                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 07-10741
                                                               December 11, 2007
                           Non-Argument Calendar             THOMAS K. KAHN
                         ________________________                CLERK

                 D. C. Docket No. 06-00055-CR-FTM-99-DNF

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

CHARLES JONAS GREEN,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                             (December 11, 2007)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Charles Jonas Green appeals his convictions and concurrent 97-month

sentences, imposed after he pled guilty to possessing (Count One) and receiving

(Count Two) materials involving a depiction of a minor engaged in sexually
explicit activity, violations of 18 U.S.C. § 2252 (a)(2), (a)(4)(B), (b)(1) and (b)(2).

On appeal, Green argues that his plea was invalid because the district court failed

to establish at the plea colloquy that actual minors were depicted in the images,

that Green understood that he could not appeal the denial of his motion to suppress,

and that Green actually committed the offenses. He also contends that the district

court violated his Eighth Amendment right against cruel and unusual punishment

when it sentenced him at the low-end of the applicable Guidelines range. After

careful review, we affirm.1


       1
              Because Green entered an unconditional guilty plea, which we conclude below was
knowing and voluntary, he waived all nonjurisdictional defects, including his various constitutional
challenges to the application of 18 U.S.C. § 2252(a), which criminalizes the intrastate possession
and receipt of child pornography. See United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003).
In order to preserve a nonjurisdictional challenge, a defendant must, with the consent of the court
and the government, enter a conditional plea under Fed. R. Crim. P. 11 which reserves, in writing,
the right to have an appellate court review an adverse determination of a specified pretrial motion.
Fed. R. Crim. P. 11(a)(2). The district court expressly advised Green on the effect of an
unconditional plea, by virtue of the court’s denial of Green’s motion to file a conditional guilty plea
pursuant to Rule 11, and the magistrate judge’s statement, at the plea colloquy, that Green was
waiving the right to appeal the adjudication of his guilt. Because Green’s constitutional arguments
do not challenge any jurisdictional defect in the proceedings, Green has waived the right to raise
these issues on appeal, and we cannot consider them. Patti, 337 F.3d at 1320. To the extent Green
characterizes his Commerce Clause challenge to the application of § 2252(a) to his case, the claim
is squarely foreclosed by our prior precedent concerning Congress’s Commerce Clause power to
regulate the internet. See United States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir.) (en banc)
(“Plainly, congressional power to regulate the channels and instrumentalities of commerce includes
the power to prohibit their use for harmful purposes, even if the targeted harm itself occurs outside
the flow of commerce and is purely local in nature.”), cert. denied, 126 S. Ct. 368 (2005); United
States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004)(“Congress clearly has the power to
regulate the internet, as it does other instrumentalities and channels of interstate commerce, and to
prohibit its use for harmful or immoral purposes regardless of whether those purposes would have
a primarily intrastate impact.”), cert. denied, 125 S. Ct. 2951 (2005); see also United States v.
Maxwell, 446 F.3d 1210, 1217-18 (11th Cir. 2006) (emphasis added) (holding “it is within
Congress’s authority to regulate all intrastate possession of child pornography, not just that which

                                                  2
       The relevant facts are straightforward.          On April 12, 2006, Green was

indicted on one count of possession (Count One) and one count of receipt (Count

Two) of one or more matter(s) containing a visual depiction of a minor engaged in

sexually explicit conduct that had been transported in interstate and foreign

commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) and (a)(2), respectively. He

filed a motion to suppress allegedly involuntary statements made during a

post-arrest interview at the Collier County Sheriff's Office. After an evidentiary

hearing, the district court denied the motion. Green then requested that the district

court allow him to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2),

reserving the right to appeal the denial of his suppression motion. The district

court denied this motion. Both parties subsequently consented to having Green

enter a guilty plea before a magistrate judge.

       At the plea colloquy, the magistrate judge first confirmed that Green was

competent, was acting knowingly and voluntarily, and was pleading guilty because

he was in fact guilty. After informing Green of the statutory maximum penalties,

the role of the Sentencing Guidelines, and his rights as a criminal defendant, the

magistrate judge told Green that if he pled guilty, he would give up his right to

appeal from the adjudication of guilt.            The magistrate judge then recited the


has traveled in interstate commerce or has been produced using materials that have traveled in
interstate commerce”;applying Gonzalez v. Raich, 545 U.S. 1 (2005)).

                                              3
elements of both counts in the indictment, and Green responded that he understood

those elements. With respect to Count One, the magistrate confirmed that Green

actually possessed the images by downloading them through the internet, that they

showed a minor engaging in sexually explicit conduct, that Green knew the

production of those images used a minor engaging in sexually explicit conduct, and

that they were produced using materials that had been transported in interstate and

foreign commerce. With respect to Count Two, the magistrate judge confirmed

that Green knowingly downloaded images containing a minor engaged in sexually

explicit conduct, that Green believed the images did in fact depict actual minors,

and that Green knew at least one of the performers in the depiction was a minor

engaged in sexually explicit conduct.         The magistrate judge found that the

foregoing facts established a sufficient basis to accept the guilty plea, and accepted

Green’s guilty plea. Green then proceeded to sentencing.

