UNITED STATES COURT OF APPEALS for the Fifth Circuit
_____________________________________
No. 93-8210 _____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ERNEST SCHMELTZER,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court for the Western District of Texas ______________________________________________________ (April 28, 1994)
Before WOOD,1 SMITH, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Defendant-Appellant Ernest Schmeltzer seeks reversal of his
conviction on constitutional grounds, and alternatively, reversal
and remand of his sentence. Finding the statutes of conviction
constitutional and no error in the sentence, we affirm.
I.
Upon his guilty plea Defendant Ernest Schmeltzer was convicted
under 18 U.S.C. § 2252(a)(4)), of knowingly possessing three or
more items of child pornography, and under §§ 1462 and 2, of
knowingly receiving obscene matters from a common carrier and
aiding and abetting. Defendant argues that the crimes of receiving
and possessing pornography or obscene matters should require some
1 Circuit Judge of the 7th Circuit, sitting by designation. proof of knowledge of the contents of the material to withstand a
constitutional challenge.
The constitutionality of 18 U.S.C. § 2252(a)(4) was recently
determined in United States v. Burian, No. 93-1123, 1994 WL 114645
(5th Cir. Apr. 7, 1994) (declining to follow United States v. X-
Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992), cert. granted,
1 1 4 S . C t . 1 1 8 6 ( 1 9 9 4 ) ) .
Because this Court construes § 2252 to include scienter, the
statute is constitutional as applied. Id. at *1-2. The scienter
requirement for conviction of knowingly receiving obscene matters
under § 1462 is general knowledge that the material is sexually
oriented. United States v. Hill, 500 F.2d 733, 740 (5th Cir.
1974), cert. denied, 420 U.S. 952 (1975). Defendant admitted
knowledge that the items he possessed depicted minors and knowledge
of the content and overall character of the material he received
from a common carrier. As applied, the statutes include scienter
as an element of the crimes. Defendant's constitutional challenge
fails. Burian, 1994 WL 114645, at *3.
II.
Defendant originally pleaded guilty in 1991 to receiving child
pornography under 18 U.S.C. § 2252(a)(2) and was sentenced to only
39 months' imprisonment. On appeal we vacated the sentence as
inconsistent with the statutory minimum 60-month prison term for a
second conviction under § 2252(a)(2) and (b). After a superseding
indictment, Defendant pleaded guilty to four different charges, one
count for possessing three or more items of child pornography, and
2 three counts for receiving obscene matters. The court imposed a
60-month term of imprisonment on each count (to run concurrently).
Schmeltzer argues that the increase in his sentence after
remand violated his due process rights to appeal. See North
Carolina v. Pearce, 395 U.S. 711, 726 (1969). A defendant has a
right to appeal free from fear of judicial retaliation for exercise
of that right. Id. at 724-25. Defendant charges that his
receiving an increased sentence the second time around gives rise
to a presumption that the district judge engaged in judicial
vindictiveness, because the reasons given for the sentence do not
identify conduct or an event concerning culpability occurring after
the original sentence to justify the increased sentence.
Defendant's argument focuses on the reasons given for
departure2 rather than the most basic reason for a sentence))the
offense level. Defendant's offense level for the 1991 conviction
on a single count was 15. After an upward departure, Defendant was
sentenced to 39 months, which is within the range for offense level
19 (category II, 33-41 months). The second presentence report
after the conviction for four different counts suggests an offense
level of 19; after an upward departure, Defendant was sentenced to
60 months, which is within the range for offense level 23 (category
II, 51-63 months).
2 We reject Defendant's suggestion that the court's upward departure caused any discrepancy between the two sentences, as the court departed upward both times, choosing a sentence within the range for an offense level four levels higher each time and giving s i m i l a r r e a s o n s e a c h t i m e .
