
USCA1 Opinion

	




          August 23, 1993       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1090                                              RICHARD I. BARBER,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Richard I. Barber on brief pro se.               _________________               A.  John  Pappalardo,  United  States  Attorney,  and  Kevin               ____________________                                   _____          O'Regan, Assistant United State Attorney, on brief for appellee.          _______                                  __________________                                  __________________                      Per Curiam.   This is an  appeal from the  district                      __________            court's denial of  appellant's motion under 28  U.S.C.   2255            for post-conviction relief.  We affirm.                                    I. Background                                       __________                      On January 18, 1991, appellant-defendant Richard I.            Barber pleaded guilty to  the sexual exploitation of a  child            in  violation of 18 U.S.C.    2251(a).   The underlying facts            are  uncontested.    On  August  7,  1990,  Postal  Inspector            Terrence A. Loftus was informed that a commercial photography            lab in  Virginia had developed pornographic  photographs of a            child.     The  film   bore  a   return  address   of  Barber            Publications,  P.O. Box  892  in North  Adams, Massachusetts.            Appellant  retrieved the  film at  the post  office  in North            Adams on August 9, 1990.  Inspector Loftus followed appellant            home  and arrested  him.    During  a  subsequent  search  of            appellant's home, Loftus discovered the child depicted in the            photographs.  She indicated that she was eleven years old and            had been living with  appellant.  Inspector Loftus instructed            appellant to appear in court in Springfield, Massachusetts on            August 10, 1990.  He failed to appear and was arrested almost            two weeks later in Connecticut.                      On October  2, 1990, appellant was  indicted on one            federal charge of  the sexual  exploitation of a  child.   He            originally pleaded not guilty,  but offered a change of  plea                                         -2-            on January  18, 1991.1  Appellant was  represented by counsel            at  his change of plea hearing and at his sentencing hearing.            The plea  agreement provided  that in return  for appellant's            guilty plea, the government would recommend a sentence at the            lower end  of  the sentencing  guidelines  range.   The  pre-            sentence  report  ["PSR"]   identified  the  applicable  base            offense  level  ["BOL"] as  25, pursuant  to    2G2.1  of the            Guidelines.   The  PSR recommended that the BOL  be increased            by 2 levels  because the victim  was under 12  years of  age,            pursuant to   2G2.1(b)(1).  It further increased the BOL by 2            levels because appellant had abused  a position of public and            private trust, and by 2 levels for his obstruction of justice            by failing to appear  in court as instructed  at the time  of            his arrest and  fleeing to  Connecticut.    Finally, the  PSR            recommended a 2 level reduction for appellant's acceptance of            responsibility,  resulting  in a total  offense level of  29.            Applying a criminal history category of I, the PSR arrived at            an applicable guideline sentencing range of 87 to 108 months.            At the  sentencing hearing on March 15,  1991, the government            recommended  a  sentence of  87  months  and three  years  of            supervised release.  The  district court, in consideration of            the  severe  circumstances and  the  hardship  to the  child,                                            ____________________            1.  In addition to the federal charge, appellant also pleaded            guilty  to state  charges  of non-forcible  rape of  a child,            child pornography,  indecent assault  and battery on  a child            under 14 and unnatural and lascivious acts.                                         -3-            imposed  a   sentence  of  108  months,   plus  three  years'            supervised release.                      Appellant filed a  motion for  resentencing on  the            grounds that the district  court failed to ask him  if he had            read the PSR before  sentencing and if he had  any objections            thereto.   The district court  denied the motion.   Appellant            then filed a motion under 28 U.S.C.  2255 for post-conviction            relief  on  the  following   grounds:  1)  the  court  lacked            jurisdiction because appellant did not  intend the film to be            placed in interstate commerce;  2) appellant was coerced into            consenting to a search of his home in violation of the Fourth            Amendment;   3) appellant received  ineffective assistance of            counsel at the  pretrial and sentencing  phases of the  case;            and 4)  the court violated Fed. R. Crim. P. 11.  