United States of America, Plaintiff - Appellee, v. Allan C. Mugan, Defendant - Appellant.
No. 03-4074
United States Court of Appeals FOR THE EIGHTH CIRCUIT
March 28, 2006 (Corrected: 03/31/06)
Appeal from the United States District Court for the Northern District of Iowa. Submitted: January 23, 2006. Before MURPHY, HEANEY, and BEAM, Circuit Judges.
MURPHY, Circuit Judge.
I.
Mugan used a digital camera to take sexually explicit photographs of himself having intercourse with his 13 year old daughter. The photographs were stored on a digital memory stick that had previously been shipped in interstate and foreign commerce. Because the photographs were stored in this way, they were capable of immediate and widespread distribution over the internet. Law enforcement officials discovered the memory card while executing a warrant at Mugan‘s residence. At that time they also found a videotape of Mugan‘s daughter dancing while the camera zoomed in on her pubic area.
Mugan was indicted for using a minor to engage in sexually explicit conduct for the purpose of producing a visual image, with the use of materials which had been shipped in interstate commerce, in violation of
Before the district court ruled on the motion to dismiss, Mugan entered a conditional plea of guilty to the charge under
Mugan‘s relationship with his attorney became strained over the course of the proceedings. His lawyer moved to withdraw from representation, complaining that Mugan failed to take legal advice or pay attorney fees. Mugan opposed the motion, and it was withdrawn before he pled guilty. The motion was later renewed and granted by the court; new counsel was then appointed for Mugan. One week prior to his sentencing hearing, Mugan filed a motion to withdraw his guilty plea. He contended that his first lawyer had not adequately explained the plea bargaining process and that he had been misled about the sentencing departures that would be sought by the government. The motion was denied, and the case came on for sentencing on Mugan‘s
The district court assigned Mugan a base offense level of 27, see U.S.S.G. § 2G2.1(a), and increased it by four levels due to the age of the victim and her relationship to Mugan. See U.S.S.G. §§ 2G2.1(b)(1)(B), 2G2.1(b)(2). The district court also imposed a two level enhancement for obstruction of justice based on letters in which Mugan had solicited false, exculpatory testimony from family members. His adjusted offense level of 33, together with his criminal history category III, resulted in a sentencing range of 168 to 210 months.
II.
Mugan argues that the statutes under which he was charged are beyond the constitutional authority of Congress to regulate interstate and foreign commerce because they target the purely intrastate production and possession of child pornography.
The government responds that this court has already upheld the constitutionality of
While we review a challenge to the constitutionality of a statute de novo, United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir. 1997), cert. denied, 522 U.S. 934 (1997), “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds,” United States v. Morrison, 529 U.S. at 607.
Congress has the power under the Commerce Clause to regulate “activities that substantially affect interstate commerce,” as well as the channels and instrumentalities of interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). Whether an activity is one that substantially affects interstate commerce is determined by focusing on four factors in particular: (1) whether the regulated activity is economic in nature; (2) whether the statute contains an express jurisdictional element which limits its application to activities with “an explicit connection with or effect on interstate commerce“; (3) whether there are congressional findings about the regulated activity‘s effects on interstate commerce; and (4) whether the connection between the activity and a substantial effect on interstate commerce is attenuated. Morrison, 529 U.S. at 610-13.
We have already upheld the constitutionality of federal child pornography prosecutions under the statute of which Mugan was convicted and under similar statutes. The first of our cases preceded the Supreme Court‘s Morrison decision, but
Our third precedent was one involving the same statute under which Mugan was convicted. The defendant in United States v. Hampton, 260 F.3d 832, 833-34 (8th Cir. 2001), cert. denied, 535 U.S. 1058 (2002), was prosecuted under
These circuit precedents are controlling here. See United States v. Wright, 22 F.3d 787, 788 (8th Cir. 1994). The statutes under which Mugan was charged,
Although our Eighth Circuit cases have focused on the express jurisdictional element part of the Morrison test in analyzing the constitutionality of federal prosecution of intrastate child pornography, some other circuits have used a broader approach. In a case brought like Mugan‘s under
In yet another
The Fifth Circuit also focused on the national market in United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000), where it upheld a
In these three child pornography cases our sister circuits considered all of the Morrison factors, including the realities of the marketplace,4 and it makes sense for
The connection between intrastate child pornography and interstate commerce is even stronger in this case than those decided by the First, Second, and Fifth Circuits. Not only had the materials Mugan used in the production of his pornography traveled in interstate commerce, but the sexually explicit images of him with his daughter were digitally stored on a memory card. By storing the images on this digital card, Mugan placed them on a medium which would permit their immediate and widespread dissemination over the internet. Although locally produced and possessed, Mugan‘s images were thus ready to be offered on the national market in child pornography. In contrast, the images at issue in Morales-De Jesus, Holston, and Kallestad were not as easily distributable since they would have required physical reproduction and dissemination on film or videocassettes. The convictions in those cases were nonetheless upheld without proof that the images had been transmitted in interstate commerce or that such transmission was intended. That type of detailed proof need not be made in each individual case when there is a “general regulatory statute bear[ing] a substantial relation to commerce,” such as
Not only must Mugan‘s constitutional challenge be rejected under our circuit precedents, but a more detailed application of the Morrison factors supports that result. Given the congressional findings about the nationwide child pornography market and its dependence upon locally produced materials for both supply and demand, Mugan is not entitled to prevail on his constitutional arguments.
