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                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12272
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:14-cr-00265-RBD-GJK-1



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

DAVID JACOB WILLIAM GUITE,

                                                       Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (June 14, 2016)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      David Guite appeals his two convictions for the production of child

pornography with an object obtained via interstate commerce, in violation of 18

U.S.C. § 2251(a). Guite raises three issues on appeal. First, he argues that the

district court erred in failing to mention interstate and foreign commerce in the plea

colloquy, an essential element of the charged offenses. Second, he argues that 18

U.S.C. § 2251(a) exceeds Congress’s authority under the Commerce Clause.

Finally, he argues that his 780-month total sentence violates the Eight Amendment.

We will address each point in turn.


                                          I.


      We normally review constitutional claims in the criminal context de novo.

United States v. Anton, 546 F.3d 1355, 1357 (11th Cir. 2008). The Due Process

Clause requires that a defendant's guilty plea be made voluntarily and knowingly.

McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d

418 (1969). Rule 11 was “designed to assist the district judge in making the

constitutionally required determination that a defendant's guilty plea is truly

voluntary.” Id. at 465, 89 S. Ct. at 1170. A guilty plea cannot be voluntary and

knowing unless the defendant received real notice of the true nature of the charges

against him. Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257, 49 L.

Ed. 2d 108 (1976). When a defendant fails to object to Rule 11 errors at his plea


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colloquy, we review for plain error. United States v. Ternus, 598 F.3d 1251, 1254

(11th Cir. 2010).

      To establish plain error, Guite must show that (1) there is an error (2) that is

plain or obvious (3) affecting his substantial rights in that it was prejudicial and

not harmless and (4) that seriously affects the fairness, integrity, or public

reputation of the judicial proceedings. See United States v. Raad, 406 F.3d 1322,

1323 (11th Cir. 2005). “In the context of a Rule 11 error, prejudice to the

defendant means ‘a reasonable probability that, but for the error, he would not

have entered the plea.’” United States v. Brown, 586 F.3d 1342, 1345 (11th Cir.

2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct.

2333, 2340, 159 L. Ed. 2d 157 (2004)). However, because Guite alleges both Rule

11 and due process violations, we need not determine whether Guite has shown

there was a “reasonable probability that, but for the error, he would not have

entered the plea” if there is no plain error under a traditional due process analysis.

See Dominquez Benitez, 542 U.S. at 83, 124 S. Ct. at 2340.

       In evaluating whether a defendant has shown that his rights were

substantially affected or prejudiced, we examine the three “core objectives” of

Rule 11, which are: (1) ensuring that the guilty plea is free of coercion; (2)

ensuring that the defendant understands the nature of the charges against him; and

(3) ensuring that the defendant is aware of the direct consequences of the guilty


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plea. United States v. Lejarde–Rada, 319 F.3d 1288, 1289 (11th Cir. 2003). We

have upheld plea colloquies that fail to address an item expressly required by Rule

11 so long as the overall plea colloquy adequately addresses these three core

concerns. Id.

      Further, we will only find that a Rule 11 plain error affects substantial rights

when a district court totally fails or almost totally fails to address a Rule 11

concern. See United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001)

(plain error in failing to describe to defendant with low educational achievement at

all the nature of the charges against him); United States v. James, 210 F.3d 1342,

1345-46 (11th Cir. 2000) (plain error by not specifying “any of the elements

involved in the charge or any facts that would support the charge” to defendant

with tenth grade education); United States v. Quinones, 97 F.3d 473, 475 (11th

Cir. 1996) (plain error by “never mention [ing] the elements” of the firearm

charge). Therefore, we will not find substantial rights affected when a district

court actually covered the three core concerns but merely “slipped up” and failed

to cover one item in the Rule 11 list. See United States v. Monroe, 353 F.3d 1346,

1355 (11th Cir. 2003).

       There is no set formula that must be applied in determining whether the

district court adequately informed the defendant of the nature of the charges

brought against him; rather, the level of inquiry “varies from case to case


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depending on the relative difficulty of comprehension of the charges and of the

defendant's sophistication and intelligence.” United States v. Camacho, 233 F.3d

1308, 1314 (11th Cir. 2000) (quotation omitted). Our analysis in United States v.

