               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 07-1370

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                          ROGER DALE BATES,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                                 Before

                      Lipez, Circuit Judge,
                  Selya, Senior Circuit Judge,
                   and Howard, Circuit Judge,


     David Beneman, Federal Public Defender, on brief for
appellant.
     Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.


                             July 28, 2008
            Per Curiam.       After pleading guilty to possessing child

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

sentenced   to    the   ten-year    mandatory   minimum    under   18   U.S.C.

§   2252A(b)(2),1   defendant      appeals   from   his   conviction    on   the

grounds that (1) his guilty plea was unknowing because, at the time

of his plea, he was not informed of the mandatory minimum; (2) his

prior conviction for indecent assault on a minor should not have

served as a predicate for the mandatory minimum because he did not

knowingly waive his right to counsel before pleading guilty to that

offense;    and   (3)   the   prior   conviction    should   not   have      been

considered because it was not included in the indictment or proven

beyond a reasonable doubt.          For the reasons discussed below, we

reject each of these arguments and summarily affirm the conviction.

                                      I.

            Defendant was aware as early as June 2006 that, assuming

the validity of his prior conviction, the instant offense carried

a mandatory minimum sentence of ten years and that, if he filed a

motion to withdraw his plea on that ground,




      1
      Section 2252A(a)(5)(B) criminalizes the possession of "any
. . . videotape . . . that contains an image of child pornography."
In general, persons who violate that provision are subject to a
term of imprisonment of "not more than 10 years."         18 U.S.C.
§ 2252A(b)(2).    However, if the person "has a prior conviction
. . . under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor
. . ., such person shall be . . . imprisoned for not less than 10
years nor more than 20 years." Id.

                                      -2-
the court would be inclined to grant it.       Yet, from that time

through his sentencing eight months later, in February 2007, he

never moved to withdraw his plea.       Under those circumstances,

defendant arguably waived any challenge to the validity of his plea

by intentionally relinquishing a known right. See United States v.

Olano, 507 U.S. 725, 733 (1993) (distinguishing between waiver and

forfeiture). But, even assuming that this challenge was not waived

entirely but merely forfeited, this court's review is only for

plain error.   United States v. Vonn,   535 U.S. 55, 63 (2002).

          Under that standard, even where the district court

committed an obvious legal error in the plea proceedings,2 the

plea will not be vacated on appeal unless the defendant can also

show that the error affected his "substantial rights."     Olano,

507 U.S. at 734-35.    To make that showing in the guilty-plea

context, a defendant "must show a reasonable probability that,

but for the error, he would not have entered the plea."    United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004);3 see also


     2
      The error here--failing to inform defendant of the ten-year
mandatory minimum--was not obvious when made but became so only
when the probation officer later discovered that defendant had a
prior conviction for indecent assault on a minor, which triggered
the mandatory minimum under 18 U.S.C. § 2252A(b)(2).
     3
      Before Dominguez Benitez, this court applied a less demanding
standard as to whether an error in plea proceedings affected a
defendant's "substantial rights."     See, e.g., United States v.
Castro-Gomez, 233 F.3d 684, 687 (1st Cir. 2000) (finding such an
effect where defendant's decision to plead guilty "could reasonably
have [been] affected"); United States v. Santo, 225 F.3d 92, 101
(1st Cir. 2000) (finding such an effect where defendant's

                               -3-
United States v. Caraballo-Rodriguez, 480 F.3d 62, 69 (1st Cir.),

cert. denied, 128 S. Ct. 489 (2007).         "A defendant must thus

satisfy the judgment of the reviewing court, informed by the

entire record, that the probability of a different result is

'sufficient   to   undermine   confidence   in   the   outcome   of   the

proceeding.'"      Dominguez Benitez, 542 U.S. at 83 (citations

omitted).