The district            court denied the motion. On appeal,  appellant re-asserts his            jurisdictional,  ineffective assistance  of counsel, and Rule            11 arguments.    We reject each argument in turn.                                   II. Jurisdiction                                       ____________                      Appellant argues that 18 U.S.C.   2251(a) requires,            as  an  element  of  the  offense,  intent  that  the  visual            depictions at  issue be  transported in interstate  commerce.            He  alleges  that  he  mailed  the  film  to  an  address  in            Massachusetts and did  not know  or intend that  it would  be            transported  in interstate  commerce.   The  language of  the            statute,  however,  clearly  does  not  require  intent  with            respect  to the requirement  that the film  be transported in                                         -4-            interstate  commerce or  mailed.   Section 2251  provides, in            relevant part, as follows:                      Any person who . . . uses . . . any minor                      to engage in, with  the intent that  such                      minor  engage  in  any sexually  explicit                      conduct for the  purpose of producing any                      visual depiction of  such conduct,  shall                      be punished as provided  under subsection                      (d), if such  person knows or  has reason                      to  know that such  visual depiction will                      be transported in  interstate or  foreign                      commerce  or mailed,  or  if such  visual                                            ___________________                      depiction  has actually  been transported                      _________________________________________                      in  interstate  or  foreign  commerce  or                      _________________________________________                      mailed.                      _______            Appellant  does  not deny  that  the  pictures were  actually            mailed  and transported in  interstate commerce.   Therefore,            appellant's offense  is clearly  punishable under    2251 and            the  district  court did  not  err  in rejecting  appellant's            argument that jurisdiction was lacking.2                       III.  Ineffective Assistance of Counsel                             _________________________________                      Appellant argues that representation was inadequate            in  three  respects, asserting  that:  1)  counsel failed  to            determine whether    2251(a)  was applicable to  his offense,            resulting  in a denial of  due process; 2)  counsel failed to            object to  the trial court's  alleged failure to  comply with            the  requirements  of  Fed.  R.  Crim.  P.  11  in  accepting            appellant's  change of plea; and  3) counsel failed to object                                            ____________________            2.    Appellant suggests that a requirement of scienter  with            respect to  the mailing or interstate commerce element of the            offense  is   constitutionally  required.    We  reject  that            argument.  See United States v. Esch, 832 F.2d 531, 536 (10th                       ___ _____________    ____            Cir.  1987)  (fact  that     2251  does  not  require  intent            regarding  the  mailing  element  does  not  render   statute            unconstitutional), cert. denied, 485 U.S. 908 (1988).                               ____  ______                                         -5-            to the  court's application  of the sentencing  guidelines in            imposing appellant's sentence.                      In Hill  v. Lockhart, 474  U.S. 52, 57  (1985), the                         ____     ________            Court held that  the two-part test  adopted in Strickland  v.                                                           __________            Washington, 466 U.S. 668  (1984), also applied to ineffective            __________            assistance  claims  arising  out of  the  plea  process.   As            applied  to  such  claims, Strickland  requires  appellant to                                       __________            show,  first,  that  counsel  failed  to  provide  assistance            "within  the range  of  competence demanded  of attorneys  in            criminal  cases." McMann  v.  Richardson, 397  U.S. 759,  771                              ______      __________            (1970) (quoted in Hill v. Lockhart, 474 U.S. at 56).  Second,                              ____    ________            to satisfy  the prejudice requirement,  appellant "must  show            that  there  is  a   reasonable  probability  that,  but  for            counsel's errors, he would not have pleaded  guilty and would            have  insisted on going to trial." Hill v. Lockhart, 474 U.S.                                               ____    ________            at 59.            A.  Application of   2251                  _____________________                      Appellant first argues that his counsel  was remiss            in failing to advise him that his conduct did not fall within            the charge.   