United States v. James Cottle , 355 F. App'x 18 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0755n.06
No. 08-5253
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
FILED
)
Dec 01, 2009
LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
JAMES COTTLE, ) KENTUCKY
)
Defendant-Appellant. )
Before: Batchelder, Chief Judge; Siler and Gilman, Circuit Judges.
SILER, Circuit Judge. James Cottle was convicted on his guilty plea and now appeals the
district court’s sentence and acceptance of his plea. For the following reasons, we AFFIRM.
BACKGROUND
Cottle was indicted for receiving and possessing child pornography based on the findings of
a search of the home he shared with his father in Paintsville, Kentucky. The findings of a second
search were used to enhance his sentence. During the course of the first search, which was
conducted pursuant to a warrant, the police seized two computers and several printed pornographic
photos of children.
After being indicted, Cottle was prohibited from remaining at his former residence or
spending time with his children without supervision as conditions of his bond. While conducting
a home visit and finding Cottle at the residence with his children, unsupervised, social services
1
No. 08-5253
United States v. Cottle
contacted the police to notify them that a new computer was in the home. When the police arrived,
Cottle’s father consented to a second search of the home, and the police seized another computer and
more printed photographs of child pornography.
Cottle pleaded guilty to possessing and receiving child pornography in violation of 18 U.S.C.
§§ 2252(a)(2) and 2252(a)(4)(b), counts one and eleven of the indictment, on September 19, 2007.1
As part of his plea agreement, he waived his right to appeal and collaterally attack his conviction or
sentence, except that he reserved the right to appeal any legal determination that related to the
enhancement of his offense level based on the number of images he possessed, pursuant to USSG
§ 2G2.2(b)(7).
The Presentence Report (“PSR”) calculated Cottle’s total offense level at 32. The district
court rejected an enhancement of two points for obstruction of justice, but it reviewed the images
obtained during the second search to verify they met the definition of pornography, were relevant
to the offense conduct charged in this case, and exceeded 600 images. It then concluded that the
images discovered during the second search were relevant conduct warranting a five-point
enhancement under USSG § 2G2.2(b)(7). It found Cottle’s total offense level to be 30 and his
Guidelines range to be 108 to 135 months of imprisonment, and sentenced him to 160 months for
count one and 100 months for count eleven, to run concurrently.
On appeal, Cottle’s counsel filed a brief pursuant to Anders v. State of California, 286 U.S.
738 (1967), explaining that, in his opinion, the issues set forth in the brief were without merit. Cottle
1
The charges in the indictment arose only from the photographs obtained during the first
search of Cottle’s residence.
-2-
No. 08-5253
United States v. Cottle
filed a pro se brief in response, setting out fourteen arguments in support of his appeal. The United
States filed a motion to dismiss this appeal, arguing that Cottle waived his ability to appeal his
conviction and sentence in the plea agreement, and Cottle’s counsel filed a brief in response. We
granted the government’s motion in part and denied it in part, limiting the issues to be considered
on appeal to issues one and five in the Anders brief and issues four through nine in the pro se brief.
We denied counsel’s motion to withdraw and set a briefing schedule.
DISCUSSION
I. Voluntariness of the Plea
A guilty plea is valid if it is entered voluntarily and intelligently based on the totality of the
circumstances. Brady v. United States, 397 U.S. 742, 749 (1970). A plea is voluntary if it is entered
into “by one fully aware of the direct consequences.” Id. at 755, 757. A “defendant need only be
aware of the direct consequences of the plea, however; the trial court is under no constitutional
obligation to inform the defendant of all the possible collateral consequences of the plea.” King v.
Dutton, 17 F.3d 151, 153 (6th Cir. 1994).
Matters that are beyond the control or responsibility of the district court are collateral
consequences of a conviction or plea. El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002).
