United States v. David Jacob William Guite

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12272
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00265-RBD-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JACOB WILLIAM GUITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 14, 2016)
Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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David Guite appeals his two convictions for the production of child
pornography with an object obtained via interstate commerce, in violation of 18
U.S.C. § 2251(a). Guite raises three issues on appeal. First, he argues that the
district court erred in failing to mention interstate and foreign commerce in the plea
colloquy, an essential element of the charged offenses. Second, he argues that 18
U.S.C. § 2251(a) exceeds Congress’s authority under the Commerce Clause.
Finally, he argues that his 780-month total sentence violates the Eight Amendment.
We will address each point in turn.
I.
We normally review constitutional claims in the criminal context de novo.
United States v. Anton, 546 F.3d 1355, 1357 (11th Cir. 2008). The Due Process
Clause requires that a defendant's guilty plea be made voluntarily and knowingly.
McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d
418 (1969). Rule 11 was “designed to assist the district judge in making the
constitutionally required determination that a defendant's guilty plea is truly
voluntary.” Id. at 465, 89 S. Ct. at 1170. A guilty plea cannot be voluntary and
knowing unless the defendant received real notice of the true nature of the charges
against him. Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257, 49 L.
Ed. 2d 108 (1976). When a defendant fails to object to Rule 11 errors at his plea
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colloquy, we review for plain error. United States v. Ternus, 598 F.3d 1251, 1254
(11th Cir. 2010).
To establish plain error, Guite must show that (1) there is an error (2) that is
plain or obvious (3) affecting his substantial rights in that it was prejudicial and
not harmless and (4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. See United States v. Raad, 406 F.3d 1322,
1323 (11th Cir. 2005). “In the context of a Rule 11 error, prejudice to the
defendant means ‘a reasonable probability that, but for the error, he would not
have entered the plea.’” United States v. Brown, 586 F.3d 1342, 1345 (11th Cir.
2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct.
2333, 2340, 159 L. Ed. 2d 157 (2004)). However, because Guite alleges both Rule
11 and due process violations, we need not determine whether Guite has shown
there was a “reasonable probability that, but for the error, he would not have
entered the plea” if there is no plain error under a traditional due process analysis.
See Dominquez Benitez, 542 U.S. at 83, 124 S. Ct. at 2340.
In evaluating whether a defendant has shown that his rights were
substantially affected or prejudiced, we examine the three “core objectives” of
Rule 11, which are: (1) ensuring that the guilty plea is free of coercion; (2)
ensuring that the defendant understands the nature of the charges against him; and
(3) ensuring that the defendant is aware of the direct consequences of the guilty
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plea. United States v. Lejarde–Rada, 319 F.3d 1288, 1289 (11th Cir. 2003). We
have upheld plea colloquies that fail to address an item expressly required by Rule
11 so long as the overall plea colloquy adequately addresses these three core
concerns. Id.
Further, we will only find that a Rule 11 plain error affects substantial rights
when a district court totally fails or almost totally fails to address a Rule 11
concern. See United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001)
(plain error in failing to describe to defendant with low educational achievement at
all the nature of the charges against him); United States v. James, 210 F.3d 1342,
1345-46 (11th Cir. 2000) (plain error by not specifying “any of the elements
involved in the charge or any facts that would support the charge” to defendant
with tenth grade education); United States v. Quinones, 97 F.3d 473, 475 (11th
Cir. 1996) (plain error by “never mention [ing] the elements” of the firearm
charge). Therefore, we will not find substantial rights affected when a district
court actually covered the three core concerns but merely “slipped up” and failed
to cover one item in the Rule 11 list. See United States v. Monroe, 353 F.3d 1346,
1355 (11th Cir. 2003).
There is no set formula that must be applied in determining whether the
district court adequately informed the defendant of the nature of the charges
brought against him; rather, the level of inquiry “varies from case to case
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depending on the relative difficulty of comprehension of the charges and of the
defendant's sophistication and intelligence.” United States v. Camacho, 233 F.3d
1308, 1314 (11th Cir. 2000) (quotation omitted). Our analysis in United States v.
