plead
guilty, not to tell them precisely how to perform this important task in the great
variety of cases that would come before them.’” 857 F.2d 85, 87 (2d Cir. 1988)
(alterations omitted), quoting United States v. Saft, 558 F.2d 1073, 1079 (2d Cir.
1977). But this flexibility presumes that the essential rights in Rule 11 will be
covered in the plea colloquy, and judges can assure that by devising their own
scripts.

14
Germosen, 605 F. App’x 16, 19 n.1 (2d Cir. 2015) (summary order) (“Although the

district court noted during [the defendant’s] plea allocution that in entering into

the plea agreement he waived his right to appeal the sentence, the court failed to

note, as required by Federal Rule of Criminal Procedure 11(b)(1)(N), that the

appeals waiver also covered fines and the terms of supervised release.”); see also

United States v. Hightower, 589 F. App’x 22, 24 (2d Cir. 2014) (summary order)

(assuming without deciding “that the district court should have explained the

implications of violating supervised release,” but finding that the error was

harmless); United States v. Choudhury, 582 F. App’x 25, 26 n.1 (2d Cir. 2014)

(summary order) (“Both parties agree that, following [the defendant’s] guilty

plea in front of the Magistrate Judge, the District Court failed to formally accept

[the defendant’s] plea. While [the defendant] is not challenging his conviction on

this basis, we take this opportunity to remind district judges of their

responsibility to accept guilty pleas prior to sentencing.”).

These failures are not attributable solely to judges. Prosecutors and

defense attorneys also have an obligation to make sure that the Rule is followed.

Defense attorneys have an obligation to ensure that their clients are fully

informed of their rights before entering a plea of guilty, and that a plea that is in

15
the client’s interest is properly entered. It is therefore part of counsel’s

responsibility, and is in the client’s interest, to object if all elements of Rule 11 are

not covered. The government also has an interest in assuring that the plea

proceeding is done correctly, both to protect the defendant’s rights in the interest

of justice, and to protect the record and avoid time-consuming appeals by

defendants who subsequently suffer “buyer’s remorse” and wish they had not

pled guilty. Therefore, prosecutors too should alert the judge to any provisions

that have been missed.

Incanting rights and eliciting affirmative answers as required by the Rule

goes only so far in assuring that a defendant really understands what is at stake.

And the issues that are relevant to each defendant in making the choice whether

to plead may differ in ways not captured by the Rule. Because even strict

adherence to Rule 11 may not cover every issue that may be relevant to assessing

a particular defendant’s understanding, district and magistrate judges must be

alert to ways to go beyond rote recitals, in order to make sure that the

defendant’s waiver of rights is truly knowing and voluntary. The Rule’s list of

required elements of a guilty plea proceeding should serve as a baseline and a

16
trigger to seek out additional issues relevant to the particular defendant.4

Nevertheless, Rule 11, with its list of elements that the Supreme Court and

Congress have determined should be addressed with every defendant,

constitutes a required minimum in assuring that a defendant understands the

nature of the charges, the penalties he faces, and the rights that he is giving up by

entering a plea. Compliance with the Rule’s requirements should be automatic.

While we are certain, as discussed below, that in this case the deficiencies

in the Rule 11 colloquy did not affect Pattee’s decision to plead guilty, it is

nevertheless disturbing that district courts do not routinely follow the minimal

procedures put in place to protect defendants’ rights. While the plain error

standard typically addresses the situation of individual defendants, an element of

plain error review is whether “the error seriously affected the fairness, integrity

or public reputation of judicial proceedings.” United States v. Youngs, 687 F.3d 56,

59 (2d Cir. 2012) (internal quotation mark omitted), quoting United States v.

Flaharty, 295 F.3d 182, 195 (2d Cir. 2002). A recurring pattern of failure by a

4
In this case, for example, the district court, aware of an incident during pretrial
detention that may have reflected on Pattee’s mental or emotional state,
commendably went beyond a simple inquiry into whether the defendant’s mind
was clear, to probe whether that incident was a sign of on-going difficulties.

