United States v. Goodman ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1313
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS GOODMAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Benjamin Brooks, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
Lauren S. Zurier, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney, was on brief, for
appellee.
August 18, 2020
BARRON, Circuit Judge. Thomas Goodman pleaded guilty in
the District of Rhode Island on October 11, 2018, to eight counts
of sexual exploitation of a minor in violation of 18 U.S.C.
§ 2251(a) and one count of possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B). The District Court
accepted Goodman's guilty plea and sentenced him to 3,120 months'
imprisonment. Goodman appeals two of his convictions and his
sentence. We affirm his convictions and, because his plea
agreement contained a valid and enforceable waiver of his right to
appeal, dismiss his challenges to his sentence.
I.
On May 17, 2018, Goodman was at work, at Electric Boat
in North Kingstown, Rhode Island, when his supervisor caught him
using his phone in violation of company rules and confiscated it.
The supervisor asked for the password to unlock the phone, at which
point Goodman gave him the information and then fainted. An
Electric Boat security officer proceeded to search the phone. The
search revealed numerous images of nude children, including images
that appeared to be of Goodman's own daughters.
The security officer quickly handed the phone over to
the North Kingstown police. Soon afterwards, Goodman was arrested.
Once in custody, he admitted to both possessing and distributing
child pornography. He also admitted to repeatedly having sexual
contact, including intercourse, with one of his minor daughters
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over a period of years, to having sexual contact with another of
his minor daughters, and to repeatedly having sexual contact with
the minor daughter of his family friend. A search of his home
revealed even more explicit depictions of young children: 7,800
images and 370 videos in total, including ones of his daughters
and the daughter of his family friend.
The next day, on May 18, 2018, Goodman was alleged by
criminal complaint to have committed one count of production of
child pornography, in violation of 18 U.S.C. § 2251(a), and one
count of possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B). Goodman entered into a plea agreement months
later, on October 4, 2018. He consented in doing so to the
government's filing of an information that would charge him with
eight counts of sexual exploitation of a minor, in violation of 18
U.S.C. § 2251(a), and one count of possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B). The government charged
Goodman with those crimes via information on that same day. The
eight counts of sexual exploitation of a minor involved four
different minor victims. Goodman also consented, as part of his
plea agreement, to the waiver of his right to appeal the
convictions and the sentence imposed by the District Court (so
long as the sentence was within or below the Guidelines sentencing
range).
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On October 11, 2018, Goodman was arraigned on the
information, waived his right to an indictment, and pleaded guilty
to all charges. The District Court sentenced Goodman on March 22,
2019, to 360 months' imprisonment for each count of sexual
exploitation of a minor, to be served consecutively to one another,
and to 240 months' imprisonment for the single count of possession
of child pornography, to be served consecutively to the other
counts. Goodman thus received a total sentence of 3,120 months'
imprisonment.
Goodman filed this timely appeal.
II.
We begin with Goodman's challenge to two of his eight
convictions for sexual exploitation of a minor in violation of 18
U.S.C. § 2251(a). In the counts underlying those convictions,
Goodman was alleged to have produced images or videos of an eleven-
year-old girl entering and exiting the shower. He argues that
these convictions cannot stand because the District Court erred in
accepting the plea, as there was an insufficient factual basis to
support the two convictions. See Fed. R. Crim. P. 11(b)(3).
The plea agreement provides that "Defendant hereby
waives Defendant's right to appeal the convictions and sentences
imposed by the Court, if the sentences imposed by the Court are
within or below the sentencing guideline range determined by the
Court." But, insofar as the appeal waiver poses no bar to our
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consideration of this Rule 11 challenge to these convictions, see
United States v. Torres-Vázquez, 731 F.3d 41, 44-45 (1st Cir. 2013)
("It is common ground that '[w]here, as here, an appeal challenges
the validity of the plea itself, a waiver-of-appeal provision lacks
force' with respect to that challenge." (alteration in original)
(quoting United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir.
2013))), we find no merit to the Rule 11 challenge.
Section 2251(a) provides for the punishment of "[a]ny
person who employs, uses, persuades, induces, entices, or coerces
any minor to engage in . . . any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct." 18
U.S.C. § 2251(a). In turn, 18 U.S.C. § 2256(2)(A)(v) defines
"sexually explicit conduct" as, among other types of conduct,
"lascivious exhibition of the anus, genitals, or pubic area of any
person."
Goodman contends that the facts before the District
Court did not suffice to show that he recorded "lascivious
exhibition" rather than "mere nudity." Because Goodman failed to
make this challenge below, we review only for plain error. See
Torres-Vázquez, 731 F.3d at 44. We find none.
