IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-8338
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST SCHMELTZER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
April 23, 1992
Before WISDOM, JONES, and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Ernest Schmeltzer appeals from his sentence
following a plea of guilty on his second offense of knowingly
possessing a magazine depicting a minor engaging in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(2).
Schmeltzer raises several claims of error in the court's applica-
tion of Sentencing Guidelines and seeking return of certain seized
goods, invokes the court's mandamus power. The sentencing issues
are, however, overridden by the fact that Schmeltzer and the
government could not enter into, and the court should not have
approved, a plea bargain that ignored the mandatory minimum
sentence applicable to the offense of conviction. Accordingly, we
vacate the sentence, after making a minor modification on the
nature of the plea, as agreed by the parties, and remand for
further proceedings.
BACKGROUND
In December of 1990, the Federal Bureau of Investigation
became aware of Schmeltzer's considerable involvement with child
pornography. A confidential witness, assisting with the FBI's
investigation, met with Schmeltzer at his home where Schmeltzer
showed the confidential witness a video tape depicting sexual abuse
and torture of young girls. Schmeltzer told the witness that the
girls were approximately thirteen years old and had been kidnapped
or tricked into appearing in the tape. Schmeltzer told the witness
that he had many other video tapes of this nature. Schmeltzer also
related his recent trip to the Republic of China, and told the
witness that he had engaged in sexual activities with a young girl
there whom he estimated to be no older than thirteen years of age.
On a subsequent visit Schmeltzer showed the confidential witness a
video tape which he described as a "snuff film." This film
depicted the kidnapping, mutilation, and murder of an oriental
female. Schmeltzer told the witness that many snuff films could be
obtained in Mexico, and that girls were available in Mexico for the
production of such films. Schmeltzer asked the witness to contact
friends in Mexico to assist him in the search for pre-pubescent
girls. Schmeltzer told the witness that he wished to use girls in
a film in which they would engage in sexual conduct with adult
males, and that he would be able to sell these films for as much as
$5,000 each.
2
Based on information supplied by the confidential witness
the FBI was able to obtain a search warrant for Schmeltzer's home.
That warrant was executed on January 8, 1991. The search yielded
numerous items, including video equipment, sexual devices or
paraphernalia, several hundred magazines and video tapes, corre-
spondence concerning the "home-made production of video tapes
involving children engaged in sexual activities," and numerous
photographs of pre-pubescent children engaging in sexually explicit
acts. The pornographic items graphically depicted perverse acts.
The material portrayed both pre-pubescent and pubescent minors
engaging in sexual intercourse and deviant sexual behavior, as well
as pre-pubescent and pubescent minors engaging in various forms of
sexual contact with adults. One of the seized pictures contained
a note, handwritten by the defendant, that described various sado-
masochistic and heinous sexual acts he wished performed upon
children.
FBI agents also found sexual material identical to that
seized from the defendant in 1987, and leading to his prior
conviction for possession of child pornography, under the same
statute as charged in the instant offense. At the time of the 1991
search of Schmeltzer's home, he was still on federal probation from
his earlier child pornography conviction.
Subsequent to the search and seizure of these materials,
FBI agents contacted other witnesses who confirmed Schmeltzer's
substantial involvement with child pornography. Following his
arrest, Schmeltzer admitted that he was a collector of child
3
pornography materials and had been for approximately twenty years.
Schmeltzer was laconic when confronted with the contents of the
various materials seized from his home; he denied ever viewing the
video tapes that he showed to the confidential witness during the
witnesses visits to Schmeltzer's home.
A federal grand jury indicted Schmeltzer for six counts
of various child pornography offenses. After plea negotiations
with the United States attorney, Schmeltzer entered a guilty plea
to the first count of the indictment: knowingly possessing a
visual depiction that had been shipped or transported in interstate
or foreign commerce and depicting a minor engaging in explicit
sexual conduct. Schmeltzer also agreed not to contest revocation
of probation in his prior child pornography conviction, and he
agreed to forfeit all seized pornographic materials. In addition
to dismissing the remaining counts of the indictment, the govern-
ment agreed to recommend a two-point reduction in the offense level
for acceptance of responsibility. The government also agreed not
to seek the maximum statutory penalty of fifteen years, as provided
by 18 U.S.C. § 2252(b)(1).
