                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 22 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                  No. 04-6143
                                                (D.C. Nos. CV-03-1395-M and
    ERIC NEIL ANGEVINE,                                CR-00-106-M)
                                                        (W.D. Okla.)
                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and ANDERSON , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-appellant Eric Neil Angevine appeals from the denial of his

motion for vacation of sentence under 28 U.S.C. § 2255. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Appellant entered a conditional guilty plea to Count 2 of a two-count

indictment charging him with possession of child pornography on his computer at

his place of employment at Oklahoma State University, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). He admitted in the plea agreement “that he knowingly

possessed images of child pornography . . . [and] that he knew the images were of

persons under 18 years of age engaged in sexually explicit conduct[.]” Aplt. App.

at 18 (R. Doc. 57, ¶ 2). He also admitted at his change-of-plea hearing that he

“possessed images of persons under the age of 18 engaging in sexually-explicit

conduct or in a lascivious exhibition of genitalia[.]” Aplt. App. at 58

(Change-of-Plea Hearing Tr. at 11). He was sentenced to fifty-one months’

incarceration; an $18,000 fine; three years’ supervised release; and a $100 special

assessment. On direct appeal, appellant argued that the results of the search of

his University computer should have been suppressed. We affirmed the denial of

his motion to suppress, and the Supreme Court denied certiorari.

      After we decided appellant’s direct appeal, the Supreme Court struck down,

as unconstitutionally overbroad, the definitions of child pornography in 18 U.S.C.

§ 2256(8)(B) and (D), to the extent that those definitions included images that


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“appear[] to be” or “convey[] the impression” of a minor engaged in sexually

explicit conduct.   Ashcroft v. Free Speech Coalition   , 535 U.S. 234, 241-42, 258

(2002). Appellant filed his § 2255 petition, arguing that his guilty plea was

involuntary because he was not aware of the specific elements of the offense with

which he had been charged. “Specifically, [appellant] argued he was unaware

that the possession of images of what appeared to be children engaged in sexually

explicit conduct could not be criminalized, and that he could only be found guilty

if the government proved beyond a reasonable doubt that the images he possessed

were of actual children engaged in sexually explicit conduct.” Aplt. Br. at 5.

       Appellant contended that he would not have pleaded guilty had he known

the true elements of the offense. The district court engaged in a thorough analysis

of the issue. The court denied the § 2255 petition, holding that appellant was

charged with, and pleaded guilty to, possessing images of real children engaged in

sexually explicit activities. Aplt. App. at 189-95 (District Court Order).

Appellant then filed this appeal. The district court granted defendant a certificate

of appealability on the issue summarized above. The government argues that

appellant’s argument is procedurally barred. Appellant counters that any

procedural bar is excused by his counsel’s ineffective assistance.




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       “[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.”   United States v. Pearce , 146 F.3d 771,

774 (10th Cir. 1998). In addition,

       [a] defendant is procedurally barred from presenting any claim in a
       section 2255 petition that he failed to raise on direct appeal unless he
       can demonstrate cause for his procedural default and prejudice
       suffered thereby, or that the failure to hear his claim would result in
       a fundamental miscarriage of justice.

United States v. Wright , 43 F.3d 491, 496 (10th Cir. 1994). We need not address

the procedural bar issue in this case, however, because appellant’s claim fails on

the merits in any event.    See id.

       Appellant admitted both in the plea agreement and at his change-of-plea

hearing that his computer contained images of “persons” under the age of

eighteen engaging in sexually-explicit conduct. Aplt. App. at 18 (R. Doc. 57,

¶ 2), 58 (Change-of-Plea Hearing Tr. at 11). This language falls squarely within

the definition of child pornography in 18 U.S.C. § 2256(8)(A):

       “child pornography” means any visual depiction, including any
       photograph, film, video, picture, or computer or computer-generated
       image or picture, whether made or produced by electronic,
       mechanical, or other means, of sexually explicit conduct, where–
       (A) the production of such visual depiction involves the use of a
       minor engaging in sexually explicit conduct[.]

       Appellant does not dispute the district court’s finding that neither the

indictment, the plea agreement, nor the plea colloquy used the statutory language

disapproved in Free Speech Coalition . See Aplt. App. at 192-93 (District Court

                                             -4-
Order at 4-5). And we have already decided that the holding of    Free Speech

Coalition is limited to the unconstitutionality of § 2256(8)(B) and (D), and does

not imply any rule about the rest of § 2256(8).   United States v. Kimler , 335 F.3d

1132, 1141-42 (10th Cir.),   cert. denied , 540 U.S. 1083 (2003). Appellant’s

authorities offered to show that his plea was defective are inapposite. For all of

these reasons, appellant’s argument that he did not know the elements of the

offense to which he pleaded guilty is baseless.

       The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




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