                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-3610
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                               ROBERT B. BLAKESLEE,
                                                Appellant
                                  _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. No. 07-cr-00483-001)
                            District Judge: Hon. Yvette Kane
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 14, 2011

               Before: FISHER, JORDAN and COWEN, Circuit Judges.

                                  (Filed: April 15, 2011)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Appellant Robert B. Blakeslee (“Blakeslee”) appeals both the decision of the

United States District Court of the Middle District of Pennsylvania rejecting his plea

agreement and the Court’s subsequent order sentencing him to the upper end of the

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range without
according him any reduction for acceptance of responsibility. For the following reasons,

we will affirm.

I.     Background

       The South Williamsport Police had information that someone was illegally

entering the premises of a remotely operated radio station and using its computer

equipment to download child pornography. With the station owner’s permission, the

police installed a silent alarm that would activate if anyone entered the station. On

April 11, 2006, the police responded to that alarm and arrested Blakeslee as he exited the

premises. When they arrested him, the police found Blakeslee in possession of a thumb

drive and a USB cable. Search warrants were obtained for the thumb drive and for a

computer and floppy disks found in Blakeslee’s residence, as well as for a computer he

was having repaired at a local computer store. The radio station owner permitted the

authorities to search the station computer for evidence. Those searches revealed

Blakeslee’s use of the radio station’s computer to access and download over a thousand

images of pornography; there were dozens of images of child pornography on the thumb

drive, including several that were exact matches to images found on the station

computer’s hard drive; the computer in Blakeslee’s residence contained 1,105 child

pornography images, some of which were, again, exact matches to files on the computer

hard drive from the station; there were over one hundred child pornography images on

the floppy disks in Blakeslee’s home, many of which matched images on the computer

found in his home; and there were child pornography images on the computer that

Blakeslee had left for repair at a computer store.

                                             2
       In December 2007, Blakeslee was indicted for receipt of child pornography in

violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(b)(1) (“Count 1”), and two counts of

possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and

2252A(b)(2) (“Counts Two and Three”). Subsequently, the government and Blakeslee

entered a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C)

whereby Blakeslee agreed to plead guilty to Count One of the Indictment, admitting that

he knowingly received child pornography and material containing child pornography that

had been shipped and transported in interstate and foreign commerce. Under that

agreement, the government stipulated that Blakeslee would serve the mandatory

minimum sentence of fifteen years’ imprisonment, to be followed by a term of supervised

release for life. Pursuant to the agreement, Blakeslee was free to “withdraw from the

agreement and withdraw any guilty plea entered pursuant to [that] agreement” if the

sentencing court refused to accept the plea or imposed a sentence greater than that agreed

to by the parties. (App. at 26.)

       In July 2009, Blakeslee appeared before a Magistrate Judge and, after a full

colloquy, pled guilty pursuant to the plea agreement. The Magistrate Judge issued a

Report and Recommendation (“R & R”) recommending that the District Court “enter an

Order adjudging the defendant guilty of the offense.” (Id. at 8-9.) The Magistrate Judge

also ordered a presentence investigation and the preparation of a presentence

investigation report (“PSR”).

       Based on the R & R, the District Court accepted Blakeslee’s guilty plea and

scheduled a sentencing hearing. At the hearing, the District Court advised the parties

                                            3
that, upon review of the PSR, it was “going to reject the plea bargain.” (D.I. No. 109 at

2-3.) 1 The District Court noted that it had previously sentenced Blakeslee and that he had

appeared before the Court on multiple occasions for violations of his supervised release.

The Court noted that it was “not at all confident that a 15-year sentence, [to which the

parties agreed, met] the sentencing objectives.” (Id. at 7) The Court also expressed

doubt that Blakeslee, who would, if he served 15 years in prison, be 80 years of age when

released, would cease his lifelong pattern of “prowling, of stalking young girls, and of

accessing child pornography sites,” a pattern which had, with time, “become increasingly

dangerous.” (Id.) After explaining its rejection of the plea agreement, the Court

continued:

       Mr. Blakeslee, what that means to you is that you must now discuss with
       [your attorney] the options available to you. You can stand by your guilty
       plea and understand that the Court will sentence you to any lawful sentence
       the Court might choose to impose and that that sentence might be a greater
       sentence than that which you bargained for. If you do not wish to exercise
       that option, then you’ll have the option of withdrawing your guilty plea and
       setting your case for trial. You need not decide that today.