17
district judge to comply with Rule 11 could undermine faith in the judiciary.

In the instant case, Pattee made no objection to the district court’s

compliance with Rule 11. We therefore review Pattee’s present claims of

defective compliance under the plain error standard. See Fed. R. Crim. P. 52(b);

United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). “Plain error review

requires a defendant to demonstrate that (1) there was error, (2) the error was

plain, (3) the error prejudicially affected his substantial rights, and (4) the error

seriously affected the fairness, integrity or public reputation of judicial

proceedings.” Youngs, 687 F.3d at 59 (internal quotation mark omitted), quoting

Flaharty, 295 F.3d at 195.

In order to establish that a Rule 11 violation affected “substantial rights,”

the defendant must show “that there is ‘a reasonable probability that, but for the

error, he would not have entered the plea.’” United States v. Vaval, 404 F.3d 144,

151 (2d Cir. 2005), quoting United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004). If “the misinformation in all likelihood would not have affected a

defendant’s decision-making calculus, then the error would be harmless, and the

guilty plea need not be vacated.” United States v. Harrington, 354 F.3d 178, 184 (2d

Cir. 2004). In short, Pattee must show that “the district court’s error had an effect

18
on his decision to plead guilty.” United States v. Harrison, 241 F.3d 289, 293 (2d

Cir. 2001).

Pattee asks this Court to vacate his plea of guilty because the district court

erred in not informing him of all of his rights under Rule 11 and alleges that but

for this error, he would “have pressed forward either to a trial, or at a minimum,

sought to preserve certain issues for appeal.” Appellant’s Br. 18. Pattee,

however, offers no evidence other than this bare assertion that the errors in the

plea allocution affected his decision to plead guilty.5

At the plea hearing, the court conducted the following colloquy, as

relevant to this issue:

THE COURT: Do you understand if you went to
trial on these charges, that it would be up to the
Government to prove all those elements beyond a
reasonable doubt?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have a
right to proceed to trial on these charges?
THE DEFENDANT: Yes.
THE COURT: Do you understand that when you
plead guilty, you’re giving up that right?

5
Pattee echoes this assertion in an affidavit he submitted with his reply brief.
The government urges us to disregard the affidavit on technical grounds. But
even assuming the affidavit is now properly part of the record on appeal, our
conclusions regarding Pattee’s plea remain the same.

19
 THE DEFENDANT: Yes.
THE COURT: Do you understand that by
pleading guilty, you’re giving up your right to
have the prosecution prove these charges beyond
a reasonable doubt?
THE DEFENDANT: Yes.
THE COURT: That you’re giving up your right to
allow your attorney to cross-examine witnesses
on your behalf?
THE DEFENDANT: Yes.
THE COURT: That you’re giving up your right to
testify or produce evidence on your behalf?
THE DEFENDANT: Yes.
THE COURT: Do you understand that your plea of
guilty is the same as if we had either a bench trial or a
jury trial and there was returned against you a verdict
of guilty? Do you understand that?
THE DEFENDANT: Yes.

D.A. 10–11.

As previously noted, however, the district court failed to specifically

address the following Rule 11 requirements during the colloquy:

(B) the right to plead not guilty, or having already so
pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel – and if
necessary have the court appoint counsel – at trial and
at every other stage of the proceeding;
(E) the right at trial . . . to be protected from compelled
self-incrimination, . . . and to compel the attendance of
witnesses; [and]

20
Fed. R. Crim. P. 11(b)(1)(B)–(E).

Although Pattee argues that the sheer number of omissions should affect

our review, he primarily emphasizes the omission of the advice that he had a

right to counsel at every stage of the proceedings. He points to the appearances

before the court in which his counsel informed the court that Pattee could not

afford to retain counsel for the trial as evidence that Pattee may have been

concerned that if he did not plead guilty, he would be forced to trial without the

assistance of counsel.