      The pre-sentence investigation report (“PSI”) stated that Green received

visual depictions involving a minor engaged in sexually explicit conduct through

the use of his computer on March 18, 2005. In February 2006, Green’s spouse

brought the computer to a computer store for repair, and during the repair, the

technician discovered videos and images of children engaged in sexually explicit

conduct. The technician alerted the authorities, and they confirmed that Green was



                                          4
using an online peer-to-peer file sharing program and that his hard drive contained

over 150 child pornography files labeled with sexually explicit titles. The hard

drive also contained a “keeper file” containing 30 child pornography sub-files.

Law enforcement further confirmed that Green had received one such file on

March 18, 2005, and moved that file into the “keeper file.” The technician placed

a new hard drive in the computer and Green’s spouse retrieved it.

      Approximately two weeks later, the authorities executed a search warrant

and seized the computer, its new hard drive, and CDs. They also discovered a hard

drive located in a truck registered to Green and his spouse. The new hard drive

installed by the technician contained over 20 child pornography files.      A CD

located on the computer desk contained over 100 child pornography images, dating

back to 2002. The hard drive found in the truck contained in excess of 100 child

pornography files dating back to 2004, primarily videos depicting infants engaged

in sexually explicit conduct. During a post-arrest interview, Green admitted to

downloading child pornography using the file-sharing program. The PSI further

revealed that Green had worked as a law enforcement officer since the age of 19

and, at the time of his arrest, was serving as a deputy.

      The probation officer calculated Green’s Guidelines range as follows.

Green’s base offense level was 22, pursuant to U.S.S.G. § 2G2.2(a)(2). The PSI



                                           5
recommended a 2-level reduction, pursuant to § 2G2.2(b)(1), because Green did

not intend to traffic the child-pornographic materials; a 2-level enhancement,

pursuant to § 2G2.2(b)(2), due to the involvement of prepubescent minors; a

4-level enhancement, pursuant to § 2G2.2(b)(4), for sadistic or masochistic

conduct; a 2-level enhancement, pursuant to § 2G2.2(b)(6), for the use of a

computer; and a 5-level enhancement, pursuant to § 2G2.2(b)(7)(D), because the

offense involved over 600 images. The PSI also recommended a 3-level reduction

for acceptance of responsibility.   With an adjusted offense level of 30 and a

criminal history category I, Green faced a Guidelines range of 97-121 months’

imprisonment.     The statutory maximum for Count One was 10 years’

imprisonment and the statutory maximum for Count Two was 20 years’

imprisonment. On Count Two, Green also faced a 5-year mandatory minimum.

See 18 U.S.C. § 2252(b)(1).

      Over Green’s objections, the district court adopted the PSI’s factual

statements and Guidelines recommendations. Before the court imposed sentence,

it heard the statements of several of Green’s family members, who generally

described Green as a good man despite this mistake. The family members, and

Green’s counsel, urged the district court to impose a lenient sentence in light of

Green’s many years serving the public as a law enforcement officer. Green then



                                        6
personally addressed the court, apologized for his actions, which he maintained

were accidental, and told a story about how, as a law enforcement officer, he had

prevented a young boy from being sent back to an abusive household.

      The government requested the district court to impose a sentence within the

Guidelines range, emphasizing that, from 2002 to 2006, Green knowingly and

continuously downloaded and kept hundreds of images of child pornography that

were found on three hard drives and a CD. The government also noted that, within

less than a month after Green received a new hard drive, there were 20 more

images on that hard drive. Counsel for Green requested that the court impose the

statutory minimum, emphasizing Green’s long career as a law enforcement officer,

his lack of criminal history, and the nature of his conduct, which posed no harm to

the community.

      The district court stated that it had considered the factors set forth in the

“statute,” including that Green’s career as a law enforcement officer was both an

aggravating and mitigating factor and that Green’s conduct went beyond mere

accidental use.   The court then imposed a low-end Guidelines sentence of 97

months’ imprisonment, based primarily on Green’s lack of criminal history and

career as a law enforcement officer. Before convening the sentencing hearing, the

district court asked the parties whether there were any objections to the sentence



                                         7
imposed.    Green’s counsel stated that he had no objections other than those

previously stated. This appeal followed.

      First, Green argues that his guilty plea was invalid because the district court

failed to establish at the plea colloquy that actual minors were depicted in the

images, that Green understood that he could not appeal the denial of his motion to

suppress, and that Green actually committed the offenses. Because Green did not

object to the sufficiency of the plea colloquy in the district court, we review his

arguments for plain error. United States v. Vonn, 535 U.S.55, 59 (2002); United

States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under plain-error review,

the defendant has the burden to show that there is an: (1) error; (2) that is plain; (3)

that affects substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). If

these three elements are met, we may exercise our discretion to correct the error (4)

if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks and alteration omitted).

