     Case: 16-11161      Document: 00514253555        Page: 1   Date Filed: 11/29/2017




         IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                       No. 16-11161
                                                                               Fifth Circuit

                                                                             FILED
                                                                     November 29, 2017

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                Plaintiff - Appellee

v.

JOHN R. FARRAR,

                Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.*
RHESA HAWKINS BARKSDALE, Circuit Judge:
      John Farrar pleaded nolo contendere to one count of possessing, while in
federal prison for a child-pornography offense, obscene depictions of a minor
engaged in sexually-explicit conduct (images), in violation of 18 U.S.C.
§ 1466A(b)(1). Although he was sentenced to the ten-year statutory minimum
for repeat offenders, under 18 U.S.C. § 2252A(b)(2), the court ordered the
sentence to run concurrently with Farrar’s prior sentence, with the new
sentence to run from the date of his offense. Farrar challenges his conviction
and sentence, asserting: the images he possessed are not obscene; and his
sentence violates the Eighth Amendment. Primarily at issue is whether we

_____________
*Judge Dennis concurs in the judgment only.
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                                 No. 16-11161
must review those images to determine whether they are obscene.
AFFIRMED.
                                       I.
      In 2007, Farrar was sentenced to 180 months’ imprisonment, after
pleading guilty to six counts of child pornography. In May 2015, while he was
in prison for those child-pornography offenses, guards found in his work-
station “seven hand-drawn images depicting the [sexual] exploitation of minor
females” and two hand-written books, describing sexual abuse of minors.
Farrar admits purchasing the images from other inmates and writing the
books.
      Farrar was indicted on one count of possessing six obscene depictions of
a minor engaging in sexually-explicit conduct, in violation of 18 U.S.C.
§§ 1466A(b)(1) & (d)(5), which requires proof of “a visual depiction of any kind,
including a drawing . . . that . . . (1)(A) depicts a minor engaging in sexually
explicit conduct; and (B) is obscene”. Farrar requested the district court’s
consent to plead nolo contendere.
      As discussed infra, the magistrate judge (MJ) accepted the Government’s
offer of proof, and Farrar personally declined to contest that offer, apologizing
for the court’s having to view the images. Subsequent to Farrar’s assuring the
MJ he was not “try[ing] to hide behind the law and try[ing] to come out with
some appeal issue”, the MJ recommended the district judge accept Farrar’s
nolo contendere plea.
      The district judge accepted the recommendation and, over Farrar’s
objection under the Eighth Amendment, sentenced him to the ten-year
minimum required by 18 U.S.C. §§ 1466A(b)(1) and 2252A(b)(2). But, despite
Farrar’s being sentenced to that ten-year minimum, the court ordered his
sentence to run concurrently with the child-pornography sentence he was
serving, with the sentence to run from the date of the offense, May 2015, rather
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                                 No. 16-11161
than the date of sentencing, July 2016. Farrar admits that, as a result, he will
serve an additional four-and-a-half-years beyond what he is serving for his
2007 child-pornography conviction.
                                      II.
      Farrar challenges both his conviction and sentence. For the former, he
contends: the images to which he pleaded nolo contendere to possessing are not
obscene; and, although he pleaded nolo contendere, we are required to decide
whether the images are obscene. His sentence is contested under the Eighth
Amendment on two bases: it is grossly disproportionate to his crime as applied;
and, a ten-year minimum for repeat-offenders in possession of obscene
material is categorically disproportionate.
                                      A.
      In contesting his conviction stemming from his nolo contendere plea,
Farrar claims the images he possessed are not obscene within the meaning of
18 U.S.C. § 1466A and the First Amendment. Along that line, Farrar cites
Supreme Court, and our court, precedent for the proposition that he is entitled
to an independent judicial review by our court to determine whether the
images are obscene. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
508 n.27 (1984); Miller v. California, 413 U.S. 15, 25 (1973); United States v.
Ragsdale, 426 F.3d 765, 780 (5th Cir. 2005); Penthouse Int’l, Ltd. v. McAuliffe,
610 F.2d 1353, 1364 (5th Cir. 1980); Clicque v. United States, 514 F.2d 923,
926–27 (5th Cir. 1975); United States v. Gates, 481 F.2d 605, 605–06 (5th Cir.
1973); United States v. Thevis, 484 F.2d 1149, 1155 (5th Cir. 1973).         He
contends the review is mandated, even though: he did not contest obscenity in
district court, and, instead, as shown infra, affirmatively agreed the images
are obscene, apologized for the court’s having to view them, and advised the
court he was not “try[ing] to hide behind the law and try[ing] to come out with
some appeal issue”.
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                                  No. 16-11161
      A nolo contendere plea, permitted by Federal Rule of Criminal Procedure
11, is also referred to as a plea of “no contest”. As the Court has explained,
            [a]lthough it is said that a plea of nolo contendere
            means literally I do not contest [the charge], and is a
            mere statement of unwillingness to contest and no
            more, it does admit every essential element of the
            offense (that is) well pleaded in the charge. Hence, it
            is tantamount to an admission of guilt for the purposes
            of the case, and nothing is left but to render judgment,
            for the obvious reason that in the face of the plea no
            issue of fact exists, and none can be made while the
            plea remains of record.