At the change-of-plea hearing, Goodman admitted to the
District Court that, for these counts, he had "engaged in sexually
explicit conduct" as the government alleged. Consistent with that
admission, the record shows that the videos that Goodman
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surreptitiously produced "depict [an eleven-year-old girl's]
genitals as she[] [was] undressing and entering and exiting the
shower" and Goodman setting up and then hiding the camera.
Accordingly, the District Court did not plainly err in concluding
that the factual foundation for Goodman's plea to these two counts
sufficed to give it "a reasoned basis to believe that the defendant
actually committed the crime to which he is admitting guilt."
United States v. Matos-Quiñones, 456 F.3d 14, 21 (1st Cir. 2006);
see also United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir.
2016) (finding that the defendant's placement of a video camera in
the bathroom, his focus on video recording her genitals, and his
editing of the videos were sufficient to create a lascivious
exhibition and collecting similar cases).
III.
We next take up Goodman's challenges to the procedural
and substantive reasonableness of his sentence under the United
States Sentencing Guidelines ("Guidelines") and 18 U.S.C.
§ 3553(a), which sets forth factors for courts to consider in
sentencing. We conclude, however, that the appeal waiver in his
plea agreement bars our consideration of the substance of these
challenges.
In arguing that the waiver is no bar, Goodman appeals to
basic principles of contract law. A plea agreement is, after all,
"a contract under which both parties give and receive
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consideration."1 United States v. Rivera-Cruz, 878 F.3d 404, 408
(1st Cir. 2017) (quoting United States v. Conway, 81 F.3d 15, 17
(1st Cir. 1996)).
Goodman first argues in this regard that the appeal
waiver is not enforceable because he received no consideration for
entering into the plea agreement. But, that is not so.
In exchange for Goodman's agreement to plead guilty, the
government agreed as part of the plea deal to recommend an
additional one-level reduction in Goodman's total offense level
for "assist[ing] authorities in the investigation or prosecution
of his own misconduct by timely notifying authorities of his
intention to enter a plea of guilty," which was only available to
Goodman "upon motion of the government." U.S.S.G. § 3E1.1(b).
Goodman contends that the promised recommendation cannot
constitute consideration to make the plea agreement binding
because the one-level reduction did not reduce his total offense
level to below forty-three -- the highest listed offense level
under the Guidelines -- and thus did not reduce his Guidelines
1 The government argues that we should consider Goodman's
consideration argument under the three-prong framework that this
Court set forth in United States v. Teeter, 257 F.3d 14 (1st Cir.
2001). But, the Teeter framework does not apply to this
consideration-based challenge to the enforceability of the
agreement that contains the waiver. See United States v. Rivera-
Cruz, 878 F.3d 404, 408 (1st Cir. 2017) (applying contract law
principles in considering a defendant's argument that a plea
agreement including an appeal waiver is invalid for lack of
consideration).
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sentencing range to less than a life sentence, which is the maximum
allowable penalty for his convictions. See U.S.S.G. ch. 5, pt. A
(sentencing table). But, under our precedent, the government's
promise to recommend the one-level reduction constituted
consideration for his promise to plead guilty because it gave
Goodman a "chance at less" before the District Court, as the
recommendation would inform the District Court that it had before
it a defendant who, in the government's eyes, had assisted the
government by promptly notifying it of his intention to plead
guilty. Rivera-Cruz, 878 F.3d at 409 (quoting Conway, 81 F.3d at
17) (finding that the government's agreement to the additional
one-level reduction was sufficient consideration).
Goodman separately argues that the appeal waiver is no
bar because a condition of the plea agreement is that "the
sentence[] . . . [be] within or below the sentencing guideline
range determined by the Court" and, in his view, the District
Court's sentence exceeded that range. See United States v. Acosta-
Roman, 549 F.3d 1, 3-4 (1st Cir. 2008) (discussing whether "the
waiver of appeal provision is enforceable under the circumstances
of this case").2 He thus appears to be contending that the plea
2The government contends that we should review this challenge
under the framework set forth in United States v. Teeter, 257 F.3d
14 (1st Cir. 2001). Under our precedent, however, we do not apply
that framework to a challenge to the enforceability of an appeal
waiver on the ground that the plea agreement is not enforceable
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agreement -- and thus the appeal waiver in it -- is not enforceable
because a condition precedent of the contract was not met. See
United States v. Vélez-Luciano, 814 F.3d 553, 558 (1st Cir. 2016).
