     Case: 16-41630      Document: 00514350365         Page: 1    Date Filed: 02/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-41630                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 16, 2018
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

BRANDON GUTHRIE,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-120-1


Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Brandon Guthrie was indicted on one count of knowingly attempting to
transfer obscene material to a minor and convicted pursuant to a conditional
guilty plea. Guthrie argues that the videos underlying his conviction were not
obscene and that the district court thus erred in denying his motion to dismiss
the indictment and accepting his guilty plea, which he contends lacks a
sufficient factual basis. We affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 16-41630


                                               I.
       Between January 6 and January 12, 2016, Guthrie sent photos and
videos via Snapchat 1 to a number of recipients, including a detective posing as
fourteen-year-old Jane Doe. 2 Guthrie sent, inter alia, videos of himself
masturbating nude, including one where he masturbates to ejaculation. 3 On
February 18, 2016, Guthrie was indicted on one count of knowingly attempting
to transmit obscene matter to another individual who had not attained the age
of sixteen years, in violation of 18 U.S.C. § 1470. 4
       Guthrie filed a motion to dismiss the indictment, arguing that the
government failed to allege an offense because the transmitted materials were
not obscene as a matter of law. 5 The district court denied the motion, finding
that whether the videos were obscene is a question of fact for the jury.
       Guthrie then pleaded guilty pursuant to a conditional plea agreement
that reserved his right to appeal the denial of the motion to dismiss. The court
sentenced Guthrie to fifteen months of confinement followed by three years of
supervised release.




       1  Snapchat is a video message application that allows users to send photos, videos,
and texts to a controlled list of recipients.
        2 Before the relevant time period, Guthrie exchanged messages with Doe. When Doe’s

parents learned of their daughter’s correspondence with Guthrie, they turned the phone over
to the police and granted a detective permission to take over Jane Doe’s cell phone and social
media accounts. The detective began communicating with Guthrie.
        3 Guthrie sent additional photographs and videos of himself partially undressed, but

the government conceded that material is not obscene and not the basis for its case.
        4 “Whoever, using the mail or any facility or means of interstate or foreign commerce,

knowingly transfers obscene matter to another individual who has not attained the age of 16
years, knowing that such other individual has not attained the age of 16 years, or attempts
to do so, shall be fined under this title, imprisoned not more than 10 years, or both.” 18 U.S.C.
§ 1470.
        5 Guthrie argued that “it is difficult to see how the simple depiction of masturbation,

an ordinary sexual act, could fall outside the scope of [First Amendment] protection.”
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                                      No. 16-41630
       On appeal, Guthrie contends that videos of masturbation, without any
additional characteristics such as violence or bestiality, are not “patently
offensive” as a matter of law and therefore cannot be obscene. He contends that
the district court thus erred both in denying his motion to dismiss and in
accepting his plea.
                                            II.
       The denial of a motion to dismiss based on the interpretation of a federal
statute is reviewed de novo. 6 “[A]n indictment is sufficient if it, first, contains
the elements of the offense charged and fairly informs a defendant of the
charge against which he must defend, and, second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the same offense.” 7
       “The propriety of granting a motion to dismiss an indictment . . . is by-
and-large contingent upon whether the infirmity in the prosecution is
essentially one of law or involves determinations of fact. . . . If a question of law
is involved, then consideration of the motion is generally proper.” 8 By Guthrie’s
own description “[t]he sole question presented by the motion to dismiss was
whether, as a matter of law, the images transmitted by Mr. Guthrie were
obscene.” If the videos are not obscene as a matter of law, then the indictment
may be insufficient. If, however, the obscenity of the videos is a question of fact
for the jury, then the district court properly denied Guthrie’s motion to dismiss
the indictment.
       Guthrie further argues that the district court erred in accepting his
guilty plea because it was not supported by a legally sufficient factual basis.
Notwithstanding Guthrie’s plea, this court “will reverse on direct appeal where



       6  United States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012).
       7  Hamling v. United States, 418 U.S. 87, 117 (1974).
        8 United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011) (quoting United States

v. Flores, 404 F.3d 320, 324 (5th Cir. 2005)).
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the factual basis for the plea as shown of record fails to establish an element
of the offense of conviction.” 9 The Federal Rules of Criminal Procedure
“require[] the district court to determine that the factual conduct to which the
defendant admits is sufficient as a matter of law to constitute a violation of the
statute.” 10 To comply with this rule, the district court must compare “the
conduct to which the defendant admits” with “the elements of the offense
charged.” 11 A challenge to the legal sufficiency of an undisputed factual basis
is reviewed de novo. 12 The district court’s acceptance of a guilty plea is a factual
finding that is reviewed for clear error. 13
       As with the motion to dismiss, Guthrie does not dispute the facts
underlying the guilty plea. He states that “[t]he sole dispute in this case is
whether, as a matter of law, the materials he transmitted were obscene.”
Because both of Guthrie’s arguments turn on the same legal question, we
address the merits of his arguments together.
       Section 1470 prohibits the transfer of obscene material to a minor. In
order to establish that material is obscene, the government must show that:
(1) “‘the average person, applying contemporary community standards’ would
find that the work, taken as a whole, appeals to the prurient interest”; (2) “the
work depicts or describes, in a patently offensive way, sexual conduct”; and (3)
“the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.” 14 Guthrie concedes that the videos in question appealed to the