DePace, 120 F.3d 233 (11th Cir. 1997), and United States v. Wiggins, 131 F.3d
1440 (11th Cir. 2000), provide guidance. In DePace, we held that the district
court did not plainly err, despite not explicitly addressing the elements of the
aiding and abetting theory of liability on a charge of carrying a firearm in relation
to a drug trafficking crime, because it implicitly found that the defendant
understood the nature of the charges. DePace, 120 F.3d at 238. The district court
determined that the defendant had graduated from high school and had completed
some college; the court read the indictment, listed the essential elements, and
confirmed that the defendant had reviewed the plea agreement and the indictment
with his counsel, and, after the court confirmed that defendant agreed with the
factual proffer, the court asked the defendant whether he had any questions about
the proceedings. Id.
In Wiggins, we affirmed the district court’s factual determination that the
defendant understood the nature of the charge where: (1) the district court “at least
incorporated the substance of the [the elements of the bank robbery charge]”
during its direction to Wiggins to listen to the government’s factual proffer; (2) the
defendant “unequivocally” admitted committing the crime; and (3) the judge
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observed the demeanor of the defendant and “made an express factual finding at
the end of plea colloquy that [the defendant] had entered an informed plea.”
Wiggins 131 F.3d at 1442-43. We stated that “Rule 11(c) does not specify that a
district court must list each element of the offense seriatim. . . there is no one
mechanical way or precise juncture that a district court is required to inform the
defendant of the nature of the charges.” Id. at 1442-43.
Here, although Guite claims the district court failed to recite an essential
element of Counts 1 and 2, the district court did not plainly err by failing to ensure
that Guite understood the nature of the charges against him. Guite stated that he
had a full opportunity to discuss the charges with his attorney, and that he
understood every term of the plea agreement. Significantly, the district court
specifically asked Guite if the pornographic images passed through interstate
commerce, to which Guite responded in the affirmative.
This case is also factually distinguishable from our holdings in Telemaque,
James, and Quinones, because Guite stated that he agreed with the factual
proffer, he had reviewed the indictment and plea agreement, the charges were not
complex, and he had attained an associate’s degree level of education.
Furthermore, Guite admitted at his sentencing hearing that he knew his actions
were wrong, and he never indicated any misunderstanding of the charges.
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Given the above facts, the district court did not plainly err in concluding
that Guite’s plea was knowing and voluntary because he understood the nature of
knowingly producing and distributing child pornography. Accordingly, we
affirm in this respect.
II.
We normally review the constitutionality of a challenged statute de novo.
United States v. Panfil, 338 F.3d 1299, 1300 (11th Cir. 2003). Because Guite did
not raise this challenge below, however, we review for plain error. See Raad, 406
F.3d at 1323.
To succeed on a challenge to a legislative act as applied, the challenger must
show that no set of circumstances exists under which the act would be valid.
Benning v. Georgia, 391 F.3d 1299, 1304 (11th Cir. 2004). Thus, if § 2251 is
constitutional as applied to Guite, his facial challenge to the statute also fails. See
United States v. Maxwell, 446 F.3d 1210, 1215 n.5 (11th Cir. 2006). Further,
under the well-established prior precedent rule of this Circuit, the holding of the
first panel to address an issue is the law of this Circuit; thereby binding all
subsequent panels unless and until the first panel’s holding is overruled by this
Court sitting en banc or by the Supreme Court. Smith v. GTE Corp., 236 F.3d
1292, 1300 n.8 (11th Cir. 2001).
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Section 2251(a) prohibits the production of child pornography “using
materials that have been mailed, shipped, or transported in interstate or foreign
commerce by any means.” In Maxwell, we relied on the Supreme Court’s
decision in Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, L. Ed. 2d 1 (2005),
and determined that, in order to effectuate a comprehensive scheme to eliminate
the market for child pornography, it is within Congress’s authority to regulate all
intrastate possession of child pornography, not just that which has traveled in
interstate commerce or has been produced using materials that have traveled in
interstate commerce. Maxwell, 446 F.3d at 1218. We thus upheld against an as-
applied challenge a conviction under 18 U.S.C. § 2252A.
In United States v. Smith, 459 F.3d 1276 (11th Cir. 2006), we upheld on
plain error review against an as-applied challenge a defendant’s § 2251(a)
conviction where the government only provided evidence that the paper on which
the pornographic images were printed and the machine that developed the images,
rather than the images themselves, had moved in interstate or foreign commerce.
