*1 1997). legislative history and EPA’s
report Congress heavy substantiate the UNITED America, STATES impact pollution ozone has national Appellee, care and national agricultural health costs S.Rep. production. 101-228, at 8-9 No. Harry GINYARD, A. Scott, Brett a/k/a (J.A. 518). (1989); REPORTat 1-1 at And Ginyard, H. A. Brett a/k/a S. a/k/a rulemaking record propo- sustains the Ginyard, Ginyard, Brett Scott a/k/a majority sition that the large prod- Ginyard, Brett Brett D. a/k/a a/k/a regulated by ucts are rule distributed Scott, Douglas Scott, Ap- Brett a/k/a nationally, applied by and then end-users pellant. locations, multiple 48,- 63 Fed.Reg. 792, 48,804 confirmed, that are —facts No. 99-3113. stressed, by the Coatings Paint & National United States of Appeals, Court Association, see NPCA Br. at 24. District of Columbia Circuit. short, In none of the considerations that Argued March 2000. led the Congress’ Court to find wanting Lopez and Morrison has Decided June 183(e) application to section of the Clean Air Act. Virginia Hodel v. Surface Mining and Reclamation Ass’n — a case approval by
cited with Supreme Court Morrison, Lopez
in both see Lopez, 1624; Morrison,
that with the lower federal uniformly
courts have pow found the
er conferred the Commerce Clause enough permit
broad congressional reg
ulation of activities causing air or water
pollution, or other environmental hazards may have effects in more than one 264, 282,
State.” 452 U.S. 101 S.Ct. (1981). L.Ed.2d 1 Contrary to Allied’s
assertion, nothing contained the Court’s
recent Commerce jurisprudence Clause validity
casts doubt on the of that declara
tion here.
VII reasons,
For foregoing reject we
petitioners’ challenges architectural
coatings rule and petitions deny
review. *2 Roland, Federal Assistant G.
Sandra Defender, argued the cause Public Kramer, Federal Public appellant. A.J. Howard, A. Defender, was on brief. David Defender, en- Public Assistant Federal an appearance. tered Thapar, R. Assistant United Amul argued the cause for Attorney, States Lewis, A. States appellee. Wilma Roy and W. and R. Fisher Attorney, John III, At- McLeese, Assistant United torneys, were brief. EDWARDS, Judge, Chief
Before: ROGERS, Circuit HENDERSON Judges. PER court filed
Opinion for the CURIAM.
Concurring opinion Circuit filed Judge KAREN LeCRAFT HENDERSON.
«5 rooms, PER CURIAM: net chat electronic mail aliases, telephone. Using several Appellant Harry Ginyard рleaded guilty falsely initiated what he represented as of receiving depict- to one count materials relationship[s]” “committed and lied about sexually a minor ing engaged explicit background, his employment and income. conduct in violation of 18 U.S.C. *3 Government’s Memorandum Statement of 2252(a)(2) § and one count of wire in fraud 1999). 10, 2 (May Facts At one point return, § of 18 violation U.S.C. 1348. Ginyard engaged marry was to at least the government agreed to a sentence of 18 two $63,464.88 different women and was months’ incarceration and involved in resti- Ginyard tution. “serious romantic guilty plea relationship^]” entered his with oth- pursuant plea agreement to a written with- ers. Status Tr. Call at 21. Gin- 11(e)(1)(C) scope in the of Rule yard took control of each woman’s finances Federal Rules of Criminal Procedure. for his own financial benefit and forced at provisionally accepted The district court least one woman bankruptcy. into Follow- plea agreement pending review of the arrest, ing Ginyard’s the FBI searched presentence report. reviewing After the Ginyard’s computer files and discovered presentence report rejected the court approximately images 35 visual which he proposed prison accepted term but had through received an pro- internet chat parties’ subsequent agreement provid- oral gram depicting a female age under the of ing for a 24 month sentence. It then years engaged in sexually explicit con- Ginyard objection sentenced without to 24 8, duct. On December Ginyard was incarceration, $63,464.88 months’ restitu- indicted on seven of counts wire fraud in tion, special assessment and three $200 § violation of 18 U.S.C. 1343 and eight years’ supervised release. The court also of mail counts fraud in violation of 18 pretrial continued restricting its order Gin- 7, § May U.S.C. 1341. gov- On 1999 the yard’s computer telephone use and com- ernment a superseding filed information during munications his charging Ginyard receipt with of materials Ginyard challenges aspects two of his sen- depicting engaged a minor in sexually ex- tence, arguing that the district court vio- plicit conduct in violation of 18 U.S.C. lated the Rule plea agreement 2252(a)(2). by imposing a term of May Ginyard agreed On to not authority included therein and lacked plead guilty to one count of computer to restrict his wire fraud and telephone use and one count of prison. receiving pornography. communications in child We conclude that although appears the district court to In return the agreed to a have in imposing super- erred the term of of imprisonment sentence 18 months’ release, and, $63,464.88 vised the error was invited restitution and agreed to re- event, does “plain not constitute error” quest of the remaining dismissal indict- on this record. Additionally, par- as both ment counts and bring not to additional agree, ties the district court’s restriction сharges. On that date the entered Ginyard’s computer on telephone use plea agreement into a written Rule under in prison beyond its and we plea agreement recited therefore portion vacate that of the sen- “justifiable as a depart reason[]” tence. Ginyard the sentence faced under Guidelines
I.
(Guidelines)
spare Ginyard’s
the desire to
Between
1991 and
made
consеquences
victims
adverse
from tri-
contact with
through
plea hearing
May
various women
inter-
al.1 At the
held
6B1.2(c)
Statement))
According
(Policy
section
of the Guide-
merits
the district court
(Standards
Acceptance
Agree-
“may accept
lines
plea] agree-
of Plea
the [Rule
in this case will
The sentence
COURT:
par-
informed both
the district
months
twenty-four
accept
be a sentence
“preрared
it was
ties that
custody.
to a
[it]
binds
any plea
at 5.
months.” Id.
eighteen
sentence
forward,
come
he
DEFENSE: Should
provision-
Nevertheless,
Honor?
Your
pending
accepted the
ally
report as al-
presentence
receipt of
sorry.
Yes,
I am
he should.
COURT:
11(e)(2).
Rule
under
lowed
There
custody.
Twenty-four months
reviewing
after
August
On
period
will be a
court re-
report,
presentence
special
There will be
years.
three
declaring that
jected
resti-
There will be
assessment
$200.
protect
did “not
*4
18 months’
believe,
is,
the
tution,
under
this
I
and
time
period of
the maximum
public for
the
well,
$63,464.88,
of
plea
for.”
protected
it could be
that
will have
department
probation
the
and
government
then
The
Tr.
at 31.
restitution.
details of the
out the
to work
be
court
the district
would
asked whether
the
court also continued
Id. at 36-37.
if
plеa
“appellant
accept
the
willing to
Ginyard
prohibited
order which
pretrial
within a
to be sentenced
willing
were
him,
and
computers
allowed
using
from
asked the
Ginyard
at 33.
range.”
Id.
with
contact
telephone
imprisoned,
while
to
guidance as
for “some
only.
ad-
and counsel
family members
be comfortable
it would
what sentence
Ginyard during
dition, the court prohibited
The district
at 34-35.
with.” Id.
having contact
from
suрervised release
conscience
good
that
“could
responded
an
entering
of his victims or
any
with
twenty-four
figure
the
live with
him to use
and
chatroom
allowed
internet
The court then
Id. at 35.
months.”
real es-
only
professional
for
computer
parties
the
could
hearing so
cessed the
objection
Ginyard made no
purposes.
tate
After the recess
negotiate the sentence.
He
оf his sentence.
aspect
to
below
exchange occurred:
following
the
compo-
release
appeals
supervised
the
now
Honor,
Ginyard
Your
Mr.
DEFENSE:
sentence,
that
it is
claiming
of his
nent
month
twenty-four
take a
to
prepared
is
as well as the
plea
the
aliunde
we
say,
I should
sentence
and
plea, or
dur-
telephone
and
restrictions
computer
hearing.
another
to have
can
no need
ing
at this
go forward
to
prepared
We are
time.
