                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1539

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JOHN K ARL D EAN,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 10-cr-00787—Matthew F. Kennelly, Judge.


    A RGUED JANUARY 9, 2013—D ECIDED JANUARY 31, 2013




 Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
  F LAUM, Circuit Judge. Defendant John Dean trans-
ported thousands of files of child pornography across
the U.S.-Canada border. He pled guilty to one count
of transporting child pornography, see 18 U.S.C.
§ 2252A(a)(1), and received an 87-month prison
term and lifetime supervised release. After admitting
to knowing possession and transport of the files during
his guilty plea, Dean now challenges the district
court’s interpretation of § 2252A(a)(1) and his sentence.
We affirm.
2                                                    No. 12-1539

                         I. Background
A. Factual Background
   On August 20, 2009, Dean boarded an airplane in Chi-
cago bound for Ottawa, Canada. With him, he carried a
laptop computer housing over 14,000 still images and
over 700 videos of child pornography. When Dean’s
flight landed in Ottawa, Canadian police arrested him
and charged him with possession of child pornography.
He was convicted and served 21 months in a Canadian
prison. After completion of his Canadian sentence, U.S.
law enforcement took custody of Dean and indicted
him with transportation of child pornography across the
U.S.-Canada border.


B. Procedural Background
  Dean pled guilty to transportation of child pornography
in foreign commerce. At the plea hearing, the district
court found Dean competent, an assessment shared by
his defense attorney and the prosecution. During the
hearing, Dean acknowledged that he downloaded files of
child pornography onto the laptop and knew that the
laptop contained child pornography. He also admitted
that, when he crossed the Canadian border, he knew the
laptop was with him and that it held child pornography.1


1
    The relevant portions of the plea hearing transcript read:
      THE COURT: . . . The government would have to prove that
      you knew that when you were crossing the border, what-
                                                (continued...)
No. 12-1539                                                      3



1
    (...continued)
       ever border it was, that you had child pornography with
       you and that you knew that you were carrying it across the
       border.
      THE DEFENDANT: Yes. And that is why I plead to that. . . .
      ***
      THE COURT: Okay. In other words, you have to have
      known that you were transporting child pornography across
      a state line or across an international border. You didn’t
      have to know that there was a law that said you can’t do
      that.
      THE DEFENDANT: Okay.
      ***
      MS. PILLAY [the prosecutor]: In summary, on August 20th
      of 2009, the defendant traveled from O’Hare International
      Airport in Chicago, Illinois, . . . to . . . Ottawa, Ontario,
      Canada. During this trip the defendant carried a Toshiba
      Satellite laptop computer[.]
      THE COURT: Stop right there. Do you agree with what she
      said so far?
      THE DEFENDANT: I did have a Toshiba.
      ***
      THE COURT: Okay. At the time you flew from Chicago to
      Ottawa with this Toshiba Satellite laptop computer, did you
      understand—did you know at the time that it had some
      number of images of child—
      THE DEFENDANT: Yes.
      THE COURT: —pornography on it?
                                                     (continued...)
4                                                No. 12-1539

  Despite these admissions, Dean maintained that he
“didn’t knowingly, purposely want to break the law or
anything. I was—for whatever reason, I had it on my
computer, and my intentions were not to let it out of my
hands until I could get rid of it or destroy it. But I know
that isn’t the important part. The point I wish to make is
I did not knowingly break the law or violate that code.
I didn’t know that it existed.” In response, the district
court explained that § 2252A(a)(1) did not require knowl-
edge of illegality but only knowing transportation of
child pornography across state lines or an international
border. Dean responded with understanding: “Yes. And
that is why I plead to that.” The district court ultimately
accepted Dean’s guilty plea.
  At sentencing, the district court calculated a criminal
history category of one and an offense level of thirty-four,
suggesting a Guidelines range of 151- to 188-months’
imprisonment. The district court recognized that, because
certain enhancements apply to nearly every child pornog-
raphy case, the Guidelines “range is too severe.” Beginning
with a below-Guidelines starting point of 108 months, the



1
    (...continued)
       THE DEFENDANT: Yes.
     ***
     THE COURT: . . . And did you—the next sentence [of the
     plea agreement] says that you knew that there were images
     and videos on your laptop that depicted real children
     engaging in sexually explicit conduct. Is that true?
     THE DEFENDANT: That is true.
No. 12-1539                                                   5

district court deducted 21 months to credit Dean’s Cana-
dian imprisonment. Thus, the court imposed an 87-month
prison term followed by lifetime supervised release.


