United States v. Robert Cover
2013 U.S. App. LEXIS 1035
| 8th Cir. | 2013Background
- Cover pled guilty to possession of child pornography under 18 U.S.C. § 2252(a)(4)(B).
- The offense carries a ten-year mandatory minimum if the defendant has a prior conviction relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor under § 2252(b)(2).
- Cover had a 1998 Nebraska conviction under Neb. Rev. Stat. § 28-320.01 for sexual assault of a child.
- The district court determined the Nebraska conviction triggered the mandatory minimum and sentenced Cover to 120 months under a Rule 11(c)(1)(C) plea agreement.
- Cover appealed arguing the Nebraska conviction did not trigger the minimum, errors in guideline calculation, and substantive unreasonableness.
- The court affirmed, holding the Nebraska conviction triggers the ten-year minimum and that the waiver of appeal barred remaining challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Nebraska § 28-320.01 conviction trigger the § 2252(b)(2) minimum? | Cover: conviction does not relate to qualifying sexual abuse. | Cover: factual basis not proven; could be outside § 2252(b)(2). | Yes; all conduct under § 28-320.01 triggers the minimum. |
| Can an Alford plea support a predicate for the minimum? | Cover: Alford plea requires factual dispute resolution. | Nebraska conviction itself suffices; Alford pleas are like guilty pleas for predicate purposes. | Alford plea treated as a conviction for predicate purposes. |
| Did Cover waive challenges to sentencing beyond the mandatory minimum issue? | Waiver covers all issues except mandatory minimum. | Waiver valid and voluntary; should bar other appeals. | Waiver valid; other challenges waived. |
Key Cases Cited
- Linngren, 652 F.3d 869 (8th Cir. 2011) (defines when a state statute related to sexual abuse triggers § 2252(b)(2))
- Stults, 575 F.3d 834 (8th Cir. 2009) (permits conviction under the statute to trigger the minimum even if not a completed offense)
- Vinton, 631 F.3d 476 (8th Cir. 2011) (Alford pleas indistinguishable from guilty pleas for predicate purposes)
- Azure, 571 F.3d 769 (8th Cir. 2009) (standard for evaluating waiver of appeal rights)
- Andis, 333 F.3d 886 (8th Cir. 2003) (burden on government to show knowing and voluntary waiver; miscarriage of justice exception)