In the context of the entire record, however, see Vonn, 535 U.S. at 74–76

(holding that a court should consult the entire record in conducting plain error

review), the contention that Pattee was not aware of his right to counsel is

unpersuasive. Pattee was represented by retained counsel throughout the

proceedings. At his first appearance, the magistrate judge advised Pattee that

“you have the right to the assistance of a lawyer. If you cannot afford to hire a

lawyer, you have the right to ask the Court to appoint a lawyer for you.”

Transcript of Proceedings at 4 (Docket No. 67). At Pattee’s arraignment, the

magistrate judge granted a continuance, in part “to assure that Mr. Pattee has the

continued assistance of counsel throughout that process.” Transcript of

21
Proceedings at 7 (Docket No. 65). The district court later granted an extension of

time to file the financial affidavit, because “the interest of justice and the

defendant having counsel for this matter . . . outweighs the interest of the public

in a speedy trial.” Transcript of Proceedings at 12 (Docket No. 61).

Most tellingly, the proceedings leading up to the plea hearing were

focused on assessing Pattee’s income for the purpose of appointing an attorney for

him under the CJA. The record thus makes clear that Pattee knew that he had a

right to counsel, and to appointed counsel if he was in fact unable to afford to

retain an attorney to represent him. The omission of another reminder of that

right during the plea colloquy itself thus could not have affected his decision to

plead guilty.

Pattee understandably makes little effort to argue that the other omissions

affected his decision to plead guilty. Having already entered a plea of not guilty,

Pattee obviously understood that right, and the right to persist in that plea (of

which he was not advised) is effectively the converse of his right to proceed to

trial (of which he was advised). Pattee does not pretend that he was unaware

that the trial to which he had a right would be by jury, nor does he argue that he

would have gone to trial had he been told of his right to remain silent at trial (a

22
right closely related to the government’s burden of proof, of which he was

expressly advised), or his right to compulsory process (a right closely associated

with his right to present evidence, of which the district court advised him). We

do not denigrate the importance of the district court’s compliance with the Rule’s

command that these rights be expressly discussed with the defendant before a

plea of guilty; we merely note that Pattee does not contend that he would not

have pled guilty had these rights been explained to him, which, as we held in

Vaval, is the touchstone for deciding whether the failure to comply with the Rule

affected substantial rights. That the district court omitted several of the required

items of the colloquy is regrettable, but we have no basis for concluding that

Pattee’s decision to plead guilty was the result of these omissions, whether taken

singly or together.

That is particularly so in light of the strength of the evidence against him.

The trial court having denied the suppression motion, the evidence against Pattee

was overwhelming, based on the photographic evidence recovered in the search,

his own incriminating admissions, and the confirmation by the victim of the

criminal acts recorded in the photographic evidence. Pattee was advised of the

severe penalties he faced, understood the elements of the charges against him,

23
and was aware of the strength of the evidence. He had been advised many times

of his right to counsel, including appointed counsel if he was unable to afford a

retained attorney, and had taken steps to invoke that right. Under these

circumstances, there is no rational basis to conclude that, had Pattee only been

advised one more time, or more explicitly, of the specific details of the rights

associated with the trial that he was knowingly waiving, he would not have

chosen to plead guilty and seek leniency by accepting responsibility. The fact

that this strategy did not work out to his satisfaction does not render the plea

involuntary.

Pattee also argues that his mental health, in particular the fact that he had

attempted suicide, affected his ability to make an intelligent and voluntary plea

of guilty. At the plea hearing, after Pattee indicated that he was not taking any

medication or drugs and that he did not have “any mental or physical condition

affecting [his] ability to understand anything that [was] being said,” D.A. 3, the

Court further inquired into Pattee’s mental health.

THE COURT: Okay. Now, we know you just had
an incident at the Steuben County Jail; is that
right?
THE DEFENDANT: Yes.

24
 THE COURT: Okay. And I’m aware of that and
you were transferred to Northern Ohio. Is that in
any way affecting your ability to understand
anything that’s occurring today?
THE DEFENDANT: No.

Id. at 4.