                       III. Discussion
A. Dean’s Guilty Plea Satisfies the State of Mind Re-
   quirements for Knowing Transportation of Child
   Pornography
  Dean first challenges the district court’s interpretation
of § 2252A, suggesting that a factual basis for Dean’s
plea did not exist because Dean never admitted to
knowing that his transportation of child pornography
across a foreign border violated the law. Dean’s guilty
plea, however, forecloses this argument. In pleading
guilty, Dean waived any challenge to the application of
the statutory elements to his conduct. See United States
v. Martin, 147 F.3d 529, 533 (7th Cir. 1998). Dean tries to
nullify his waiver by explaining in his reply brief that
he did not knowingly and voluntarily plead guilty.
But Dean did not challenge the voluntariness of his plea
in his opening brief so that argument, too, is waived.
E.g., United States v. Fluker, 698 F.3d 988, 1004 (7th
Cir. 2012).2



2
  Dean asserts that the “record is rampant” with statements
suggesting involuntariness but does not direct the Court to any
of these statements with a citation. Our independent review of
the change of plea transcript confirms that Dean voluntarily
                                                  (continued...)
6                                                    No. 12-1539

  Even if we were to reach the merits of Dean’s argu-
ment, it is clear that Dean voluntarily admitted to
conduct providing a factual basis for the district court
to conclude Dean possessed the requisite state of mind
when he carried the child pornography into Canada.
Dean disagrees, arguing that he denied knowledge of the
statute criminalizing his possession and transport of
the child pornography at his plea hearing. According
to Dean, the district court’s acceptance of the plea
under these circumstances imposed strict liability for
the offense. That is an incorrect assumption.
  Section 2252A is not a strict liability statute. It man-
dates punishment of anyone who “knowingly . . .
transports . . . using any means or facility of . . . foreign
commerce by any means, including by computer, any
child pornography.” § 2252A(a)(1) (emphasis added).



2
   (...continued)
admitted to his knowing possession and transport of child
pornography across the U.S.-Canada border. See United States
v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012) (affirming voluntari-
ness of plea on independent review of the record). That said,
we underscore the important responsibility of district courts
to confirm independently, through thorough questioning, that
a defendant acts voluntarily in foregoing trial and pleading
guilty. See Fed. R. Crim. P. 11(b). The interests of prosecution
and defense counsel may converge in disposing of a case
through plea agreement. The district court must act as the
critical bulwark to ensure that those defendants seeking to
plead guilty fully understand the consequences of such
a decision.
No. 12-1539                                                7

Thus, the statute does require a guilty state of mind—
knowledge. See United States v. X-Citement Video, Inc., 513
U.S. 64, 73-74 (1994); Morissette v. United States, 342
U.S. 246, 264 (1952). As the district court properly recog-
nized, § 2252A requires not knowledge of illegality but
knowledge that one possessed child pornography
while crossing a state or foreign border. See X-Citement
Video, 513 U.S. at 78. At his plea hearing, Dean freely
admitted both knowing possession of child pornography
and knowing transport of that pornography across the
Canadian border. That is all conviction requires, see id., so
Dean’s elocution provided ample factual basis for the
district court to conclude that Dean possessed a guilty
mental state.
  Dean’s suggestion that the district court should
have read “knowingly” in the statute to apply to his
knowledge of illegality, rather than the statutory ele-
ments of the crime, is incorrect. Ignorance of the law is
no defense. E.g., United States v. Kilgore, 591 F.3d 890,
894 (7th Cir. 2010) (noting “it is hornbook law that igno-
rance of the law is generally no defense” (citing Cheek v.
United States, 498 U.S. 192, 199 (1991)). Defense counsel
himself so recognized at Dean’s sentencing hearing:
“What I want to say is that all along, Mr. Dean has main-
tained what [government] counsel herself has articulated,
that [Dean] had no understanding of the seriousness
of what he was doing, that it was even a crime.
Certainly that is not a legal defense. I understand that.”
Dean offers nothing that compels the Court to swim
against this heavy current of long-settled precedent in
the Anglo-American criminal justice system.
8                                               No. 12-1539