Lott v. United States, 367 U.S. 421, 426 (1961) (internal quotations omitted).
      In addition, Rule 11, and our court’s opinion in Prince, foreclose a factual
basis’ being required for a nolo contendere plea. United States v. Prince, 533
F.2d 205, 208 (5th Cir. 1976). Rule 11 distinguishes guilty pleas from nolo
contendere pleas: “Rule 11 does not require that the district court find a factual
basis for a plea of nolo contendere, as opposed to a plea of guilty”. Id. at 208.
Rule 11(a)(3) states that, “[b]efore accepting a plea of nolo contendere, the court
must consider the parties’ views and the public interest in the effective
administration of justice”. Fed. R. Crim. P. 11(a)(3). By contrast, for a guilty
plea, Rule 11(b)(3) requires the court “determine that there is a factual basis
for the plea”. Fed. R. Crim. P. 11(b)(3).
      Even though a factual basis is not required for a nolo contendere plea
under Rule 11, “[g]enerally, a challenge to the legal sufficiency of an
undisputed factual basis [for a plea] is a straightforward question of law,
reviewed de novo”. United States v. Butler, 637 F.3d 519, 521 (5th Cir. 2011)
(internal quotations omitted).     And, the court’s decision to accept a nolo
contendere plea is reviewed for abuse of discretion. United States v. Smith, 417
F.3d 483, 486 (5th Cir. 2005); see also United States v. Bearden, 274 F.3d 1031,
1035 (6th Cir. 2001). In addition, the Government urges we instead review the
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                                   No. 16-11161
decision to accept the plea under the more limited standard for plain error:
“where a defendant does not raise a challenge to the adequacy of the factual
basis underlying [his] guilty plea in the district court . . . this court reviews for
plain error”. Butler, 637 F.3d at 521 (internal quotation omitted).
      Of course, no authority need be cited for the well-established rule that
we, not the parties, determine our standard of review. In this instance, we sua
sponte first review de novo, to determine whether the doctrines of judicial
estoppel or waiver bar Farrar’s challenge to his conviction.
      Following the images and books being found in May 2015, and after
Farrar was indicted that November, he presented the MJ with a memorandum
expressing his intent to plead nolo contendere and listing the elements of the
charged offense. They include, inter alia, defendant’s possessing an image that
is obscene under the three-part Miller test for obscenity. Miller, 413 U.S. at
24 (“(a) whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value”) (internal quotations omitted)).
      Farrar stated in his memorandum that, because “twelve unlucky
members of the community [as the jury] . . . must view these images and make
a determination of whether these particular images are obscene . . . how can
[he] do anything other than enter a plea of nolo contendere”? Consistent with
that position, he stated: he would not contest the factual basis underlying the
charge; and, instead, “[he] will not and does not object to this Court accepting
the government’s offer of proof to support this Court’s acceptance of this plea
of nolo contendere”.


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                                   No. 16-11161
      He also stated he had considered making a facial challenge to the
constitutionality of 18 U.S.C. § 1466A, but decided not to do so, “[i]n hopes of
appearing before [the district court] as soon as possible . . . in hopes of receiving
the same sentence as [a fellow inmate]—[who] appeared before [the court] with
an almost identical case and received a mandatory minimum sentence of ten-
years of imprisonment that [the court] ordered to be served concurrent to the
sentence that [the inmate] was already serving”. Therefore, Farrar stated he
would “knowingly forgo[] that time consuming and most likely fruitless
argument” about the statute and plead nolo contendere.
      At the plea hearing before the MJ, Farrar waived his right to enter a
plea before the district court. The MJ explained Farrar’s constitutional rights
and the consequences of his nolo contendere plea, commenting that,
“[g]enerally, a defendant who is accused of a crime cannot plead [nolo
contendere] unless he is actually guilty of that offense”. The MJ questioned
Farrar extensively regarding his nolo contendere plea to ensure it was entered
into knowingly and voluntarily. The Government read the charges against him
and elements of the offense, which, of course, included obscenity.
      Farrar admitted “that there [was] evidence in this case of the commission
by [Farrar] of these essential elements”; his counsel stated “[h]e doesn’t dispute
that the government can prove . . . each of these elements beyond a reasonable
doubt”; and Farrar stated he understood the “effect of [his] no contest plea
[would be] the same as a guilty plea”, and acknowledged that, because he was
a repeat-offender, his sentence carried a mandatory minimum of ten, and a
maximum of 20, years, with a possible $250,000 fine. Nevertheless, Farrar
pleaded nolo contendere.
      In Farrar’s “Notice Regarding Entry of a Plea of Guilty”, he had crossed
out the word “guilty” five times and inserted “no contest”. The MJ expressed
reservations about the nolo contendere plea because, “in 15 and a half years as
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                                 No. 16-11161
a prosecutor and now six as a judge, I have never seen [a nolo contendere plea].