       9 United States v. White, 258 F.3d 374, 380 (5th Cir. 2001).
       10 United States v. Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en banc).
       11 Id. at 315.
       12 United States v. Butler, 637 F.3d 519, 521 (5th Cir. 2011).
       13 United States v. Reasor, 418 F.3d 466, 470 (5th Cir. 2005).
       14 Miller v. California, 413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229,

230 (1972)). See United States v. Rudzavice, 586 F.3d 310, 315 (5th Cir. 2009) (stating that
courts “read [the Miller] test into federal obscenity statutes” including § 1470).
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prurient interest and lacked serious literary, artistic, political, or scientific
value; thus, he challenges only whether the videos could be patently offensive.
       “Miller states that the question[] of . . . what is ‘patently offensive’ under
the obscenity test which it formulates [is] ‘essentially [a] question[] of fact.’” 15
A fact-finder evaluates whether material is patently offensive in light of
contemporary community standards. 16 Of course, this does not mean that
jurors have “unbridled discretion in determining what is ‘patently offensive.’” 17
The Supreme Court made clear that an appellate court could refuse to uphold
a fact-finder’s determination of obscenity where it would be “wholly at odds”
with Miller—e.g., where a jury based an obscenity conviction “upon a
defendant’s depiction of a woman with a bare midriff.” 18
       Guthrie argues that videos depicting masturbation “without more”
cannot be patently offensive. To make his point, Guthrie points to an
illustrative list of potentially obscene materials from Miller, which includes
“[p]atently offensive representation or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.” 19 Guthrie urges us to read this
language to indicate that depictions of masturbation alone cannot be patently
offensive because otherwise the qualifiers “patently offensive” and “lewd”
would be mere surplusage. We disagree. While the Supreme Court’s language
indicates that some depiction of masturbation might not be patently offensive,




       15 Jenkins v. Georgia, 418 U.S. 153, 159 (1974) (quoting Miller, 413 U.S. at 30). See
also United States v. Ragsdale, 426 F.3d 765, 782 (5th Cir. 2005) (“While the definition of
obscenity is a legal conclusion, whether a work qualifies as obscenity vel non as applied to
the facts of a particular case is a question of fact.”).
       16 Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 576 n.7 (2002).
       17 Jenkins, 418 U.S. at 160.
       18 Id. at 161.
       19 Miller, 413 U.S. at 25.

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it does not follow that any depiction of masturbation cannot be patently
offensive absent some undefined “plus factor.” 20
       Guthrie points to several cases where depictions of sexual conduct are
deemed patently offensive              at least      in part because of “additional
characteristics” like sexual violence and bestiality. 21 Yet these cases do not
state that these characteristics are required to render something obscene.
Guthrie points to no case law holding a video of an adult man masturbating to
ejaculation cannot be obscene as a matter of law.
       In fact, this court and at least two others have upheld convictions under
§ 1470 for transmission of videos depicting masturbation. 22 Guthrie tries to
argue that these cases are inapposite because they did not address the patent
offensiveness of the videos themselves. That argument is unavailing. In each
case, the appellate court held that a rational trier of fact could have found the
videos patently offensive. 23 Implicit in each of these holdings is the idea that a
video of male masturbation is not non-obscene as a matter of law.



       20  Furthermore, Guthrie’s textual argument loses much of its force in the face of
Jenkins, issued only one year after Miller. In Jenkins, the Supreme Court stated that it “took
pains in Miller to ‘give a few plain examples’” of what could be considered patently offensive,
“includ[ing] . . . ‘representations or descriptions of masturbation, excretory functions, and
lewd exhibition of the genitals.’” Jenkins, 418 U.S. at 160 (quoting Miller, 413 U.S. at 25).
This framing makes clear that the Supreme Court contemplated some category of
“representations of masturbation” could be patently offensive, and it gives no indication that
patent offensiveness relies on any additional characteristic.
        21 See, e.g., Ragsdale, 426 F.3d at 781; United States v. Adams, 337 F. App’x 336, 338

(4th Cir. 2009) (unpublished).
        22 United States v. Kirkpatrick, 662 F. App’x 237, 240 (5th Cir. 2016) (unpublished);

United States v. Rogers, 474 F. App’x 463, 470 (7th Cir. 2012) (unpublished); United States v.
Jenkins, 322 F. App’x 716, 716–17 (11th Cir. 2009) (unpublished).
        23 See Kirkpatrick, 662 F. App’x at 240 (“[A] rational trier of fact could have found that

the videos depicted ‘sexual conduct’ in a ‘patently offensive way’ within the meaning of the
Miller obscenity test.”); Rogers, 474 F. App’x at 470 (“In this case, the image of the erect penis
falls within the constitutional bounds of ‘patently offensive’ material. A jury could reasonably
find that the picture represented or described a lewd exhibition of [the defendant’s]
genitals.”); Jenkins, 322 F. App’x at 717 (“The jury saw each of the six video recordings of
Jenkins, which was evidence sufficient for the jury to make an obscenity determination.”).
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                                  No. 16-41630
      We reaffirm that view today and hold that a reasonable fact-finder
applying contemporary community standards could determine that the videos
transmitted by Guthrie were “patently offensive representation[s]” of
masturbation or “lewd exhibition of the genitals.” Guthrie concedes that the
videos could appeal to the prurient interest and lack serious literary, artistic,
political, or scientific merit. Thus, whether these specific videos are obscene is
a question of fact, and we hold that a rational trier of fact could have found
that the videos depicted sexual conduct in a patently offensive way.
                                       III.
      For the foregoing reasons, the district court’s decisions to deny the
motion to dismiss and to accept Guthrie’s guilty plea are affirmed.




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