                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4519


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DANNY BRACHTENDORF,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00250-MR-1)


Argued:   March 24, 2009                  Decided:   August 24, 2009


Before DUNCAN and AGEE, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.   Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.     ON BRIEF: Claire J. Rauscher,
Executive Director, Ross H. Richardson, Emily Marroquin, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Danny     Brachtendorf,            a    German       citizen,     appeals       from     a

conviction and sentence imposed in the Western District of North

Carolina       for    illegal        entry      into       the    United     States     after

deportation.         Finding no reversible error, we affirm.

                                                I.

      On August 5, 2000, Brachtendorf, who was living in Oakdale,

Minnesota,      sent       to   an   undercover        Ohio      detective   by   e-mail      a

photograph      of     a    juvenile         female    undressed       and   exposing        her

vaginal area.         The hard drive of a computer subsequently seized

from Brachtendorf’s residence under a search warrant contained

additional images of children in suggestive sexual poses.                                    One

of   the   items       was      titled       “World    Children       Porn   Archive”        and

depicted juveniles engaged in sexual intercourse.

      Brachtendorf pleaded guilty in the state court to Count Two

of a two-count complaint charging him with violating Minnesota

Statue     §    617.247,         Subdivision          4,    Possession       of   Pictorial

Representations         of      Minors,      which     reads     in   pertinent    part       as

follows:

      (a) A person who possesses a pornographic work or a
      computer  disk   or computer    or  other  electronic,
      magnetic or optical storage system or a storage system
      of any other type, containing a pornographic work,
      knowing or with reason to know its content and
      character, is guilty of a felony and may be sentenced
      to imprisonment for not more than five years and a
      fine of not more than $5,000 for a first offense . . .
      .

                                                2
       Minnesota      Statute    §     617.246,    Subdivision        1(f)   defines

“pornographic work” as follows:

       “Pornographic work” means:

       (1) an original or reproduction of a picture, film
       photograph, negative, slide, videotape, videodisc, or
       drawing of a sexual performance involving a minor; or

       (2) any visual depiction, including any photograph,
       film, video, picture, drawing, negative, slide, or
       computer-generated image or picture, whether made or
       produced by electronic, mechanical, or other means
       that:

             (i) uses a minor to depict actual or simulated
             sexual conduct;
             (ii) has been created, adapted, or modified to
             appear that an identifiable minor is engaging in
             sexual conduct; or
             (iii)   is    advertised,  promoted,  presented,
             described, or distributed in such a manner that
             conveys the impression that the material is or
             contains a visual depiction of a minor engaging
             in sexual conduct.

       For the purposes of this paragraph, an identifiable
       minor is a person who was a minor at the time the
       depiction was created or altered, whose image is used
       to create the visual depiction.

       During   the    state    plea    hearing,    Brachtendorf       acknowledged

that   the   authorities       had   found     between    two   and   five   obscene

pictures of children on his computer.                When asked, “And you had

some knowledge that those were there?”                   Brachtendorf responded,

“I had some knowledge of it.”                 (JA 104.)     As a result of this

state conviction Brachtendorf was ordered deported on September

1, 2004.



                                          3
     Subsequently,               on     October        17,        2007,       Brachtendorf         was

arrested        at     the           Charlotte-Douglas              International           Airport

attempting to re-enter the country.                           He was traveling with his

wife and children, who are all U.S. Citizens, ostensibly just to

“drop    them     off”      and       return    to     Germany.           A   federal      criminal

complaint was filed alleging that Brachtendorf had attempted to

re-enter    the       United          States     after       having       been       deported,     in

violation of 8 U.S.C. § 1326(a).                           Although the complaint said

nothing about the prior aggravating conviction, the affidavit

accompanying          the       complaint        sets        forth        details      about       the

Minnesota conviction.                 An indictment was returned on October 24,

2007, charging Brachtendorf under 8 U.S.C. § 1326(a), with no

mention of a sentencing enhancement under § 1326(b) for a prior

aggravated felony conviction.