459 F.3d at 1282, 1284-85. We reasoned that § 2251(a) “is part of a
comprehensive regulatory scheme criminalizing the receipt, distribution, sale,
production, possession, solicitation and advertisement of child pornography. As
such we need only determine whether Congress could rationally conclude that the
cumulative effect of the conduct by [Smith] and his ilk would substantially affect
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interstate commerce.” Id. at 1285. We determined that Congress could have
rationally concluded that the inability to regulate intrastate possession and
production of child pornography would, in the aggregate, undermine Congress’s
regulation of the interstate child pornography market. Id. Consequently, we held
that there was no constitutional error in applying § 2251(a) to the defendant’s
conduct. Id.
Here, Guite produced child pornography using a smartphone that was
manufactured outside the state and had, consequently, moved in interstate
commerce. Therefore, under Smith, applying the statute to Guite under these
circumstances does not violate the Commerce Clause. Because the statute does not
violate the Commerce Clause in this case, there are circumstances under which the
statute is valid, and therefore, Guite’s claim also must fail under the plain error
standard of review. See Benning, 391 F.3d at 1304. Further, we cannot overrule
Smith absent an en banc ruling or a decision by the Supreme Court. See GTE
Corp., 236 F.3d at 1300 n.8. Accordingly, we affirm in this respect as well.
III.
We review constitutional challenges to defendants’ sentences de novo.
United States v. Flores, 572 F.3d 1254, 1268 (11th Cir. 2009). However, when a
defendant fails to raise an Eighth Amendment challenge to a sentence in the
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district court, we review the claim for plain error. United States v. Flanders, 752
F.3d 1317, 1342 (11th Cir. 2014), cert. denied, 135 S. Ct. 1188 (2015).
The Eighth Amendment prohibits the imposition of cruel and unusual
punishments. U.S. Const. amend. VIII. It does not require strict proportionality
between crime and sentence. United States v. Farley, 607 F.3d 1294, 1343 (11th
Cir. 2010). A sentence only violates the Eighth Amendment if it is grossly
disproportionate to the offense conduct. Id. To determine if a sentence violates
the Eighth Amendment, we first compare the crime committed to the sentence
imposed and determine whether any disparity creates an inference of gross
disproportionality. See id. at 1344. The defendant bears the burden of making the
threshold showing of gross disproportionality. United States v. Johnson, 451 F.3d
1239, 1243 (11th Cir. 2006). If we determine that the defendant has made a
sufficient threshold showing of gross disproportionality, we may then compare the
defendant’s sentence with sentences imposed for other crimes in the same
jurisdiction and sentences imposed for the same crime in other jurisdictions.
Farley, 607 F.3d at 1342, 1344.
The proportionality inquiry is guided by objective factors, including the
gravity of the offense and the severity of the punishment. Solem v. Helm, 463 U.S.
277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). The harm caused or
threatened to victims or society and the culpability of the offender are relevant to
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the gravity of the offense. Id. at 292, 103 S. Ct. at 3011. Whether a non-capital
sentence is statutorily mandated is irrelevant to the proportionality analysis.
Farley, 607 F.3d at 1343. Therefore, we treat a sentence imposed pursuant to a
statute as if the sentence were imposed by a judge exercising his or her sentencing
discretion. Id. Successful challenges to the proportionality of non-capital
sentences are very rare. Flores, 572 F.3d at 1268. We also give substantial
deference to Congress in determining the limits of punishments for certain crimes.
United States v. Mozie, 752 F.3d 1271, 1290 (11th Cir.), cert. denied, 135 S. Ct.
422 (2014). Generally, sentences imposed within statutory limits do not violate the
Eighth Amendment. See Flores, 572 F.3d at 1268.
Guite has failed to show that his 780-month total sentence is grossly
disproportionate to the offense committed, and therefore, cruel and unusual.
Guite sexually molested his own children, ages three and five, and took images of
the act, which he then sent to other individuals. Not only did Guite’s children
suffer at his own hand, which he readily admits, but his children will continue to
be the victims because the images will likely continue to circulate on the internet.
Further, the district court noted that perpetrators of this kind of crime pose a
significant threat to the community, most especially those in the community who
lack the ability to truly protect themselves. Therefore, Guite’s total sentence,
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which is below the statutory maximum, is not grossly disproportionate under
current law.
Furthermore, Guite candidly acknowledges in his brief that there is no
controlling precedent that plainly shows that his total sentence is grossly
disproportionate to his crimes, and we have regularly found life sentences in child
sex crimes do not violate the Eighth Amendment. As such, Guite has not met his
burden of showing that the district court plainly erred by imposing a 780-month
total sentence.
Accordingly, for the reasons stated above, we affirm.
AFFIRMED
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