3 Even if the Pearce presumption were to apply,3 we hold that
objective information justifying the increase rebuts any
presumption of vindictiveness. Consideration of the new
convictions obtained is "manifestly legitimate." Wasman v. United
States, 468 U.S. 559, 570-71 (1984) (discussing Pearce). Pearce
concerned defendants who were resentenced to longer prison terms
upon new convictions for the same offenses they had overturned on
appeal. The second time around the probation officer brought to
the court's attention a four-level increase applicable to
Schmeltzer under § 2G2.2(b)(3) for material portraying sadism,
masochism, or violence; this specific offense characteristic was
evidently overlooked by the first probation officer. Consideration
of information developed after the first sentencing was entirely
proper upon the resentencing. See Wasman, 468 U.S. at 571. The
changed circumstances))the convictions for four different charges
and the increased offense level))are sufficient objective events
and information justifying an increase so as to rebut any
presumption of vindictiveness.
3 This case arguably does not fall under Pearce because Schmeltzer "was not sentenced after a new trial, one of the stated prerequisites for triggering the Pearce presumption." United States v. Vontsteen, 910 F.2d 187, 190 (5th Cir. 1990) (dicta), cert. denied, 498 U.S. 1074 (1991), adhered to on reh'g en banc, 950 F.2d 1086, cert. denied, 112 S.Ct. 3039 (5th Cir. 1992). "Factors that come into play concomitant with a new trial, such as the burden imposed on the trial judge, and which might give rise to vindictiveness, are not present here." Id.; cf. Alabama v. Smith, 490 U.S. 794, 803 (1989) (finding no presumption of vindictiveness where heavier second sentence is imposed after trial and first sentence was imposed after guilty plea).
4 III.
Defendant next complains of error in adding two levels to his
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UNITED STATES COURT OF APPEALS for the Fifth Circuit
_____________________________________
No. 93-8210 _____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ERNEST SCHMELTZER,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court for the Western District of Texas ______________________________________________________ (April 28, 1994)
Before WOOD,1 SMITH, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Defendant-Appellant Ernest Schmeltzer seeks reversal of his
conviction on constitutional grounds, and alternatively, reversal
and remand of his sentence. Finding the statutes of conviction
constitutional and no error in the sentence, we affirm.
I.
Upon his guilty plea Defendant Ernest Schmeltzer was convicted
under 18 U.S.C. § 2252(a)(4)), of knowingly possessing three or
more items of child pornography, and under §§ 1462 and 2, of
knowingly receiving obscene matters from a common carrier and
aiding and abetting. Defendant argues that the crimes of receiving
and possessing pornography or obscene matters should require some
1 Circuit Judge of the 7th Circuit, sitting by designation. proof of knowledge of the contents of the material to withstand a
constitutional challenge.
The constitutionality of 18 U.S.C. § 2252(a)(4) was recently
determined in United States v. Burian, No. 93-1123, 1994 WL 114645
(5th Cir. Apr. 7, 1994) (declining to follow United States v. X-
Citement Video, Inc., 982 F.2d 1285 (9th Cir. 1992), cert. granted,
1 1 4 S . C t . 1 1 8 6 ( 1 9 9 4 ) ) .
Because this Court construes § 2252 to include scienter, the
statute is constitutional as applied. Id. at *1-2. The scienter
requirement for conviction of knowingly receiving obscene matters
under § 1462 is general knowledge that the material is sexually
oriented. United States v. Hill, 500 F.2d 733, 740 (5th Cir.
1974), cert. denied, 420 U.S. 952 (1975). Defendant admitted
knowledge that the items he possessed depicted minors and knowledge
of the content and overall character of the material he received
from a common carrier. As applied, the statutes include scienter
as an element of the crimes. Defendant's constitutional challenge
fails. Burian, 1994 WL 114645, at *3.
II.