     Brachtendorf pleaded guilty before the magistrate judge on

January    29,       2008,      without       benefit        of    a   plea     agreement.          No

mention    was       made       of     the     prior    conviction            during      the     plea

hearing, and the magistrate judge advised appellant that the

charge he was pleading to carried “a two year maximum term of

imprisonment         and    a    fine    of     up    to     $250,000.”          (JA      15.)      No

objections were made by either side to the magistrate judge’s

description of the maximum penalties.

     The Presentence Report (“PSR”) prepared by the probation

office     gave      the        statutory       maximum           sentence      as    a    term     of

                                                  4
imprisonment for not more than 20 years pursuant to 8 U.S.C.

§ 1326(b)(2), and calculated the base offense level as 8 under

United States Sentencing Guidelines Manual § 2L1.2.                      The PSR

recommended        a    16-level    increase     under   §   2L1.2(b)(1)(A)(iv),

because the appellant “was previously deported after having been

convicted of a felony that is a child pornography offense.” 1                  (JA

68.)        The court applied this increase, overruling Brachtendorf’s

objection        that   the   government   had    not    demonstrated   that   the

prior conviction constituted a child pornography offense under

the guidelines.           Brachtendorf received a three-level downward

adjustment for acceptance of responsibility, for a total offense

level       of   21.     Although    his   criminal      history   category    was

calculated at II, for a sentencing range of 41 to 51 months, the

district court departed downward to category I on the basis that

category II overrepresented his criminal history. 2                 His revised

        1
        Under this guidelines section, a “‘Child pornography
offense’ means (I) an offense described in 18 U.S.C. § 2251,
§ 2251(a), § 2252, § 2252A, or § 2260; or (II) an offense under
state or local law consisting of conduct that would have been an
offense under any such section if the offense had occurred
within the special maritime and territorial jurisdiction of the
United States.” U.S. Sentencing Guidelines Manual § 2L1.2, App.
Note (B)(iii).
        2
        Appellant’s criminal history was originally calculated at
category II because he committed the instant offense while on
supervised probation.    The court concluded that the category
should be reduced, however, because appellant “was unable to
complete all of the requirements regarding his probation in
Minnesota because he had been deported.” (JA 46.)


                                           5
guideline range was then 37 to 46 months, and he received a

sentence of 37 months, making no objection that it was in excess

of the statutory maximum for the underlying conviction.

      Brachtendorf         raises     three       points   on    appeal.          First,   he

contends that the district court incorrectly determined that his

prior Minnesota conviction was an aggravated felony and a child

pornography         offense    warranting         a   16-level      increase       under   8

U.S.C.     §   1326(b)(2)       and     U.S.       Sentencing       Guidelines       Manual

§ 2L1.2(b)(1)(A)(iv).            Second, he maintains the court erred in

imposing       a    sentence    above     the         two-year      statutory       maximum

provided by the unenhanced statute of conviction.                                 Third, he

argues that the court could not properly impose a sentence above

the unenhanced statutory maximum because he was told at his plea

hearing    that      the   maximum     penalty        he   faced    was    two     years   in

prison.

                                          II.

      In   considering         the    legality        of   Brachtendorf’s          sentence

under his first assignment of error, the court reviews “legal

questions, including the interpretation of the guidelines, de

novo,    while      factual    findings       are     reviewed      for    clear    error.”

United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006).

His   other        two   contentions,     asserted         for     the    first    time    on

appeal, are subject to the plain error standard.                           United States

v. Higgs, 353 F.3d 281, 309 (4th Cir. 2003); Fed. R. Crim. P.

                                              6
52(b).      Plain error involves (1) an error, (2) which is plain,

(3), which affects substantial rights, and (4) which seriously

affects the fairness, integrity or public reputation of judicial

proceedings.      United States v. Brewer, 1 F.3d 1430, 1434-35 (4th

Cir. 1993) (citing United States v. Olano, 507 U.S. 725, 732-737

(1993)).      The burden is on the defendant to prove that the error

was   not    harmless,    and    the   requirement             that    an    error   affect

substantial      rights     “typically          means    that         the   defendant    is

prejudiced by the error in that it affected the outcome of the

proceedings.”         United States v. Stewart, 256 F.3d 231, 252 (4th

Cir. 2001).