(Id. at 9.) Through his counsel, Blakeslee ultimately requested a jury trial after the

District Court indicated that it did not want its “discretion limited” when an amended plea

agreement with another binding sentence was offered to the Court. (D.I. No. 110 at 3.) 2


   1
     Citations to “D.I. No. 109 at __” reference Item No. 109 on the District
Court’s docket and are to the transcript of the September 29, 2009 hearing at
which the District Court rejected the plea agreement between Blakeslee and the
government.
   2
     Citations to “D.I. No. 110 at __” reference Item No. 110 on the District
Court’s docket and are to the transcript of the October 8, 2009 hearing at which
Blakeslee chose to go to trial.

                                              4
       At trial on the three original charges, the government sought to introduce evidence

that some of the images found in Blakeslee’s possession matched images from a “known

series” of child pornography, meaning images that had previously been confirmed to

contain the images of actual children as opposed to, for example, young looking adults

posing as children. (App. at 143, 374.) That evidence included Exhibit 40, a report from

the National Center for Missing and Exploited Children (“NCMEC”) indicating that 34 of

the images found in Blakeslee’s possession were matches to “known series” images.

That exhibit also confirmed an interstate nexus in the case because the children in the

“known series” were “literally from all around the world.” (Id. at 160.) To authenticate

Exhibit 40, the government relied upon the testimony of Special Agent Kyle, an

instructor at the FBI’s investigative training unit at Quantico, Virginia. Kyle’s testimony

consisted of: 1) a description of his over 20 years of experience investigating child

pornography cases, resulting in familiarity with over “1500 titled subjects” (Id. at 141);

2) a synopsis of his knowledge of the procedures at NCMEC and his past involvement

with that agency, which included receipt of training at NCMEC, providing the NCMEC

with “known series” information, and teaching NCMEC personnel about newly

discovered “known series” (Id. at 143-44, 241, 249-52); 3) an assertion that, in other

cases, he had been called to testify regarding known series in which he had participated in

recovering the children portrayed, as well as about other known series based on his

“knowledge base” and “extensive experience” in the area of child pornography (Id. at

143); and 4) a claim that he had previously testified as an expert on every “known

series” at issue in the Blakeslee case (Id. at 251). Blakeslee objected to Exhibit 40 as

                                             5
inadmissible hearsay, but the District Court determined that Kyle’s testimony was

sufficient to establish its admissibility “under the business record exception.” (Id. at

252.)

         Blakeslee was found guilty of all three counts. Later, on April 29, 2010, a PSR

was prepared and provided to the parties but, based on Blakeslee’s objections to the PSR,

a PSR with an addendum was provided to the parties on July 12, 2010. That addendum

reflected Blakeslee’s argument that he was entitled to a two-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 because he acknowledged

involvement in the offense and only went to trial to raise a technical argument rather than

to assert innocence. The addendum also showed that the probation office stood behind its

conclusion that Blakeslee should not receive a two-level reduction in his Guidelines

offense level because he had tried to plead guilty “in the context of a Rule 11(c)(1)(C)

wherein he attempted to dictate the sentence imposed by the Court” and, once that plea

and associated 15-year sentence was rejected, he decided to go to trial. (PSR Addendum

¶ 13.)

         At the sentencing hearing, Blakeslee again argued that he was entitled to a two-

level reduction for acceptance of responsibility. The District Court determined that

Blakeslee had not accepted responsibility and should not receive credit for such an

acceptance. Blakeslee also requested a variance under U.S.S.G. § 5H1.4, due to his

alleged vulnerability in prison stemming from his age, illnesses, and the nature of his

charge. In response, the District Court noted Blakeslee’s mental health diagnosis and

determined that his bipolar disorder neither excused his conduct nor “warranted either a

                                              6
departure or a variance from the guidelines.” (App. at 351.) The Court also found that

Blakeslee’s physical health problems were typical of his age and that those, combined

with his age, did not “make him extremely at risk any more than any other defendant.”

