United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 27, 2000 Decided June 16, 2000
No. 99-3113
United States of America,
Appellee
v.
Harry A. Ginyard, a/k/a Brett Scott,
a/k/a H. A. Ginyard,
a/k/a Brett S. Ginyard,
a/k/a Brett Scott Ginyard,
a/k/a Brett Ginyard,
a/k/a Brett D. Scott,
a/k/a Brett Douglas Scott,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00424-01)
---------
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for the appellant. A.J. Kramer, Federal
Public Defender, was on brief. David A. Howard, Assistant
Federal Public Defender, entered an appearance.
Amul R. Thapar, Assistant United States Attorney, argued
the cause for the appellee. Wilma A. Lewis, United States
Attorney, and John R. Fisher and Roy W. McLeese, III,
Assistant United States Attorneys, were on brief.
Before: Edwards, Chief Judge, Henderson and Rogers,
Circuit Judges.
Opinion for the court filed Per Curiam.
Concurring opinion filed by Circuit Judge Henderson.
Per Curiam: Appellant Harry Ginyard pleaded guilty to
one count of receiving materials depicting a minor engaged in
sexually explicit conduct in violation of 18 U.S.C. s 2252(a)(2)
and one count of wire fraud in violation of 18 U.S.C. s 1343.
In return, the government agreed to a sentence of 18 months'
incarceration and $63,464.88 restitution. Ginyard entered his
guilty plea pursuant to a written plea agreement within the
scope of Rule 11(e)(1)(C) of the Federal Rules of Criminal
Procedure. The district court provisionally accepted the plea
agreement pending review of the presentence report. After
reviewing the presentence report the court rejected the pro-
posed prison term but accepted the parties' subsequent oral
agreement providing for a 24 month sentence. It then sen-
tenced Ginyard without objection to 24 months' incarceration,
$63,464.88 restitution, a $200 special assessment and three
years' supervised release. The court also continued its pre-
trial order restricting Ginyard's computer use and telephone
communications during his imprisonment. Ginyard chal-
lenges two aspects of his sentence, arguing that the district
court violated the Rule 11(e)(1)(C) plea agreement by impos-
ing a term of supervised release not included therein and
lacked authority to restrict his computer use and telephone
communications in prison. We conclude that although the
district court appears to have erred in imposing the term of
supervised release, the error was invited and, in any event,
does not constitute "plain error" on this record. Additionally,
as both parties agree, the district court's restriction on Gin-
yard's computer and telephone use in prison is beyond its
authority and we therefore vacate that portion of the sen-
tence.
I.
Between 1991 and 1997, Ginyard made contact with various
women through internet chat rooms, electronic mail and the
telephone. Using several aliases, Ginyard initiated what he
falsely represented as "committed relationship[s]" and lied
about his background, employment and income. Govern-
ment's Memorandum Statement of Facts 2 (May 10, 1999).
At one point Ginyard was engaged to marry at least two
different women and was involved in "serious romantic rela-
tionship[s]" with others. Status Call Tr. 5/12/99 at 21. Gin-
yard took control of each woman's finances for his own
financial benefit and forced at least one woman into bankrupt-
cy. Following Ginyard's arrest, the FBI searched Ginyard's
computer files and discovered approximately 35 visual images
which he had received through an internet chat program
depicting a female under the age of 18 years engaged in
sexually explicit conduct. On December 8, 1998 Ginyard was
indicted on seven counts of wire fraud in violation of 18
U.S.C. s 1343 and eight counts of mail fraud in violation of 18
U.S.C. s 1341. On May 7, 1999 the government filed a
superseding information charging Ginyard with receipt of
materials depicting a minor engaged in sexually explicit con-
duct in violation of 18 U.S.C. s 2252(a)(2).
On May 11, 1999 Ginyard agreed to plead guilty to one
count of wire fraud and one count of receiving child pornogra-
phy. In return the government agreed to a sentence of 18
months' imprisonment and $63,464.88 restitution and agreed
to request dismissal of the remaining indictment counts and
not to bring additional charges. On that date the parties
entered into a written plea agreement under Rule 11(e)(1)(C).