DePace, 120 F.3d 233 (11th Cir. 1997), and United States v. Wiggins, 131 F.3d

1440 (11th Cir. 2000), provide guidance. In DePace, we held that the district

court did not plainly err, despite not explicitly addressing the elements of the

aiding and abetting theory of liability on a charge of carrying a firearm in relation

to a drug trafficking crime, because it implicitly found that the defendant

understood the nature of the charges. DePace, 120 F.3d at 238. The district court

determined that the defendant had graduated from high school and had completed

some college; the court read the indictment, listed the essential elements, and

confirmed that the defendant had reviewed the plea agreement and the indictment

with his counsel, and, after the court confirmed that defendant agreed with the

factual proffer, the court asked the defendant whether he had any questions about

the proceedings. Id.

      In Wiggins, we affirmed the district court’s factual determination that the

defendant understood the nature of the charge where: (1) the district court “at least

incorporated the substance of the [the elements of the bank robbery charge]”

during its direction to Wiggins to listen to the government’s factual proffer; (2) the

defendant “unequivocally” admitted committing the crime; and (3) the judge


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observed the demeanor of the defendant and “made an express factual finding at

the end of plea colloquy that [the defendant] had entered an informed plea.”

Wiggins 131 F.3d at 1442-43. We stated that “Rule 11(c) does not specify that a

district court must list each element of the offense seriatim. . . there is no one

mechanical way or precise juncture that a district court is required to inform the

defendant of the nature of the charges.” Id. at 1442-43.

       Here, although Guite claims the district court failed to recite an essential

element of Counts 1 and 2, the district court did not plainly err by failing to ensure

that Guite understood the nature of the charges against him. Guite stated that he

had a full opportunity to discuss the charges with his attorney, and that he

understood every term of the plea agreement. Significantly, the district court

specifically asked Guite if the pornographic images passed through interstate

commerce, to which Guite responded in the affirmative.

       This case is also factually distinguishable from our holdings in Telemaque,

James, and Quinones, because Guite stated that he agreed with the factual

proffer, he had reviewed the indictment and plea agreement, the charges were not

complex, and he had attained an associate’s degree level of education.

Furthermore, Guite admitted at his sentencing hearing that he knew his actions

were wrong, and he never indicated any misunderstanding of the charges.




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       Given the above facts, the district court did not plainly err in concluding

that Guite’s plea was knowing and voluntary because he understood the nature of

knowingly producing and distributing child pornography. Accordingly, we

affirm in this respect.

                                               II.

      We normally review the constitutionality of a challenged statute de novo.

United States v. Panfil, 338 F.3d 1299, 1300 (11th Cir. 2003). Because Guite did

not raise this challenge below, however, we review for plain error. See Raad, 406

F.3d at 1323.

      To succeed on a challenge to a legislative act as applied, the challenger must

show that no set of circumstances exists under which the act would be valid.

Benning v. Georgia, 391 F.3d 1299, 1304 (11th Cir. 2004). Thus, if § 2251 is

constitutional as applied to Guite, his facial challenge to the statute also fails. See

United States v. Maxwell, 446 F.3d 1210, 1215 n.5 (11th Cir. 2006). Further,

under the well-established prior precedent rule of this Circuit, the holding of the

first panel to address an issue is the law of this Circuit; thereby binding all

subsequent panels unless and until the first panel’s holding is overruled by this

Court sitting en banc or by the Supreme Court. Smith v. GTE Corp., 236 F.3d

1292, 1300 n.8 (11th Cir. 2001).




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     Section 2251(a) prohibits the production of child pornography “using

materials that have been mailed, shipped, or transported in interstate or foreign

commerce by any means.” In Maxwell, we relied on the Supreme Court’s

decision in Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, L. Ed. 2d 1 (2005),

and determined that, in order to effectuate a comprehensive scheme to eliminate

the market for child pornography, it is within Congress’s authority to regulate all

intrastate possession of child pornography, not just that which has traveled in

interstate commerce or has been produced using materials that have traveled in

interstate commerce. Maxwell, 446 F.3d at 1218. We thus upheld against an as-

applied challenge a conviction under 18 U.S.C. § 2252A.

     In United States v. Smith, 459 F.3d 1276 (11th Cir. 2006), we upheld on

plain error review against an as-applied challenge a defendant’s § 2251(a)

conviction where the government only provided evidence that the paper on which

the pornographic images were printed and the machine that developed the images,

rather than the images themselves, had moved in interstate or foreign commerce.