(Id. at 336.) To the extent that Blakeslee’s argument alluded to him being at greater risk

when imprisoned because of the nature of the charges of which he was convicted, the

Court noted that that was “always problematic” but found that he was not at greater risk

than anyone else who enters a penitentiary, institutions which, the Court noted, are

“committed to rehabilitating and protecting the people in their care.” (Id.)

       Addressing “the nature and circumstances of the offense,” (Id. at 354), the Court

said that Blakeslee had been “found guilty by a jury of collecting thousands of vile

images … [of children being] raped, sodomized, pillaged, and all for the personal

enjoyment of viewers on the Internet.” (Id. at 354.) The Court further noted that

Blakeslee had previously been before the Court for similar illegal conduct, the difference

being that the images had become more vile and more cruel. 3 The Court stated that,



   3
     Blakeslee has a history of offenses related to children and child pornography. In
1992, he was convicted of three counts of loitering and prowling at night. The basis for
those convictions included peering into the homes of young girls. In 1998, Blakeslee was
also convicted of two counts of loitering and prowling at night after he was arrested for
peering into a home where an eleven year-old girl and her friend were watching
television.
    In 1999, Blakeslee was convicted for possession of child pornography, for which he
was sentenced to five years imprisonment and three years supervised release. After being
released from prison, however, Blakeslee violated the conditions of his supervised release
by, among other things: being found in the presence of children under the age of 18 –
specifically a three-year-old girl – without being in the presence of an approved adult;
possessing electronic media and computer programs and services without permission of
the probations officer; using a computer with Internet access; associating without
                                             7
though Blakeslee had never been convicted of violating a child, he “cannot dispute that

he has followed children, attempted to lure children, and even violated the orders of [the]

Court by associating with children while on supervised release.” (Id. at 355.) The Court

recognized that the Guidelines range for pornography offenses was both “harsh” and

“high,”(id.), and that, in some instances, it was unduly so. Nevertheless, the Court

rejected Blakeslee’s arguments, finding that the “guidelines range sentence is necessary

in this case to punish, deter, promote respect for the law, reflect the very serious nature of

[Blakelee’s] conduct, and protect the public from future crimes.” (Id. at 356-57.) The

Court sentenced Blakeslee to 360 months of imprisonment on Count I, and two terms of

240 months on Counts II and III, all to be served concurrently, a life term of supervised

release, and a $300 special assessment.

          On August 26, 2010, Blakeslee timely filed a notice of appeal.

II.       Discussion 4

          On appeal, Blakeslee argues that the District Court: 1) erred in declining to

sentence him to fifteen years’ imprisonment in accordance with the Rule 11(c)(1)(C) plea

agreement associated with the guilty plea first accepted and then rejected by the District

Court; 2) abused its discretion when, at trial, it admitted the NCMEC report; 3)

committed clear error when it found that he had not accepted responsibility for his actions



authorization with an 11-year-old girl; trespassing; and attempting to lure a child. On
account of those acts, Blakeslee’s supervised release was revoked three times, and he was
sentenced to additional terms of imprisonment.
      4
     The District Court had jurisdiction pursuant to 28 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                                8
such that a two-level offense reduction was applicable; and 4) abused its discretion in

imposing a sentence of 360 months of imprisonment. We address each argument in turn.

       A.      The Plea

       We review for abuse of discretion the District Court’s decision to reject a plea

agreement. United States v. Brown, 595 F.3d 498, 521 (3d Cir. 2010).

       Before accepting a guilty plea, a court must address the defendant in open court,

inform him of and confirm his understanding of, among other things, the right to plead

not guilty and the right to a jury trial and that, if the court accepts the guilty plea, he is

waiving those trial rights. FED. R. CRIM. P. 11(b)(1)(A)-(N). A court must also ensure

that a defendant has both knowingly and voluntarily accepted the guilty plea. FED. R.