And I have confirmed that neither has [the district judge]”. Farrar addressed
the MJ’s concern by stating his “goal [was] not to try to hide behind the law
and try to come out with some appeal issue. That’s the kind of thing [that]
only comes back and haunts people later”.
      Moreover, even though not required to establish a factual basis under
Rule 11, the Government submitted an offer of proof for the evidence it could
prove beyond a reasonable doubt: in sum, Farrar was serving a prison sentence
for child-pornography offenses when found in possession of obscene images
depicting the sexual abuse of minors. The Government again described in
detail the six images it deemed “obscene” and submitted them as exhibits.
      Importantly, the MJ asked “[whether] the defendant [had] any objection
to [the] government’s offer of proof”. Farrar and his counsel each responded:
“No, Your Honor”. Farrar’s counsel apologized for the court’s having to view
the images, stating: “I’m sorry you have to look at those drawings”, and Farrar
stated “So am I, Your Honor”.
      In the MJ’s report and recommendation, after providing a detailed
description of the images and the two books found in Farrar’s workstation, the
MJ recommended there was “competent and credible evidence establishing
each essential element of the offense charged”. The MJ further recommended
the district judge accept Farrar’s nolo contendere plea, and pronounce him
guilty of possession of the obscene images. The district judge accepted that
plea, based on the MJ’s recommendation.
                                       1.
      In the light of the above description of the plea hearing, including, most
especially, the comments, and positions taken, by Farrar and his counsel, the
immediate, and quite obvious, question is whether Farrar is judicially estopped
from pursuing his obscenity challenge on appeal.          Judicial estoppel is an
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equitable doctrine applied in the court’s discretion to “prevent[] a party from
asserting a position in a legal proceeding that is contrary to a position
previously taken by him in the same or some earlier legal proceeding”. United
States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993) (internal quotations
omitted).
      The central, extremely important purpose of the doctrine is “to protect
the integrity of the judicial process and to prevent unfair and manipulative use
of the court system by litigants”. Id. at 379. In that regard, the Supreme Court
has listed a number of rationales for the doctrine to include “prevent[ing] the
perversion of the judicial process”, “prohibiting parties from deliberately
changing positions according to the exigencies of the moment”, and
“prevent[ing] parties from ‘playing fast and loose with the courts’”.         New
Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (quoting In re Cassidy, 892
F.2d 637, 641 (7th Cir. 1990); McCaskey, 9 F.3d at 378; and Scarano v. Central
R. Co., 203 F.2d 510, 513 (3d Cir. 1953)); see also Trinity Marine Prods., Inc. v.
United States, 812 F.3d 481, 490 (5th Cir. 2016) (preventing “assert[ion of]
contradictory positions for tactical gain”).
      “Because the rule is intended to prevent improper use of judicial
machinery, judicial estoppel is an equitable doctrine invoked by a court at its
discretion.” New Hampshire, 532 U.S. at 750 (internal quotations omitted).
Accordingly, there are no “inflexible prerequisites or [] exhaustive formula[s]”.
Gabarick v. Laurin Maritime (America) Inc., 753 F.3d 550, 553 (5th Cir. 2014)
(quoting New Hampshire, 532 U.S. at 751). “Because the doctrine is equitable
in nature, it should be applied flexibly, with an intent to achieve substantial
justice. . . . Application of the doctrine of judicial estoppel should be guided by
a sense of fairness, with the facts of the particular dispute in mind.” Reed v.
City of Arlington, 650 F.3d 571, 574 (5th Cir. 2011) (internal quotation
omitted).
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                                  No. 16-11161
      Notwithstanding the doctrine’s being “applied flexibly”, id., our court has
identified three “requirements” for judicial estoppel: the party’s position must
be “plainly inconsistent with [its] prior position”; the party must have
convinced “a court [to] accept[] the prior position”; and the party must not have
“act[ed] inadvertently”. Trinity Marine Prods., Inc., 812 F.3d at 490 (quoting
Reed, 650 F.3d at 574); see also Gabarick, 753 F.3d at 553; and United States
v. Cluff, 857 F.3d 292, 301 (5th Cir. 2017). And, the Supreme Court has
provided an additional “factor”:     “whether the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped”. Zedner v. United States, 547
U.S. 489, 504 (2006) (quoting New Hampshire, 532 U.S. at 750–51).
                                        a.
      As a threshold matter, we must determine whether judicial estoppel can
be applied to a criminal defendant. Because our court has never decided this
question, but has assumed the doctrine may be applied to the Government in
a criminal case, we consider how the doctrine has been applied in this situation
by other courts, starting of course, with the Supreme Court.
      The Court considered applying judicial estoppel to estop a criminal
defendant’s claiming a violation of the Speedy Trial Act of 1974. Id. at 492–
93; 18 U.S.C. §§ 3161–3174. But, after citing the general principles of judicial
estoppel, the Court ruled “[n]one of [defendant’s acts] gives rise to an estoppel”.
