United States v. Coil

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,

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

1
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.

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.