CRIM. P. 11(b)(2). Under Rule 11, a court may then “accept the agreement, reject it, or

defer a decision until the court has reviewed the presentence report.” FED. R. CRIM. P.

11(c)(3)(A). A district court need not accept a guilty plea and the associated agreement

simultaneously. United States v. Hyde, 520 U.S. 670, 674 (1997). It can, instead, accept

the guilty plea and later accept or reject the agreement. Id.

       If a court ultimately rejects such a plea agreement, the court must do the following

in open court:

       (A) inform the parties that the court rejects the plea agreement;

       (B) advise the defendant personally that the court is not required to follow
       the plea agreement and give the defendant an opportunity to withdraw the
       plea; and

       (C) advise the defendant personally that if the plea is not withdrawn, the
       court may dispose of the case less favorably toward the defendant than the
       plea agreement contemplated.

                                                9
FED. R. CRIM. P. 11(c)(5)(A)-(C). If a court accepts a Rule 11(c)(1)(C) plea agreement,

such as the one at issue here, it is bound by the provisions of that agreement. United

States v. Bernard, 373 F.3d 339, 343 (3d Cir. 2004).

         Blakeslee contends that, by originally accepting his guilty plea, the District Court

also accepted the plea agreement’s fifteen-year stipulated sentence. Accordingly, he

posits that we must vacate both the trial verdict and sentence and remand “for sentencing

in accordance with the plea agreement.” (App. Br. at 15.) He is mistaken. The

acceptance of the plea did not equate to an acceptance of the agreement. Hyde, 520 U.S.

at 674. Instead, the Court was free to later reject the agreement, which it did after

reviewing the PSR. Having rejected the plea agreement, the District Court gave

Blakeslee options consistent with Rule 11. Thus, the District Court did not err in

substance or procedure in rejecting the plea agreement and allowing Blakeslee to go to

trial.

         B.     Admission of the NCMEC Report

         We exercise plenary review of the District Court’s interpretations of the Federal

Rules of Evidence. United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000). If the

District Court’s interpretation of the relevant Federal Rules of Evidence is legally sound,

we review its application of those rules, including the admission of evidence, for abuse of

discretion. Id.; United States v. Tyler, 281 F.3d 84, 98 (3d Cir. 2002).

         Blakeslee argues that the District Court erred in admitting the NCMEC report

because the report is hearsay and the testimony provided to support its admission as a



                                              10
business record under F.R.E. 803(6) was insufficient. 5 The NCMEC report is indeed

hearsay because it was an out-of-court statement “offered into evidence to prove the truth

of the matter asserted[,]” namely that some of the images found in Blakeslee’s possession

belonged to a “known series” of child pornography images. F.R.E. 801(c). As such, the

NCMEC report was inadmissible unless a hearsay exception applies. F.R.E. 801; 802.

         The only exception suggested by the government was and is the business records

exception set forth in Rule 803(6). For the NCMEC report to be admissible under the

business records exception, it must be authenticated by “the custodian [of the record] or

other qualified witness.” F.R.E. 803(6). A qualified witness “need not be an employee

of the [record-keeping] entity so long as he understands the system” and can testify as to

the “foundational requirements of Rule 803(6).” United States v. Console, 13 F.3d 641,

657 (3d Cir. 1993) (internal citations and quotations omitted.) The foundational

requirements are:

         (1) [t]he declarant in the records had personal knowledge to make accurate
         statements; (2) the declarant recorded the statements contemporaneously
         with the actions that were the subject of the reports; (3) the declarant made


   5
       The business records hearsay exception is stated in F.R.E. 803(6):
         A memorandum, report, record, or data compilation, in any form, of acts,
         events, conditions, opinions, or diagnoses, made at or near the time by, or
         from information transmitted by, a person with knowledge, if kept in the
         course of a regularly conducted business activity, and if it was the regular
         practice of that business activity to make the memorandum, report, record
         or data compilation, all as shown by the testimony of the custodian or other
         qualified witness, or by certification that complies with Rule 902(11), Rule
         902(12), or a statute permitting certification, unless the source of
         information or the method or circumstances of preparation indicate lack of
         trustworthiness.