The plea agreement recited as a "justifiable reason[ ]" to
depart from the sentence Ginyard faced under the United
States Sentencing Guidelines (Guidelines) the desire to spare
Ginyard's victims the adverse consequences from trial.1 At
the plea hearing held on May 12, 1999 the district court
informed both parties that it was not "prepared to accept any
plea agreement that binds [it] to a sentence of eighteen
months." Id. at 5. Nevertheless, the district court provision-
ally accepted the plea agreement pending receipt of the
presentence report as allowed under Rule 11(e)(2).
On August 3, 1999, after reviewing the presentence report,
the district court rejected the plea agreement, declaring that
18 months' imprisonment did "not protect the public for the
maximum period of time that it could be protected for."
Sentencing Tr. 8/3/99 at 31. The government then asked
whether the district court would be willing to accept the plea
if "appellant were willing to be sentenced within a range."
Id. at 33. Ginyard asked the district court for "some guid-
ance as to what sentence it would be comfortable with." Id.
at 34-35. The district court responded that it "could in good
conscience live with the figure of twenty-four months." Id. at
35. The court then recessed the hearing so the parties could
negotiate the sentence. After the recess the following ex-
change occurred:
DEFENSE: Your Honor, Mr. Ginyard is prepared to
take a twenty-four month plea, or sentence I should say,
and we can see no need to have another hearing. We are
prepared to go forward at this time.
COURT: And does the government agree to that as
well?
PROSECUTOR: Yes, Your Honor.
COURT: Mr. Howard, I think under the Rules of Crimi-
nal Procedure your client has the right to speak, al-
though given the agreements I am not sure that anything
__________
1 According to section 6B1.2(c) of the Guidelines (Standards for
Acceptance of Plea Agreements (Policy Statement)) the district
court "may accept the [Rule 11(e)(1)(C) plea] agreement if the court
is satisfied ... that ... the agreed sentence departs from the
applicable guideline range for justifiable reasons."
can change. But just to make sure that the Rules are
completely complied with, if he wishes to speak I do
believe that he has the right under the Federal Rules.
DEFENSE: We decline, Your Honor.
COURT: The sentence in this case will be a sentence of
twenty-four months in custody.
DEFENSE: Should he come forward, Your Honor?
....
COURT: Yes, he should. I am sorry. Twenty-four
months in custody. There will be a period of supervised
release of three years. There will be a special assess-
ment of $200. There will be restitution, and this is, I
believe, under the plea agreement as well, of $63,464.88,
and the probation department will have to work out the
details of the restitution.
Id. at 36-37. The court also continued the pretrial order
which prohibited Ginyard from using computers and allowed
him, while imprisoned, telephone contact with family mem-
bers and counsel only. In addition, the court prohibited
Ginyard during supervised release from having contact with
any of his victims or entering an internet chatroom and
allowed him to use a computer only for professional real
estate purposes. Ginyard made no objection below to any
aspect of his sentence. He now appeals the supervised
release component of his sentence, claiming that it is aliunde
the plea agreement, as well as the computer and telephone
restrictions during imprisonment.
II.
Ginyard challenges the district court's authority to vary
from the provisions of the Rule 11(e)(1)(C) plea agreement by
imposing a term of supervised release in addition to the
sentence of imprisonment and restitution specified therein.
Because Ginyard failed to object to the imposition of super-
vised release below, we review for plain error only. See
United States v. Blackwell, 694 F.2d 1325, 1340 (D.C. Cir.
1982) (plain error review of defendant's argument not raised
below that district court "breached" plea agreement); see
also United States v. Watley, 987 F.2d 841, 847 n.6 (D.C. Cir.