Schmeltzer's guilty plea to a violation of 18 U.S.C. §
2252(a)(2) qualified him for a base offense level of thirteen. The
U.S. probation officer, in his pre-sentence report, recommended a
two-level increase pursuant to United States Sentencing Commission
Guidelines (U.S.S.G.) § 2G2.2(b)(1), as a specific offense
characteristic, because the offense involved material depicting a
pre-pubescent minor or a minor under the age of twelve years. The
4
court accepted the recommendation and added two levels for an
offense level of fifteen. The pre-sentence report also recommended
that Schmeltzer not receive a two-level decrease for acceptance of
responsibility. U.S.S.G. § 3E1.1. The court found that Schmeltzer
had not accepted responsibility and refused to grant the two-level
reduction. The total offense level of fifteen, combined with
Schmeltzer's criminal history category of two, resulted in the
guideline range of a sentence of twenty-one to twenty-seven months.
The pre-sentence report also recommended a four-level
upward adjustment under Application Note Four of U.S.S.G. § 2G2.2.
That provision suggests "[i]f the defendant sexually abused a minor
at any time, whether or not such sexual abuse occurred during the
course of the offense, an upward departure is warranted." The
court granted the recommended upward departure and sentenced
Schmeltzer to thirty-nine months,1 citing as his primary reason the
fact that Schmeltzer had in his possession the same pornography
depicting minors in sexual conduct for which he was convicted in
1987. The court also stated that he was departing from the
guidelines because Schmeltzer had engaged in sexual abuse of a
minor as contemplated in Application Note Four. Schmeltzer
challenges these sentencing determinations.
After the initial appellate briefs were filed, we
directed the parties to address the minimum sentence for a second
conviction under 18 U.S.C. § 2252(a)(2). Title 18 U.S.C. §
1
Schmeltzer was required to serve a consecutive twenty-
one-month sentence for violation of probation.
5
2252(b)(2) establishes a maximum penalty of fifteen years, and
mandates a minimum sentence of five years for a second conviction.
Our resolution of this question obviates the need to consider the
sentencing issues initially presented for review.
MINIMUM MANDATORY PENALTY UNDER § 2252(b)(2)
Schmeltzer urges that the U.S. Attorney's promise to not
seek the sentencing enhancement provision of §2252(b)(2) obliged
the trial court to refrain from imposing the minimum mandatory
penalty of five years. In support, Schmeltzer cites several cases,
including this court's decision in Petition of Geisser, 627 F.2d
745 (5th Cir. 1980), cert. denied, 450 U.S. 1031 (1981) and Geisser
v. United States, 513 F.2d 862 (5th Cir. 1975).
In Geisser, the government became obliged to use its best
efforts to refrain from deporting Geisser to Switzerland, a country
where she was under a sentence of imprisonment for patricide.
However, the government's assurance -- had it been literally
realized -- would have abrogated an international treaty. This
court initially required the government to exercise greater
diligence in satisfying its bargain with Geisser. After much
diplomatic wrangling and numerous court proceedings, the government
claimed that it had expended its "best efforts," but was unable to
persuade the Swiss government to relent in its pursuit of Geisser.
This court agreed and Geisser was extradited to Switzerland. The
Second Circuit relied on the first Geisser decision to free a
defendant who had received a prosecutor's assurance of a limited
sentence when the prosecutor was powerless to fulfill such promise,
6
beyond asserting influence on parole officials. Palermo v. Warden,
545 F.2d 286 (2d Cir. 1976), cert. dism'd, 431 U.S. 911 (1977).
Neither of these cases rises to Schmeltzer's aid. The
government ultimately fulfilled its bargain with Geisser -- best
efforts were extended. Palermo represents a more difficult case;
Palermo received an "ultra vires" promise from the prosecutor,
which the court ordered fulfilled. Similarly, the U.S. Attorney
prosecuting Schmeltzer was wholly without authority to ignore the
minimum mandatory sentence. While Schmeltzer's counsel was
understandably anxious about the maximum penalty, the trial record
suggests that both prosecution and defense counsel viewed the
explicit minimum mandatory provision as being susceptible to
negotiation. Notwithstanding, Palermo is factually distinguishable
from the case at bar. The U.S. attorney fulfilled his promise to
Schmeltzer: the government did not seek the enhanced penalty.2
2
Schmeltzer ties this claim to an allegation that the
prosecutor reneged on a promise to recommend a two-level decrease
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.
We examine such claims with particular scrutiny. The record
shows that the prosecutor recommended, in the course of the
sentencing hearing, that Schmeltzer be granted the two-level
reduction. Notwithstanding the prosecutor's recommendation to
the court, the pre-sentence report indicated that Schmeltzer was
almost lackadaisical and demonstrated little, if any, contrition
for his conduct. After the prosecutor recommended the two-level
reduction, the sentencing hearing continued and Schmeltzer was
given the opportunity to speak. At the close of Schmeltzer's
remarks, the prosecutor responded, noting for the court that
Schmeltzer's excuses and justifications hardly evidenced an
acceptance of responsibility.