  Instead, Dean invokes Morissette v. United States, 342
U.S. 246 (1952), and Liparota v. United States, 471 U.S. 419
(1985). Neither authority supports his incorrect under-
standing of the criminal state of mind requirement. Al-
though Morissette extols the benefits of requiring
guilty mind as a prerequisite for criminal sanction,
it also recognized that Congress has used the word
“knowing”—the same word in § 2252A(a)—to describe
such a guilty state of mind. Morissette, 342 U.S. at 252-62,
264. For that reason, Morissette does not support Dean’s
argument. Rather, it recognizes only that when
Congress codifies a common law crime in statute
without specifying a particular mens rea in the statutory
text, the common law mens rea remains an element of
the crime. Id. at 272-73. In Dean’s case, Morissette does
not apply: Congress explicitly identified the required
state of mind in the text of the statute—knowledge. See X-
Citement Video, 513 U.S. at 78. Likewise, Liparota pro-
vides Dean no refuge. That case involved conviction
under a statute criminalizing “knowingly us[ing],
transfer[ing], acquir[ing], alter[ing], or possess[ing] [food
stamps] in any manner not authorized by [the statute] or
the regulations.” 471 U.S. at 420. The Liparota Court
concluded that, in this statute, “knowingly” required
knowledge that the use, transfer, etc. of the food stamps
was unlawful. Id. at 433-34. Unlike the statute in
Liparota, which explicitly included unlawfulness as an
element of crime, the statute Dean violated does not.
Thus, Liparota offers no support for a reading of § 2252A(a)
that would require knowledge of unlawfulness.
No. 12-1539                                                   9

  Ultimately, through his guilty plea, Dean has waived
any challenge to the district court’s application of the
statutory elements to the facts of his case. Even if he had
not waived this challenge, Dean’s argument fails on
the merits.


B. The District Court Adequately Considered the
   § 3553(a) Factors When Sentencing Dean
  Dean next attacks his sentence, suggesting that the
district court did not adequately consider the § 3553(a)
factors when sentencing him. We review a district
court’s sentencing procedure de novo. United States v.
Pape, 601 F.3d 743, 746 (7th Cir. 2010). Dean argues pro-
cedural error in the district court’s failure to “avoid
unwarranted sentence disparities among defendants
with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6). He finds this
error in comparing his final offense level to the base
offense level for conduct that, in Dean’s eyes,3 is more


3
  We have rejected the notion that merely viewing child
pornography is a victimless crime:
    Young children were raped in order to enable the produc-
    tion of the pornography that the defendant both down-
    loaded and uploaded—both consumed himself and dissemi-
    nated to others. The greater the customer demand for
    child pornography, the more that will be produced. . . . The
    logic of deterrence suggests that the lighter the punish-
    ment for downloading and uploading child pornography,
    the greater the customer demand for it and so the more
    will be produced.
                                                 (continued...)
10                                                  No. 12-1539

severe than his. Dean is mistaken.
  Comparing a final offense level to the base offense
level of other crimes is not a valid gauge for deter-
mining whether a sentence avoids unwarranted dis-
parities.4 More importantly, when a district court “has
correctly calculated a Guidelines range, we assume
that significant consideration has been given to
avoiding unwarranted disparities between sentences.”
United States v. Stathem, 581 F.3d 548, 556 (7th Cir. 2009);
accord Gall v. United States, 552 U.S. 38, 54 (2007). This
assumption applies with added force in this case,
where not only has Dean left unchallenged the technical
accuracy of the district court’s Guidelines calculation,
but the district court imposed a sentence well below the
suggested Guidelines range.



