Barber v. United States

Opinion

USCA1 Opinion

August 23, 1993       [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1090

RICHARD I. BARBER,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Frank H. Freedman, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Richard I. Barber on brief pro se.
               _________________
               A.  John  Pappalardo,  United  States  Attorney,  and  Kevin
               ____________________                                   _____
          O'Regan, Assistant United State Attorney, on brief for appellee.
          _______

__________________

                                  __________________

Per Curiam.   This is an  appeal from the  district
                      __________

            court's denial of  appellant's motion under 28  U.S.C.   2255

            for post-conviction relief.  We affirm.

                                    I. Background
                                       __________

                      On January 18, 1991, appellant-defendant Richard I.

            Barber pleaded guilty to  the sexual exploitation of a  child

            in  violation of 18 U.S.C.    2251(a).   The underlying facts

            are  uncontested.    On  August  7,  1990,  Postal  Inspector

            Terrence A. Loftus was informed that a commercial photography

            lab in  Virginia had developed pornographic  photographs of a

            child.     The  film   bore  a   return  address   of  Barber

            Publications,  P.O. Box  892  in North  Adams, Massachusetts.

            Appellant  retrieved the  film at  the post  office  in North

            Adams on August 9, 1990.  Inspector Loftus followed appellant

            home  and arrested  him.    During  a  subsequent  search  of

            appellant's home, Loftus discovered the child depicted in the

            photographs.  She indicated that she was eleven years old and

            had been living with  appellant.  Inspector Loftus instructed

            appellant to appear in court in Springfield, Massachusetts on

            August 10, 1990.  He failed to appear and was arrested almost

            two weeks later in Connecticut.

                      On October  2, 1990, appellant was  indicted on one

            federal charge of  the sexual  exploitation of a  child.   He

            originally pleaded not guilty,  but offered a change of  plea

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on January  18, 1991.1  Appellant was  represented by counsel

            at  his change of plea hearing and at his sentencing hearing.

            The plea  agreement provided  that in return  for appellant's

            guilty plea, the government would recommend a sentence at the

            lower end  of  the sentencing  guidelines  range.   The  pre-

            sentence  report  ["PSR"]   identified  the  applicable  base

            offense  level  ["BOL"] as  25, pursuant  to    2G2.1  of the

            Guidelines.   The  PSR recommended that the BOL  be increased

            by 2 levels  because the victim  was under 12  years of  age,

            pursuant to   2G2.1(b)(1).  It further increased the BOL by 2

            levels because appellant had abused  a position of public and

            private trust, and by 2 levels for his obstruction of justice

            by failing to appear  in court as instructed  at the time  of

            his arrest and  fleeing to  Connecticut.    Finally, the  PSR

            recommended a 2 level reduction for appellant's acceptance of

            responsibility,  resulting  in a total  offense level of  29.

            Applying a criminal history category of I, the PSR arrived at

            an applicable guideline sentencing range of 87 to 108 months.

            At the  sentencing hearing on March 15,  1991, the government

            recommended  a  sentence of  87  months  and three  years  of

            supervised release.  The  district court, in consideration of

            the  severe  circumstances and  the  hardship  to the  child,

____________________

            1.  In addition to the federal charge, appellant also pleaded
            guilty  to state  charges  of non-forcible  rape of  a child,
            child pornography,  indecent assault  and battery on  a child
            under 14 and unnatural and lascivious acts.

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imposed  a   sentence  of  108  months,   plus  three  years'

            supervised release.

                      Appellant filed a  motion for  resentencing on  the

            grounds that the district  court failed to ask him  if he had

            read the PSR before  sentencing and if he had  any objections

            thereto.   The district court  denied the motion.   Appellant

            then filed a motion under 28 U.S.C.  2255 for post-conviction

            relief  on  the  following   grounds:  1)  the  court  lacked

            jurisdiction because appellant did not  intend the film to be

            placed in interstate commerce;  2) appellant was coerced into

            consenting to a search of his home in violation of the Fourth

            Amendment;   3) appellant received  ineffective assistance of

            counsel at the  pretrial and sentencing  phases of the  case;

            and 4)  the court violated Fed. R. Crim. P. 11.  The district

            court denied the motion. On appeal,  appellant re-asserts his

            jurisdictional,  ineffective assistance  of counsel, and Rule

            11 arguments.    We reject each argument in turn.