                                              11
       the record in the regular course of the business activity; and (4) such
       records were regularly kept by the business.

Unites States v. Sokolow, 91 F.3d 396, 403 (3d Cir. 1996).

       Here, the District Court accepted the testimony of Agent Kyle as adequate to

admit the NCMEC report under the business records exception. We agree with Blakeslee

that that was error. Despite Agent Kyle’s expertise and general familiarity with NCMEC,

he neither made the record nor had the personal knowledge of its creation necessary for

him to testify as to the elements required by the Rule. Therefore, admission of the

NCMEC report was an abuse of discretion by the District Court.

       Even so, that error was harmless. An error is harmless if it is “highly probable that

the error did not affect the judgment.” Gov’t of Virgin Islands v. Toto, 529 F.2d 278, 284

(3d Cir. 1976)(citation omitted). “[W]e will affirm a District Court’s evidentiary ruling,

even if it is erroneous … if it is highly probable that the error[] did not affect the outcome

of the case.” Hirst v. Inverness Hotel Corp., 544 F.3d 221, 228 (3d Cir. 2008) (internal

quotation omitted).

       Here, in addition to the NCMEC report, the government presented a large quantity

of evidence establishing that the images were of real children and that there existed an

interstate nexus in Blakeslee’s case. That evidence included witness testimony as to the

ages of the victims depicted and binders containing thousands of child pornography

images from which the jury could determine that those images were of actual minors. 6


   6
     Another witness, Trooper Trusal, worked on the Blakeslee case and testified
that he “wouldn’t say there were any [children] over 16 … some as young as
maybe seven or eight.” (App. at 192.)

                                             12
See United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001) (concluding that the material

presented included “images of prepubescent children, and the jury was free to make its

own conclusion as to the age of the children depicted”). The evidence also included

testimony that Blakeslee downloaded images from the Internet to the radio station

computer, which established the interstate nexus requirement. United States v.

MacEwan, 445 F.3d 237, 245 (3d Cir. 2006) (holding that “the Internet is an

instrumentality and channel of interstate commerce.”) The NCMEC report, then, only

served to corroborate voluminous other admissible evidence reviewed by the jury. Thus,

it is “highly probable” that the NCMEC report did not affect the outcome of the case, and

its erroneous admission was harmless.

       C.     Acceptance of Responsibility

       We exercise plenary review over the District Court’s interpretation of the

Sentencing Guidelines and review for clear error its factual findings related to applying

the Guidelines. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007); United States v.

Frierson, 945 F.2d 650, 653, 655 (3d Cir. 1991). “A defendant who enters a guilty plea

is not entitled to an adjustment under [U.S.S.G. § 3E1.1] as a matter of right.” U.S.S.G.

§ 3E1.1 app. n. 3. It is Blakeslee’s burden to establish by a preponderance of the

evidence that he has “clearly accept[ed] responsibility for his offense.” U.S.S.G.

§ 3E1.1(a); see also United States v. Boone, 279 F.3d 163, 193 (3d Cir. 2003) (noting that

defendant “bears the burden of establishing … that he or she is entitled to the reduction”);

United States v. Muhammad, 146 F.3d 161, 167 (3d Cir. 1998) (same). The sentencing



                                             13
judge’s finding with respect to acceptance of responsibility “is entitled to great

deference.” U.S.S.G. § 3E1.1 app. n. 5.

         Blakeslee argues that he should have been granted a two-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 because, even though he

withdrew his guilty plea and chose to proceed to trial, he only did so because the District

Court had rejected the plea agreement’s stipulated sentence. 7 His argument is not

persuasive.

