                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                 No.   91-8338


                       UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

                                       v.

                            ERNEST SCHMELTZER,

                                             Defendant-Appellant.



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


                              April 23, 1992

Before WISDOM, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

            Appellant Ernest Schmeltzer appeals from his sentence

following a plea of guilty on his second offense of knowingly

possessing a magazine depicting a minor engaging in sexually

explicit    conduct,   in   violation        of   18   U.S.C.   §   2252(a)(2).

Schmeltzer raises several claims of error in the court's applica-

tion of Sentencing Guidelines and seeking return of certain seized

goods, invokes the court's mandamus power.              The sentencing issues

are, however, overridden by the fact that Schmeltzer and the

government could not enter into, and the court should not have

approved,   a   plea   bargain    that      ignored    the   mandatory   minimum

sentence applicable to the offense of conviction.               Accordingly, we

vacate the sentence, after making a minor modification on the
nature of the plea, as agreed by the parties, and remand for

further proceedings.

                              BACKGROUND

           In December of 1990, the Federal Bureau of Investigation

became aware of Schmeltzer's considerable involvement with child

pornography.    A confidential witness, assisting with the FBI's

investigation, met with Schmeltzer at his home where Schmeltzer

showed the confidential witness a video tape depicting sexual abuse

and torture of young girls.    Schmeltzer told the witness that the

girls were approximately thirteen years old and had been kidnapped

or tricked into appearing in the tape. Schmeltzer told the witness

that he had many other video tapes of this nature.   Schmeltzer also

related his recent trip to the Republic of China, and told the

witness that he had engaged in sexual activities with a young girl

there whom he estimated to be no older than thirteen years of age.

On a subsequent visit Schmeltzer showed the confidential witness a

video tape which he described as a "snuff film."          This film

depicted the kidnapping, mutilation, and murder of an oriental

female. Schmeltzer told the witness that many snuff films could be

obtained in Mexico, and that girls were available in Mexico for the

production of such films.   Schmeltzer asked the witness to contact

friends in Mexico to assist him in the search for pre-pubescent

girls.   Schmeltzer told the witness that he wished to use girls in

a film in which they would engage in sexual conduct with adult

males, and that he would be able to sell these films for as much as

$5,000 each.


                                  2
            Based on information supplied by the confidential witness

the FBI was able to obtain a search warrant for Schmeltzer's home.

That warrant was executed on January 8, 1991.         The search yielded

numerous    items,   including   video   equipment,   sexual   devices   or

paraphernalia, several hundred magazines and video tapes, corre-

spondence concerning the "home-made production of video tapes

involving children engaged in sexual activities," and numerous

photographs of pre-pubescent children engaging in sexually explicit

acts.   The pornographic items graphically depicted perverse acts.

The material portrayed both pre-pubescent and pubescent minors

engaging in sexual intercourse and deviant sexual behavior, as well

as pre-pubescent and pubescent minors engaging in various forms of

sexual contact with adults.      One of the seized pictures contained

a note, handwritten by the defendant, that described various sado-

masochistic and heinous sexual acts he wished performed upon

children.

            FBI agents also found sexual material identical to that

seized from the defendant in 1987, and leading to his prior

conviction for possession of child pornography, under the same

statute as charged in the instant offense.      At the time of the 1991

search of Schmeltzer's home, he was still on federal probation from

his earlier child pornography conviction.

            Subsequent to the search and seizure of these materials,

FBI agents contacted other witnesses who confirmed Schmeltzer's

substantial involvement with child pornography.           Following his

arrest, Schmeltzer admitted that he was a collector of child


                                    3
pornography materials and had been for approximately twenty years.

Schmeltzer was laconic when confronted with the contents of the

various materials seized from his home; he denied ever viewing the

video tapes that he showed to the confidential witness during the

witnesses visits to Schmeltzer's home.

          A federal grand jury indicted Schmeltzer for six counts

of various child pornography offenses.       After plea negotiations

with the United States attorney, Schmeltzer entered a guilty plea

to the first count of the indictment:         knowingly possessing a

visual depiction that had been shipped or transported in interstate

or foreign commerce and depicting a minor engaging in explicit

sexual conduct.   Schmeltzer also agreed not to contest revocation

of probation in his prior child pornography conviction, and he

agreed to forfeit all seized pornographic materials.       In addition

to dismissing the remaining counts of the indictment, the govern-

ment agreed to recommend a two-point reduction in the offense level

for acceptance of responsibility.      The government also agreed not

to seek the maximum statutory penalty of fifteen years, as provided

by 18 U.S.C. § 2252(b)(1).