                                   II. Jurisdiction
                                       ____________

                      Appellant argues that 18 U.S.C.   2251(a) requires,

            as  an  element  of  the  offense,  intent  that  the  visual

            depictions at  issue be  transported in interstate  commerce.

            He  alleges  that  he  mailed  the  film  to  an  address  in

            Massachusetts and did  not know  or intend that  it would  be

            transported  in interstate  commerce.   The  language of  the

            statute,  however,  clearly  does  not  require  intent  with

            respect  to the requirement  that the film  be transported in

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interstate  commerce or  mailed.   Section 2251  provides, in

            relevant part, as follows:

                      Any person who . . . uses . . . any minor
                      to engage in, with  the intent that  such
                      minor  engage  in  any sexually  explicit
                      conduct for the  purpose of producing any
                      visual depiction of  such conduct,  shall
                      be punished as provided  under subsection
                      (d), if such  person knows or  has reason
                      to  know that such  visual depiction will
                      be transported in  interstate or  foreign
                      commerce  or mailed,  or  if such  visual
                                            ___________________
                      depiction  has actually  been transported
                      _________________________________________
                      in  interstate  or  foreign  commerce  or
                      _________________________________________
                      mailed.
                      _______

            Appellant  does  not deny  that  the  pictures were  actually

            mailed  and transported in  interstate commerce.   Therefore,

            appellant's offense  is clearly  punishable under    2251 and

            the  district  court did  not  err  in rejecting  appellant's

            argument that jurisdiction was lacking.2

                       III.  Ineffective Assistance of Counsel
                             _________________________________

                      Appellant argues that representation was inadequate

            in  three  respects, asserting  that:  1)  counsel failed  to

            determine whether    2251(a)  was applicable to  his offense,

            resulting  in a denial of  due process; 2)  counsel failed to

            object to  the trial court's  alleged failure to  comply with

            the  requirements  of  Fed.  R.  Crim.  P.  11  in  accepting

            appellant's  change of plea; and  3) counsel failed to object
                                
            ____________________

            2.    Appellant suggests that a requirement of scienter  with
            respect to  the mailing or interstate commerce element of the
            offense  is   constitutionally  required.    We  reject  that
            argument.  See United States v. Esch, 832 F.2d 531, 536 (10th
                       ___ _____________    ____
            Cir.  1987)  (fact  that     2251  does  not  require  intent
            regarding  the  mailing  element  does  not  render   statute
            unconstitutional), cert. denied, 485 U.S. 908 (1988).
                               ____  ______

                                         -5-

to the  court's application  of the sentencing  guidelines in

            imposing appellant's sentence.

                      In Hill  v. Lockhart, 474  U.S. 52, 57  (1985), the
                         ____     ________

            Court held that  the two-part test  adopted in Strickland  v.
                                                           __________

            Washington, 466 U.S. 668  (1984), also applied to ineffective
            __________

            assistance  claims  arising  out of  the  plea  process.   As

            applied  to  such  claims, Strickland  requires  appellant to
                                       __________

            show,  first,  that  counsel  failed  to  provide  assistance

            "within  the range  of  competence demanded  of attorneys  in

            criminal  cases." McMann  v.  Richardson, 397  U.S. 759,  771
                              ______      __________

            (1970) (quoted in Hill v. Lockhart, 474 U.S. at 56).  Second,
                              ____    ________

            to satisfy  the prejudice requirement,  appellant "must  show

            that  there  is  a   reasonable  probability  that,  but  for

            counsel's errors, he would not have pleaded  guilty and would

            have  insisted on going to trial." Hill v. Lockhart, 474 U.S.
                                               ____    ________

            at 59.

            A.  Application of   2251  
                _____________________

                      Appellant first argues that his counsel  was remiss

            in failing to advise him that his conduct did not fall within

            the charge.   Since we  find appellant's actions  to be  well

            within the scope of   2251 this argument fails. 

