United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FILED
March 14, 2006
_____________________
Charles R. Fulbruge III
No. 04-51110 Clerk
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN KENNETH COIL,
Defendant-Appellant.
__________________
Appeal from the United States District Court
For the Western District of Texas
__________________
Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
John Kenneth Coil appeals his conviction and sentence
following unconditional guilty pleas to charges of a violation of
18 U.S.C. § 1465 for transportation of obscene materials in
interstate commerce for sale or distribution, and a violation of
18 U.S.C. § 1341 for mail fraud by mailing a false IRS Form 1040.
Coil argues on appeal that the District Court erred by (1)
imposing a sentence above the statutory maximum and in violation
of Booker; (2) denying Coil’s motions to suppress evidence
obtained pursuant to a search warrant which Coil claims is
facially invalid; and (3) enforcing 18 U.S.C. § 1465, which Coil
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claims is unconstitutional under Lawrence v. Texas, 539 U.S. 558
(2003). We disagree that the district court erred in denying the
motions to suppress or in enforcing § 1465, and therefore affirm
Coil’s conviction. We agree with Coil, however, that we should
vacate Coil’s sentence and remand for resentencing in light of
Booker and the relevant statutory maxima.
I.
Coil first argues, in reliance on United States v. Booker,
543 U.S. 200 (2005), that the district court violated the Sixth
Amendment in imposing enhancements to his sentence under a
mandatory Guidelines scheme based on facts not admitted by him or
found by a jury beyond a reasonable doubt. Because Coil
preserved his claim of Booker error by making a proper objection,
and the Government concedes that the error was not harmless, we
vacate the sentence and remand for resentencing. See United
State v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
Coil also argues that the district court erred in imposing a
sentence above the statutory maxima. The district court imposed
a sentence of 63 months on the mail fraud count, noting that this
was the lower end of the guidelines calculation. The court
ordered the sentence to run concurrently with the 60-month term
of imprisonment imposed for the obscenity count. The district
court acknowledged that the statutory maximum was 5 years on the
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obscenity count, but failed to note that the same statutory
maximum applied to the mail fraud offense as well. The
Government concedes that the 63-month sentence imposed for the
mail fraud count exceeds the statutory maximum of 60 months, as
provided in § 1341 at the time of the offense. This error is
plain and affects Coil’s substantial rights and also affects the
fairness, integrity, and public reputation of judicial
proceedings. See United States v. Olano, 507 U.S. 725,731-37
(1993). Therefore, even if remand and resentencing were not
warranted on the basis of the Booker error discussed above, we
would vacate and remand for resentencing on the mail fraud
offense within the statutory limits.
II.
Coil next argues that the district court erred in denying
his motions to suppress evidence recovered pursuant to a warrant
he claims was facially invalid. The government argues that Coil
waived the right to challenge the denial of his motions to
suppress by entering an unconditional guilty plea.1 As the
government argues, the issue of whether Coil reserved the right
to appeal the District Court’s denial of his motion to suppress
1
Although Coil claims in his original brief that in his plea
agreement he did not “waive his right to appeal the denial of
pretrial motions or other matters,” he has not filed a reply brief
or challenged the government’s assertion that he did not enter a
conditional plea or otherwise preserve an appeal of the denial of
his motions to suppress.
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was not raised at rearraignment. The written plea agreement does
not reserve the right to challenge the denial of the motions to
suppress.
An unconditional guilty plea waives all non-jurisdictional
defects in the trial court proceedings. United States v. Bell,
966 F.2d 914, 915 (5th Cir. 1992). An erroneous pretrial ruling
is a non-jurisdictional defect that is waived by an unconditional
guilty plea. See United States v. Wise, 179 F.3d 184, 186 (5th
Cir. 1999) (denial of motion to suppress waived by unconditional
guilty plea). A district court need not inform defendant that
his guilty plea operates as a waiver of the right to appeal non-
jurisdictional pretrial rulings. Id. at 186-87.
The record does not reflect any reservation by Coil of the
right to challenge the district court’s evidentiary ruling on
appeal. Coil waived the right by entering an unconditional
guilty plea, and therefore we will not consider the merits of his
argument. See Bell, 966 F.2d at 915-17.
III.
Coil argues, for the first time on appeal, that 18 U.S.C. §
1465—the statute under which he was convicted for transportation
of obscene materials for sale or distribution—is unconstitutional
in the wake of the Supreme Court’s decision in Lawrence v. Texas,
539 U.S. 558 (2003). He argues that § 1465 violates the
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substantive due process rights of individuals to possess obscene
materials in their homes, a fundamental right to privacy he
contends was established in Stanley v. Georgia, 394 U.S. 557, 568
(1969). Coil asserts that he has standing to challenge the
constitutionality of § 1465 because he is a vendor of adult
materials, asserting the privacy rights of those who would
purchase such materials.2
Coil asserts that neither the Supreme Court nor this court
have addressed “whether the fundamental right to privacy called
for strict scrutiny of any statutes criminalizing the
transportation or distribution of obscenity involving only
consenting adults.” Instead, Coil takes the position that
Stanley and its progeny, i.e., United States v. Reidel, 402 U.S.
351 (1971), United States v. Thirty-Seven (37) Photographs, 402
U.S. 363 (1973), United States v. 12 200-Ft. Reels of Super 8mm
2
Although the government does not concede that Coil has standing
to assert the privacy rights of those would purchase his obscene
materials, it does not offer a serious argument to rebut standing.
