06-4061-cr
United States v. Hawkins


                           UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT
                                    _______________

                                       August Term, 2007

(Argued: January 7, 2008                                             Decided: January 16, 2008)

                                     Docket No. 06-4061-cr

                                       _______________

                                 UNITED STATES OF AMERICA ,

                                                                                        Appellee,

                                             —v.—

                                   CHARLES E. HAWKINS, JR .,

                                                                            Defendant-Appellant.


                                       _______________

Before:

                      WINTER , STRAUB , and SOTOMAYOR , Circuit Judges.


                                       _______________

       Appeal from a judgment of conviction and sentence entered in the United States District
Court for the Western District of New York (Richard J. Arcara, Judge), the defendant having
been convicted of traveling in interstate commerce for the purpose of engaging in illicit sexual
conduct with a minor, in violation of 18 U.S.C. § 2423(b), and sentenced principally to 40
months’ imprisonment. On appeal, the defendant argues that § 2423(b) is an unconstitutional
exercise of the Commerce Power and that the District Court erred in relying upon defendant’s
plea agreement with the government to deny his motions attacking the constitutionality of §
2423(b) on First Amendment and Fifth Amendment grounds.
       Affirmed.
                                         ______________
       PAUL J. CAMPANA , Assistant United States Attorney (Terrance P. Flynn, United
       States Attorney, on the brief), Buffalo, New York, for Appellee.

       TIMOTHY W. HOOVER , Federal Public Defender’s Office, Buffalo, New York, for
       Defendant-Appellant.
                                        _______________

Per Curiam:

       On October 13, 2004, the parents of a 13-year-old girl informed their local police

department in Cheektowaga, New York, that their daughter had been communicating with an

unknown man online and on the telephone for the previous three weeks. The police contacted

the Federal Bureau of Investigation (“FBI”), and the FBI learned that the individual had

identified himself to the minor as Charlie Hawkins. Assuming the girl’s identity, the FBI began

communicating with Hawkins online. During these online conversations, Hawkins stated that he

knew the girl’s age and that he wanted to have sex with her at a motel near her home. In

addition, Hawkins stated that he was then traveling from Montana and through several states in

order to meet her. Eventually, Hawkins arranged a time and place to meet an individual that he

believed was the 13-year-old Cheektowaga girl, and Hawkins drove from Ohio for that purpose.

At that meeting time and place, law enforcement arrested Hawkins.

       The government charged Hawkins with one count of traveling in interstate commerce for

the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. §

2423(b). Hawkins pled guilty, and the District Court sentenced Hawkins principally to 40

months’ imprisonment. On appeal, Hawkins argues that § 2423(b), the statute under which he

was convicted, is unconstitutional, and that the District Court erroneously relied upon his plea

agreement with the government in denying Hawkins’s motion to dismiss.


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       As Hawkins concedes, we previously addressed his first ground for appeal — the

constitutionality of 18 U.S.C. § 2423(b) under the Commerce Clause — in United States v. Han,

230 F.3d 560, 562-63 (2000). In that case, the defendant challenged the constitutionality of §

2423(b) on both First Amendment and Commerce Clause grounds. Id. After explicitly

considering the merits of each challenge, we concluded that “§ 2423(b) was constitutionally

applied to Han.” Id. at 563. In doing so, we did not explicitly reject either constitutional

challenge. Id. at 562-63. Hawkins interprets this arguable lack of specificity and the fact that

the language quoted above immediately follows our First Amendment analysis as an implicit

limitation of Han only to its First Amendment ground.

       Such a reading of Han is wrong. As noted above, the defendant in that case presented

two distinct and independent arguments that § 2423(b) was unconstitutional, and we considered

the merits of both. After doing so, we concluded that § 2423(b) was constitutional. The only

logical implication of such a conclusion is that § 2423(b) survives constitutional challenge on the

two grounds presented in that case, the First Amendment and the Commerce Clause. As the

Commerce Clause challenge articulated by Hawkins in this case is indistinguishable from that

considered in Han and we see no compelling reason to disturb existing Second Circuit

precedent,1 Hawkins’ appeal on this basis fails.

       Hawkins also argues that the District Court erred in relying upon his plea agreement with

the government to deny his motions to dismiss the information on First Amendment and Fifth

Amendment grounds. Paragraphs 20, 21 and 23 of the plea agreement constitute a knowing


1
 Indeed, other circuits have recognized that Han holds that 18 U.S.C. § 2423(b) is constitutional
under the Commerce Clause. See United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006);
United States v. Bredimus, 352 F.3d 200, 205 (5th Cir. 2003), cert. denied, 541 U.S. 1044
(2004).
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waiver of any and all of Hawkins’s rights to appeal or collaterally attack his sentence with only

one exception — the District Court’s denial of Hawkins’s motion “to declare Title 18, United

States Code, Section 2423(b), unconstitutional under the Commerce Clause of the United States

Constitution.” In other words, these paragraphs of the plea agreement contemplate only one

motion by Hawkins before the District Court — one to dismiss the information on the ground

that § 2423(b) is an unconstitutional exercise of the Commerce Power. To the extent that the

language in those paragraphs could be read to allow Hawkins to submit other motions to the

District Court, Hawkins has knowingly waived any right he might have had to appeal the District

Court’s dispositions of those motions. As such, we will not review an appeal on those grounds.

See United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.1993), cert. denied, 509 U.S.

931 (1993) (“In no circumstance ... may a defendant, who has secured the benefits of a plea

agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then

appeal the merits of a sentence conforming to the agreement. Such a remedy would render the

plea bargaining process and the resulting agreement meaningless.”).

       For the foregoing reasons, we AFFIRM the judgment of the District Court.




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