Since we  find appellant's actions  to be  well            within the scope of   2251 this argument fails.                       Appellant seems to contend  - although his brief on            appeal is unclear  - that  he was not  properly charged  with            violating   2251  because he  did not "exploit"  a child,  he            lacked  the  requisite mens  rea,  the  photographs were  not            pornographic, and  he did  not intend the  photographs to  be                                         -6-            reproduced or sold.    Therefore, he asserts  that he was not            involved   in  the   production  and   trade  of   commercial            pornography that the statute was intended to curb.                      Appellant was charged with  using a minor to engage            in  sexually explicit  conduct for  the purpose  of producing            photographs   of  such   conduct,   which  photographs   were            transported in interstate commerce  and mailed.   Appellant's            conduct, as described by the government at the change of plea            hearing  and uncontested  by appellant,  clearly fell  within            this charge.  See Rodriguez v. Clark Color Laboratories,  921                          ___ _________    ________________________            F.2d 347, 349 (1st Cir. 1990) ("The language of Sections 2251            and 2252 has been  held to be  clear and unambiguous.")   The            district  court viewed  the  photographs at  the hearing  and            determined  that  they  were   pornographic.    Contrary   to            appellant's  argument,    2251(a)  does  not  require that  a            defendant intend  the photographs  to be reproduced  or sold.            It is sufficient that the defendant intend to use  a minor to            engage  in  sexually  explicit  conduct for  the  purpose  of            producing photographs.   See United States v.  Esch, 832 F.2d                                     ___ _____________     ____            531, 536 (10th  Cir. 1987)  (18 U.S.C.    2251(a) contains  a            scienter requirement in that it requires proof that defendant            used a minor to engage in sexual conduct "for the purpose of"            producing a picture of such conduct), cert.  denied. 485 U.S.                                                  ____   ______            908 (1988).   Since appellant  does not dispute  that he  had            such  an  intent his  activities  were properly  found  to be            within the statute's scope.                                         -7-            B.  Application of Rule 11                  ______________________                      Appellant's   second    argument   supporting   his            ineffective  assistance claim concerns his attorney's failure            to object that the district court did not comply with several            subsections of  Fed. R. Crim.  P. 11  at his  change of  plea            hearing.    Since  we  find  that the  district  court  fully            complied with the requirements of Rule 11, this argument also            fails.  We address each alleged violation separately.                      1.  Rule 11(f)                          __________                      Appellant complains that the district  court failed            to  make "such inquiry  as shall satisfy  it that there  is a            factual  basis for the plea," as required  by Rule 11(f).  To            determine the plea's factual basis, the court asked appellant            himself whether  he did the  acts charged in  the indictment.            Appellant responded  in the  affirmative.  The  court further            asked  the government to  present the evidence  it would have            offered against  the defendant  had the  case gone  to trial.            Finally,  the  court  viewed  the photographs  at  issue  and            determined that they were pornographic.  The court thus fully            complied with Rule 11(f).                      2.   Rule 11(c)(1)                           _____________                      Next,  appellant  argues  that  the  district court            failed to inform him  of "the nature of  the charge to  which            the  plea  is  offered"  and the  "maximum  possible  penalty            provided by law,  including the effect of any  special parole                                         -8-            or supervised  release term,"  as required by  Rule 11(c)(1).            The court informed appellant  of the nature of the  charge to            which  the   plea  was  offered  by   reading  the  one-count            indictment at the change of plea hearing.  Appellant told the            court, in response to questioning,  that he had been  advised            by his attorney of the nature of the charges  against him and            the maximum penalty provided by law.  The court also informed            appellant  of the maximum penalty provided by law.  The court            did not inform appellant of "the effect of any special parole            or supervised release  term," Fed. R.  Crim. P. 11(c)(1),  in            other  words, that  a supervised  release term  not exceeding            three years could be imposed.  However, appellant  has failed            to  allege prejudice, that is, that he would not have pleaded            guilty if  he  had been  informed of  the supervised  release            term.   