The district court here ordered Cottle to register as a sex offender as prescribed by law, meaning
whether he must actually register is controlled by state and federal law and is beyond the control or
responsibility of the court. We have previously recognized consequences of conviction similar to
sex offender registration to be collateral consequences. For instance, in Sanusi v. Gonzales, 474 F.3d
341 (6th Cir. 2007), we held that “there is no obligation to advise a criminal defendant of the
-3-
No. 08-5253
United States v. Cottle
collateral immigration consequences of entering a guilty plea.” Id. at 347. Similarly in King v.
Dutton, 17 F.3d 151 (6th Cir. 1994), we recognized that a “conviction’s possible enhancing effect
on subsequent sentences has been held to be merely a collateral consequence of a guilty plea, about
which a defendant need not be advised.” Id. at 153. Moreover, we have characterized sex offender
registration requirements as collateral consequences in other situations. See Leslie v. Randle, 296
F.3d 518, 522 (6th Cir. 2002) (recognizing registration and notification requirements of a state’s
sexual predator statute as collateral consequences of a conviction). Because the fact that Cottle may
have to register as a sex offender is only a collateral consequence of his guilty plea, the district court
was not required to inform him of this fact for the plea to be valid. Accordingly, Cottle’s guilty plea
was valid, and the district court’s acceptance of the plea was proper.
II. Sentencing Enhancement
Cottle argues the district court erred in applying an enhancement to his sentence under §
2D2.2(b)(7)(D) based on the fruits of the second search because (1) the second search was
unconstitutional; and (2) the images were not accurately counted according to the statutory definition
for child pornography.2
The evidence here supports finding the second search legal. “The Fourth Amendment
recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent
2
At sentencing, Cottle’s counsel also argued that the enhancement was improper because the
images obtained in the second search were not relevant conduct since Cottle could have obtained
those images after the indictment. The district court concluded that Cottle obtained the images prior
to the indictment, and they were simply overlooked in the first search. It does not appear that Cottle
or his counsel appeals this conclusion, so we need not consider it when determining whether the
enhancement was warranted.
-4-
No. 08-5253
United States v. Cottle
of an occupant who shares, or is reasonably believed to share, authority over the area in common
with a co-occupant who later objects to the use of evidence so obtained.” Georgia v. Randolph, 547
U.S. 103, 106 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)).
At the time of the second search, Cottle’s father answered the door and consented to the
search of the home. Cottle had previously been ordered not to be at that house, and, before signing
a form giving the police consent to search the residence, his father stated that his son had not been
living there. At sentencing, Cottle withdrew his objection to the search. Since the search was
properly based on the consent of Cottle’s father, it was not illegal. Cottle’s challenge to the breadth
of the search is similarly rejected. General consent to search reasonably includes permission to
search any container that might hold illegal objects. United States v. Canipe, 569 F.3d 597, 606 (6th
Cir. 2009). The breadth of the second search, including the house and the computer, was reasonable
based on Cottle’s father’s consent. Finally, even if the search were illegal, it is not clear that the
fruits of the search would be excluded at sentencing. Compare United States v. Nichols, 979 F.2d
402, 410-11 (6th Cir. 1992) (excluding evidence obtained from an illegal search at sentencing), with
United States v. Jenkins, 4 F.3d 1338, 1345 n.8 (6th Cir. 1993) (rejecting parts of Nichols and
refusing to exclude such evidence at sentencing).
USSG § 2D2.2(b)(7)(D) provides for a five-point enhancement when the number of images
of child pornography, defined by statute at 18 U.S.C. § 2256(8), exceeds 600. Since the district court
properly calculated the number of images for which Cottle was responsible, its application of the §
2D2.2(b)(7)(D) enhancement is affirmed.
-5-
No. 08-5253
United States v. Cottle
III. Ineffective Assistance of Counsel
Cottle also appears to argue that his counsel was ineffective because he failed to make several
objections during sentencing and failed to call Cottle or his family members to the stand. It is not
normally appropriate to consider ineffective assistance of counsel claims on direct appeal, United
States v. Bradley, 400 F.3d 459, 461-62 (6th Cir. 2005), and we decline to do so here.
CONCLUSION
AFFIRMED.
-6-