                      Appellant seems to contend  - although his brief on

            appeal is unclear  - that  he was not  properly charged  with

            violating   2251  because he  did not "exploit"  a child,  he

            lacked  the  requisite mens  rea,  the  photographs were  not

            pornographic, and  he did  not intend the  photographs to  be

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reproduced or sold.    Therefore, he asserts  that he was not

            involved   in  the   production  and   trade  of   commercial

            pornography that the statute was intended to curb.

                      Appellant was charged with  using a minor to engage

            in  sexually explicit  conduct for  the purpose  of producing

            photographs   of  such   conduct,   which  photographs   were

            transported in interstate commerce  and mailed.   Appellant's

            conduct, as described by the government at the change of plea

            hearing  and uncontested  by appellant,  clearly fell  within

            this charge.  See Rodriguez v. Clark Color Laboratories,  921
                          ___ _________    ________________________

            F.2d 347, 349 (1st Cir. 1990) ("The language of Sections 2251

            and 2252 has been  held to be  clear and unambiguous.")   The

            district  court viewed  the  photographs at  the hearing  and

            determined  that  they  were   pornographic.    Contrary   to

            appellant's  argument,    2251(a)  does  not  require that  a

            defendant intend  the photographs  to be reproduced  or sold.

            It is sufficient that the defendant intend to use  a minor to

            engage  in  sexually  explicit  conduct for  the  purpose  of

            producing photographs.   See United States v.  Esch, 832 F.2d
                                     ___ _____________     ____

            531, 536 (10th  Cir. 1987)  (18 U.S.C.    2251(a) contains  a

            scienter requirement in that it requires proof that defendant

            used a minor to engage in sexual conduct "for the purpose of"

            producing a picture of such conduct), cert.  denied. 485 U.S.
                                                  ____   ______

            908 (1988).   Since appellant  does not dispute  that he  had

            such  an  intent his  activities  were properly  found  to be

            within the statute's scope.

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B.  Application of Rule 11  
                ______________________

                      Appellant's   second    argument   supporting   his

            ineffective  assistance claim concerns his attorney's failure

            to object that the district court did not comply with several

            subsections of  Fed. R. Crim.  P. 11  at his  change of  plea

            hearing.    Since  we  find  that the  district  court  fully

            complied with the requirements of Rule 11, this argument also

            fails.  We address each alleged violation separately.

                      1.  Rule 11(f)
                          __________

                      Appellant complains that the district  court failed

            to  make "such inquiry  as shall satisfy  it that there  is a

            factual  basis for the plea," as required  by Rule 11(f).  To

            determine the plea's factual basis, the court asked appellant

            himself whether  he did the  acts charged in  the indictment.

            Appellant responded  in the  affirmative.  The  court further

            asked  the government to  present the evidence  it would have

            offered against  the defendant  had the  case gone  to trial.

            Finally,  the  court  viewed  the photographs  at  issue  and

            determined that they were pornographic.  The court thus fully

            complied with Rule 11(f).

                      2.   Rule 11(c)(1)
                           _____________

                      Next,  appellant  argues  that  the  district court

            failed to inform him  of "the nature of  the charge to  which

            the  plea  is  offered"  and the  "maximum  possible  penalty

            provided by law,  including the effect of any  special parole

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or supervised  release term,"  as required by  Rule 11(c)(1).

            The court informed appellant  of the nature of the  charge to

            which  the   plea  was  offered  by   reading  the  one-count

            indictment at the change of plea hearing.  Appellant told the

            court, in response to questioning,  that he had been  advised

            by his attorney of the nature of the charges  against him and

            the maximum penalty provided by law.  The court also informed

            appellant  of the maximum penalty provided by law.  The court

            did not inform appellant of "the effect of any special parole

            or supervised release  term," Fed. R.  Crim. P. 11(c)(1),  in

            other  words, that  a supervised  release term  not exceeding

            three years could be imposed.  However, appellant  has failed

            to  allege prejudice, that is, that he would not have pleaded

            guilty if  he  had been  informed of  the supervised  release

            term.   Therefore, counsel's failure to object that the court

            had  not  complied  with  Rule 11(c)(1)  did  not  constitute

            ineffective assistance of counsel.