Zedner, 547 U.S. at 505. On the other hand, the Court did not foreclose the
possibility a criminal defendant could be estopped. Id.
      The tenth circuit followed the “minority viewpoint” in rejecting the
doctrine until 2005, but now applies it in the light of the Court’s decision in
New Hampshire. Johnson v. Lindon City Corp., 405 F.3d 1065, 1070 (10th Cir.
2005) (applying doctrine in the light of New Hampshire and deciding 42 U.S.C.
§ 1983 plaintiff was judicially estopped from asserting facts inconsistent with
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                                  No. 16-11161
guilty plea, because, inter alia, “to allow Plaintiffs to accept the benefit of the
Pleas in Abeyance and, in the next breath, sue for civil damages stemming
from their arrest for crimes they admittedly committed would clearly
undermine the integrity of the judicial system”); United States v. 162
MegaMania Gambling Devices, 231 F.3d 713, 726 (10th Cir. 2000) (following
“minority viewpoint” not accepting doctrine).
      At least two courts have stated the doctrine, in certain instances, does
not apply against a criminal defendant. The first circuit stated: “Judicial
estoppel . . . is not applicable to bar a criminal defendant from later asserting
a claim based on innocence either on direct appeal or on habeas corpus, even
when such a claim rests on facts that contradict the criminal defendant’s in-
court and sworn representations”. Thore v. Howe, 466 F.3d 173, 183 (1st Cir.
2006) (citing Morris v. California, 966 F.2d 448, 453–54 (9th Cir. 1991) (“[n]o
circuit has ever applied the doctrine of judicial estoppel to bar a criminal
defendant from asserting a claim based on innocence, either on direct appeal
or on habeas corpus”)). Nevertheless, the first circuit in Thore ruled it was not
an abuse of discretion to hold a 42 U.S.C. §1983 plaintiff was judicially
estopped from asserting a position inconsistent with his prior guilty plea. Id.
at 187; see also State v. Ellison, 550 P.2d 101, 103 (Ariz. Ct. App. 1976) (not
applying estoppel against criminal defendant because “the State suggests no
precedent for the application of an estoppel theory to bar the assertion of
constitutional rights in a criminal case, although the concept of judicial
estoppel is not unknown to the civil law”).
      The fourth circuit estopped a criminal defendant from contradicting
statements made in his guilty plea, because, inter alia, the trial court accepted
the plea, the criminal defendant received a dramatically reduced sentence
based on it, and defendant was “wanting to ‘have [his] cake and eat it too’”.
Lowery v. Stovall, 92 F.3d 219, 224–25 (4th Cir. 1996) (citing People v.
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                                 No. 16-11161
Goestenkors, 662 N.E.2d 574, 577 (Ill. App. Ct. 1996) (party who pleaded guilty
to traffic violation judicially estopped from challenging officer’s basis for the
stop because “[t]he law will not tolerate a party in a legal proceeding swearing
under oath to the untruth of some matter and then swearing under oath to the
truth of that same matter”)).
      As reflected above in Goestenkors, some state courts have applied the
doctrine against criminal defendants. In Washington, the Wisconsin court of
appeals applied judicial estoppel to defendant’s seeking a new trial on appeal
when he refused the trial court’s offer for a new trial. State v. Washington, 419
N.W.2d 275, 277 (Wis. Ct. App. 1987); see also State v. Towery, 920 P.2d 290,
304 (Ariz. 1996) (“We believe the doctrine of judicial estoppel is no less
applicable in a criminal than in a civil trial. Any other rule would permit
absurd results.”).
      Our court has twice assumed, without deciding, that the Government
may be judicially estopped in criminal cases, as noted supra. McCaskey, 9 F.3d
at 378–79; Cluff, 857 F.3d at 301. Pursuant to plain-error review, in both
McCaskey and Cluff our court refused to judicially estop the Government.
McCaskey, 9 F.3d at 378–79; Cluff, 857 F.3d at 301. In addition, in not deciding
the issue in McCaskey, our court stated: “we believe that the underlying
purposes of the doctrine are the same in both civil and criminal litigation—to
protect the integrity of the judicial process and to prevent unfair and
manipulative use of the court system by litigants”. McCaskey, 9 F.3d at 379.
      Whether to apply judicial estoppel to a criminal defendant is an issue
meriting great consideration.      That the Government does not urge its
application in this appeal does not preclude our applying the doctrine because
it is within our discretion to do so. Nevertheless, we need not decide whether
to apply the doctrine to Farrar because, in this instance, judicial estoppel is


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                                  No. 16-11161
not the only doctrine which compels our not considering his obscenity
challenge; as discussed infra, waiver does as well.
      On the other hand, because application of the doctrine is of such
importance, it should be considered fully. Accordingly, assuming, without
deciding, that judicial estoppel can be a basis for preventing Farrar’s
perverting the judicial process with his inconsistent positions, we give further
consideration to application of the doctrine.