1993) (plain error review of district court's unobjected to
failure to inform defendant of supervised release prior to
accepting plea agreement). A sentencing error is plain
"where it is obvious under settled law and would result in
grave prejudice or a miscarriage of justice if not corrected on
appeal." United States v. Drew, 200 F.3d 871, 879 (D.C. Cir.
2000) (internal quotation marks and quotation omitted).
Ginyard entered into the plea agreement pursuant to Rule
11(e)(1)(C), which provides that the government "agree that a
specific sentence or sentencing range is the appropriate dis-
position of the case."2 The plea agreement "is binding on the
court once it is accepted by the court." Fed. R. Crim. P.
11(e)(1)(C).
The court may accept or reject a Rule 11(e)(1)(C) plea
agreement or "may defer its decision as to the acceptance or
rejection until there has been an opportunity to consider the
presentence report." Fed. R. Crim. P. 11(e)(2). The court
may not, however, "participate in any discussions between the
parties concerning any such plea agreement." Fed. R. Crim.
P. 11(e)(1)(C). At the May 12 plea hearing the district court
deferred its decision to accept the plea agreement pending
review of the presentence report. At the August 3 sentenc-
ing hearing, after reviewing the presentence report, the dis-
trict court rejected the plea agreement. See Sentencing Tr.
8/3/99 at 32. The district court then allowed the parties to
confer on an alternate sentence of imprisonment and eventu-
ally Ginyard stated that he was "prepared to take [sic] a
twenty-four month plea." Id. at 36.3 Had it been clear that
__________
2 Rule 11(e)(1)(C) was amended effective December 1, 1999 while
this appeal was pending. We quote from and apply the rule as
amended since our holding would be the same under either version.
See Langraf v. USI Film Prods., 511 U.S. 244, 275 & n.29 (1994).
3 The district court correctly indicated that its participation in
arriving at an acceptable sentence under the plea agreement was
"an uncomfortable conversation" in light of Rule 11(e)(1). Sentenc-
ing Tr. 8/3/99 at 35.
the parties were tendering a plea that specified only a 24-
month term of incarceration, the district court's imposition of
a term of supervised release would have been error.4 Super-
vised release is punishment, see United States v. Gilchrist,
130 F.3d 1131, 1133 (3d Cir. 1997) (quoting United States v.
Dozier, 119 F.3d 239 (3d Cir. 1997)), and therefore part of the
"sentence" within the meaning of Rule 11(e)(1)(C). See Unit-
ed States v. Jamison, 934 F.2d 371, 373-74 (D.C. Cir. 1991)
("sentence" in statute authorizing imposition of supervised
release, 18 U.S.C. s 3583(a), includes both imprisonment and
supervised release). Rule 11(e)(1)(C) also makes clear that
the agreed-to sentence constitutes the "disposition" of the
case, precluding the imposition of additional punishment.
Thus, if supervised release is not specified as part of the
sentence in a Rule 11(e)(1)(C) plea agreement, it cannot be
imposed.
Here, however, the district court's acceptance of the 24-
month term was ambiguous. On the one hand, the district
court could have understood the parties to have agreed to a
guideline sentence that included the normally-attendant term
of supervised release. See U.S.S.G. s 5D1.1(a). Under this
interpretation of the court's acceptance, it did not breach the
plea agreement.
On the other hand, the record provides some support for
Ginyard's view that the parties had not agreed to a term of
supervised release when they amended the Rule 11(e)(1)(C)
plea agreement, and under this interpretation of the court's
acceptance, it did breach the agreement by imposing such a
term as part of the sentence. Because the record is ambigu-
ous on this point, we cannot say the district court plainly
erred. Assuming, however, that the district court erroneous-
ly amended the plea agreement by varying the terms without
__________
4 The government's failure to include both the supervised release
and the special assessment components, see U.S.S.G. s 5E1.3 &
Application Note 2A; 18 U.S.C. s 3013, in the plea agreement,
which it acknowledged at oral argument is standard procedure, is
troubling and may have led the district court astray in the first
instance.