                      3. Rule 11(e)(4)
                         _____________

                      Appellant  also  argues  that  the  district  court

            failed to comply with Rule 11(e)(4).  The rule requiresthat -

             where the  court rejects a  plea agreement  - the  defendant

            must be  given an  opportunity to  withdraw his guilty  plea.

            That requirement  did  not come  into play  here because  the

            court  did  not reject  the plea  agreement.   The  court did

            reject  the government's  recommendation  that  appellant  be
                                      ______________

            sentenced  at the low end  of the guideline  range.  However,

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the court's failure to follow the government's recommendation

            is not the same  as its rejection of  the agreement.   "[O]ur

            cases  clearly bar any relief merely  because a judge refuses

            to accept  the sentence  recommendations of a  prosecutor, so

            long as the defendant has not been misled."  United States v.
                                                         _____________

            Valencia-Copete, 792 F.2d  4, 7  (1st Cir. 1986).   The  plea
            _______________

            agreement  specifically   noted  in  paragraph  3  that  "the

            sentence  imposed may be less severe or more severe than that

            recommended by the United States Attorney's Office, and . . .

            Mr. Barber may  not withdraw his plea  solely as a  result of

            the sentence imposed."   Thus, the court did not violate Rule

            11(e)(4).

                      4. Rule 11(d)
                         __________

                      Finally,  appellant  complains  that  the  district

            court failed  to comply with its obligation to determine that

            the plea was voluntary pursuant to Rule 11(d).  At the change

            of  plea  hearing, the  court  asked  appellant  a series  of

            questions  to determine  that the  plea did  not result  from

            threats or  promises of  leniency, that no  specific sentence

            had been  promised and that  appellant was not  on medication

            and  had not been under psychiatric care.  Appellant told the

            court  that  his  plea  of  guilty  was  "entirely  free  and

            voluntary."

            C.  Application of Sentencing Guidelines 
                ____________________________________

                       Appellant's  final  argument  in  support  of  his

            ineffective assistance of counsel  claim is that his attorney

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erred  in  failing  to  object  to  the  application  of  the

            sentencing guidelines.  Appellant contends that the court, in

            sentencing him, erroneously  applied the 1990 Guidelines,  in

            effect at the  time of his  sentencing (March, 1991),  rather

            than  the 1989  Guidelines,  in effect  at  the time  of  his

            offense (August,  1990).3  He  further argues that  the court

            applied the wrong BOL.

                      Ordinarily,   the   version   of   the   sentencing

            guidelines  in effect  at  the time  of sentencing  controls.

            However, "where  the application of the  Guidelines in effect

            at the time of sentencing raises an  ex post facto concern, .
                                                 __ ____ _____

            . .  the court applies the  version in effect at  the time of

            the crime's  commission." United States v.  Cousens, 942 F.2d
                                      _____________     _______

            800,  801  n.1  (1st Cir.  1991).    The  application of  the

            Guidelines  raises  an  ex   post  facto  concern  where  the
                                    __   ____  _____

            Guidelines  have  changed in  a  way  that disadvantages  the

            defendant. See Miller v. Florida, 482 U.S. 423, 430 (1987).  
                       ___ ______    _______

                      The change that appellant complains of in this case

            is not to the language of the relevant Guideline section, but

            to  the commentary  to  that section.    The section  of  the

            Guidelines at issue is   3C1.1, which was applied to increase

            appellant's  offense  level  by  two  levels  for  "willfully

            obstructing or  impeding proceedings."  Section  3C1.1 itself

            is identical in the  1989 Guidelines in effect at the time of
                                
            ____________________

            3.    The PSR  specifically  noted that  it applied  the 1989
            Guidelines  because  they  resulted  in  a  lower   guideline
            sentencing range than the 1990 Guidelines.

