United States v. Rapier

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 18, 2003
• Docket: 00-20514
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20514 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD DEE RAPIER, also known as Donald D. Rapier,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-76-ALL -------------------- March 17, 2003

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Donald Rapier was convicted, following guilty pleas, of one

count of foreign or interstate transportation of child pornography

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-20514 -2-

and one count of possession of child pornography. This court af-

firmed. See United States v. Rapier, No. 00-20514 (Jan. 24, 2002)

(unpublished), vacated, 123 S. Ct. 69 (2002). The Supreme Court

vacated and remanded for reconsideration in light of Ashcroft

v. Free Speech Coalition, 535 U.S. 234 (2002).

Following remand, the parties were directed to address the

effect, if any, of Free Speech Coalition and whether the matter

should be remanded to the district court for further proceedings.

We do not regard the Supreme Court’s remand for reconsideration as

invalidating the conviction and sentence. See United States v.

Slanina, 313 F.3d 891, 892 (5th Cir. 2002). Because Free Speech

Coalition does not affect the viability of Rapier’s guilty plea, we

AFFIRM for the reasons expressed in our original opinion, with the

following additional explanation:

In Free Speech Coalition, 535 U.S. at 254-58, the Court

determined that, because the provisions of 18 U.S.C. § 2256(8)(B)

and (D), which define “child pornography,” extend to visual depic-

tions that do not involve actual minors, and thus prohibit the

freedom to engage in a substantial amount of lawful speech, they

are overbroad and unconstitutional. The Court noted that the defi-

nition found in § 2256(8)(A) prohibits pornographic images made us-

ing actual minors, a prohibition acceptable under United States v.

Ferber, 458 U.S. 747 (1982). See Free Speech Coalition, 535 U.S.

at 241.

At Rapier’s rearraignment, the district court employed only

the definition provided by § 2256(8)(A). This provision was unaf-

fected by the decision in Free Speech Coalition, and it remains No. 00-20514 -3-

viable. See United States v. Paul, 274 F.3d 155, 160-61 (5th Cir.

2001), cert. denied, 535 U.S. 1022 (2002); United States v. Reedy,

304 F.3d 358, 364 n.3 (5th Cir. 2002); United States v. Kelly, 314

F.3d 908, 911-913 (7th Cir. 2003). Because Rapier pleaded guilty

to offenses involving visual depictions of actual minors, Free

Speech Coalition does not affect the validity of his convictions.

Although Rapier’s indictment also contained the definitions struck

down by Free Speech Coalition, these definitions were independent

of, and unnecessary to, the offenses of which he pleaded guilty and

thus are not fatal to his convictions. See United States v. Nunez,

180 F.3d 227, 233 (5th Cir. 1999).

The issues raised by Rapier on direct appeal are unaffected by

Free Speech Coalition. The judgment is AFFIRMED.