the parties' agreement, Ginyard invited the error when he
solicited the district court's opinion on an acceptable sentence
and then negotiated, through counsel, the restrictions of
supervised release. See Sentencing Tr. 8/3/99 at 34-35 (DE-
FENSE: "I don't know if the court feels comfortable giving
us some guidance as to what sentence it would be comfortable
with, but otherwise I guess it would be--it would come down
to sort of a bidding process where we come back and say
twenty months, or twenty-two, something of that nature. So
if the court could provide some guidance."); id. at 43 (DE-
FENSE: "And if the court were maybe to restrict [Gin-
yard's] use of the internet to matters related to real estate
during that period [supervised release], then that may be a
reasonable middle ground."). If a defendant invites error by
the district court, he is "barred from complaining about it on
appeal." United States v. Harrison, 103 F.3d 986, 992 (D.C.
Cir. 1997); cf. United States v. Wiggins, 530 F.2d 1018, 1020
(D.C. Cir. 1976). More important, Ginyard failed to object to
the district court's imposition of supervised release, and,
assuming the district court erred in doing so, it did not plainly
err.
Finally, both parties agree that the district court lacked
statutory authority to restrict Ginyard's computer and tele-
phone use during confinement. See Appellee's Br. 21-22 &
n.11; Reply Br. 11 n.5; United States v. Sotelo, 94 F.3d 1037,
1040-41 (7th Cir. 1996) ("[B]ecause there is no federal law
authorizing an incarceration-communication restriction as
part of a sentence ordered by a district court ..., the district
court lacked the authority to impose the restriction."). Ac-
cordingly, we vacate the portion of the sentence imposing
restrictions on Ginyard's telephone and computer use in
prison. In all other respects, Ginyard's sentence is affirmed.
So ordered.
Karen LeCraft Henderson, Circuit Judge, concurring in
part:
While I agree that the district court did not plainly err in
imposing supervised release, I do not believe that the error
was invited. See In re Sealed Case, 108 F.3d 372, 374 (D.C.
Cir. 1997) ("Appellant may have acquiesced in what he now
claims is error, but he did not invite it.") (citing United States
v. Harrison, 103 F.3d 986, 992 (D.C. Cir. 1997)). After the
district court rejected the plea agreement, Ginyard did seek
its input in the plea discussions. In response, the district
court reluctantly, but nevertheless erroneously,1 declared that
it "could in good conscience live with a [sentence] of twenty-
four months." Sentencing Tr. 8/3/99 at 35. This error (which
was invited), however, did not extend to the district court's
separate imposition of supervised release after Ginyard
agreed to the 24-month term of imprisonment. See id. at 36.
Once the district court imposed supervised release, Ginyard
did not object but, again, his conduct more resembled acqui-
escence than invitation.
Whether the district court erred at all depends, in my
opinion, not on the ambiguous nature of the district court's
acceptance of the plea agreement as my colleagues believe,
see Per Curiam Op. 6-7, but on the wording of Rule
11(e)(1)(C). While I agree that our holding is "the same
under either version," id. at 6 n.2, that is so only because our
review is for plain error. But I do not agree that the
amended version has not effected a change that could, de-
pending on the language of the plea agreement, change the
results on appeal.
Under the unamended version of Rule 11(e)(1)(C) the gov-
ernment may agree "that a specific sentence is the appropri-
ate disposition of the case." This is the version under which
Ginyard was sentenced and, as we have recognized, see
United States v. Jamison, 934 F.2d 371, 373-74 (D.C. Cir.
1991), because supervised release is part of the sentence, the
district court's acceptance of Ginyard's plea agreement (as
amended) bound the court to its terms. See United States v.
__________
1 See Fed. R. Crim. P. 11(e)(1)(C) ("The court shall not participate
in any discussions between the parties concerning any such plea
agreement.").
Blackwell, 694 F.2d 1325, 1363-64 (D.C. Cir. 1982). I there-
fore agree with my colleagues that, "assuming the district
court erred ..., it did not plainly err," Per Curiam Op. 8, and
I therefore join in affirming the district court.
