                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-31-2008

USA v. Long
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3549




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 06-3549

                           UNITED STATES OF AMERICA

                                              v.

                                  RODERICK LONG,
                                                Appellant


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                          District Court No. 04-CR-00159-001
                    District Judge: The Honorable Gustave Diamond


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     May 20, 2008
                             Opinion Issued May 28, 2008
                  Petition for Panel Rehearing Granted July 2, 2008
               Submitted after Grant of Rehearing on December 29, 2008

                   Before: SMITH and NYGAARD, Circuit Judges,
                           and STAFFORD, District Judge *

                              (Filed: December 31, 2008)


                                       OPINION


SMITH, Circuit Judge.



      *
       The Honorable William H. Stafford, Jr., Senior United States District Judge for
the Northern District of Florida, sitting by designation.
       Roderick Long, pursuant to a plea agreement containing a waiver of his right to

appeal his conviction or sentence, pleaded guilty to count two of a four-count superceding

indictment on March 8, 2006. Count two charged Long with violating 18 U.S.C. §

2252(a)(2) by knowingly receiving by computer visual depictions of a minor engaging in

sexually explicit conduct. The United States District Court for the Western District of

Pennsylvania sentenced Long to 121 months of imprisonment. In addition, the District

Court imposed a term of supervised release, for life, with conditions, inter alia, that

limited Long’s access to computers and to certain materials depicting or describing

sexually explicit conduct as defined in 18 U.S.C. § 2256(2). This timely appeal

followed.1

       Long’s opening brief raised two issues: (1) whether, pursuant to an explicit

reservation in his plea agreement, the District Court correctly calculated the offense level

used in computing his sentencing guideline range; and (2) whether the District Court

erred by imposing, as conditions of his period of supervised release, the limitations of his

computer use and his access to materials depicting or describing sexually explicit

conduct. The prosecution asserted that Long’s appellate waiver barred our review of the

terms of supervised release imposed by the District Court. With regard to the calculation

of the guideline range, the prosecution argued that there was no error.



       1
        The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291, and 18 U.S.C. § 3742(a). See United States v.
Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

                                              2
       In a decision filed May 28, 2008, we determined that Long’s appellate waiver was

enforceable because he had failed to challenge it in his opening brief. That waiver

precluded us from reviewing his challenge to certain conditions of supervised release.

Because the appellate waiver specifically excepted any appeal concerning the District

Court’s guideline calculation, we did consider – and we rejected – Long’s argument that

the District Court had incorrectly calculated the offense level.

       Thereafter, we granted panel rehearing to consider Long’s contention that he had

not forfeited his right to challenge the validity of the appellate waiver by failing to raise it

in his opening brief. Subsequently, in United States v. Goodson, 544 F.3d 529 (3d Cir.

2008), a panel of this Court held that “a defendant is not obliged in his opening brief to

acknowledge the existence of an appellate waiver and/or to explain why the waiver does

not preclude appellate review of the substantive issue raised.” Id. at 536. Accordingly,

Long’s failure to challenge the enforceability of the appellate waiver in his opening brief

was not by itself fatal to the viability of that issue. Because Long argues that the

appellate waiver is unenforceable due to a deficient Rule 11 colloquy, we review the

Court’s colloquy for plain error, mindful that it is Long who bears the burden of

persuasion with respect to whether the alleged Rule 11 error affected his substantial

rights. Id. at 539 (omitting citations).

       The District Court’s Rule 11 colloquy was deficient inasmuch as it did not comply

with the directive in Federal Rule of Criminal Procedure 11(b)(N), requiring a district



                                               3
court to “inform the defendant of, and determine that the defendant understands . . . the

terms of any plea-agreement provision waiving the right to appeal.” Fed. R. Crim. P.

11(b)(1)(N). This omission constitutes error that was obvious in light of the clear

mandate of Rule 11(b)(1)(N). Goodson, 544 F.3d at 540. The question that remains is

whether the District Court’s error affected Long’s substantial rights and warrants setting

the appellate waiver aside.

       In determining whether the District Court’s deficient colloquy affected Long’s

substantial rights, we must consider the “whole record.” Goodson, 544 F.3d at 540

(quoting United States v. Vonn, 535 U.S. 55, 59 (2002)). We begin by noting that the text

of the appellate waiver was broad, “waiv[ing] the right to take a direct appeal from his

conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,” subject to certain

exceptions. The first two exceptions were generic, preserving Long’s right to appeal (1)

if the Government filed an appeal, or (2) if the sentence exceeded the statutory limits or

unreasonably exceeded the guideline range determined by the District Court. The third

exception, however, preserved Long’s right to take a direct appeal of the District Court’s

guideline calculation or any upward departure from the guidelines. This exception was

significant because the parties disagreed regarding the application of U.S.S.G. §

2G2.2(c)’s cross reference. If applied, it would result in a ten-level increase in Long’s

offense level.