The obligation to ensure that a defendant who elects to plead guilty does

so knowingly and voluntarily is at the heart of Rule 11. As noted above, the

original version of Rule 11 required only that the court determine that the plea

was “made voluntarily with understanding of the nature of the charge.” Fed. R.

Crim. P. 11 (1945). That concern remains fundamental. See Rule 11(b)(1)

(detailing what the defendant must “understand[ ]” about the charges and the

effect of the plea); Rule 11(b)(2) (requiring that court determine that the plea is

“voluntary”). A defendant’s mental status is central to both inquiries; a

defendant’s impaired mental or emotional capacity can interfere with his ability

to understand what he is being told and to exercise rational choice. However,

neither Rule 11 nor common sense dictates any particular mode of inquiry for a

district or magistrate judge in making this assessment.

The Rule places great weight on the requirement that the district court

“must address the defendant personally in open court” in making these

25
determinations. Fed. R. Crim. P. 11(b)(1); see also Rule 11(b)(2) (same). The judge

who can see and interact with the defendant is in the best position to decide

whether the facts and circumstances of the case, or the defendant’s demeanor in

the courtroom, suggest the need for a deeper-than-usual inquiry into the

defendant’s mental condition. We discern no abuse of discretion in the court’s

choices here. The court inquired of defendant as to his mental status and

whether he was on medication, and inquired more specifically regarding an

incident that might have shed additional light on Pattee’s mental health. Nothing

more was required, and the questions and answers, as well as the overall record

of the plea colloquy, amply support the district court’s ultimate conclusion that

the plea was entered knowingly and voluntarily.

Finally, Pattee alleges that his retained counsel told him that he could

plead guilty and still appeal the suppression motion that had been denied, and

upon which his case depended. If Pattee’s counsel did tell him that, the advice

was incorrect, because the right to appeal the denial of an earlier suppression

motion is waived by a guilty plea unless the right to appeal is specifically

26
reserved,6 and Pattee’s counsel made no attempt during the plea hearing to

reserve the right to appeal the district court’s denial of the motion.

This alleged error by retained counsel suggests a possible ineffective

assistance of counsel claim, which Pattee does not make here. Nor could he on

the present record, since Pattee’s claim concerns what his attorney advised him in

private, and possibly any negotiations that may have been had with the

government concerning a possible conditional guilty plea, neither of which is

part of the existing record. Pattee may raise such claims by a motion pursuant to

28 U.S.C. § 2255; we intimate no view as to the merits of any such motion. The

district court, however, was not required by Rule 11 to inform the defendant that

a guilty plea waives his right to appeal non-jurisdictional defects in the

proceedings before entry of the plea, including the denial of critical suppression

6
See Fed. R. Crim. P. 11(a)(2) (“With the consent of the court and the government,
a defendant may enter a conditional plea of guilty or nolo contendere, reserving
in writing the right to have an appellate court review an adverse determination
of a specified pretrial motion. A defendant who prevails on appeal may then
withdraw the plea.”); United States v. Coffin, 76 F.3d 494, 496 (2d Cir. 1996) (“A
knowing and voluntary guilty plea waives all nonjurisdictional defects in the
prior proceedings.”).

27
 motions.7 We note that it would serve the interests of justice, and also the

prudential purpose of creating a record that would either expose erroneous

advice by counsel before a plea is entered or refute later false claims of such

advice, if district and magistrate judges included advice about the effect of a

guilty plea on appeal rights in their standard colloquy for guilty plea

proceedings, particularly in cases in which the outcome of a suppression motion

is largely determinative of the defendant’s prospects at trial.

In sum, although the district court did not strictly comply with Rule 11,

that deviation from proper procedure did not affect substantial rights because the

full record demonstrates that Pattee was aware of the essence of those rights of

which he was not specifically advised at the time of his plea, such that the failure

to repeat that advice could not reasonably have affected Pattee’s decision to

plead guilty. There was thus no plain error that would require us to vacate the

plea.

7
1 Rule 11(b)(1)(N) requires the court to advise the defendant of “the terms of any
2 plea-agreement provision waiving the right to appeal or collaterally attack the
3 sentence,” but neither that nor any other provision of Rule 11 requires the court
4 to address the effect of the plea on other appeal rights as a matter of law.