                                        III.

                                            A.

      The     enhancement    under     8     U.S.C.       §     1326(b)(2)      and     U.S.

Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(iv) may only be

applied if the Minnesota conviction fits the definition for the

offenses described in 18 U.S.C. § 2251, 2251A, 2252, 2252A, or

2260,    apart    from    the     jurisdictional           requirements         of    those

statutes.       The district court made no specific finding as to

which       offense     applied,       instead          concluding          simply      that

Brachtendorf’s prior offense was a child pornography offense.

The   relevant    statute       here   is    18       U.S.C.    §     2252(a)(4),     which

prohibits      possession        of    “1        or     more        books,     magazines,

periodicals, films, video tapes, or other matter which contain

                                            7
any visual depiction . . . if . . . the producing of such visual

depiction   involves         the       use    of      a    minor      engaging     in    sexually

explicit    conduct[,]           and     such         visual      depiction        is    of     such

conduct.”

     Brachtendorf            contends             that          the     Minnesota          statute

encompasses a broader range of conduct than does § 2252, as the

federal statute does not extend to a “drawing” generally, or to

a   “drawing     of     a        sexual       performance             involving     a      minor.”

(Appellant’s brief at 17.)

     We    disagree      with      Brachtendorf’s                characterization          of   the

Minnesota   statute         as    broader         than     the     federal     statute.         The

Minnesota   statute         defines       “pornographic               work”   to   include       “an

original    or       reproduction            of       a   picture,       film,      photograph,

negative, slide, videotape, videodisc, or drawing of a sexual

performance      involving         a     minor”           and    “any     visual        depiction,

including      any     photograph,            film,         video,       picture,         drawing,

negative, slide, or computer-generated image or picture . . .

that . . . uses a minor to depict actual or simulated sexual

conduct; . . . has been created, adapted, or modified to appear

that an identifiable minor is engaging in sexual conduct; or . .

. conveys the impression that the material is or contains a

visual depiction of a minor engaging in sexual conduct.”                                      Minn.

Stat. § 617.246, Subd. 1(f).



                                                  8
     The federal statute’s prohibited material is set forth as

“books,   magazines,     periodicals,       films,    video     tapes,    or    other

matter which contain any visual depiction [where] the producing

of such visual depiction involves the use of a minor engaging in

sexually explicit conduct [and] such visual depiction is of such

conduct.”     18   U.S.C.    §   2252(a)(4)(A)       (emphasis      added).      The

federal   statute’s    prohibited       material      extends      to   any    visual

depictions – including a drawing – that satisfied the remaining

requirements of the statute.            Accordingly, the mere fact that

the Minnesota statute specifically lists a “drawing” among the

prohibited    material    would   not    preclude      a     drawing    from   being

prohibited material under the federal statute.                     While both the

Minnesota    and   federal   statute        are   subject     to   constitutional

limitations    regarding     whether    the       depicted    image     constitutes

“child pornography,” both statutes allow for the medium to be a

“drawing.”    Accordingly, Brachtendorf’s argument lacks merit. 3




     3
       Brachtendorf, citing United States v. X-Citement Video,
Inc., 513 U.S. 64 (1994), argues that the mens rea requirement
of the Minnesota statute under which he was convicted is lesser
than that of 18 U.S.C. § 2252, which requires that a defendant
act “knowingly.”   It is unnecessary to address this particular
argument because Brachtendorf’s admission during the course of
the Minnesota proceedings that he had knowledge of the obscene
pictures   found  on   his  computer  satisfies the   mens  rea
requirement of the federal statute.



                                        9
                                              B.

       The indictment in this case charged Brachtendorf with a

violation of “§ 1362(a)” without reference to subsection (b) of

the statute.          Under Almendarez-Torres v. United States, 523 U.S.