The prosecutor was merely rejoining to an extended
soliloquy during which Schmeltzer charged many causes and parties
for his offenses. Schmeltzer's speech to the court was scarcely
indicative of acceptance of responsibility. After Schmeltzer
concluded, the court stated: "I have heard Mr. Schmeltzer and I
think Mr. Schmeltzer himself at this time is not totally sure
7
Quite beyond the factual disparity between the instant
case and those cited by Schmeltzer is the unequivocal language of
the Sentencing Guidelines:
Where a statutorily required minimum sentence
is greater than the maximum of the applicable
guideline range, the statutorily required
minimum sentence shall be the guideline
sentence.
U.S.S.G. § 5G1.1(b). We are bound to enforce this provision. U.S.
v. Stewart, 879 F.2d 1268, 1272 (5th Cir.), cert. denied, 493 U.S.
899 (1989); United States v. Roberson, 872 F.2d 597, 606 (5th
Cir.), cert. denied, 493 U.S. 861 (1989). Even if Schmeltzer's
sentence were otherwise reasonable and in accord with the
particular provisions of the guidelines, we must reverse a sentence
imposed in contravention of the Sentencing Guidelines'
incorporation of minimum mandatory penalties. See United States v.
Hernandez, 943 F.2d 1, 2 (5th Cir. 1991) (incorrect application of
guidelines requires reversal, even if sentence is otherwise
reasonable). All of the United States Courts of Appeals have
agreed that statutorily mandated sentences are incorporated into
the Sentencing Guidelines and prevail over the guidelines when in
apparent conflict.3 Thus, we cannot give our imprimatur to the
that he has accepted responsibility." We cannot accept
Schmeltzer's argument that the government breached the plea
agreement in this regard.
3
E.g., United States v. Hall, 943 F.2d 39, 40 (11th Cir.
1991); United States v. Rodriguez, 938 F.2d 319, 320 (1st Cir.
1991); United States v. Gonzales, 930 F.2d 795, 796 (10th Cir.
1991); United States v. Larotonda, 927 F.2d 697, 698 (2nd Cir.
1991); United States v. Blackwood, 913 F.2d 139, 144 n.3 (4th
Cir. 1990); United States v. McCaleb, 908 F.2d 176, 177 (7th Cir.
1990); United States v. Adonis, 891 F.2d 300, 302 (D.C. Cir.
8
government's attempted end run around the minimum mandatory
sentence. That the government actually urged the court to sentence
below the statutory minimum is, in our view, a serious breach of
its duty to enforce the law Congress wrote.
FORFEITURE
Schmeltzer concedes that the government may retain
pornographic video tapes, magazines, photographs, and sexual
paraphernalia, as well as properties either used to commit or
promote the events where traceable to the profits or proceeds
obtained from the events, pursuant to 18 U.S.C. §§ 2252 and 2254.
However, Schmeltzer challenges the government's failure to return
certain other items of property including non-pornographic
photographs of his children and family. Schmeltzer asks the court
to invoke our mandamus power to compel the district court to order
the immediate return of those items. We decline to do so. The
district court noted, when posed with a similar request, that the
government was in the process of administratively forfeiting the
contraband items, and the remaining property would be returned to
Schmeltzer at the conclusion of that process. Any intervention in
the administrative process would be premature.
CONCLUSION
1989); United States v. Sharp, 883 F.2d 829, 831 (9th Cir. 1989);
United States v. Taylor, 882 F.2d 1018, 1032 (6th Cir. 1989),
cert. denied, 110 S.Ct. 256 (1990); United States v. Donley, 878
F.2d 735, 741 (3rd Cir. 1989), cert. denied, 110 S.Ct. 1528
(1990); United States v. Savage, 863 F.2d 595, 600 (8th Cir.
1988), cert. denied, 490 U.S. 1082 (1989).
9
It is improbable that our decision will end the case.
Schmeltzer indicates that he will probably seek to void the plea
bargain on remand. Notwithstanding, our mandate is clear. One
final item remains to be resolved; both Schmeltzer and the
government request that the judgment be reformed to reflect that
Schmeltzer was found guilty of "possession," rather than
"receiving," a visual depiction of a minor engaging in sexually
explicit conduct, that had been transported in interstate and/or
foreign commerce. The judgment shall be altered to reflect this
change. We vacate Schmeltzer's sentence as inconsistent with the
minimum sentence prescribed for a second conviction under 18 U.S.C.
§ 2252(a)(2), (b)(2), and remand for further proceedings.
MODIFIED in part, VACATED and REMANDED in part.
10