Therefore, counsel's failure to object that the court            had  not  complied  with  Rule 11(c)(1)  did  not  constitute            ineffective assistance of counsel.                      3. Rule 11(e)(4)                         _____________                      Appellant  also  argues  that  the  district  court            failed to comply with Rule 11(e)(4).  The rule requiresthat -             where the  court rejects a  plea agreement  - the  defendant            must be  given an  opportunity to  withdraw his guilty  plea.            That requirement  did  not come  into play  here because  the            court  did  not reject  the plea  agreement.   The  court did            reject  the government's  recommendation  that  appellant  be                                      ______________            sentenced  at the low end  of the guideline  range.  However,                                         -9-            the court's failure to follow the government's recommendation            is not the same  as its rejection of  the agreement.   "[O]ur            cases  clearly bar any relief merely  because a judge refuses            to accept  the sentence  recommendations of a  prosecutor, so            long as the defendant has not been misled."  United States v.                                                         _____________            Valencia-Copete, 792 F.2d  4, 7  (1st Cir. 1986).   The  plea            _______________            agreement  specifically   noted  in  paragraph  3  that  "the            sentence  imposed may be less severe or more severe than that            recommended by the United States Attorney's Office, and . . .            Mr. Barber may  not withdraw his plea  solely as a  result of            the sentence imposed."   Thus, the court did not violate Rule            11(e)(4).                      4. Rule 11(d)                         __________                      Finally,  appellant  complains  that  the  district            court failed  to comply with its obligation to determine that            the plea was voluntary pursuant to Rule 11(d).  At the change            of  plea  hearing, the  court  asked  appellant  a series  of            questions  to determine  that the  plea did  not result  from            threats or  promises of  leniency, that no  specific sentence            had been  promised and that  appellant was not  on medication            and  had not been under psychiatric care.  Appellant told the            court  that  his  plea  of  guilty  was  "entirely  free  and            voluntary."            C.  Application of Sentencing Guidelines                 ____________________________________                       Appellant's  final  argument  in  support  of  his            ineffective assistance of counsel  claim is that his attorney                                         -10-            erred  in  failing  to  object  to  the  application  of  the            sentencing guidelines.  Appellant contends that the court, in            sentencing him, erroneously  applied the 1990 Guidelines,  in            effect at the  time of his  sentencing (March, 1991),  rather            than  the 1989  Guidelines,  in effect  at  the time  of  his            offense (August,  1990).3  He  further argues that  the court            applied the wrong BOL.                      Ordinarily,   the   version   of   the   sentencing            guidelines  in effect  at  the time  of sentencing  controls.            However, "where  the application of the  Guidelines in effect            at the time of sentencing raises an  ex post facto concern, .                                                 __ ____ _____            . .  the court applies the  version in effect at  the time of            the crime's  commission." United States v.  Cousens, 942 F.2d                                      _____________     _______            800,  801  n.1  (1st Cir.  1991).    The  application of  the            Guidelines  raises  an  ex   post  facto  concern  where  the                                    __   ____  _____            Guidelines  have  changed in  a  way  that disadvantages  the            defendant. See Miller v. Florida, 482 U.S. 423, 430 (1987).                         ___ ______    _______                      The change that appellant complains of in this case            is not to the language of the relevant Guideline section, but            to  the commentary  to  that section.    The section  of  the            Guidelines at issue is   3C1.1, which was applied to increase            appellant's  offense  level  by  two  levels  for  "willfully            obstructing or  impeding proceedings."  Section  3C1.1 itself            is identical in the  1989 Guidelines in effect at the time of                                            ____________________            3.    The PSR  specifically  noted that  it applied  the 1989            Guidelines  because  they  resulted  in  a  lower   guideline            sentencing range than the 1990 Guidelines.                                         -11-            the offense and the 1990 Guidelines in effect at the time  of            sentencing.  The application  notes to that section, however,            are  slightly  different.    