         Blakeslee entered a guilty plea and then, when his plea agreement was rejected,

withdrew it and chose to go to trial. At trial, Blakeslee challenged some of the factual

underpinnings of the charges, such as whether some images on the thumb drive and the

home computer were the same, whether the images depicted actual children instead of

adults who looked like children, and whether there was a possibility that someone other

than Blakeslee was responsible for downloading the pornographic images seen on the

radio station computer. The record suggests that Blakeslee did not accept his guilt as

required by U.S.S.G. § 3E1.1 but, rather, throughout his trial attempted to cast doubt in

the mind of the jurors as to whether he, in fact, had committed the charged acts. Such

behavior is inconsistent with acceptance of responsibility. 8 Therefore, the District Court


   7
      Blakeslee also contends that docket entries do not reflect that he moved to
“withdraw his plea at any time” and that thus he should be awarded credit for
acceptance of responsibility. This is an untenable position. Blakeslee’s request
for a jury trial has the same effect as withdrawing his guilty plea.
   8
       Application Note 2 states that an adjustment for acceptance of responsibility:
         [I]s not intended to apply to a defendant who puts the government to its
         burden of proof at trial by denying the essential factual elements of guilt,
                                               14
did not err in denying Blakeslee a two-level reduction for acceptance of responsibility

under U.S.S.G § 3E1.1.

       D.     Reasonableness of Sentence Imposed

       We review the District Court’s sentencing decisions for abuse of discretion,

looking first for procedural error and then examining the sentence for substantive

reasonableness. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008). With

respect to sentencing-related factual findings, our review for abuse of discretion is

effectively a review for clear error. See id. at 217 (“[I]f the asserted procedural error is

purely factual, our review is highly deferential and we will conclude there has been an

abuse of discretion only if the district court’s findings are clearly erroneous.”). A

sentence will be upheld as substantively reasonable unless no other reasonable sentencing

court would have imposed the same sentence for the reasons provided. United States v.

Doe, 617 F.3d 766, 774 (3d Cir. 2010).

       Blakeslee contends that the sentence imposed by the District Court was the result

of procedural error because the Court failed to adequately consider the 18 U.S.C.A.

§ 3553(a) factors – specifically his age, mental and physical health issues, and



       and is convicted … Conviction by trial, however, does not automatically
       preclude a defendant from consideration for such a reduction. In rare
       situations a defendant may clearly demonstrate an acceptance of
       responsibility for his criminal conduct even though he exercises his
       constitutional right to a trial. This may occur, for example, where a
       defendant goes to trial to assert and preserve issues that do not relate to
       factual guilt… .
U.S.S.G. § 3E1.1 App. n. 2. Blakeslee’s contentions at trial were not limited to
issues unrelated to his factual guilt.

                                              15
vulnerability to abuse in prisons. He also argues that the sentence imposed was

unreasonable because the Court failed to consider the relevant sentencing factors and

because the Guidelines range for his type of offense is too harsh and so the District Court

should have departed from the calculated range.

         As an initial matter, it is uncontested that, after rejecting Blakeslee’s argument that

he was entitled to a reduction for acceptance of responsibility, the District Court properly

calculated the Guidelines range as being 292 to 365 months’ imprisonment. Furthermore,

it is clear from the record that the District Court then “gave meaningful consideration to

the § 3553(a) factors.” United States v. Starnes, 583 F.3d 196, 218 (3d Cir. 2009).

Specifically, the Court addressed and rejected Blakeslee’s arguments for leniency based

on his age and mental and physical conditions. The Court also took note of the harshness

of the Guidelines range but found that, despite prior sanctions by the Court, Blakeslee’s

conduct had not improved, and had instead become more dangerous and vile. Thus, the

Court determined that the Guidelines range was appropriate and sentenced Blakeslee at

the upper end of that range to “punish, deter, promote respect for the law, reflect the very

serious nature of [Blakeslee’s] conduct, and protect the public from future crimes.”

(App. at 355-56.)

         In light of the circumstances of this case, the District Court was well within its

discretion in rejecting Blakeslee’s arguments and in sentencing him within the Guidelines

range.




                                               16
III.   Conclusion

       For the foregoing reasons, we will affirm the judgment and sentence of the

District Court.




                                           17
