United States v. Ginyard, Harry A.

215 F.3d 83, 342 U.S. App. D.C. 83, 2000 U.S. App. LEXIS 14057, 2000 WL 739315
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 16, 2000
Docket99-3113
StatusPublished
Cited by25 cases

This text of 215 F.3d 83 (United States v. Ginyard, Harry A.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ginyard, Harry A., 215 F.3d 83, 342 U.S. App. D.C. 83, 2000 U.S. App. LEXIS 14057, 2000 WL 739315 (D.C. Cir. 2000).

Opinions

Opinion for the court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

[85]*85PER 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. § 2252(a)(2) and one count of wire fraud in violation of 18 U.S.C. § 1348. 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 proposed prison term but accepted the parties’ subsequent oral agreement providing for a 24 month sentence. It then sentenced 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 pretrial order restricting Gin-yard’s computer use and telephone communications during his imprisonment. Ginyard challenges two aspects of his sentence, arguing that the district court violated the Rule 11(e)(1)(C) plea agreement by imposing 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 Ginyard’s computer and telephone use in prison is beyond its authority and we therefore vacate that portion of the sentence.

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. Government’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 relationship^]” 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 bankruptcy. 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. § 1343 and eight counts of mail fraud in violation of 18 U.S.C. § 1341. On May 7, 1999 the government filed a superseding information charging Ginyard with receipt of materials depicting a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2).

On May 11, 1999 Ginyard agreed to plead guilty to one count of wire fraud and one count of receiving child pornography. 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, [86]*861999 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 provisionally 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 guidance 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 exchange 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 Criminal Procedure your client has the right to speak, although given the agreements I am not sure that anything 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 assessment 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 members 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.

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Bluebook (online)
215 F.3d 83, 342 U.S. App. D.C. 83, 2000 U.S. App. LEXIS 14057, 2000 WL 739315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ginyard-harry-a-cadc-2000.