      It is crucial for analyzing judicial estoppel that Farrar was not just silent
regarding obscenity; he acted just the opposite and, inter alia, agreed the
images are obscene. He also affirmatively agreed there was sufficient evidence
for every element of the offense (including obscenity); affirmatively stated he
had no objection to the Government’s presentation of a factual basis (which
included obscenity); apologized for the court’s having to view the images;
refused a trial because “twelve unlucky members of the community . . . must
view these images”; and, most importantly for judicial-estoppel purposes,
misled the court regarding his nolo contendere plea by stating he was not
“try[ing] to hide behind the law and try[ing] to come out with some appeal
issue”.
      As discussed supra, we reiterate: the MJ was skeptical of Farrar’s nolo
contendere plea, because they are so uncommon; the MJ stated in “15 and a
half years as a prosecutor and now six as a judge, I have never seen [a nolo
contendere plea] either”; the Government objected to the plea, consistent with
Department of Justice policy; and Farrar’s counsel acknowledged the court
“rarely h[as] these”. Considering, on an objective basis, the plea colloquy,
Farrar assuaged the MJ’s reservations, and, therefore, convinced the MJ to
accept the nolo contendere plea, by stating he was not attempting to bypass the
fact-finder and challenge obscenity on appeal, as discussed supra.


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                                  No. 16-11161
      Equally, if not more, important, as also discussed supra, although not
required to establish a factual basis for a nolo contendere plea under Rule 11,
the Government presented its offer of proof, describing the images in detail
and presenting evidence for every element of the offense, including that the
images were obscene. When, in response, the MJ asked, “[d]oes the defendant
have any objection to the government’s offer of proof?”, Farrar’s counsel and
Farrar each stated “No, Your Honor”.
      As demonstrated from the outset of our analysis, the extremely
important purposes of judicial estoppel would be more than well served by
applying it here. By affirmatively agreeing the images were obscene and
convincing the court he was not “try[ing] to hide behind the law and try[ing] to
come out with some appeal issue”, Farrar has most certainly imperiled “the
integrity of the judicial process”, and “perver[ted] the judicial process”. New
Hampshire, 532 U.S. at 749–50 (internal quotations omitted).              He has
“assert[ed] contradictory positions for tactical gain”, and he is attempting to
“play[] fast and loose with [this] court[]”. Trinity Marine Prods., Inc., 812 F.3d
at 490; see New Hampshire, 532 U.S. at 749–50.
      Farrar’s litigation strategy of affirmatively agreeing in district court that
the images were obscene, and convincing the MJ no appeal on the issue was
forthcoming, so that he could receive the same reduced sentence as a fellow
inmate, and then mounting his obscenity challenge on appeal disrupts the
fundamental distinction between trial and appellate courts, threatening the
“integrity of the judicial process”.    New Hampshire, 532 U.S. at 749–50.
Relying on precedent requiring an “independent review”, Farrar, for no other
reason than “tactical gain”, waited until appeal to present his obscenity
challenge. Trinity Marine Prods., Inc., 812 F.3d at 490.
      We can only imagine the implications were Farrar’s forum-shopping
strategy permitted. We will not tolerate a criminal defendant who might wish
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                                  No. 16-11161
to avoid an anticipated adverse ruling by a district judge by waiting to present
his constitutional challenge directly to us. Nor will we condone a defendant
who pleads nolo contendere to receive a reduced sentence, as Farrar did here,
then uses our court to challenge his conviction. (As discussed, Farrar pleaded
nolo contendere “[i]n hopes of appearing before [the court] as soon as possible
. . . [and] receiving the same sentence as [a fellow inmate]”.)
      Although Farrar is correct that we must often undertake an independent
review in obscenity cases, we cannot be called upon to provide the only review.
We are not a trial court, and cannot undertake, without the trial court’s first
developing a record, the factual analysis required by Miller’s three-part
obscenity test. Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 576 n.7
(2002) (Both the “prurient interest” and “patently offensive” prongs of the
Miller test are “question[s] of fact to be decided by a jury applying
contemporary community standards”). Nor will we do so at the behest of
Farrar, whom we perceive as attempting to game the system.
                                        b.
      Our having both assumed judicial estoppel can be applied to Farrar and
concluded the rationales for the doctrine support estopping him from
presenting his obscenity challenge to us for the first time on appeal, we turn to
whether, in our discretion, we should apply the doctrine against him. The
three “requirements” for judicial estoppel discussed in Cluff and Trinity are
satisfied. Cluff, 857 F.3d at 301; Trinity Marine Prods., 812 F.3d at 490. First,
Farrar’s position is “clearly inconsistent” with the position he took in district
court. He agreed there was sufficient evidence to prove beyond a reasonable
doubt the images were obscene; listened to the factual basis and stated he had
no objection to the Government’s declaring the images obscene; and personally
apologized for the court’s having to view them.


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                                  No. 16-11161
      Second, Farrar “convinced the court to accept that previous position”.
Cluff, 857 F.3d at 301. The MJ was hesitant to accept Farrar’s nolo contendere
plea, but he convinced the court by stating he was not “try[ing] to hide behind
the law and try[ing] to come out with some appeal issue”.