But Rule 11(e)(1)(C) now allows the parties to agree in-
stead that a "particular provision of the Sentencing Guide-
lines ... is or is not applicable to the case."2 With respect to
this language, the advisory committee notes state, "the gov-
ernment and defense ... actually agree[ ] on what amounts to
an appropriate sentence or ... agree[ ] to one of the specified
components." Fed. R. Crim. P. 11(e) advisory committee's
note (1999) (emphasis added). If the plea agreement fails to
address a specific provision of the Guidelines, particularly a
mandatory one, the district court's acceptance of a Rule
11(e)(1)(C) plea agreement would not, in my view, prohibit it
from imposing the unaddressed "component" of the sentence.
The Guidelines require a district court to "order a term of
supervised release to follow imprisonment when a sentence of
imprisonment of more than one year is imposed." U.S.S.G.
s 5D1.1. The district court may depart from the mandate of
section 5D1.1 only if, inter alia, supervised release is not
required "to protect the public welfare." Id., Application
Note 1.3 Here the district court made no finding that super-
__________
2 Rule 11(e)(1)(C) as amended also allows the government to
"agree that a specific ... sentencing range is the appropriate
disposition of the case" (amended language emphasized). "Range"
refers, in my opinion, only to the term of imprisonment. See
U.S.S.G. s 1B1.1(g) (Application Instruction to "determine the
guideline range ... that corresponds to the offense level and
criminal history category") & (h) (Application Instruction to deter-
mine "[f]or the particular guideline range, ... the sentencing
requirements and options related to ... supervision conditions");
U.S.S.G. s 5A, Application Note 1 ("The intersection of the Offense
Level and Criminal history Category displays the Guideline Range
in months of imprisonment.") (emphases added). A supervised
release departure, however, is governed by section 5D1.1, Applica-
tion Note 1.
3 Application Note 1 includes four other bases on which to decline
to impose supervised release, none of which is applicable here.
vised release was not necessary to protect the public welfare.
Cf. United States v. Atkins, 116 F.3d 1566, 1572 n.8 (D.C. Cir.
1997) ("[A] departure from the applicable Guidelines range
must be supported by 'specific reasons explaining the extent
of [the] departure.' ") (quoting United States v. Perkins, 963
F.2d 1523, 1528 (D.C. Cir. 1992)) (citation omitted) (emphasis
added).4 On the contrary, the fact that the court restricted
Ginyard's computer use and contact with his victims during
supervised release manifests that it thought supervised re-
lease was necessary. With no reason not to, the district court
would have been required to impose supervised release.
Therefore, had Ginyard been sentenced under Rule
11(e)(1)(C) as amended, I believe that the district court's
imposition of supervised release after imprisonment would
not have been error.5
__________
4 The Atkins and Perkins holdings involved departures from the
Guidelines "range," that is, the applicable imprisonment period.
See supra n.2.
5 Interestingly, Ginyard did not challenge the district court's
failure to advise him of the mandatory supervised release term
before accepting his plea. According to the record, the court failed
to mention both supervised release and the mandatory $100 assess-
ment per felony conviction before the court's conditional acceptance
at the May 12 plea hearing. See Fed. R. Crim. P. 11(c)(1) ("Before
accepting a plea ..., the court must address the defendant person-
ally in open court and inform the defendant of, and determine that
the defendant understands ... that the court is required to consid-
er any applicable sentencing guidelines but may depart from those
guidelines under some circumstances."); see also United States v.
Watley, 987 F.2d 841, 847 n.6 (D.C. Cir. 1993) ("The government
concedes that the district court entirely overlooked one Rule 11(c)
specification [before accepting guilty plea]: that the court did not
inform Watley of the supervised release term he might receive.").
Had the two conditions been set out in the plea agreement, see Per
Curiam Op. at 7 n.4, the court a might well have recited them to
Ginyard before conditionally accepting his guilty plea.