III.
Mugan next argues that the district court erred in denying his motion to withdraw his guilty plea. He contends that he should have been allowed to withdraw the plea because his counsel was ineffective and the prosecutor was misleading about the extent of sentencing departures that would be sought. We review a district court‘s denial of a motion to withdraw a plea for abuse of discretion. United States v. Payton, 168 F.3d 1103, 1105 (8th Cir. 1999). A guilty plea may be withdrawn before sentencing if the defendant demonstrates a “fair and just reason” for the withdrawal.
Mugan did not show a fair and just reason for the withdrawal of his plea. No factual record was developed to support his assertions of ineffective assistance, and such claims ordinarily are best reviewed in collateral proceedings. See Payton, 168 F.3d at 1105 n.2. Mugan‘s contention that he was misled about the government‘s sentencing posture is also not supported by the record. The government stated at
IV.
Mugan raises a number of issues in respect to his sentence. In his initial arguments on appeal he contended that the district court clearly erred in imposing an obstruction of justice enhancement based upon his letters to family members and that it abused its discretion by departing upward based on its findings about the nature of his offense and his criminal history. After Booker he also argues that he is entitled to resentencing because the district court made upward adjustments based on facts not charged or proven beyond a reasonable doubt and imposed an unreasonable sentence. The government responds that there was sufficient evidence for the district court to apply the obstruction of justice enhancement and to depart upward based on the nature of the offense and Mugan‘s past behavior. It argues that Mugan‘s Booker issues are subject to plain error review and that there is no indication the district court would have imposed a lesser sentence had the sentencing occurred after Booker issued.
We initially address Mugan‘s argument that the district court erred by granting an obstruction of justice enhancement based upon letters he wrote to family members and by departing upward because of his use of sleeping medication to facilitate his crime, his propensity for committing future crimes, and the seriousness of his past conduct. The review of findings of fact at sentencing is for clear error and this remains true after Booker. United States v. Mashek, 406 F.3d 1177, 1181 (8th Cir. 2003). The reasonableness of the district court‘s sentencing departures are reviewed for abuse of discretion, and whether the district court based its departures on a permissible factor is reviewed de novo. United States v. Long Turkey, 342 F.3d 856, 859-60 (8th Cir. 2003).
The district court found that Mugan attempted to obstruct justice by sending letters to his wife and other family members in which he solicited false and exculpatory testimony. He wrote his wife in violation of a state no contact order and repeatedly asked and demanded that she withdraw her earlier identification of him in the photographs that were the subject of the prosecution, going so far as to suggest she indicate “only 50%” certainty that he was the one pictured. A letter from Mugan to his brother also emphasized his wife needed to claim uncertainty and requested ideas about how to minimize a prior instance of his sexual contact with a minor.
Under USSG § 3C1.1, a two level enhancement should be applied if the court finds a defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Obstruction includes both “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so,” and “committing, suborning, or attempting to suborn perjury.” Id. cmt. n.4(a)-(b).
The district court departed upward based in part on Mugan‘s use of sleeping medication in committing his crime. The court relied on a letter Mugan wrote to his wife about his offense in which he said that he had used “sleep medicine” before taking pictures of his sexual intercourse with the daughter because he did not want her to know what he had done. The district court found Mugan had drugged his victim in order to facilitate his offense. The guidelines provide no specific enhancement for the drugging of a victim, and the court found that Mugan‘s drugging of his daughter was an aggravating circumstance of a kind not accounted for in the guidelines.
