United States v. Bates

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1370
UNITED STATES OF AMERICA,
Appellee,
v.
ROGER DALE BATES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge,
David Beneman, Federal Public Defender, on brief for
appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
July 28, 2008
Per Curiam. After pleading guilty to possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and being
sentenced to the ten-year mandatory minimum under 18 U.S.C.
§ 2252A(b)(2),1 defendant appeals from his conviction on the
grounds that (1) his guilty plea was unknowing because, at the time
of his plea, he was not informed of the mandatory minimum; (2) his
prior conviction for indecent assault on a minor should not have
served as a predicate for the mandatory minimum because he did not
knowingly waive his right to counsel before pleading guilty to that
offense; and (3) the prior conviction should not have been
considered because it was not included in the indictment or proven
beyond a reasonable doubt. For the reasons discussed below, we
reject each of these arguments and summarily affirm the conviction.
I.
Defendant was aware as early as June 2006 that, assuming
the validity of his prior conviction, the instant offense carried
a mandatory minimum sentence of ten years and that, if he filed a
motion to withdraw his plea on that ground,
1
Section 2252A(a)(5)(B) criminalizes the possession of "any
. . . videotape . . . that contains an image of child pornography."
In general, persons who violate that provision are subject to a
term of imprisonment of "not more than 10 years." 18 U.S.C.
§ 2252A(b)(2). However, if the person "has a prior conviction
. . . under the laws of any State relating to aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a minor
. . ., such person shall be . . . imprisoned for not less than 10
years nor more than 20 years." Id.
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the court would be inclined to grant it. Yet, from that time
through his sentencing eight months later, in February 2007, he
never moved to withdraw his plea. Under those circumstances,
defendant arguably waived any challenge to the validity of his plea
by intentionally relinquishing a known right. See United States v.
Olano, 507 U.S. 725, 733 (1993) (distinguishing between waiver and
forfeiture). But, even assuming that this challenge was not waived
entirely but merely forfeited, this court's review is only for
plain error. United States v. Vonn, 535 U.S. 55, 63 (2002).
Under that standard, even where the district court
committed an obvious legal error in the plea proceedings,2 the
plea will not be vacated on appeal unless the defendant can also
show that the error affected his "substantial rights." Olano,
507 U.S. at 734-35. To make that showing in the guilty-plea
context, a defendant "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);3 see also
2
The error here--failing to inform defendant of the ten-year
mandatory minimum--was not obvious when made but became so only
when the probation officer later discovered that defendant had a
prior conviction for indecent assault on a minor, which triggered
the mandatory minimum under 18 U.S.C. § 2252A(b)(2).
3
Before Dominguez Benitez, this court applied a less demanding
standard as to whether an error in plea proceedings affected a
defendant's "substantial rights." See, e.g., United States v.
Castro-Gomez, 233 F.3d 684, 687 (1st Cir. 2000) (finding such an
effect where defendant's decision to plead guilty "could reasonably
have [been] affected"); United States v. Santo, 225 F.3d 92, 101
(1st Cir. 2000) (finding such an effect where defendant's
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United States v. Caraballo-Rodriguez, 480 F.3d 62, 69 (1st Cir.),
cert. denied, 128 S. Ct. 489 (2007). "A defendant must thus
satisfy the judgment of the reviewing court, informed by the
entire record, that the probability of a different result is
'sufficient to undermine confidence in the outcome of the
proceeding.'" Dominguez Benitez, 542 U.S. at 83 (citations
omitted).
Defendant does not attempt to make such a showing here,
and the record strongly suggests the opposite, i.e., that even if
defendant had been told at his plea colloquy that a ten-year
mandatory minimum applied, he still would have pled guilty. When
the potential applicability of the mandatory minimum first came
to light, the court immediately offered to vacate the guilty plea
on that ground if defendant so desired. In the ensuing colloquy,
the prosecutor suggested that defendant might still want to plead
guilty in light of ongoing negotiations to get a concurrent
sentence in a related, pending state-court matter; and defense
counsel agreed with that characterization of those negotiations
in the state-court case. At a second conference two months
later, defense counsel indicated, after speaking to his client,
that even if the prior conviction is deemed valid, triggering the
ten-year mandatory minimum, defendant probably would not want to
willingness to plead guilty "might conceivably have been
lessened"). Defendant's reliance on such pre-Dominguez Benitez
cases is therefore misplaced.
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withdraw his plea. Again the court indicated its willingness to
grant a motion to withdraw the plea, but no such motion was filed
even after the court ruled that the mandatory minimum applied and
proceeded to sentence him to that minimum. The fact that
defendant was offered several opportunities to withdraw his plea
after being informed of the mandatory minimum but never sought to
do so is a strong indication that, even if he had been informed
of the mandatory minimum at the change-of-plea hearing, he still
would have pled guilty. Thus, defendant has failed to meet his
burden of demonstrating a "reasonable probability that . . . he
would not have entered the plea," Dominguez Benitez, 542 U.S. at
83, had he been informed of the mandatory minimum at the time.
Accordingly, under the plain-error standard, no relief from his
plea is warranted at this late stage.
II.
After carefully reviewing the underlying record, we
agree with the district court's conclusion that defendant
knowingly waived his right to counsel before pleading guilty to
indecent assault on a minor and therefore affirm the denial of
defendant's motion to exclude that conviction for purposes of
computing his mandatory minimum sentence under 18 U.S.C.
§ 2252A(b)(2). In so doing, we rely primarily on the analysis
contained in the district court's thorough and well-reasoned
decision, United States v. Bates, 2006 WL 3210434, at *1-*2 (D.
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Me. Nov. 6, 2006). See generally Metro. Life Ins. Co. v.
Zaldivar, 413 F.3d 119, 120 (1st Cir. 2005). We add only the
following comments from an appellate perspective.
The district court's factual findings are amply
supported by the record or reasonable inferences therefrom and
therefore readily survive scrutiny under the applicable clearly
erroneous standard. United States v. Frechette, 456 F.3d 1, 11
(1st Cir. 2006). In making those findings, the district court
properly placed the burden on the defendant to establish that his
prior conviction (whose existence he does not dispute) was
invalid, United States v. Sanchez, 354 F.3d 70, 81 (1st Cir.
2003), and properly applied the presumption of regularity that
attaches to criminal judgments even when challenged on
constitutional grounds, Parke v. Raley, 506 U.S. 20, 37 (1992);
Sanchez, 354 F.3d at 81. And, in concluding that defendant's
waiver of counsel was knowing, the court considered the
appropriate factors, including defendant's education, experience,
and prior exposure to the criminal justice system; the relative
simplicity of the charge; the stage of the proceedings at which
counsel was waived; the favorable sentencing outcome; and the
absence of an appeal from or collateral attack on his state
conviction or sentence. Iowa v. Tovar, 541 U.S. 77, 81 (2004);
Parke, 506 U.S. at 37; United States v. Gray, 177 F.3d 86, 89
(1st Cir. 1999). Under the applicable de novo standard of
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review, Frechette, 456 F.3d at 11, we find no error in the
district court's application of those factors to the facts of
this case.
III.
As defendant candidly recognizes, his challenge to
consideration of his prior conviction on the ground that it was
neither admitted, charged in the indictment, nor proved beyond a
reasonable doubt is currently "hopeless." United States v.
Richards, 456 F.3d 260, 262 (1st Cir. 2006) (citing Almendarez-
Torres v. United States, 523 U.S. 224 (1998)), cert. denied, 127
S. Ct. 2097 (2007).
IV.
Accordingly, the judgment of the district court is
summarily affirmed. See 1st Cir. R. 27.0(c).
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