          Schmeltzer's guilty plea to a violation of 18 U.S.C. §

2252(a)(2) qualified him for a base offense level of thirteen.      The

U.S. probation officer, in his pre-sentence report, recommended a

two-level increase pursuant to United States Sentencing Commission

Guidelines   (U.S.S.G.)   §   2G2.2(b)(1),   as   a   specific   offense

characteristic, because the offense involved material depicting a

pre-pubescent minor or a minor under the age of twelve years.       The


                                   4
court accepted the recommendation and added two levels for an

offense level of fifteen. The pre-sentence report also recommended

that Schmeltzer not receive a two-level decrease for acceptance of

responsibility. U.S.S.G. § 3E1.1. The court found that Schmeltzer

had not accepted responsibility and refused to grant the two-level

reduction.      The total offense level of fifteen, combined with

Schmeltzer's criminal history category of two, resulted in the

guideline range of a sentence of twenty-one to twenty-seven months.

              The pre-sentence report also recommended a four-level

upward adjustment under Application Note Four of U.S.S.G. § 2G2.2.

That provision suggests "[i]f the defendant sexually abused a minor

at any time, whether or not such sexual abuse occurred during the

course of the offense, an upward departure is warranted."                      The

court    granted      the    recommended   upward   departure   and    sentenced

Schmeltzer to thirty-nine months,1 citing as his primary reason the

fact that Schmeltzer had in his possession the same pornography

depicting minors in sexual conduct for which he was convicted in

1987.     The court also stated that he was departing from the

guidelines because Schmeltzer had engaged in sexual abuse of a

minor    as   contemplated       in   Application   Note   Four.      Schmeltzer

challenges these sentencing determinations.

              After    the    initial   appellate   briefs   were     filed,   we

directed the parties to address the minimum sentence for a second

conviction under 18 U.S.C. § 2252(a)(2).                   Title 18 U.S.C. §


     1
          Schmeltzer was required to serve a consecutive twenty-
one-month sentence for violation of probation.

                                           5
2252(b)(2) establishes a maximum penalty of fifteen years, and

mandates a minimum sentence of five years for a second conviction.

Our resolution of this question obviates the need to consider the

sentencing issues initially presented for review.

           MINIMUM MANDATORY PENALTY UNDER § 2252(b)(2)

           Schmeltzer urges that the U.S. Attorney's promise to not

seek the sentencing enhancement provision of §2252(b)(2) obliged

the trial court to refrain from imposing the minimum mandatory

penalty of five years. In support, Schmeltzer cites several cases,

including this court's decision in Petition of Geisser, 627 F.2d

745 (5th Cir. 1980), cert. denied, 450 U.S. 1031 (1981) and Geisser

v. United States, 513 F.2d 862 (5th Cir. 1975).

           In Geisser, the government became obliged to use its best

efforts to refrain from deporting Geisser to Switzerland, a country

where she was under a sentence of imprisonment for patricide.

However, the government's assurance -- had it been literally

realized -- would have abrogated an international treaty.            This

court   initially   required   the   government   to   exercise   greater

diligence in satisfying its bargain with Geisser.            After much

diplomatic wrangling and numerous court proceedings, the government

claimed that it had expended its "best efforts," but was unable to

persuade the Swiss government to relent in its pursuit of Geisser.

This court agreed and Geisser was extradited to Switzerland.          The

Second Circuit relied on the first Geisser decision to free a

defendant who had received a prosecutor's assurance of a limited

sentence when the prosecutor was powerless to fulfill such promise,


                                     6
beyond asserting influence on parole officials. Palermo v. Warden,

545 F.2d 286 (2d Cir. 1976), cert. dism'd, 431 U.S. 911 (1977).

            Neither of these cases rises to Schmeltzer's aid.              The

government ultimately fulfilled its bargain with Geisser -- best

efforts were extended.      Palermo represents a more difficult case;

Palermo received an "ultra vires" promise from the prosecutor,

which the court ordered fulfilled.         Similarly, the U.S. Attorney

prosecuting Schmeltzer was wholly without authority to ignore the

minimum    mandatory    sentence.      While    Schmeltzer's   counsel     was

understandably anxious about the maximum penalty, the trial record

suggests that both prosecution and defense counsel viewed the

explicit   minimum     mandatory    provision   as   being   susceptible    to

negotiation. Notwithstanding, Palermo is factually distinguishable

from the case at bar.      The U.S. attorney fulfilled his promise to

Schmeltzer:    the government did not seek the enhanced penalty.2

     2
          Schmeltzer ties this claim to an allegation that the
prosecutor reneged on a promise to recommend a two-level decrease
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.
We examine such claims with particular scrutiny. The record
shows that the prosecutor recommended, in the course of the
sentencing hearing, that Schmeltzer be granted the two-level
reduction. Notwithstanding the prosecutor's recommendation to
the court, the pre-sentence report indicated that Schmeltzer was
almost lackadaisical and demonstrated little, if any, contrition
for his conduct. After the prosecutor recommended the two-level
reduction, the sentencing hearing continued and Schmeltzer was
given the opportunity to speak. At the close of Schmeltzer's
remarks, the prosecutor responded, noting for the court that
Schmeltzer's excuses and justifications hardly evidenced an
acceptance of responsibility.
          The prosecutor was merely rejoining to an extended
soliloquy during which Schmeltzer charged many causes and parties
for his offenses. Schmeltzer's speech to the court was scarcely
indicative of acceptance of responsibility. After Schmeltzer
concluded, the court stated: "I have heard Mr. Schmeltzer and I
think Mr. Schmeltzer himself at this time is not totally sure