3
   (...continued)
United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007)
(citations omitted).
4
  Even assuming a comparison between base offense levels
adequately encompasses this analysis—which it does
not—Dean’s base offense level is actually lower than the base
offense level for several of the statutes on which Dean relies.
For example, Dean’s crimes warranted a base offense level of
22. U.S.S.G. § 2G2.2(a)(2). Trafficking children by force or
coercion in violation of 18 U.S.C. § 1591(b)(2) carries a base
offense level of 30. U.S.S.G. § 2G1.3(a)(2). And coercing
or enticing a minor to engage in prostitution in violation of
18 U.S.C. § 2422 earns a base offense level of 24 or 28. U.S.S.G.
§ 2G1.3(a)(3)-(4).
No. 12-1539                                                 11

  Dean also attacks the substantive reasonableness of
his sentence. We review the substantive reasonableness
of a sentence for an abuse of discretion, Pape, 601 F.3d at
746, and find no such abuse here. The district court im-
posed an 87-month sentence well below the 151- to 188-
month Guidelines range. As a below- or within-range
sentence, we presume its reasonableness. See Rita v.
United States, 551 U.S. 338, 347 (2007). Dean offers
nothing to rebut this presumption. True, some judges,
including the district judge in this case, feel Guide-
line 2G2.2 results in artificially high sentences for child
pornography possession, receipt or transport.5 See United
States v. Halliday, 672 F.3d 462, 473-74 (7th Cir. 2012). That
does not mean, however, that district courts are required
to impose a below-Guidelines sentence in such a case. See
United States v. Huffstatler, 571 F.3d 620, 622-24 (7th Cir.
2009) (per curiam). Indeed, this Court has affirmed stiffer
sentences for similar conduct. E.g., United States v. Carey,


5
  Usually, this inflated Guidelines range results from enhance-
ments arising from the digital nature of the crime, which in
practice characterizes nearly all offenses. For example, defen-
dants receive a 5-level enhancement if they distributed images
in exchange for a thing of value (e.g., used a file-sharing
system to download the images). U.S.S.G. § 2G2.2(b)(3)(B) &
Application Note 1 (defining “thing of value”). A 2-level
enhancement results if the offense involves the use of a com-
puter. § 2G2.2(b)(6). And if the offense involves 600 or
more images, the Guidelines call for a 5-level increase.
§ 2G2.2(b)(7)(D). (Because digital images can be shared, down-
loaded, or duplicated with much more ease than hard-
copy images, defendants often exceed this 600-image threshold.)
12                                            No. 12-1539

369 F. App’x 725 (7th Cir. 2010) (nonprecedential deci-
sion) (affirming 151-month sentence under § 2252A);
United States v. Lance, 344 F. App’x 285 (7th Cir. 2009)
(nonprecedential decision) (affirming 120-month sen-
tence under § 2252A). Thus, we do not believe the
district court failed to avoid unwarranted sentencing
disparities or abused its discretion in setting Dean’s
sentence at 87 months.


C. Dean Received Credit for His Canadian Imprison-
   ment
   Finally, Dean argues that the Bureau of Prisons (BOP)
has not credited him with time-served in Canada. Dean’s
judgment and commitment order, however, accurately
lists his sentence at 87 months, the sentence the district
court identified after having credited Dean for his time
served in Canada. Dean offers nothing but his own suspi-
cions to suggest that the BOP intends to incarcerate
him longer than the 87-month term of imprisonment
stated on that order. Thus, Dean’s final challenge to
his sentence fails.


                    IV. Conclusion
  For the foregoing reasons, we A FFIRM Dean’s guilty
plea and sentence.




                          1-31-13