      Also, the third requirement—that the inconsistent position not be
inadvertent—is satisfied. Based on this record, Farrar did not inadvertently
implement his duplicitous litigation strategy, as discussed supra.
      Finally, the Court lists as a “factor”, “whether the party . . . would derive
an unfair advantage or impose an unfair detriment on the opposing party if
not estopped”. Zedner, 547 U.S. at 504. This factor is satisfied, because, as
discussed supra, we are, inter alia, not able without a district-court record to
decide the fact-based Miller test. For numerous and obvious reasons, our doing
so would most certainly, “impose an unfair detriment on the” Government. Id.
       We reiterate that judicial estoppel is an extremely important equitable
doctrine, applied in our discretion. Again, the rationales for the doctrine more
than support its application in this case. Nevertheless, in the light of, inter
alia, Farrar’s First Amendment claim, we do not decide whether the doctrine
applies to him and, if it does, whether to invoke our discretionary prerogative
to estop him from presenting that claim. As noted supra, we do not need to
decide these questions because another ground unquestionably precludes his
playing “fast and loose” with our court: waiver.
                                        2.
      Again, Farrar asserts: the images are not obscene; and this court must
review them to determine whether they are obscene, even though, in district
court, he pleaded nolo contendere, and affirmatively agreed they are obscene.
As stated, he waived this assertion.
      “Waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant
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                                  No. 16-11161
circumstances and likely consequences.” Brady v. United States, 397 U.S. 742,
748 (1970).    A nolo contendere, like a guilty, plea, must be knowingly,
voluntarily, and intelligently made. United States v. Ruiz, 536 U.S. 622, 629
(2002) (“the Constitution insists . . . that the defendant enter a guilty plea that
is ‘voluntary’ and that the defendant must make related waivers ‘knowing[ly],
intelligent[ly], [and] with sufficient awareness of the relevant circumstances
and likely consequences.’” (internal quotation omitted)); Duke v. Cockrell, 292
F.3d 414, 416 (5th Cir. 2002); Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th
Cir. 1990).
       In Broome, our court noted: “an individual who enters a plea of nolo
contendere waives all nonjurisdictional defects”. United States v. Broome, 628
F.2d 403, 404 (5th Cir. 1980) (citing Williams v. Wainwright, 604 F.2d 404, 407
(5th Cir. 1979); Fisher v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978)).
Therefore, a criminal defendant who pleads nolo contendere is “then limited to
claiming that the indictment failed to state an offense, that the statute is
unconstitutional or that the statute of limitations bars prosecution”.       Id. at
405.   Farrar’s challenge is not jurisdictional; and he does not challenge his
indictment, the constitutionality of 18 U.S.C. § 1466A, or the statute of
limitations.   Therefore, in the light of Broome, his obscenity challenge is
waived.
       Nor, as discussed supra, can Farrar claim the Government must
establish a factual basis for his plea. As stated in Prince and shown in Rule
11, no factual basis is required for a plea of nolo contendere. Prince, 533 F.2d
at 208; Fed. R. Crim. P. 11(a)(3).
       Cases like Clicque do not provide Farrar relief. Clicque, 514 F.2d at 927–
28. There, our court reversed a conviction stemming from a guilty plea for
mailing an obscene letter because “the letter was not reproduced in the
indictment”, the record did not indicate “the district court judge looked at [the
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                                  No. 16-11161
letter]”, and the district court did not inquire into the contents of the letter
before accepting defendant’s plea. Id. at 925. Our court held “the convicting
court was under a constitutional duty to assure itself of the unprotected nature
of [defendant’s] writing”, id. at 926; and reversed because “the district court
did not make such an assessment before accepting the guilty plea”, id. at 927–
28.
        Obviously, our opinion in Clicque is distinguishable on multiple grounds.
First, the Clicque case involved a guilty plea, not nolo contendere. Our opinions
in Broome and Prince foreclose Farrar’s challenges to his nolo contendere plea.
Second, the district court in this instance made an assessment, although none
was required by Rule 11: in Clicque, the trial court did not even view the
allegedly obscene letter; but, in this instance, the district court reviewed the
obscene images. Finally, there is no indication the defendant in Clicque made
comments similar to Farrar’s. Again, he affirmatively admitted there was
sufficient evidence on the obscenity issue, said he did not want a jury trial
because the “twelve unlucky [jurors]” would have to view the images,
affirmatively refused to object to the Government’s proof the images were
obscene, apologized for the MJ’s viewing the images, and convinced the MJ he
was not “try[ing] to come out with some appeal issue”.
        Again, we acknowledge the Court’s requiring an independent review in
obscenity cases, but, under the circumstances of this case, we will not provide
the only review. Farrar, through his nolo contendere plea and statements in
district court, knowingly, voluntarily, and intelligently relinquished any right
he had to an independent review by this court for obscenity vel non.
                                          B.