Defendant originally pleaded guilty in 1991 to receiving child
pornography under 18 U.S.C. § 2252(a)(2) and was sentenced to only
39 months' imprisonment. On appeal we vacated the sentence as
inconsistent with the statutory minimum 60-month prison term for a
second conviction under § 2252(a)(2) and (b). After a superseding
indictment, Defendant pleaded guilty to four different charges, one
count for possessing three or more items of child pornography, and
2 three counts for receiving obscene matters. The court imposed a
60-month term of imprisonment on each count (to run concurrently).
Schmeltzer argues that the increase in his sentence after
remand violated his due process rights to appeal. See North
Carolina v. Pearce, 395 U.S. 711, 726 (1969). A defendant has a
right to appeal free from fear of judicial retaliation for exercise
of that right. Id. at 724-25. Defendant charges that his
receiving an increased sentence the second time around gives rise
to a presumption that the district judge engaged in judicial
vindictiveness, because the reasons given for the sentence do not
identify conduct or an event concerning culpability occurring after
the original sentence to justify the increased sentence.
Defendant's argument focuses on the reasons given for
departure2 rather than the most basic reason for a sentence))the
offense level. Defendant's offense level for the 1991 conviction
on a single count was 15. After an upward departure, Defendant was
sentenced to 39 months, which is within the range for offense level
19 (category II, 33-41 months). The second presentence report
after the conviction for four different counts suggests an offense
level of 19; after an upward departure, Defendant was sentenced to
60 months, which is within the range for offense level 23 (category
II, 51-63 months).
2 We reject Defendant's suggestion that the court's upward departure caused any discrepancy between the two sentences, as the court departed upward both times, choosing a sentence within the range for an offense level four levels higher each time and giving s i m i l a r r e a s o n s e a c h t i m e .
3 Even if the Pearce presumption were to apply,3 we hold that
objective information justifying the increase rebuts any
presumption of vindictiveness. Consideration of the new
convictions obtained is "manifestly legitimate." Wasman v. United
States, 468 U.S. 559, 570-71 (1984) (discussing Pearce). Pearce
concerned defendants who were resentenced to longer prison terms
upon new convictions for the same offenses they had overturned on
appeal. The second time around the probation officer brought to
the court's attention a four-level increase applicable to
Schmeltzer under § 2G2.2(b)(3) for material portraying sadism,
masochism, or violence; this specific offense characteristic was
evidently overlooked by the first probation officer. Consideration
of information developed after the first sentencing was entirely
proper upon the resentencing. See Wasman, 468 U.S. at 571. The
changed circumstances))the convictions for four different charges
and the increased offense level))are sufficient objective events
and information justifying an increase so as to rebut any
presumption of vindictiveness.
3 This case arguably does not fall under Pearce because Schmeltzer "was not sentenced after a new trial, one of the stated prerequisites for triggering the Pearce presumption." United States v. Vontsteen, 910 F.2d 187, 190 (5th Cir. 1990) (dicta), cert. denied, 498 U.S. 1074 (1991), adhered to on reh'g en banc, 950 F.2d 1086, cert. denied, 112 S.Ct. 3039 (5th Cir. 1992). "Factors that come into play concomitant with a new trial, such as the burden imposed on the trial judge, and which might give rise to vindictiveness, are not present here." Id.; cf. Alabama v. Smith, 490 U.S. 794, 803 (1989) (finding no presumption of vindictiveness where heavier second sentence is imposed after trial and first sentence was imposed after guilty plea).
4 III.
Defendant next complains of error in adding two levels to his
offense level for pornography depicting children under age twelve.
The PSR recommended a two-level increase under U.S.S.G.
§ 2G2.2(b)(1), appropriate if the material involved either a minor
under age twelve or a pre-pubescent minor.
The PSR reveals that many items found in his home showed pre-
pubescent boys and girls. 2nd PSR paras. 12, 16, 17.
Defendant would limit the sentencing court's consideration to
the facts alleged in the indictment and stipulated in the plea,
which provide no suggestions of ages under twelve or puberty
status. A sentencing court's wide discretion in the source of
information it may consider in imposing sentence is not so limited.