      Rule 11 requires a district court “to conduct a searching inquiry into the

voluntariness of a defendant’s guilty plea.” United States v. Siegel, 102 F.3d 477,

481 (11th Cir. 1996). The district court must address the “three core objectives” of

Rule 11 to ensure that: (1) a guilty plea is not the product of coercion, (2) the

defendant understands the nature of the charges, and (3) the defendant understands



                                           8
the consequences of pleading guilty. United States v. Camacho, 233 F.3d 1308,

1314 (11th Cir. 2000).          However, there is no mechanical rule to apply in

determining whether the district court adequately informed the defendant of the

nature of the charges against him. Id. Rather, the inquiry is case-specific and

depends on the complexity of the charges and “the defendant’s sophistication and

intelligence.” Id. (citations omitted). “[A] defendant who seeks reversal of his

conviction after a guilty plea on the ground that the district court committed plain

error under Rule 11 must show a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004).

         Green’s first basis for challenging his guilty plea -- that the district court did

not establish that the images he possessed depicted actual minors -- is without

merit.     At the plea colloquy, the magistrate judge specifically established that

Green believed and knew that the images he downloaded were of minors engaging

in sexually explicit depicted conduct. At the plea colloquy, as to Count One, the

magistrate judge asked Green about whether the images depicted minors: “You

knew that [the images Green previously admitted he had downloaded] contained or

showed a minor engaging in sexually explicit conduct?”                  Green responded




                                              9
affirmatively. The magistrate judge and Green also engaged in this colloquy about

Count Two:

      GREEN:       Well, that’s around March 18th, and I’m assuming that’s
                   when I downloaded a picture that was sexually explicit
                   involving a minor.
      ....

      JUDGE:       You knowingly received this depiction.

      GREEN:       That is correct, sir.

      JUDGE:       By computer?

      GREEN:       Yes, sir.

      JUDGE:       The production of the depiction involved the use of a
                   minor engaging in sexually explicit conduct?

      GREEN:       That’s correct, sir.

      JUDGE:       And you believe that it is, in fact, a minor engaged in
                   sexually explicit conduct?

      GREEN:       That is correct, sir.

      JUDGE:       And you knew that at least one of the performers was a
                   minor?

      GREEN:       That is correct, sir.

On this record, Green has established no error, let alone plain error, under Rule 11

based on whether the images were actual minors.




                                           10
      We likewise are unpersuaded by Green’s suggestion that the district court

failed to inform him that the denial of his motion to suppress would not be

appealable. At the plea colloquy, the magistrate judge told Green that, by pleading

guilty, he was giving up the right to appeal his adjudication of guilt. Moreover, the

district court denied Green’s motion to enter a conditional plea, in order to preserve

his ability to appeal the denial of the motion to suppress. Thus, we find it was

clear that by virtue of pleading guilty, Green was waiving his ability to challenge

the decision on his suppression motion.

      From our careful review of the entire record, with particular attention to the

plea colloquy, we also reject Green’s assertion that the district court failed to

establish that he committed the acts charged in the indictment.          At the plea

colloquy, the magistrate judge carefully reviewed each element of the two crimes

to which Green was pleading guilty.       The magistrate judge asked Green if he

committed the underlying acts constituting each element of each offense. In short,

the court confirmed that Green was entering a knowing and voluntary plea, ensured

that Green was pleading guilty because he was in fact guilty, recited the elements

of both counts, and, after requiring Green to explain his underlying conduct,

confirmed that there was a sufficient factual basis for the charges.       Green has

shown no plain error on this basis.



                                          11
      Finally, Green argues that his sentence violated the Eighth Amendment.

Because Green did not raise this issue before the district court, we review it for

plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “The

Eighth Amendment, which forbids cruel and unusual punishments, contains a

narrow proportionality principle that applies to noncapital sentences.” Ewing v.

California, 538 U.S. 11, 20 (2003) (quotations omitted). Outside the context of

capital punishment, the Supreme Court has made clear that successful challenges to

the proportionality of sentences are exceedingly rare. Raad, 406 F.3d at 1323. We

have held that, “[i]n general, a sentence within the limits imposed by statute is

neither excessive nor cruel and unusual under the Eighth Amendment.” United

States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005) (quotation omitted);

accord United States v. Johnson, 451 F.3d 1239, 1243-44 (11th Cir.), cert denied,

127 S. Ct. 462 (2006).

      In the instant case, the district court sentenced Green to 97 months’

imprisonment -- a term that fell both at the lowest of the applicable Guidelines

range and well below the statutory maximums of 10 years’ imprisonment for

Count One and 20 years’ imprisonment for Count Two.               See 18 U.S.C.

§ 2252(b)(1), (2).   Because the district court sentenced Green well-within the




                                       12
statutory limits, his sentence is neither excessive nor cruel and unusual, and does

not violate the Eighth Amendment.

      AFFIRMED.




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