       The plea agreement was signed on the day of Long’s guilty plea by both Long and



                                             4
his counsel. Their signatures were set forth immediately below a statement that

acknowledged that Long had read the agreement, discussed it with counsel, and accepted

that it fully “set forth my agreement” with the United States Attorney. Contrary to Rule

11's directive, the District Court did not personally review the terms of the appellate

waiver during the guilty plea colloquy and determine if Long understood its terms.

Nonetheless, the prosecution reviewed during the change of plea proceeding the terms of

the plea agreement and the fact that there was an appellate waiver. In fact, the

prosecution not only referred to the appellate waiver, it also described the particulars of

the three exceptions, including Long’s specific reservation of the right to take a direct

appeal of the District Court’s guideline calculation or any upward departure that might be

imposed. At the conclusion of the prosecution’s recitation of the terms of the plea

agreement, the Court asked Long if there was anything he wanted to add or if he had any

questions. Long responded: “No, Your Honor.” He then affirmed that he still intended to

plead guilty. After the prosecution offered a factual basis for count two of the

superseding indictment, Long acknowledged that he was guilty of count two of the

superceding indictment. The District Court determined that Long’s guilty plea was

knowing and voluntary, and accepted the plea.

       Given the text of the appellate waiver, including its explicit exception allowing an

appeal of the District Court’s guideline computation, Long’s acknowledgment on the last

page of the plea agreement, and the prosecution’s reference to the waiver and description



                                              5
of its exceptions, we conclude that Long has failed to demonstrate that the District

Court’s error precluded him from “knowing of and understanding the significance of the

binding appellate waiver in the plea agreement.” Goodson, 544 F.3d at 540. We are

persuaded by the prosecution’s argument that the exception in the appellate waiver

preserving Long’s right to appeal the guideline computation, which was of central

importance in light of the fact that application of the cross-reference resulted in a ten-

level increase in his offense level, demonstrates that he knew of the appellate waiver and

its terms, and comprehended its significance. Accordingly, the appellate waiver is

enforceable and we are precluded from reviewing Long’s challenge to the conditions of

his supervised release.1

       Long’s appellate waiver, as noted above, does not bar our review of whether the

District Court erred in calculating his offense level inasmuch as the plea agreement

explicitly reserved that issue for appeal.2 Long contends that the District Court erred by

concluding that U.S.S.G. § 2G2.2(c)’s cross-reference applied. The cross-reference

       1
        Alternatively, Long argued that the conditions of his supervised release may be
considered on appeal because the appellate waiver, which must be strictly construed
under United States v. Khattak, 273 F.3d 557 (3d Cir. 2007), did not pertain to the
conditions of supervised release. In addition, Long asserted that conditions at issue here
were excepted from the appellate waiver because they do not appear among the
mandatory and discretionary conditions set forth in 18 U.S.C. § 3583(d). Neither
argument has merit in the wake of Goodson. 544 F.3d at 537–38.
       2
        Long’s petition for rehearing did not take issue with our determination that the
District Court did not err by applying U.S.S.G. § 2G2.2(c)’s cross reference. For that
reason, we reiterate our analysis from the earlier opinion, which was vacated by operation
of the grant of panel rehearing.

                                              6
comes into play “[i]f the offense involved causing, transporting, permitting or offering or

seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct . . . .” U.S.S.G. § 2G2.2(c).

According to Long, the cross-reference had no bearing on his offense level because his

instant messages neither caused the production of child pornography nor constituted a

“notice.”

       We find no error in the District Court’s application of U.S.S.G. § 2G2.2(c)’s cross-

reference. The plain text of the guideline demonstrates that Long did not have to cause

the production of child pornography. Rather, the cross-reference applies to a broad range

of conduct, including “seeking by notice,” and this record establishes that Long’s instant

messages requested “pics” of the minor. See U.S.S.G. § 2G2.2(c), and application note 5.

We agree with the Tenth Circuit’s analysis in United States v. Garcia, 411 F.3d 1173

(10th Cir. 2005), which rejected a narrow interpretation of the cross-reference. The

Garcia Court explained that the “conduct the guideline seeks to punish is not only the

actual production of child pornography, but the active solicitation for the production of

such images.” Id. at 1179.

       Long’s argument that his instant messages did not qualify as “notice” under the

cross-reference also lacks merit. As Long concedes, we rejected a similar argument in

United States v. Harrison, 357 F.3d 314 (3d Cir. 2004). There, we concluded that the

term “notice” encompassed “the communication of information to another party” and that



                                             7
Harrison’s e-mail constituted a notice for purposes of a related provision in guideline

§ 2G2.2. Because Long’s instant messages requested “pics” of the minor and conveyed

information to another party, we conclude that these instant messages also constituted

“notice” under § 2G2.2(c)’s cross-reference.

       We will affirm the judgment of the District Court.




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