IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2009
No. 08-10791 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JAMES L. RUDZAVICE,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
James Rudzavice was convicted in a bench trial for one count of knowingly
receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count
of attempting to transfer obscene material to a minor under the age of 16 in
violation of 18 U.S.C. § 1470. On appeal, Rudzavice argues that: (1) the district
court erred in refusing to acquit him of the charge of violating § 1470 because he
did not attempt to transfer obscene materials to an individual who was in fact
under the age of 16; (2) § 1470 is unconstitutionally vague because it fails to
define the terms “obscene” and “sexual conduct”; (3) he should have received an
offense-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1;
No. 08-10791
and (4) the district court erred by failing to adequately explain its sentence in
terms of the factors in 18 U.S.C. § 3553(a). We affirm.
I
A grand jury indicted James L. Rudzavice for one count of knowingly
receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count One)
and one count of attempting to transfer obscene material to a minor under the
age of 16 in violation of 18 U.S.C. § 1470 (Count Two). Two additional counts
sought forfeiture of various computer equipment allegedly used in the offenses.
Rudzavice signed a plea agreement with the Government in which he pleaded
guilty only to Count One of the indictment and pleaded true to the forfeiture
provisions, and in exchange, the Government agreed to dismiss Count Two. The
Probation Office prepared a Presentence Report (PSR). The statutory maximum
sentence on Count One was 20 years.1
At the sentencing hearing, the court rejected the plea agreement,
expressing concern that the dismissal of Count Two “would prevent the Court
from going as high as the advisory guidelines indicate would be appropriate as
a sentence in this case, which would be for 324 to 405 months.” Rudzavice
decided to persist in his plea of guilty to Count One and pleas of true to the
forfeiture allegations.
Rudzavice moved to dismiss Count Two, arguing that the statute’s use of
the word “obscene” was unconstitutionally vague. At a hearing on the matter,
the district court also questioned whether the statute could be violated when the
person receiving the materials was not actually under the age of 16, and the
court ordered the Government to brief both issues. The Government filed a brief
in opposition to Rudzavice’s motion, and the district court denied the motion.
1
See 18 U.S.C. § 2252(b)(1).
2
No. 08-10791
Rudzavice waived his right to a jury trial and agreed to a stipulation of
evidence. The case proceeded to trial, and the district court received the
stipulation of facts into evidence along with 31 stipulated Government exhibits.
The Government called only one witness, Agent Katherine Smith, who described
her undercover conversation with Rudzavice in an internet chat room and the
images Rudzavice sent to her during the conversation. She also confirmed on
cross-examination that she was not under the age of 16 at the time the
conversation transpired. At the conclusion of the trial, Rudzavice moved for
acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that venue
was improper; no evidence of the community standards of El Paso, Texas, was
presented; the images sent by Rudzavice were not in fact obscene; and that the
court had to acquit Rudzavice of Count Two because the person to whom he
attempted to transfer the materials was not in fact under age 16 at the time.
The court denied the motion and found Rudzavice guilty.
The Probation Office prepared a revised PSR. Rudzavice filed several
written objections, including an objection to the denial of an offense-level
reduction for acceptance of responsibility. The Probation Office recommended
that the reduction not be granted because Rudzavice “did not discuss his offense
of conviction with this probation office, other than his stipulation to the court.”
Rudzavice filed a written response to the PSR Addendum, maintaining that
credit for acceptance of responsibility should be applied. The Government took
no position on whether the reduction should be granted.
At sentencing, Rudzavice again objected to the denial of a reduction for
acceptance of responsibility, but the court overruled the objection. The court
adopted the PSR, and, after hearing Rudzavice’s attorney make a lengthy
argument for a downward departure or a below-Guidelines sentence based on
the 18 U.S.C. § 3553(a) factors, the court denied the motion for downward
departure and the alternate request for sentencing variance. The court
3
No. 08-10791
sentenced Rudzavice to terms of imprisonment of 240 months for Count One and
120 months for Count Two, to run consecutively, in accordance with the
Guidelines. The court also ordered Rudzavice to serve concurrent terms of
supervised release for life as to Count One and for two years as to Count Two.
On the Government’s motion, the court dismissed the forfeiture allegations.
Rudzavice timely filed a notice of appeal.