The  PSR,  in  recommending  the            increase,  specifically referred to  application note 3(e) of            the 1990  Guidelines, which lists "escaping  or attempting to            escape from custody before  trial or sentencing, or willfully            failing to appear, as ordered, for  a judicial proceeding" as            an  example of  the  type of  conduct  to which  the  section            applies.  That  specific example is  not listed in the   1989            version  of the  Guidelines in  effect at  the time  that the            offense was committed.   We have held,  however, that "flight            after arrest constituted an  obstruction of justice under the            1989 version of  the Guidelines."  United States v. McCarthy,                                               _____________    ________            961 F.2d 972, 980 (1st  Cir. 1992).  Therefore, there was  no            error  in  the court's  two-level  upward  adjustment of  the            offense level under   3C1.1.                      Appellant  also argues that  his attorney's failure            to object that the  wrong BOL was applied in  calculating his            guideline sentencing range constitutes ineffective assistance            of counsel.   A BOL of  25 was used to  calculate appellant's            guideline  sentencing range.    That BOL  was  dictated by               2G2.1, which applies a BOL of 25  to the offense of "sexually            exploiting a minor by  production of sexually explicit visual            or  printed  material."   The Guideline  section specifically            refers to violations  of 18  U.S.C.   2251(a)  as within  its                                         -12-            ambit.   Appellant argues  that a BOL  of 13,  pursuant to               2G2.2, ought to have been applied.                      Appellant's only ground  for arguing  that    2G2.1            was  erroneously applied is that the commentary to   2G2.1 in            the 1989  Guidelines provided that  "[t]his offense  commonly            involves   the  production  source  of  a  child  pornography            enterprise."    Appellant  argues  that because  he  was  not            involved  in  a child  pornography  enterprise,    2G2.1  was            inapplicable.   We  disagree.   The   commentary to  the 1989            Guidelines explains  that it is the exploitation  of a minor,            rather  than   the   involvement  in   a  child   pornography            enterprise, that justifies the higher BOL under    2G2.1 than            under   2G2.2, which imposes a BOL of 13 for the distribution            of sexually explicit material  after production.4  Given that            the offense charged involved the exploitation of a minor, and            not  merely  the  transportation   of  the  photographs,  the            district  court did not err in  applying   2G2.1 to arrive at            appellant's BOL  of 25.  Therefore,  appellant's attorney did                                            ____________________            4.  The commentary reads as follows:                 This  offense  commonly  involves   the  production                 source of a child  pornography enterprise.  Because                 the offense  directly involves the  exploitation of                 minors, the  base offense level is  higher than for                 the  distribution of the sexually explicit material                 after production.  An enhancement  is provided when                 the conduct  involves the  exploitation of a  minor                 under age twelve to reflect the more serious nature                 of exploiting young children.            U.S.S.G.   2G2.1, commentary (1989).                                         -13-            not provide  ineffective assistance  by failing to  object to            that application of the guidelines.                                 IV.  Violation of Rule 11                                     ____________________                      For the reasons explained above in  connection with            appellant's claim that his attorney was remiss  in failing to            object that the court had not complied with Fed.  R. Crim. P.            11,  we conclude  that  appellant's claim  that the  district            court violated Rule 11 is without merit.    To justify habeas            relief, a violation  of Rule  11 must result  in a  "complete            miscarriage of justice" or in a proceeding "inconsistent with            rudimentary  demands of  fair procedure."   United  States v.                                                        ______________            Timmreck, 441 U.S. 780,  784 (1979).  The court's  failure to            ________            comply with  the  technical  requirement  that  appellant  be            informed of the supervised release  term did not entitle  him            to  habeas relief.  See  id. (holding that    2255 petitioner                                ___  __            not  entitled  to  relief  where  district  court  failed  to            describe  the  mandatory  special  parole  term  required  by            statute).                                     V. Conclusion                                        __________                      We need go no further.   For the foregoing reasons,            we  affirm the  district court's  dismissal of  appellant's              2255 petition.                                           -14-