459 F.3d at 1282, 1284-85. We reasoned that § 2251(a) “is part of a

comprehensive regulatory scheme criminalizing the receipt, distribution, sale,

production, possession, solicitation and advertisement of child pornography. As

such we need only determine whether Congress could rationally conclude that the

cumulative effect of the conduct by [Smith] and his ilk would substantially affect


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interstate commerce.” Id. at 1285. We determined that Congress could have

rationally concluded that the inability to regulate intrastate possession and

production of child pornography would, in the aggregate, undermine Congress’s

regulation of the interstate child pornography market. Id. Consequently, we held

that there was no constitutional error in applying § 2251(a) to the defendant’s

conduct. Id.

      Here, Guite produced child pornography using a smartphone that was

manufactured outside the state and had, consequently, moved in interstate

commerce. Therefore, under Smith, applying the statute to Guite under these

circumstances does not violate the Commerce Clause. Because the statute does not

violate the Commerce Clause in this case, there are circumstances under which the

statute is valid, and therefore, Guite’s claim also must fail under the plain error

standard of review. See Benning, 391 F.3d at 1304. Further, we cannot overrule

Smith absent an en banc ruling or a decision by the Supreme Court. See GTE

Corp., 236 F.3d at 1300 n.8. Accordingly, we affirm in this respect as well.

                                          III.

       We review constitutional challenges to defendants’ sentences de novo.

United States v. Flores, 572 F.3d 1254, 1268 (11th Cir. 2009). However, when a

defendant fails to raise an Eighth Amendment challenge to a sentence in the




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district court, we review the claim for plain error. United States v. Flanders, 752

F.3d 1317, 1342 (11th Cir. 2014), cert. denied, 135 S. Ct. 1188 (2015).

      The Eighth Amendment prohibits the imposition of cruel and unusual

punishments. U.S. Const. amend. VIII. It does not require strict proportionality

between crime and sentence. United States v. Farley, 607 F.3d 1294, 1343 (11th

Cir. 2010). A sentence only violates the Eighth Amendment if it is grossly

disproportionate to the offense conduct. Id. To determine if a sentence violates

the Eighth Amendment, we first compare the crime committed to the sentence

imposed and determine whether any disparity creates an inference of gross

disproportionality. See id. at 1344. The defendant bears the burden of making the

threshold showing of gross disproportionality. United States v. Johnson, 451 F.3d

1239, 1243 (11th Cir. 2006). If we determine that the defendant has made a

sufficient threshold showing of gross disproportionality, we may then compare the

defendant’s sentence with sentences imposed for other crimes in the same

jurisdiction and sentences imposed for the same crime in other jurisdictions.

Farley, 607 F.3d at 1342, 1344.

      The proportionality inquiry is guided by objective factors, including the

gravity of the offense and the severity of the punishment. Solem v. Helm, 463 U.S.

277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). The harm caused or

threatened to victims or society and the culpability of the offender are relevant to


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the gravity of the offense. Id. at 292, 103 S. Ct. at 3011. Whether a non-capital

sentence is statutorily mandated is irrelevant to the proportionality analysis.

Farley, 607 F.3d at 1343. Therefore, we treat a sentence imposed pursuant to a

statute as if the sentence were imposed by a judge exercising his or her sentencing

discretion. Id. Successful challenges to the proportionality of non-capital

sentences are very rare. Flores, 572 F.3d at 1268. We also give substantial

deference to Congress in determining the limits of punishments for certain crimes.

United States v. Mozie, 752 F.3d 1271, 1290 (11th Cir.), cert. denied, 135 S. Ct.

422 (2014). Generally, sentences imposed within statutory limits do not violate the

Eighth Amendment. See Flores, 572 F.3d at 1268.

       Guite has failed to show that his 780-month total sentence is grossly

disproportionate to the offense committed, and therefore, cruel and unusual.

Guite sexually molested his own children, ages three and five, and took images of

the act, which he then sent to other individuals. Not only did Guite’s children

suffer at his own hand, which he readily admits, but his children will continue to

be the victims because the images will likely continue to circulate on the internet.

Further, the district court noted that perpetrators of this kind of crime pose a

significant threat to the community, most especially those in the community who

lack the ability to truly protect themselves. Therefore, Guite’s total sentence,




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which is below the statutory maximum, is not grossly disproportionate under

current law.

      Furthermore, Guite candidly acknowledges in his brief that there is no

controlling precedent that plainly shows that his total sentence is grossly

disproportionate to his crimes, and we have regularly found life sentences in child

sex crimes do not violate the Eighth Amendment. As such, Guite has not met his

burden of showing that the district court plainly erred by imposing a 780-month

total sentence.

     Accordingly, for the reasons stated above, we affirm.

     AFFIRMED




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