        Through the Eighth Amendment, Farrar challenges his sentence in two
ways: his sentence was grossly disproportionate “as applied”; and a ten-year
mandatory-minimum sentence          for    possession of    “mere drawings” is
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                                  No. 16-11161
categorically disproportionate.    The “as applied” challenge asks whether
defendant’s sentence is “grossly disproportionate” to the crime committed,
while the categorical approach “use[s] categorical rules to define Eighth
Amendment standards”. Graham v. Florida, 560 U.S. 48, 60 (2010). (It is
questionable whether Farrar preserved his categorical challenge because his
objection to the presentence investigation report focuses almost exclusively on
“as applied” jurisprudence. We will, however, assume he preserved that issue
in district court.)
      Farrar’s two Eighth Amendment challenges are reviewed de novo. E.g.,
United States v. King, 773 F.3d 48, 52 (5th Cir. 2014) (citing United States v.
Doggett, 230 F.3d 160, 165 (5th Cir. 2000)). Each fails.
                                       1.
      In claiming his ten-year sentence is grossly disproportionate to his crime,
Farrar cites the Court’s opinion in Stanley for the proposition that “mere
private possession of obscene matter cannot constitutionally be made a crime”.
Stanley v. Georgia, 394 U.S. 557, 559 (1969).         Farrar contends Congress’
decision on the severity of his sentence “deserves little deference”, claiming
Congress’ creation of 18 U.S.C. § 1466A was an end-run around the Court’s
opinion in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). He also
maintains his sentence is more severe than others for more serious offenses,
asserting his sentence is greater than if he were: a producer of the images
(even though he admits writing the two hand-written books), a non-recidivist
who brought the images into a home with children, a creator of an “animal
crush video”, a seller of obscene material on Government property, a
transporter of such material, or an importer of it.
      Successful Eighth Amendment challenges are “exceedingly rare”,
because courts should defer to Congress. E.g., Rummel v. Estelle, 445 U.S. 263,
272 (1980). The Eighth Amendment “forbids only extreme sentences that are
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                                 No. 16-11161
‘grossly disproportionate’ to the crime”. Harmelin v. Michigan, 501 U.S. 957,
1001 (1991).    Gross disproportionality concerns showing the sentence is
“completely arbitrary and shocking to the sense of justice”. Rummel v. Estelle,
587 F.2d 651, 655 (5th Cir. 1978) (internal citations omitted).
      The test is two pronged: first, this court “initially make[s] a threshold
comparison of the gravity of [defendant’s] offenses against the severity of
[defendant’s] sentence”. United States v. Hebert, 813 F.3d 551, 565 (5th Cir.
2015). Second, “[i]f [the court] infer[s] from this comparison that the sentence
is grossly disproportionate to the offense, then we compare the sentence
received to (1) sentences for similar crimes in the same jurisdiction and (2)
sentences for the same crime in other jurisdictions”. Id. (internal quotations
omitted).   Therefore, this court must compare Farrar’s sentence to other
sentences for the same offense only if he first establishes an “infer[ence] that
the sentence is grossly disproportionate to the offense”. McGruder v. Puckett,
954 F.2d 313, 316 (5th Cir. 1992). For the following reasons, he fails to do so.
      We first observe that Farrar will not serve ten years solely for this
offense. As discussed supra, he pleaded nolo contendere “[i]n hopes of . . .
receiving the same sentence as [a fellow inmate]”. The court not only ordered
Farrar’s ten-year minimum to run concurrently with the remainder of his
present child-pornography sentence, but, also, ordered the ten-year sentence
to run from the date of the offense, rather than the date of sentencing. As
Farrar acknowledges, this resulted in his imprisonment’s being extended four-
and-a-half years beyond his prior sentence.      Accordingly, the Government
contends the district court “effectively sustained” Farrar’s Eighth Amendment
objection by ordering this “downward variance”, but it cites no compelling
caselaw permitting us to consider the additional time to be served in an “as
applied” challenge.


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                                 No. 16-11161
      Next, we note Farrar’s reliance on Stanley and Free Speech Coalition are
flawed.   First, Farrar did not challenge the constitutionality of 18 U.S.C.
§ 1466A, either in the district court or on appeal.        He cannot, therefore,
challenge the statute’s constitutionality indirectly through the Eighth
Amendment.
      Even if we were to allow him to challenge the statute in this way, Stanley
and Free Speech Coalition would provide no relief. The Court’s opinion in
Stanley did not proscribe punishment for possession, in a federal prison, of
obscenity depicting sexual exploitation of minors. Likewise, Farrar’s asserting
Congress made an “end run around” Free Speech Coalition by enacting 18
U.S.C. § 1466A lacks proper precedential backing and is irrelevant. The Court
in Free Speech Coalition held the Child Pornography Prevention Act (CPPA)
unconstitutional, because it failed to distinguish virtual child pornography
from actual child pornography, a category of unprotected speech. Free Speech
Coalition, 535 U.S. at 258. The Court did not, by contrast, prohibit punishment
for possession of obscene images. Id. at 249 (CPPA was unconstitutional in
part because it “cannot be read to prohibit obscenity”).