                                         -11-

the offense and the 1990 Guidelines in effect at the time  of

            sentencing.  The application  notes to that section, however,

            are  slightly  different.    The  PSR,  in  recommending  the

            increase,  specifically referred to  application note 3(e) of

            the 1990  Guidelines, which lists "escaping  or attempting to

            escape from custody before  trial or sentencing, or willfully

            failing to appear, as ordered, for  a judicial proceeding" as

            an  example of  the  type of  conduct  to which  the  section

            applies.  That  specific example is  not listed in the   1989

            version  of the  Guidelines in  effect at  the time  that the

            offense was committed.   We have held,  however, that "flight

            after arrest constituted an  obstruction of justice under the

            1989 version of  the Guidelines."  United States v. McCarthy,
                                               _____________    ________

            961 F.2d 972, 980 (1st  Cir. 1992).  Therefore, there was  no

            error  in  the court's  two-level  upward  adjustment of  the

            offense level under   3C1.1.

                      Appellant  also argues that  his attorney's failure

            to object that the  wrong BOL was applied in  calculating his

            guideline sentencing range constitutes ineffective assistance

            of counsel.   A BOL of  25 was used to  calculate appellant's

            guideline  sentencing range.    That BOL  was  dictated by   

            2G2.1, which applies a BOL of 25  to the offense of "sexually

            exploiting a minor by  production of sexually explicit visual

            or  printed  material."   The Guideline  section specifically

            refers to violations  of 18  U.S.C.   2251(a)  as within  its

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ambit.   Appellant argues  that a BOL  of 13,  pursuant to   

            2G2.2, ought to have been applied.

                      Appellant's only ground  for arguing  that    2G2.1

            was  erroneously applied is that the commentary to   2G2.1 in

            the 1989  Guidelines provided that  "[t]his offense  commonly

            involves   the  production  source  of  a  child  pornography

            enterprise."    Appellant  argues  that because  he  was  not

            involved  in  a child  pornography  enterprise,    2G2.1  was

            inapplicable.   We  disagree.   The   commentary to  the 1989

            Guidelines explains  that it is the exploitation  of a minor,

            rather  than   the   involvement  in   a  child   pornography

            enterprise, that justifies the higher BOL under    2G2.1 than

            under   2G2.2, which imposes a BOL of 13 for the distribution

            of sexually explicit material  after production.4  Given that

            the offense charged involved the exploitation of a minor, and

            not  merely  the  transportation   of  the  photographs,  the

            district  court did not err in  applying   2G2.1 to arrive at

            appellant's BOL  of 25.  Therefore,  appellant's attorney did

____________________

            4.  The commentary reads as follows:

                 This  offense  commonly  involves   the  production
                 source of a child  pornography enterprise.  Because
                 the offense  directly involves the  exploitation of
                 minors, the  base offense level is  higher than for
                 the  distribution of the sexually explicit material
                 after production.  An enhancement  is provided when
                 the conduct  involves the  exploitation of a  minor
                 under age twelve to reflect the more serious nature
                 of exploiting young children.

            U.S.S.G.   2G2.1, commentary (1989).

                                         -13-

not provide  ineffective assistance  by failing to  object to

            that application of the guidelines. 

                                IV.  Violation of Rule 11
                                     ____________________

                      For the reasons explained above in  connection with

            appellant's claim that his attorney was remiss  in failing to

            object that the court had not complied with Fed.  R. Crim. P.

            11,  we conclude  that  appellant's claim  that the  district

            court violated Rule 11 is without merit.    To justify habeas

            relief, a violation  of Rule  11 must result  in a  "complete

            miscarriage of justice" or in a proceeding "inconsistent with

            rudimentary  demands of  fair procedure."   United  States v.
                                                        ______________

            Timmreck, 441 U.S. 780,  784 (1979).  The court's  failure to
            ________

            comply with  the  technical  requirement  that  appellant  be

            informed of the supervised release  term did not entitle  him

            to  habeas relief.  See  id. (holding that    2255 petitioner
                                ___  __

            not  entitled  to  relief  where  district  court  failed  to

            describe  the  mandatory  special  parole  term  required  by

            statute).

                                     V. Conclusion
                                        __________

                      We need go no further.   For the foregoing reasons,

            we  affirm the  district court's  dismissal of  appellant's  

            2255 petition.  

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