II
Rudzavice first argues that the district court erred in refusing to acquit
him of the charge of violating § 1470 because he did not attempt to transfer
obscene materials to an individual who was in fact under the age of 16. The
Government maintains that the statute’s proscription of attempted offenses
covers Rudzavice’s conduct and that Rudzavice’s interpretation of the statute
would require law enforcement to endanger an actual minor in apprehending
and prosecuting sexual predators like Rudzavice. Because Rudzavice moved for
a judgment of acquittal at the conclusion of the bench trial, we review de novo.2
Section 1470 provides that:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, knowingly transfers
obscene matter to another individual who has not
attained the age of 16 years, knowing that such other
individual has not attained the age of 16 years, or
attempts to do so, shall be fined under this title,
imprisoned not more than 10 years, or both.3
The facts stipulated by Rudzavice and the trial testimony of Agent Katherine
Smith of the Texas Attorney General’s Office established that Agent Smith
entered a chat room posing as a 15-year-old girl named Shelly, Agent Smith was
in fact 38 years old at the time, and Agent Smith received a chat message from
2
See United States v. Harris, 566 F.3d 422, 435 (5th Cir. 2009).
3
18 U.S.C. § 1470.
4
No. 08-10791
Rudzavice, to whom she identified herself as a 15-year-old girl from El Paso,
Texas. Rudzavice contends that these facts cannot support a conviction under
§ 1470.
This court has repeatedly rejected similar arguments in challenges to
convictions under other statutes that criminalize conduct aimed at minors.4 For
example, in United States v. Farner, we held that a person could commit the
offense of attempting to use a facility or means of interstate commerce to induce
or entice an individual younger than 18 years old to engage in prostitution or
any unlawful sexual activity even if the victim in the case was an adult,
undercover law enforcement officer.5 This court stated that “criminal attempt
cases” require “proof of two elements: first, that the defendant acted with the
kind of culpability otherwise required for the commission of the underlying
substantive offense, and, second, that the defendant had engaged in conduct
which constitutes a substantial step toward commission of the crime.” 6 “The
substantial step must be conduct which strongly corroborates the firmness of
[the] defendant’s criminal attempt.” 7 Because “Farner’s scheme, if fully carried
out as he ‘desired’ or ‘planned,’ was not to engage in sexual relations with an
adult FBI officer” but a 14-year-old girl, we affirmed Farner’s criminal attempt
conviction.8
4
See United States v. Hubbard, 480 F.3d 341, 346 (5th Cir. 2007) (“When a statute
criminalizes conduct because the victim or intended victim is a minor, we have held that it is
of no moment that the person with whom a defendant attempted to engage in prohibited
conduct was actually an adult as long as the defendant believed the intended victim to be a
minor . . . .”).
5
251 F.3d 510, 511-13 (5th Cir. 2001) (construing 18 U.S.C. § 2422(b)).
6
Id. at 513.
7
Id.
8
Id.
5
No. 08-10791
Rudzavice focuses on the language of § 1470 stating that the actor must
transfer images while knowing that such other individual “has not attained the
age of 16 years.” Rudzavice argues that this specific mens rea element requires
that the Government prove that the victim was under the age of 16 even when
the alleged offense was inchoate. We disagree.
The statute criminalizes an attempt to “transfer[] obscene matter to
another individual who has not attained the age of 16 years, knowing that such
other individual has not attained the age of 16 years.” 9 Rudzavice’s conduct was
an attempt to engage in precisely the prohibited conduct. Because Rudzavice,
like Farner, would have violated the law if his scheme were fully carried out as
he desired or planned, he is liable for criminal attempt under § 1470.10
III
Rudzavice next argues that § 1470 is unconstitutionally vague because it
fails to define the terms “obscene” and “sexual conduct.” The
“void-for-vagueness” doctrine “requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” 11 Whether a criminal statute is unconstitutionally
vague is a question of law, which we review de novo.12
9
18 U.S.C. § 1470.
10
Accord United States v. Spurlock, 495 F.3d 1011, 1013 (8th Cir. 2007) (rejecting the
argument that a criminal attempt conviction under § 1470 could not be supported where the
evidence showed that the victim was an adult, undercover officer); see also United States v.