We may assume -- as the government does -- that Goodman
means to support this contention with arguments that he raises in
other portions of his briefing, even though these arguments do not
address the appeal waiver as such. Thus, we take him to be arguing
that the 3,120-month sentence that he received is greater than a
life sentence; that it therefore falls outside the Guidelines
sentencing range, which establishes the maximum sentence as a
prison term of life; and thus, that the sentence he received is
greater than the plea agreement contemplated.
Goodman identifies no case law, however, to support the
argument that, for purposes of the Guidelines, a sentence of longer
than the known natural lifespan is greater than a sentence of life.
In fact, in United States v. Saccoccia, 58 F.3d 754 (1st Cir.
1995), we found that a sentence of 660 years -- 7,920
months -- imposed pursuant to U.S.S.G. § 5G1.2(d) was "neither
more nor less than the functional equivalent of life without
parole." Id. at 786 & n.28.
Goodman appears to argue that his sentence exceeds the
length contemplated by the plea agreement because it violates
because a condition precedent to it was not met. See Acosta-
Roman, 549 F.3d at 3-4.
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U.S.S.G. § 5G1.2(d),3 which requires a court to impose consecutive
sentences when "the highest statutory maximum is less than the
total punishment, . . . but only to the extent necessary to produce
a combined sentence equal to the total punishment." But, Goodman
points to no case law to support the contention that his sentence
does not comport with this Guideline because it is greater than
"necessary" to produce a life sentence. Furthermore, as we have
just noted, Saccoccia makes clear that a sentence many times longer
than the length of a natural life may comply with that Guideline.
See 58 F.3d at 786 n.28.
There is one other possible route by which Goodman could
overcome his appeal waiver with respect to his challenges to his
sentence. He could make the showings required under the framework
for assessing the enforceability of an appeal waiver that this
Court set forth in United States v. Teeter, 257 F.3d 14 (1st Cir.
2001). Under that framework, appeal waivers in enforceable plea
agreements are "'presumptively valid,' so long as (1) the agreement
clearly delineates the waiver's scope; (2) the district court
specifically inquired about the waiver at the plea hearing; and
3 Section 5G1.2(d) provides: " If the sentence imposed on the
count carrying the highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more of the other
counts shall run consecutively, but only to the extent necessary
to produce a combined sentence equal to the total punishment. In
all other respects, sentences on all counts shall run concurrently,
except to the extent otherwise required by law."
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(3) denial of the right to appeal would not constitute a
miscarriage of justice." United States v. Betancourt-Pérez, 833
F.3d 18, 22 (1st Cir. 2016) (quoting Teeter, 257 F.3d at 25).
Goodman does not address Teeter in his briefing to us,
however. He instead appears to assume that the appeal waiver is
not enforceable because the plea agreement is not for the reasons
just addressed. Thus, he frames his arguments as challenges under
the familiar plain error and abuse of discretion standards.
Nonetheless, even if we were to treat Goodman's
challenges to his sentence as contentions that he can satisfy
Teeter's miscarriage of justice prong -- as we see no basis for
concluding that any other prong is conceivably at issue -- they
would fail. That prong is "sparingly applied," Betancourt-Pérez,
833 F.3d at 23 (citing United States v. Miliano, 480 F.3d 605, 608
(1st Cir. 2007)), and is reserved "only for egregious cases,"
United States v. Villodas-Rosario, 901 F.3d 10, 18 (1st Cir. 2018)
(quoting Sotirion v. United States, 617 F.3d 27, 36 (1st Cir.
2010)).
Goodman's challenges to the District Court imposition of
more than a life sentence and to the consideration of the 18 U.S.C.
§ 3553(a) sentencing factors, as well as to the substantive
reasonableness of his sentence, are the very "garden-variety"
claims of error that cannot satisfy the miscarriage of justice
prong. Villodas-Rosario, 901 F.3d at 19. Goodman's contention
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that the record is devoid of facts to support the District Court's
application of a two-level increase to his total offense level
based on the conclusion that he distributed the images of child
pornography that he had produced is arguably more serious, given
the apparent import the District Court gave to that finding in
sentencing him as severely as it did. But, the un-objected-to
presentence report prepared by the United States Office of
Probation and Pretrial Services recommended, for each of the eight
counts of sexual exploitation of a minor, the two-level enhancement
"because the defendant knowingly engaged in the distribution of
[the] images" -- images that he pleaded guilty to producing -- that
supported each count. See United States v. Miranda-Díaz, 942 F.3d
33, 40-41 (1st Cir. 2019); see also Fed. R. Crim. P. 32(i)(3)(A).
Thus, there was no "miscarriage of justice" in the District Court
making the finding that it did in the absence of any objection
from Goodman.
IV.
Accordingly, the appeal is dismissed in part and the
judgment of the District Court is affirmed.
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