                                      7
           Quite beyond the factual disparity between the instant

case and those cited by Schmeltzer is the unequivocal language of

the Sentencing Guidelines:

           Where a statutorily required minimum sentence
           is greater than the maximum of the applicable
           guideline range, the statutorily required
           minimum sentence shall be the guideline
           sentence.

U.S.S.G. § 5G1.1(b).       We are bound to enforce this provision.             U.S.

v. Stewart, 879 F.2d 1268, 1272 (5th Cir.), cert. denied, 493 U.S.

899 (1989); United States v. Roberson, 872 F.2d 597, 606 (5th

Cir.), cert. denied, 493 U.S. 861 (1989).                Even if Schmeltzer's

sentence   were     otherwise   reasonable       and    in   accord     with   the

particular provisions of the guidelines, we must reverse a sentence

imposed    in     contravention     of     the        Sentencing      Guidelines'

incorporation of minimum mandatory penalties. See United States v.

Hernandez, 943 F.2d 1, 2 (5th Cir. 1991) (incorrect application of

guidelines      requires   reversal,     even    if    sentence    is   otherwise

reasonable).      All of the United States Courts of Appeals have

agreed that statutorily mandated sentences are incorporated into

the Sentencing Guidelines and prevail over the guidelines when in

apparent conflict.3        Thus, we cannot give our imprimatur to the


that he has accepted responsibility." We cannot accept
Schmeltzer's argument that the government breached the plea
agreement in this regard.
     3
          E.g., United States v. Hall, 943 F.2d 39, 40 (11th Cir.
1991); United States v. Rodriguez, 938 F.2d 319, 320 (1st Cir.
1991); United States v. Gonzales, 930 F.2d 795, 796 (10th Cir.
1991); United States v. Larotonda, 927 F.2d 697, 698 (2nd Cir.
1991); United States v. Blackwood, 913 F.2d 139, 144 n.3 (4th
Cir. 1990); United States v. McCaleb, 908 F.2d 176, 177 (7th Cir.
1990); United States v. Adonis, 891 F.2d 300, 302 (D.C. Cir.

                                       8
government's   attempted    end    run   around    the   minimum    mandatory

sentence. That the government actually urged the court to sentence

below the statutory minimum is, in our view, a serious breach of

its duty to enforce the law Congress wrote.

                                FORFEITURE

          Schmeltzer      concedes   that    the    government     may   retain

pornographic   video   tapes,     magazines,      photographs,     and   sexual

paraphernalia, as well as properties either used to commit or

promote the events where traceable to the profits or proceeds

obtained from the events, pursuant to 18 U.S.C. §§ 2252 and 2254.

However, Schmeltzer challenges the government's failure to return

certain   other   items    of   property     including     non-pornographic

photographs of his children and family.         Schmeltzer asks the court

to invoke our mandamus power to compel the district court to order

the immediate return of those items.           We decline to do so.        The

district court noted, when posed with a similar request, that the

government was in the process of administratively forfeiting the

contraband items, and the remaining property would be returned to

Schmeltzer at the conclusion of that process.            Any intervention in

the administrative process would be premature.

                                CONCLUSION




1989); United States v. Sharp, 883 F.2d 829, 831 (9th Cir. 1989);
United States v. Taylor, 882 F.2d 1018, 1032 (6th Cir. 1989),
cert. denied, 110 S.Ct. 256 (1990); United States v. Donley, 878
F.2d 735, 741 (3rd Cir. 1989), cert. denied, 110 S.Ct. 1528
(1990); United States v. Savage, 863 F.2d 595, 600 (8th Cir.
1988), cert. denied, 490 U.S. 1082 (1989).

                                     9
           It is improbable that our decision will end the case.

Schmeltzer indicates that he will probably seek to void the plea

bargain on remand.       Notwithstanding, our mandate is clear.           One

final   item   remains   to   be   resolved;   both   Schmeltzer   and   the

government request that the judgment be reformed to reflect that

Schmeltzer     was   found    guilty    of   "possession,"   rather      than

"receiving," a visual depiction of a minor engaging in sexually

explicit conduct, that had been transported in interstate and/or

foreign commerce.     The judgment shall be altered to reflect this

change.   We vacate Schmeltzer's sentence as inconsistent with the

minimum sentence prescribed for a second conviction under 18 U.S.C.

§ 2252(a)(2), (b)(2), and remand for further proceedings.

           MODIFIED in part, VACATED and REMANDED in part.




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