See U.S.S.G. § 6A1.3 (court may consider relevant information
without regard to its admissibility if satisfied with its
reliability); Vontsteen, 910 F.2d at 190 (sentencing court entitled
to accord some minimal indicium of reliability of information
contained in PSR). Accordingly the two-level increase was properly
assessed in reliance on the PSR.
IV.
The sentencing court gave three reasons for its upward
departure: the Defendant's sexual abuse of children, Defendant
possessed the same type of pornographic material as was involved in
his previous conviction, and the aggravating factors are not taken
into account in formulating the guidelines.
Defendant complains that the sentencing commission indeed
5 adequately considered that an accused might violate a law he had
previously violated in the Guidelines on Criminal History Category.
In making a departure, a sentencing court must find an aggravating
circumstance not adequately taken into consideration by the
Commission in formulating the guidelines. U.S.S.G. § 5K2.0; 18
U.S.C. § 3553(b). The PSR relates more than just commission of the
offenses while on probation for a prior conviction; the earlier
conviction was for a very similar offense. In fact, Defendant
obtained copies of the very same child pornography which had been
seized from his possession in 1987. 2nd PSR paras. 12, 72. The
essential similarity of a prior conviction supports a departure,
because it may indicate the Defendant's increased likelihood of
recidivism or lack of recognition of the gravity of the original
wrong. United States v. De Luna-Trujillo, 868 F.2d 122, 124-25
(5th Cir. 1989).
The court gave as an additional reason for departure
Defendant's sexual abuse of children. The Application Notes to
U.S.S.G. § 2G2.2 require an upward departure "[i]f the defendant
sexually exploited or abused a minor at any time." Defendant
argues that there was no proof he had sex with a minor. The PSR
brought out ample evidence, however, in the postcard of a girl
about aged eight with Defendant's handwritten note stating "this
was about the same age as the youngest one I had"; also the manager
of a nudist video distributor stated that Defendant described
"'lewd and somewhat bizarre' contact he had had with children."
2nd PSR paras. 9, 12, 14.
6 Defendant also complains that if he had intercourse with a
minor in a foreign country, our courts lack jurisdiction. We need
not decide whether conduct outside the United States may merit a
departure. In addition to the Defendant's admission to a
confidential witness that the had sexual intercourse with a
Taiwanese girl of no more than thirteen, Defendant "also advised
the CW [that] he once had sexual intercourse with a junior high
girl because 'she wanted it.'" 2nd PSR para. 9. This admission
was in addition to the admitted incident in Taiwan, and the phrase
"junior high girl" suggests a student in the United States.
Defendant also contends that the court erred in jumping from
criminal history category II to category V in making a departure.
The court had wide discretion in determining the extent of
departure. United States v. Moore, 997 F.2d 30, 37 (5th Cir.),
cert. denied, 114 S.Ct. 647 (1993).
We reject Defendant's suggestion that the court departed to a
higher criminal history category. In determining the level of an
upward departure for sexual abuse of children, the Application Note
requires the court to consider "the offense levels provided in
§§ 2A3.1, 2A3.2, and 2A3.4 most commensurate with the defendant's
conduct." The PSR suggested consideration of the guideline on
Criminal Sexual Abuse, § 2A3.1, which carries a base offense level
of 27. The court apparently applied a lesser four-level departure
to offense level 23 as suggested in the PSR. Level 23 yields a
sentencing range of 51-63 months, still within category II. The
record and the 60-month sentence thus reflect that the court did
7 not depart to a higher criminal history category.
V.
Defendant finally maintains that he accepted responsibility so
as to merit a decrease in his offense level. The determination by
the sentencing judge that the Defendant did not accept
responsibility is entitled to "great deference." Application Note
foll. § 3E1.1. According to the PSR, Defendant was constantly
excusing his behavior and refusing to admit that he ordered or
viewed the materials. 2nd PSR paras. 13, 20, 22-23. The court did
not err in finding no acceptance of responsibility.
AFFIRMED.