Dodge, 554 F.3d 1357, 1359 n.2 (11th Cir. 2009) (stating in dicta that the court would reach
the same holding if the issue were raised), reh’g en banc granted and opinion vacated, 566 F.3d
976 (11th Cir. 2009).
11
Kolender v. Lawson, 461 U.S. 352, 357 (1983).
12
United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999).
6
No. 08-10791
Section 1470 prohibits the interstate transfer of “obscene matter” to an
individual under the age of 16.13 In Miller v. California, the Supreme Court
articulated a three-part test for determining whether material is “obscene” and
therefore falls outside the scope of First Amendment protections.14 Courts read
that test into federal obscenity statutes in order to construe them in a manner
consistent with the Constitution.15 Accordingly, the fact that § 1470 does not
specifically define the word “obscene” does not render it unconstitutionally
vague.
Nevertheless, Rudzavice argues that § 1470 is distinguishable from the
statutes construed as incorporating Miller, and therefore upheld as
constitutional, because § 1470 only prohibits “obscene” material whereas the
other statutes prohibited material that was “obscene, lewd, lascivious, indecent,
filthy or vile.” 16 However, this court has held that a local ordinance prohibiting
“the amplification of words or sounds that are ‘obscene,’ with no further
definition of that term” was not unconstitutionally vague when the term was
construed to conform to the requirements of the First Amendment as set forth
in Miller.17 Rudzavice’s claim is without merit.
13
18 U.S.C. § 1470.
14
413 U.S. 15, 24-25 (1973).
15
See Hamling v. United States, 418 U.S. 87, 105 (1974) (holding that 18 U.S.C. § 1461
incorporates Miller); United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 130
n.7 (1973) (incorporating Miller “[i]f and when such a ‘serious doubt’ is raised as to the
vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to
describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462”); United States v.
Thevis, 484 F.2d 1149, 1152 (5th Cir. 1973) (construing 18 U.S.C. § 1462 and noting that “[t]he
term ‘obscene’ as used in the statute is a legal term of art, not merely a generic or descriptive
term” and “has been the subject of much explication in Supreme Court opinions”).
16
See 18 U.S.C. § 1461.
17
Reeves v. McConn, 638 F.2d 762, 763-764 (5th Cir. 1981).
7
No. 08-10791
IV
Rudzavice’s final two contentions relate to his sentencing. Rudzavice
argues that he should have received an offense-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1. We “review[] a district court’s refusal to
reduce a defendant’s offense level for acceptance of responsibility under § 3E1.1
with a standard even more deferential than a purely clearly erroneous
standard.” 18 We will not disturb a district court’s ruling that a defendant is not
entitled to a sentencing reduction for acceptance of responsibility unless “it is
without foundation.”19
Section 3E1.1 provides for a reduction of the offense level “[i]f the
defendant clearly demonstrates acceptance of responsibility for his offense.”20
The commentary states:
2. This adjustment is not intended to apply to a
defendant who puts the government to its burden of
proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and
expresses remorse. Conviction by trial, however, does
not automatically preclude a defendant from
consideration for such a reduction. In rare situations a
defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he
exercises his constitutional right to a trial. This may
occur, for example, where a defendant goes to trial to
assert and preserve issues that do not relate to factual
guilt (e.g., to make a constitutional challenge to a
statute or a challenge to the applicability of a statute to
his conduct). In each such instance, however, a
18
United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003); see also United States
v. Spires, 79 F.3d 464, 467 (5th Cir. 1996) (“Because the trial court’s assessment of a
defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’
standard will nearly always sustain the judgment of the district court.”).
19
Washington, 340 F.3d at 227.
20
U.S.S.G. § 3E1.1 (2008).
8
No. 08-10791
determination that a defendant has accepted
responsibility will be based primarily upon pre-trial
statements and conduct.21
“The defendant bears the burden of proving entitlement to a decrease in offense
level for acceptance of responsibility.” 22
Rudzavice argues that he is entitled to a reduction for acceptance of
responsibility because the only reason he went to trial was to make a
constitutional challenge to § 1470 and to challenge the applicability of the
statute to his conduct. Rudzavice further argues that he cooperated with the
police twice before he was ever indicted, and that, prior to trial, he had
stipulated to every element the court ruled necessary to convict him of the
offense.
