     Case: 12-30765       Document: 00512334349         Page: 1     Date Filed: 08/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 7, 2013

                                       No. 12-30765                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ROBERT CUFF, also known as DD0040, also known as Slapalot, also known
as Robert E. Cuff,

                                                  Defendant-Appellant



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC No. 5:11-CR-62-21


Before STEWART, Chief Judge, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
       Robert Cuff pleaded guilty, pursuant to a written plea agreement, to Count
1 of a three-count second superseding indictment charging him with engaging
in a child exploitation enterprise (CEE), in connection with an Internet
file-sharing site. He was sentenced to a term of imprisonment of life and to a
period of supervised release of life. Cuff has appealed his conviction.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30765

      Cuff contends first that the district court erred in accepting his guilty plea
without making an adequate inquiry into whether his plea was knowing,
intelligent, and voluntary. He maintains that he lacked the capacity to enter a
valid guilty plea as a result of side effects of anti-malarial medication he took in
connection with his military service. Cuff did not call any lack of capacity to the
court’s attention during the Rule 11 hearing; to the contrary, as discussed below,
he and his attorney insisted that he fully understood the nature of the
proceedings. Our review of this issue is for plain error. See United States v.
Vonn, 535 U.S. 55, 59 (2002). To show plain error, Cuff must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If Cuff makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      The standard for competency to plead guilty is the same as the standard
for competency to stand trial. Godinez v. Moran, 509 U.S. 389, 398-99 (1993).
The defendant must have “sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding” and have “a rational as well
as factual understanding of the proceedings against him.” Id. at 396 (quoting
Dusky v. United States, 362 U.S. 402, 402 (1960)); see also 18 U.S.C. § 4241(d)
(determination of mental competency to stand trial).
      The record reflects that, at the time of the rearraignment, Cuff was
regarded by his supervisors and peers as high functioning, his demeanor was not
unusual, and no medical opinions bearing on competency had been presented.
During the plea colloquy, Cuff responded to questions appropriately with no
indication of mental deficiencies. There is no reason to believe that Cuff did not
comprehend and could not participate in the criminal proceedings. See United
States v. Flores-Martinez, 677 F.3d 699, 706 (5th Cir.), cert. denied, 133 S. Ct.
326 (2012). Although questions about Cuff’s mental “status” had surfaced, the

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                                        No. 12-30765

court and counsel stated that Cuff’s competency to enter a guilty plea was not
in doubt. Cuff has not pointed to evidence that was before the district court
sufficient to raise a bona fide doubt about his competency. See id. No error has
been shown, plain or otherwise, with respect to the district court’s acceptance of
Cuff’s guilty plea without making a further inquiry into his competency. See id.
at 707.
       Cuff complains next that the district court failed to admonish him that he
would be required to register as a sex offender. Because he did not raise this
issue before the district court at his rearraignment, we also review this issue for
plain error. See Vonn, 535 U.S. at 59. However, the law on that question is
unsettled in this circuit, so the district court’s omission cannot be plain error.
See United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009).1
       Cuff also contends that his guilty plea was not supported by an adequate
factual basis. More particularly, Cuff asserts that the factual basis failed to
establish (1) that his postings on the file-sharing site depicted more than one
victim, and (2) that he made those postings in concert with three or more
persons. See 18 U.S.C. § 2252A(g)(2); see also United States v. Wayerski, 624
F.3d 1342, 1348 (11th Cir. 2010) (discussing elements of offense); United States
v. Daniels, 653 F.3d 399, 411-13 & n.4 (6th Cir. 2011) (same), cert. denied, 132
S. Ct. 1069 (2012). Again, our review is for plain error. See Vonn, 535 U.S. at
59. “In assessing factual sufficiency under the plain error standard, we may look
beyond those facts admitted by the defendant during the plea colloquy and scan

       1
         The Sixth Circuit has held that mandatory sex-offender registration is a collateral
consequence of a defendant’s guilty plea, which need not be mentioned during a Rule 11 plea
colloquy. United States v. Cottle, 355 F. App’x 18, 20-21 (6th Cir. 2009); see also United States
v. Bethurum, 343 F.3d 712, 718 (5th Cir. 2003) (“[A] defendant can effectively waive his rights
even if not informed of ‘all the consequences that may flow from conviction or from the
imposition of sentence.’”) (quoting United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.
1990)); United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (“The defendant need
only understand the direct consequences of the plea; he need not be made aware every
consequence that, absent a plea of guilty, would not otherwise occur.”).

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the entire record for facts supporting his conviction, and draw any fair inferences
from the evidence.” United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012) (internal quotation marks omitted).
       The record reflects that Cuff’s postings depicted more than one victim.
The factual basis recited that Cuff was a member of an Internet bulletin board,
to which he contributed 43 posts, primarily to the board’s “PT Vids” section.2 It
recited, “Most of his posts were of very young children posing or engaging in
sexual acts with adults.” (emphasis added).                The use of the plural word
“children” reflects that the videos posted by Cuff involved more than one child.
Also, the case agent referred in her testimony at Cuff’s detention hearing to
multiple child victims. It may be fairly inferred that Cuff’s postings depicted
more than one victim. See id.
       Cuff’s second contention, that he did not make those postings “in concert”
with three or more persons, is based on a novel legal theory.3 Thus, he cannot
show that the district court plainly erred in determining that the factual basis
was adequate in that regard. See Evans, 587 F.3d at 671. Moreover, the factual
basis recites that, to become a member of the bulletin board, a person had to
submit an advertisement to distribute child pornography to the board’s
creator/administrator, who would then decide (1) whether to give the person
membership on the board and, if so, (2) the level of membership the person
would be given. The board had other administrators who were responsible for
protecting the security of the members and the board and for keeping the board


       2
        The PT Vids section contained hard core videos of pre-teens engaging in sexual acts
with adults.
       3
         Cuff contends that “for someone to have acted ‘in concert’ with [him] to commit one
of the predicate felonies, he or she must have had the mens rea required to ‘conspire’ with him
to commit that offense.” See Daniels, 653 F.3d at 413. This circuit has never had occasion to
consider the meaning of “in concert” in this context and the authority from other circuits is
sparse and inadequate for us to conclude that the meaning is clear.

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operating. Those administrators had full access to all of the child pornography
advertised on the board. The case agent testified at the detention hearing that
the file-sharing site used was run by a total of five administrators. Thus,
sufficient facts were produced to support a determination that Cuff acted in
concert with at least three other persons in committing the predicate offenses by
conspiring with the administrators.
      Finally, Cuff contends that the district court should have permitted him
to withdraw his guilty plea. We have carefully considered the district court’s
application of the factors listed in United States v. Carr, 740 F.2d 339, 343-44
(5th Cir. 1984), and have no difficulty concluding that the district court did not
abuse its discretion. See United States v. McKnight, 570 F.3d 641, 645-49 (5th
Cir. 2009).
      Although Cuff complains of prosecutorial misconduct, he did not develop
the facts supporting this claim, so we are not able to review it on appeal. Cuff
also indicated that he wishes to raise questions of ineffective assistance of
counsel, which are not ripe for review at this juncture. See United States v.
Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
      For the above reasons, the judgment of the district court is AFFIRMED.




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