The Supreme Court has consistently upheld the standing of vendors
to challenge the constitutionality of statutes on their customers’
behalf where those statutes are directed at the activity of the
vendors. See, e.g., Carey v. Population Services International,
431 U.S. 678, 682-84 (1977) (holding that a mail-order seller of
non-medical contraceptives had standing to argue that a state
statute prohibiting the distribution of non-medical contraceptives
violated its customers’ substantive due process rights to use such
contraceptives); Craig v. Boren, 429 U.S. 190, 195 (1976) (holding
that a beer seller had standing to challenge a state statute on
behalf of certain underage customers); see also United States v.
Extreme Assocs., Inc., 431 F.3d 150, 155 (3d Cir. 2005)(holding
that vendor of obscene materials had standing to challenge federal
obscenity statute on behalf of customers).
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Film, 413 U.S. 123 (1973), United States v. Orito, 413 U.S. 139
(1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973),
were decided solely on First Amendment Ground, rather than on
privacy grounds under the Substantive Due Process Clause. Coil
relies heavily on the reasoning of an opinion of the United
States District Court for the Western District of Pennsylvania,
since reversed, holding that § 1465 affects the fundamental
rights of privacy and free speech under the First and Fifth
Amendment, and that, after Lawrence, the government lacks any
compelling interest in regulating the distribution of obscene
materials to consenting adults. United States v. Extreme
Assocs., 352 F. Supp. 2d 578, 595-96 (W.D. Pa. 2005), rev’d, 431
F.3d 150 (3d Cir. 2005).
As Coil concedes, because he failed to raise this issue in
the district court, review is for plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1420 (5th Cir. 1996) (en
banc); see also United States v. Knowles, 29 F.3d 947, 950 (5th
Cir. 1994) (review is for plain error when defendant fails to
raise a constitutional challenge to a penal statute in the
district court). To establish plain error, Coil must show that
(1) there is an error, (2) the error is clear or obvious, and (3)
the error affects his substantial rights. See United States v.
Olano, 507 U.S. 725, 731-37 (1993). A conviction based upon an
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unconstitutional statute is both “plain” and “error.” Knowles,
29 F.3d at 951.
The Third Circuit addressed precisely the argument proffered
by Coil when it reversed the decision upon which Coil primarily
relies. See United States v. Extreme Assocs., 431 F.3d 150, 155-
59 (3d Cir. 2005). Our sister circuit’s conclusion rested in
relevant part on two points.
First, we are commanded by the Supreme Court that “[i]f a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas v.
Shearson/American Express Inc., 490 U.S. 477, 484 (1989). The
Court reaffirmed this command in Agostini v. Felton, 521 U.S.
203, 237 (1997), stating, “[w]e do not acknowledge, and we do not
hold, that other courts should conclude our more recent cases
have, by implication, overruled an earlier precedent.”
The Fifth Circuit has consistently followed the Supreme
Court’s admonition in Rodriguez and Agostini. See, e.g., Singer
v. City of Waco, 324 F.3d 813, 817-18 (5th Cir. 2003), rehearing
and rehearing en banc denied, 67 Fed. Appx. 250 (5th Cir. Apr 22,
2003), and cert. denied, 540 U.S. 1177 (2004); U.S. v. Rodriguez-
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Montelongo, 263 F.3d 429, 434-35 (5th Cir. 2001); Randell v.
Johnson, 227 F.3d 300, 301 (5th Cir. 2000), cert. denied, 532
U.S. 971 (2001). We apply the same rule to Coil’s claim.
Second, the Supreme Court has consistently and explicitly
upheld the constitutionality of federal statutes regulating the
distribution of obscenity in cases following Stanley. See
Reidel, 402 U.S. at 351; Thirty-Seven Photographs, 402 U.S. at
363; Orito, 413 U.S. at 139; 12 200-Ft. Reels, 413 U.S. at 123.
The Court has stated clearly that the right recognized in Stanley
to possess obscene material within the home “does not mean” that
there is a correlative right to distribute that material, Thirty-
Seven Photographs, 402 U.S. at 376, and that it “does not
require” the Court to fashion a right to distribute, Reidel, 402
U.S. at 356.
The Court most emphatically rejected Coil’s theory in Paris
Adult Theatre, where it concluded:
If obscene material ... carried with it a ‘penumbra’ of
constitutionally protected privacy, this Court would
not have found it necessary to decide Stanley on the
narrow basis of the ‘privacy of the home,’ which was
hardly more than a reaffirmation that a man's home is
his castle.... Moreover, we have declined to equate
the privacy of the home relied on in Stanley with a
‘zone’ of ‘privacy’ that follows a distributor or a
consumer of obscene materials wherever he goes.
Paris Adult Theatre, 413 U.S. at 66. Finally, the Court
indicated it had “reaffirmed [its] holding” that “commerce in
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obscene material is unprotected by any constitutional doctrine of
privacy.” Id. at 69.
In the absence of a contrary ruling from the Supreme Court,
Stanley’s progeny upholding the constitutionality of the
obscenity laws against attacks based on both the First Amendment
and substantive due process controls our resolution of Coil’s
claims. We agree with the Third Circuit that the Supreme Court’s
decision in Lawrence does not render § 1465 unconstitutional, and
we therefore affirm his conviction.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
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