We cannot conclude that the district court’s refusal to grant the reduction
in offense levels is without foundation. Although Rudzavice argues that the only
reason he went to trial was to make a constitutional challenge to § 1470 and to
challenge the applicability of the statute to his conduct, Rudzavice moved for a
judgment of acquittal at the end of the trial on the grounds that there was
insufficient evidence to establish the elements of the offense.23 Rudzavice argued
that there was insufficient evidence of the community standards that would
apply in this case and that there was insufficient evidence that the images were
21
U.S.S.G. § 3E1.1 cmt. n.2 (2008).
22
United States v. Ragsdale, 426 F.3d 765, 781 (5th Cir. 2005).
23
See United States v. Cordero, 465 F.3d 626, 632 (5th Cir. 2006) (considering the fact
that the defendant had “moved for a judgment of acquittal at the end of the trial ‘on the
grounds that the Government . . . failed to prove its case beyond a reasonable doubt’” in
determining that the defendant had not “proven his entitlement to an acceptance-of-
responsibility reduction”).
9
No. 08-10791
“obscene with regard to the community standard anywhere in the United
States.” By making these arguments, Rudzavice challenged his factual guilt.24
Rudzavice also could have avoided a full trial by asking for a conditional
plea under Federal Rule of Criminal Procedure 11(a)(2) after the district court
ruled on his constitutional and applicability arguments and denied his motion
to dismiss.25 This further undermines Rudzavice’s argument that the only
reason he went to trial was to make a constitutional challenge to § 1470 and to
challenge the applicability of the statute to his conduct.26 Under these
circumstances, we will not disturb the district court’s denial of a reduction for
acceptance of responsibility.
V
Rudzavice also argues that the district court erred by failing to explain
adequately its sentence in terms of the factors in § 3553(a). Rudzavice never
challenged the sentence as unreasonable in the district court on this basis, and
therefore we review for plain error only.27 To establish plain error, the appellant
must show an error that is clear or obvious and that affects his substantial
rights.28 If the appellant makes such a showing, we have the discretion to
24
See Ragsdale, 426 F.3d at 782 (holding that defendants who went to trial to dispute
whether materials satisfied the obscenity test under Miller were challenging their factual
guilt, and therefore not “qualif[ied] for a sentencing credit under the rare circumstance where
the defendant proceeds to trial but can still qualify for a § 3E1.1 reduction”).
25
See United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999) (“Conditional pleas may
be permitted, and this is the usual procedural avenue for preserving the defendant’s objection
to a dispositive pretrial ruling and obviating the need for a full trial.”).
26
See United States v. Farias, 469 F.3d 393, 400 (5th Cir. 2006) (noting that the
defendant “did not go to trial to preserve his plea agreement argument—after the court ruled
on that issue, he could have asked for a conditional plea allowing him to appeal that ruling,
a request he never made,” and concluding that “[t]he court’s refusal to find acceptance of
responsibility was not without foundation”).
27
See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).
28
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
10
No. 08-10791
correct the error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.29
In this case, Rudzavice’s attorney argued at length during the sentencing
hearing for a below-Guidelines sentence based on the § 3553(a) factors, in
addition to having filed sentencing memoranda urging the same. The district
court expressly rejected these arguments, and then proceeded to announce its
sentencing decision after Rudzavice declined to make a personal statement. In
addition, the court’s written statement of reasons states that “[t]he sentence is
within the advisory guideline range, and the court finds no reason to depart.”
In Rita v. United States, the defendant argued for a below-Guidelines
sentence based on the § 3553(a) factors.30 The Supreme Court held that district
court’s statement of reasons was legally sufficient where the record revealed that
the judge listened to each of the defendant’s arguments and stated simply that
the district court found the Guidelines sentencing range more “appropriate” than
a sentence below the Guidelines range.31 Similarly, the district court here
considered Rudzavice’s arguments for a lower sentence, expressly overruled
them, and stated that the Guidelines range was more appropriate. The district
court’s explanation of its sentencing decision was not plain error, and it did not
affect Rudzavice’s substantial rights.
* * *
Therefore, for the reasons discussed above, we AFFIRM the district court’s
judgment.
29
Id.
30
551 U.S. 338, 358 (2007).
31
Id.
11