224 (1998), a statutory section like § 1362(b)(2) is considered

a     “penalty    provision,          which    simply    authorizes      a    court     to

increase the sentence for a recidivist.                      It does not define a

separate     crime.           Consequently,        neither   the   statute        nor   the

Constitution requires the Government to charge the factor that

it mentions, an earlier conviction, in the indictment.”                            Id. at

226-27.

       Brachtendorf attempts to distinguish Almendarez-Torres on

the basis that the indictment in that case simply charged a

violation        of    “Section       1326”        without   reference       to    either

subsection.           (Appellant’s brief at 26.)             Moreover, it appears

that the prior aggravated felonies at issue in Almendarez–Torres

were discussed at that defendant’s plea hearing, whereas there

was    no   mention      of    them    at     Brachtendorf’s.      The       distinction

Brachtendorf tries to make is misplaced, given that subsections

(a) and (b) do not set forth different offenses.                      As Almendarez-

Torres holds, subsection (b) is a penalty provision, and someone

sentenced     under      it    is   necessarily       convicted    under      subsection

(a), whether the indictment specifies it or not.                             See United

States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005)(reaffirming

                                              10
validity of Almendarez-Torres following United States v. Booker,

543 U.S. 220 (2005)).

                                            C.

       It is well established that a court must inform a defendant

of   the    statutory    maximum      and    mandatory      minimum    sentences     he

faces      before   accepting     his    guilty     plea.      Fed.    R.    Crim.   P.

11(b)(1); United States v. Good, 25 F.3d 218, 221 (4th Cir.

1994).      The Fourth Circuit has found error in cases in which the

district court did not do so at a plea hearing, and has further

held that setting forth the statutory sentences in a PSR does

not cure the error.           United States v. Goins, 51 F.3d 400, 405

(4th     Cir.   1995).       It   does      not    follow    that     the    error   is

reversible, however, where the standard of review is for plain

error.

        Essentially,     Brachtendorf       would    have    to   prove     under    the

Olano plain error standard that he would not have pleaded guilty

had the magistrate judge properly informed him of the 20-year

maximum     penalty     he   faced.      See      United    States    v.    Dominguez-

Benitez, 542 U.S. 74, 81 (2004).

        When determining whether a Rule 11 error affected a
        defendant’s substantial rights, we consider what
        information was provided to the defendant when he
        pleaded guilty, what additional information would have
        been provided by a proper rule 11 colloquy, and how
        the additional information would have affected the
        decision to plead guilty.

United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008).

                                            11
      The   burden   a     defendant    faces     under   Dominquez-Benitez

“should not be too easy”:

      First, the standard should enforce the policies that
      underpin Rule 52(b) generally, to encourage timely
      objections and reduce wasteful reversals by demanding
      strenuous exertion to get relief for unpreserved
      error.    Second, it should respect the particular
      importance of the finality of guilty pleas, which
      usually rest, after all, on a defendant’s profession
      of guilt in open court, and are indispensable in the
      operation of the modern criminal justice system. And,
      in this case . . . the violation claimed was of Rule
      11, not of due process.

Dominquez-Benitez, 542 U.S. at 82-83.

      In this case, Brachtendorf was aware of the aggravating

felony, as the federal criminal complaint described both the

prior conviction and his subsequent deportation.               He thus had

notice that the conviction was relevant to this current case.

Additionally, the evidence against him was overwhelming, which

is relevant because “one can fairly ask a defendant seeking to

withdraw his plea what he might ever have thought he could gain

by going to trial.”          Id. at 85.         Additionally, Brachtendorf

received a lenient sentence – the court departed downward from

the   guidelines     finding     that       his   criminal    history   was

overrepresented.     Id.    Because appellant has failed to carry his

burden to show that he would not have pleaded guilty if properly

advised, the inaccurate advice given him at his plea hearing

does not amount to a reversible error under the plain error

standard.

                                       12
For all these reasons, the judgment below is

                                               AFFIRMED.




                          13