28
II. The Record Provides Ample Basis to Support the Court’s Determination
That There Was a Factual Basis for the Guilty Plea for the Production of
Child Pornography Count.

Pattee next argues that there was not a sufficient factual basis for the child

pornography production count, because he made no admission that the

pornography was produced using equipment that had traveled in interstate

commerce, as there was “no mention of cameras or video equipment” in the plea

colloquy, Appellant’s Br. 23, only an admission that the pornography was stored

on hard drives that had traveled in interstate commerce. Therefore, he argues

that the colloquy does not support a finding of a factual basis for the commerce

element of the charge of production of child pornography. We do not agree.

Under Federal Rule of Criminal Procedure 11(b)(3), “[b]efore entering

judgment on a guilty plea, the court must determine that there is a factual basis

for the plea.” See United States v. Culbertson, 670 F.3d 183, 191 (2d Cir. 2012).

Rule 11(b)(3) requires the district court to “assure itself simply that the conduct to

which the defendant admits is in fact an offense under the statutory provision

under which he is pleading guilty.” Maher, 108 F.3d at 1524 (discussing the

predecessor to Rule 11(b)(3), Rule 11(f)). “In making its factual-basis

determination, the court is not required to rely solely on the defendant’s own

29
admissions,” id, and indeed the district court may turn to statements “of the

defendant, of the attorneys for the government and the defense, [or] of the

presentence report when one is available,” id., quoting Fed. R. Crim. P. 11,

Advisory Comm. Note (1974). Even “a reading of the indictment to the

defendant coupled with his admission of the acts described in it may provide a

sufficient factual basis for a guilty plea where the charge is uncomplicated, the

indictment detailed and specific, and the admission unequivocal.” United States

v. Garcia, 587 F.3d 509, 518 (2d Cir. 2009) (internal quotation marks omitted).

Using a minor in the production of child pornography is a federal crime as

defined by 18 U.S.C. § 2251(a) under certain circumstances involving interstate

commerce. A person commits this crime when the commerce element is satisfied

if he “employs, uses, persuades, induces, entices, or coerces any minor to engage

in . . . any sexually explicit conduct for the purpose of producing any visual

depiction of such conduct.” 18 U.S.C. § 2251(a). In Pattee’s case, the indictment

charged and the government contends that the commerce element was satisfied

because the visual depictions of the victim were “produced . . . using materials

that have been mailed, shipped, or transported in or affecting interstate or

foreign commerce.” 18 U.S.C. § 2251(a). As before, because Pattee failed to object

30
on the basis of a Rule 11 violation, here the alleged insufficiency of the factual

basis for the commerce element, we review the claim for plain error. See Vaval,

404 F.3d at 151.

“Producing” as it relates to child pornography is defined in 18 U.S.C.

§ 2256(3) as “producing, directing, manufacturing, issuing, publishing, or

advertising.” The definition is a starting point, but does not directly answer the

question of when “producing” begins and ends. In United States v. Holston, we

upheld a guilty plea to a violation of § 2251(a) where the plea agreement

specified that the video camera and videotapes used to produce the depictions of

sexually explicit conduct had been manufactured out of state. 343 F.3d 83, 84 (2d

Cir. 2003). That does not entirely resolve the question at hand, because Holston

did not decide whether the commerce element would have been satisfied if only

the videotapes, which are analogous to the hard drives in the instant case, had

been manufactured out of state. Our sister circuits have reached this issue,

however, and have held that production encompasses more than the device used

to capture the image or video. We find their reasoning instructive.