      Farrar’s list of worse crimes fails to recognize Congress’ obvious
discretion to impose harsher sentences for repeat-offenders and crimes
harming children. It goes without saying that Congress has discretion to
impose harsher sentences to meet legitimate penological goals. E.g., Harmelin,
501 U.S. at 999. Caselaw and Farrar’s case show why increased penalties for
recidivists and crimes against children are valid. As articulated in Free Speech
Coalition: “The Miller standard . . . does not reflect the State’s particular and
more compelling interest in prosecuting those who promote the sexual
exploitation of children”. Free Speech Coalition, 535 U.S. at 240 (internal
quotations omitted) (emphasis added).


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                                   No. 16-11161
      The factual circumstances of Farrar’s crime reinforce the justness of
Congressional policy: he admitted “[buying the hand-drawn images] from
other inmates for four or five stamps a piece”. At sentencing, he admitted to
having been a member of the prison’s child-pornography group. He stated that
group “reinforces this stuff”, and that is why he “wr[ote] these stories [about
molesting children] and [was] around these pictures”.          The prison’s black
market for these materials “stimulates the sexual appetites and encourages
the activities of child molesters and pedophiles”. S. Rep. No. 104–358, at 12–
13 (1996). After Farrar was first sentenced to 180 months’ imprisonment in
2007 for producing child pornography, because he “sexually victimized a
teenage girl”, he elected to continue his illicit practices in prison.
      Understandably, caselaw reveals it is “exceedingly rare” to grant relief
under the Eighth Amendment’s gross-disproportionality standard.                E.g.,
Rummel, 445 U.S. at 272 (upheld mandatory life sentence under three-strike
law for obtaining $120.75 by false pretenses); Ewing v. California, 538 U.S. 11,
30–31 (2003) (upheld 25-year-to-life sentence for theft of golf clubs under three-
strike law); Hutto v. Davis, 454 U.S. 370, 370–71 (1982) (upheld 40-year
sentence for distributing marijuana).         For the foregoing reasons, Farrar’s
sentence was not grossly disproportionate to his crime.
                                         2.
      Finally, Farrar seeks a categorical rule that a ten-year sentence for a
recidivist’s possessing obscene material depicting sexual acts of children is
categorically disproportionate, and therefore unconstitutional, under the
Eighth Amendment. This claim also fails.
      Cases “adopting categorical rules” under the Eighth Amendment employ
a two-part test. Graham, 560 U.S. at 61 (citing Roper v. Simmons, 543 U.S.
551, 572 (2005)).     First, the court looks to “objective indicia of society’s
standards” to uncover whether there is a “national consensus against the
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                                 No. 16-11161
sentencing practice at issue”. Id. Then the court “determine[s] in the exercise
of its own independent judgment whether the punishment in question violates
the Constitution”. Id.
      It would be improper to undertake a categorical analysis in this instance,
because Farrar was subjected to a term-of-years sentence. The Court has
undertaken categorical analysis only for death-penalty cases and those
involving juvenile offenders sentenced to life-without-parole; in short, the
Court has never established a categorical rule prohibiting a term-of-years
sentence. Along that line, the Court has emphasized that cases involving
death-penalty and juvenile offenders are “different”. Miller v. Alabama, 567
U.S. 460, 471 (2012) (“children are constitutionally different”); Gregg v.
Georgia, 428 U.S. 153, 188 (1976) (“penalty of death is different in kind”).
      For the most part, our sister circuits agree categorical analysis is
improper for term-of-years sentences. The ninth circuit did not apply the
approach to a ten-year minimum because “[n]either Graham nor Miller [v.
Alabama] suggest that a ten-year mandatory prison term is the type of
sentencing practice that requires categorical rules to ensure constitutional
proportionality”. United States v. Shill, 740 F.3d 1347, 1357 (9th Cir. 2014).
The second circuit found error in the district court’s categorical analysis of a
five-year minimum sentence. United States v. Reingold, 731 F.3d 204, 206,
213–14 (2d Cir. 2013); see also United States v. Cobler, 748 F.3d 570, 580–81
(4th Cir. 2014) (no categorical analysis because the case “involves neither a
sentence of death nor a sentence of life imprisonment without parole for a
juvenile offender”); United States v. Walker, 506 F. App’x 482, 489 (6th Cir.
2012) (categorical analysis “does not apply in cases where the defendant
receives a sentence that is ‘less severe’ than a life sentence”) (quoting United
States v. Jones, 476 F. App’x 651, 652 (6th Cir. 2012)). (The tenth circuit did
conduct a categorical analysis for a 15-year mandatory-minimum sentence,
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                               No. 16-11161
assuming without deciding such analysis was proper, but did so because the
Government did not contest defendant’s categorical challenge. United States
v. Orona, 724 F.3d 1297, 1301 n.1 (10th Cir. 2013). Here, the Government
contests such a challenge.)
                                    III.
      For the foregoing reasons, the judgment is AFFIRMED.




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