United States v. Terry

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40016
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS TERRY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-99-CR-219-1)
_________________________________________________________________
August 29, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Dennis Terry appeals his sentence for receiving child
pornography. We AFFIRM.
I.
Having been charged with seven counts of receiving child
pornography, Dennis Terry pleaded guilty to the first six. He was
sentenced to 75 months imprisonment and fined $1,000.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
II.
Terry maintains: he received ineffective assistance of
counsel; and his sentence was calculated erroneously under the
Guidelines.
A.
The claimed ineffective assistance is based on an unsuccessful
motion to suppress, claimed to have prompted a more serious
superseding indictment and a less beneficial plea agreement. “A
voluntary guilty plea waives all nonjurisdictional defects in the
proceedings against the defendant ... includ[ing] claims of
ineffective assistance of counsel except insofar as the
ineffectiveness is alleged to have rendered the guilty plea
involuntary.” United States v. Glinsey, 209 F.3d 386, 392 (5th
Cir. 2000). Terry does not contend that the alleged
ineffectiveness rendered his guilty plea involuntary. Accordingly,
by pleading guilty, he waived this ineffective assistance claim.
B.
We review the district court’s application and interpretation
of the Guidelines de novo, and its factual findings for clear
error. E.g., United States v. Yanez-Huerta, 207 F.3d 746, 747 (5th
Cir. 2000).
1.
Terry claims the district court erroneously used the higher
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base offense level found in U.S.S.G. § 2G2.2 (for “receiving” child
pornography), rather than the lower level found in § 2G2.4 (for
“possession” of such pornography). He maintains it is irrational
to punish the receipt of such pornography more severely than its
possession, because one cannot possess the material without first
receiving it. Because Terry pleaded guilty to “receiving” child
pornography, his contention is without merit. See United States v.
Canada, 110 F.3d 260, 264 (5th Cir.) (rejecting similar
contention), cert. denied, 522 U.S. 875 (1997).
2.
Terry also contests his offense level being increased under
U.S.S.G. § 2G2.2(b)(3) (four-level increase if offense conduct
“involved material that portrays sadistic or masochistic conduct or
other depictions of violence”).
In the presentence report (PSR), the probation officer
concluded that the images forming the bases for counts 1 and 2
warranted the § 2G2.2(b)(3) four-level increase. The image in
count 1 depicts a nude female minor, hanging upside down while
engaging in oral sex with two adult males; in count 2, sexual
intercourse with a nude adult male. Over Terry’s objections, the
district court adopted the PSR’s findings and conclusions. The
court reasoned that the penetration of a child amounted to torture,
as well as sadistic and masochistic conduct.
Terry claims the § 2G2.2(b)(3) increase was not warranted,
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absent evidence the children were being tortured or otherwise made
to suffer pain. The district court did not clearly err in finding
that the photographs — depicting penetration of the orifices of
prepubescent children — portray sexual violence and sadistic and
masochistic conduct.
The contention that application of the enhancement constitutes
“double enhancement”, because the depiction of “prepubescent
children engaged in sexual acts with adult males is what made the
photographs pornographic in the first place”, is without merit.
Obviously, child pornography can depict sexually explicit conduct
without also depicting sexual penetration.
3.
Although not raised as a separate issue, Terry asserts that
the purported sentencing errors were “made more egregious by the
prosecutor arguing for a midrange sentence when the plea agreement
called for a low range sentence”. This contention is not
adequately briefed. Moreover, Terry does not claim a breach of the
plea agreement or seek remedies therefor. See FED. R. APP. P. 28
(a)(9)(A) (argument must contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of
the record on which the appellant relies”); United States v.
Cyprian, 197 F.3d 736, 741 (5th Cir. 1999) (“points on appeal are
abandoned if not briefed adequately” (emphasis in original)).
III.
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For the foregoing reasons, the judgment is
AFFIRMED.
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