In United States v. Foley, the Seventh Circuit addressed a case similar to this

one, in which the government contended that the commerce element of § 2251(a)

31
was satisfied by evidence that the two seized hard drives containing the

pornography had been manufactured outside the United States. 740 F.3d 1079,

1081–86 (7th Cir. 2014). The government argued that the out-of-state hard drives

were materials used to “produce” the pornography. Id. at 1081–82. Foley

argued, as does Pattee here, that “the hard drives were insufficient to meet the

prosecution’s burden of proof on the commerce element of the production

charges because he had not ‘produced’ the images using the hard drives. His

theory [was] that he produced the images using only a camera and that later

transfers of the images to the hard drives were not part of the production

process.” Id. at 1082. Under this theory, “producing” would be interpreted

narrowly, “limited to the exact moment in time when the visual depiction of the

child is first captured on film or digital medium.” Id. at 1083. The Seventh

Circuit rejected this understanding as overly narrow and inconsistent with the

language of the statute, which indicates a broader prohibition on the means of

producing child pornography. Id. at 1085–86.

The First Circuit reached a similar conclusion in United States v. Poulin.

There, the defendant argued that the commerce element had not been met where

the government did not identify where on the “camera—recording device—disk

32
continuum” the “production” occurred, and argued that “‘production’ occurs

only in a recording device.” 631 F.3d 17, 22 (1st Cir. 2011). The court rejected

that argument, finding that “Congress did not intend so technical a definition of

the term ‘produced’ as [the defendant] would have it. . . . Congress intended a

broad ban on the production of child pornography and aimed to prohibit the

varied means by which an individual might actively create it.” Id. at 22–23. The

court noted that the text of the statute defines “producing” not simply as

capturing on film, but as “producing, directing, manufacturing, issuing,

publishing, or advertising.” Id. at 22, quoting 18 U.S.C. § 2256(3).

Returning to the instant case, during Pattee’s plea hearing, the district

court read the elements of the production count to Pattee, including the interstate

commerce element, and assured that he understood them. The court then

discussed the factual basis for the production count, that Pattee had “employed,

used, persuaded, or coerced . . . a minor child, to engage in sexually explicit

conduct,” and that he “took photographs of the child engaged in sexually explicit

conduct and stored the images on digital media that [he] possessed.” D.A. 11.

Pattee admitted that he had engaged in this conduct, and also admitted that the

33
“the digital media, including the desktop computer and the seven external hard

drives, were produced outside the State of New York.” Id. at 14.

Pattee argues that because he did not admit that the cameras or video

equipment used to produce the images had traveled in interstate commerce, the

commerce element has not been met, and that the hard drives cannot have been a

part of “producing” the pornography. By this logic, if police discovered a hard

drive manufactured out of state containing homemade child pornography, but

not the actual camera, the perpetrator would prevail at trial in a prosecution

under § 2251(a), because of a lack of proof that the means of production had

traveled in interstate commerce, at least unless the government could prove that

all cameras have traveled in interstate commerce. We agree with our sister

circuits, however, that Congress did not limit the “production” of child

pornography as prohibited by § 2251(a) to the moment of recording, and that

“production” can encompass embodying the images or video in digital media,

such as a hard drive or disk.8

8
It does not follow from this conclusion, however, that merely transferring or
copying a pornographic image that was produced by someone else is tantamount
to “producing” child pornography, such that simple possession, which typically
involves making a copy of a file to a hard disk or other medium, would qualify as
production. A violation of § 2251(a) requires proof that the individual

34
 Finally, Pattee argues that “the statutory provision allowing for the

interstate commerce nexus to be met when the pornography is produced with

equipment manufactured outside New York is not constitutionally adequate.”

Appellant’s Br. 23. But that argument is foreclosed by Holston, in which we held

that “[b]ecause much of the child pornography that concerned Congress is

homegrown, untraceable, and enters the national market surreptitiously, we

conclude that Congress, in an attempt to halt interstate trafficking, can prohibit

local production that feeds the national market and stimulates demand, as this

production substantially affects interstate commerce.” Holston, 343 F.3d at 90.

That is true even though “the interstate component underpinning the

jurisdictional element”—in this case, the hard drives—“is attenuated from the

criminal conduct—the production of child pornography—which occurs entirely

locally.” Id. at 89. This case cannot be distinguished in any meaningful way from

Holston, and Pattee has pointed to no intervening Supreme Court case abrogating

our decision. See Tanasi v. New All. Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015) (“A

“employed, used, persuaded, induced, enticed, or coerced any minor to engage
in . . . sexually explicit conduct,” which would not be the case for one who
possesses copies of child pornography created by someone else. See, e.g., Foley,
740 F.3d at 1085.