At the sentencing hearing Mugan denied using the medication and claimed he lied to his wife in order to dispel rumors that his daughter was a willing participant. According to Mugan, the government failed to rebut this testimony so the district court‘s finding that medication was used was clearly erroneous. The district court was in the best position to determine the credibility of Mugan‘s testimony, however. See United States v. Holt, 149 F.3d 760, 762 (8th Cir. 1998). It was not clear error for it to believe Mugan‘s earlier written statement, rather than the oral comments made at the sentencing hearing. Mugan also contends that the Sentencing Commission must have specifically considered and rejected an enhancement for defendants who use chemicals to accomplish their way with a victim since the guidelines specifically provide for an enhancement when a victim is physically restrained. See U.S.S.G. §§
Mugan‘s other argument relates to the other basis for the upward departure, the finding by the district court that his criminal history category of III failed to represent the seriousness of his past conduct and future risk. This finding was based on the testimony of three of Mugan‘s nieces. The first niece testified that Mugan molested her at the age of fourteen, but no charges were filed. The second testified that Mugan viewed a pornographic film with her and another minor girl; Mugan pled guilty to contributing to the delinquency of a minor as a result. The third testified that Mugan sexually assaulted her on three occasions; he pled guilty to simple assault. The district court also found from Mugan‘s letters that he had taken “inappropriate pictures” of another daughter from a former marriage. The court concluded that the seriousness of these actions and the likelihood of future criminal conduct suggested by them was not reflected in the minor convictions that resulted from the conduct, thus justifying an upward departure under § 4A1.3.
Section 4A1.3 permits upward departures when there is “reliable information” that the seriousness of the defendant‘s past crimes or the likelihood that he would commit others was not fully reflected in his criminal history category. Mugan contests the departure both factually and legally. First he contends that his nieces were motivated to lie and that they gave conflicting testimony. The district court believed their testimony, however, and we see no reason not to credit its determination. See Holt, 149 F.3d at 762 (8th Cir. 1998). Mugan also argues that his prior conduct does not demonstrate the level of incorrigibility or dangerousness required under § 4A1.3. While Mugan‘s prior criminal history is not as extensive as some, his consistent pattern of sexual misconduct indicates a likelihood of future
B.
Mugan also argues that he is entitled to resentencing under Booker. Since he did not raise any Sixth Amendment issue in the district court or object to the application of mandatory guidelines or cite Apprendi v. New Jersey, 530 U.S. 466 (2000), we will not remand for resentencing absent a showing of plain error. See United States v. Pirani, 406 F.3d 543, 548-49 (8th Cir. 2005) (en banc). To establish plain error, Mugan must establish (1) an error, (2) that is plain, that not only (3) affected his substantial rights, but also (4) “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997). When, as here, the sentencing court treated the guidelines as mandatory, the first two factors of the plain error test are established. To meet the third factor, Mugan must show a “reasonable probability” that the court would have imposed a more lenient sentence under the now advisory guidelines. Pirani, 406 F.3d at 551.
Mugan argues that the district court would have imposed a lesser sentence had it considered the guidelines advisory because he vigorously objected to the underlying facts upon which the departures and enhancement were based and the court would not have made the same findings under a reasonable doubt standard instead of preponderance of the evidence. Booker did not change the standard of proof for a sentencing court‘s factual findings, however, and the district court did not use an incorrect standard in sentencing Mugan. United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir. 2006); Pirani, 406 F.3d at 551 n.4. Since the district court‘s findings were not clearly erroneous and it chose to sentence Mugan at the middle of
Finally, Mugan asserts that his sentence was unreasonable because the district court did not consider all of the
The district court carefully calculated the applicable guideline range and sentenced Mugan to the statutory maximum sentence of 240 months imprisonment, which was in the middle of the 210 to 262 month recommended guideline range. Although the district court did not specifically address all the
Because Congress did not exceed its authority under the Commerce Clause in enacting the statutes under which Mugan was convicted, because he did not offer a fair and just reason for the withdrawal of his guilty plea, and because he has not shown that the district court erred or abused its discretion in sentencing, we affirm the judgment.
HEANEY, Circuit Judge, concurring.
I continue to believe that a defendant‘s challenge to the factual basis for a sentence enhancement preserves his Sixth Amendment sentencing claim. See United States v. Pirani, 406 F.3d 543, 555-62 (en banc) (Heaney, J., dissenting). Moreover, I adhere to the view stated by Judge Bye in Pirani, that defendants who did not properly preserve their Booker claims in the district court are nonetheless generally entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67 (Bye, J., dissenting). Because a majority of our court held to the contrary on both counts, however, I concur.