            Defendant does not attempt to make such a showing here,

and the record strongly suggests the opposite, i.e., that even if

defendant had been told at his plea colloquy that a ten-year

mandatory minimum applied, he still would have pled guilty. When

the potential applicability of the mandatory minimum first came

to light, the court immediately offered to vacate the guilty plea

on that ground if defendant so desired.     In the ensuing colloquy,

the prosecutor suggested that defendant might still want to plead

guilty in light of ongoing negotiations to get a concurrent

sentence in a related, pending state-court matter; and defense

counsel agreed with that characterization of those negotiations

in the state-court case.       At a second conference two months

later, defense counsel indicated, after speaking to his client,

that even if the prior conviction is deemed valid, triggering the

ten-year mandatory minimum, defendant probably would not want to


willingness to plead guilty "might conceivably have been
lessened").   Defendant's reliance on such pre-Dominguez Benitez
cases is therefore misplaced.

                                 -4-
withdraw his plea.       Again the court indicated its willingness to

grant a motion to withdraw the plea, but no such motion was filed

even after the court ruled that the mandatory minimum applied and

proceeded to sentence him to that minimum.                 The fact that

defendant was offered several opportunities to withdraw his plea

after being informed of the mandatory minimum but never sought to

do so is a strong indication that, even if he had been informed

of the mandatory minimum at the change-of-plea hearing, he still

would have pled guilty.           Thus, defendant has failed to meet his

burden of demonstrating a "reasonable probability that . . . he

would not have entered the plea," Dominguez Benitez, 542 U.S. at

83, had he been informed of the mandatory minimum at the time.

Accordingly, under the plain-error standard, no relief from his

plea is warranted at this late stage.

                                      II.

            After carefully reviewing the underlying record, we

agree   with    the    district     court's   conclusion   that    defendant

knowingly waived his right to counsel before pleading guilty to

indecent assault on a minor and therefore affirm the denial of

defendant's motion to exclude that conviction for purposes of

computing      his    mandatory    minimum    sentence   under    18   U.S.C.

§ 2252A(b)(2).        In so doing, we rely primarily on the analysis

contained in the district court's thorough and well-reasoned

decision, United States v. Bates, 2006 WL 3210434, at *1-*2 (D.


                                      -5-
Me. Nov. 6, 2006).            See generally Metro. Life Ins. Co. v.

Zaldivar, 413 F.3d 119, 120 (1st Cir. 2005).                We add only the

following comments from an appellate perspective.

           The     district     court's    factual    findings   are   amply

supported by the record or reasonable inferences therefrom and

therefore readily survive scrutiny under the applicable clearly

erroneous standard.      United States v. Frechette, 456 F.3d 1, 11

(1st Cir. 2006).      In making those findings, the district court

properly placed the burden on the defendant to establish that his

prior conviction (whose existence he does not dispute) was

invalid, United States v. Sanchez, 354 F.3d 70, 81 (1st Cir.

2003), and properly applied the presumption of regularity that

attaches      to   criminal    judgments     even    when    challenged   on

constitutional grounds, Parke v. Raley, 506 U.S. 20, 37 (1992);

Sanchez, 354 F.3d at 81.          And, in concluding that defendant's

waiver   of    counsel   was    knowing,    the     court   considered    the

appropriate factors, including defendant's education, experience,

and prior exposure to the criminal justice system; the relative

simplicity of the charge; the stage of the proceedings at which

counsel was waived; the favorable sentencing outcome; and the

absence of an appeal from or collateral attack on his state

conviction or sentence.         Iowa v. Tovar, 541 U.S. 77, 81 (2004);

Parke, 506 U.S. at 37; United States v. Gray, 177 F.3d 86, 89

(1st Cir. 1999).         Under the applicable de novo standard of


                                     -6-
review, Frechette, 456 F.3d at 11, we find no error in the

district court's application of those factors to the facts of

this case.

                              III.

          As defendant candidly recognizes, his challenge to

consideration of his prior conviction on the ground that it was

neither admitted, charged in the indictment, nor proved beyond a

reasonable doubt is currently "hopeless."        United States v.

Richards, 456 F.3d 260, 262 (1st Cir. 2006) (citing Almendarez-

Torres v. United States, 523 U.S. 224 (1998)), cert. denied, 127

S. Ct. 2097 (2007).

                               IV.

          Accordingly, the judgment of the district court is

summarily affirmed.   See 1st Cir. R. 27.0(c).




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