35
subsequent panel is bound by the decisions of a prior panel absent a ruling from

the Second Circuit sitting en banc or from the United States Supreme Court.”),

cert. denied, 136 S. Ct. 979 (2016).

Accordingly, the district court’s determination that there was a sufficient

factual basis for the plea was correct.

III. Pattee’s Sentence Was Not Procedurally or Substantively Unreasonable.

Pattee argues that his effective sentence of 47 years’ imprisonment is

procedurally and substantively unreasonable because the district court did not

conduct a sufficient analysis of the sentencing factors set forth in 18 U.S.C.

§ 3553(a) or consider the shortcomings that courts have identified in the

Guidelines regarding child pornography, and in particular the various

enhancements in U.S.S.G. § 2G2.2. See, e.g., United States v. Dorvee, 616 F.3d 174,

184 (2d Cir. 2010). We reject that argument.

Sentences imposed by the district courts are reviewed by this Court for

“reasonableness.” United States v. Booker, 543 U.S. 220, 261–62 (2005). A

sentencing court commits procedural error when it fails to calculate (or

incorrectly calculates) the Guidelines range, treats the Guidelines as mandatory,

fails to consider the sentencing factors set forth in § 3553(a), selects a sentence

36
based on clearly erroneous facts, or fails to adequately explain the chosen

sentence. United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). We

“will . . . set aside a district court’s substantive determination only in exceptional

cases where the trial court’s decision cannot be located within the range of

permissible decisions.” Id. at 189 (internal quotation marks omitted).

Regarding procedural unreasonableness, Pattee argues that the district

court did not give adequate weight to “the flawed Guideline structure in these

types of cases.” Appellant’s Br. 31. He relies heavily on our decision in Dorvee, in

which we noted that the sentencing guidelines for child pornography are

“fundamentally different from most and that, unless applied with great care,

[they] can lead to unreasonable sentences that are inconsistent with what § 3553

requires.” 616 F.3d at 184.

But the defendant in Dorvee was convicted only of distributing child

pornography. As serious as that offense is, it is not comparable to the offense

here, which included the active use of a minor to engage in sexual activities for

the purpose of producing child pornography. To put the matter bluntly, the

production count to which Pattee pled guilty is not a crime of looking at or even

distributing horrendous images, but is an offense involving the repeated sexual

37
abuse of a pre-pubescent child over a period of two years. The criminal conduct

driving Pattee’s sentence was the rape of a child, not simply the possession of

pornographic images, however offensive. Our concern in Dorvee about excessive

punishments or cascading enhancements for the possession of multiple images

has little bearing on the calculation of an appropriate sentence in a case of this

nature.

Pattee’s further procedural contention that the district court did not

consider the § 3553(a) factors is not borne out by the record. The district court

took great care to discuss the seriousness of the crime, the harm to the victim,

and the need to “deter others from engaging in this conduct and to protect the

public from further conduct by [Pattee] as well.” G.A. 60. Each of these factors is

specifically referenced in § 3553(a). A sentencing court does not have to parse

every sentencing factor under § 3553(a), or address each of the defendant’s

arguments regarding various factors, for a sentence to be procedurally

reasonable. United States v. Rigas, 583 F.3d 108, 119 (2d Cir. 2009).

Regarding substantive unreasonableness, Pattee simply cannot establish

that the sentence of 47 years was outside the permissible range of decisions, nor

was it “shockingly high, shockingly low, or otherwise unsupportable as a matter

38
of law.” Id. at 123. Given the circumstances of this offense, particularly the abuse

of a minor child and photographing of that abuse to produce child pornography,

the district court was well within its discretion in imposing a sentence that

effectively amounts to life in prison. Accordingly Pattee’s claim of substantive

reasonableness fails.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

39