II.
the
And
COURT:
does
as well?
agree to that
Ginyard challenges
Yes, Your Honor.
PROSECUTOR:
provi
vary
to
court’s
Howard,
11(e)(1)(C) plea agree
I think under
Mr.
of the Rule
COURT:
sions
your
supervised
Procedure
of Criminal
a term of
by imposing
the Rules
ment
although
im
right
speak,
to
client has
to the sentence
addition
that
I am not sure
there
given
agreements
specified
and
prisonment
restitution
just make
But
anything
change.
object
can
to
to the
failed
in. Because
below,
com-
completely
Rules are
we
supervised
sure
imposition
I
with,
speak
if
do
he wishes
United
plied
plain
only.
for
error
review
Blackwell,
right
that he has the
under
694 F.2d
believe
v.
States
(D.C.Cir.1982)
Rules.
of defen
Federal
error review
(plain
that dis
not raised below
decline,
argument
Your
dant’s
We
Honor.
DEFENSE:
range
justifiable reasons.”
guideline
...
that
if the court
satisfied
ment
applicable
departs
agreed
from the
sentence
trict court
agreement);
eventually Ginyard
“breached”
stated that he was
Watley,
“prepared
see also United States v.
987 F.2d
to take
a twenty-four
[sic]
(D.C.Cir.1993)
(plain
n. 6
error month plea.”
Id. at 36.3 Had it been
unobjected
review of district court’s
to fail
clear
tendering
were
ure to inform defendant of
re
specified only
a 24-month term
prior
accepting plea agreement).
incarceration,
lease
imposi-
district court’s
sentencing
plain
A
error is
“where it
tion
of a term of
release would
obvious under settled law and would result
have been error.4 Supervised release is
in grave prejudice
jus
or a
miscarriage
punishment,
Gilchrist,
see United States v.
(3d
if
appeal.”
Cir.1997)
tice
nоt corrected on
United
130 F.3d
(quoting
(D.C.Cir.
Drew,
Dozier,
(3d
States v.
200 F.3d
v.
States
it did not err. ambigu- the my opinion, not on depends, accep- the district court’s nature of that the ous Finally, parties agree both my as col- plea agreement tance of the statutory to lacked district court 6-7, believe, Op. Per Curiam telephone leaguеs Ginyard’s computer and restrict wording of Rule but on during Appellee’s use confinement. holding “the n.5; I that our is agree n.ll; Unit While Reply 21-22 Br. Br. & version,” id. at 6 n. either Sotelo, same under 1040-41 94 F.3d ed States our review is Cir.1996) (“[Bjeeause only because (7th that so there no fed is is agree I But do not plain error. authorizing law an incarceration-com eral change a has not effected version sen- amended part as munication restriction concerning any such 11(e)(1)(C) ("The tween 1. See Fed.R.Crim.P. agreement.”). be- participate in discussions shall not could, depending language that on the it from imposing the “compo- unaddressed nent” of the sentence. agreement, change the results appeal. require Guidelines a district court supervised “order term of release to Under the unamended version of Rule follow when a sentence of 11(e)(1)(C) government may agree imprisonment of more year than one specific appropriate “that a sentence is the imposed.” U.S.S.G. 5D1.1. The district disposition of the case.” This is the ver- may depart from the mandate of sion under which was sentenced if, alia, only section 5D1.1 inter supervised and, recognized, as we have see United required is not protect “to Jamison, Stаtes v. 934 F.2d 373-74 Id., public Application welfare.” Note l.3 (D.C.Cir.1991), because Here the district court finding made no sentence, part of the the district court’s release was necessary not acceptance Ginyard’s protect public welfare. Cf. (as amended) bound the court to its terms. Atkins, States v. 116 F.3d 1572 n. 8 Blackwell, See United States v. 694 F.2d (D.C.Cir.1997) (“[A] departure from the (D.C.Cir.1982). I agree therefore applicable range Guidеlines sup must be that, my with colleagues “assuming the ported by ‘specific explaining reasons ..., district'court erred it did not plainly ”) extent of departure.’ [the] (quoting err,” 8,Op. Per I Curiam therefore Perkins, United States v. 963 F.2d join in affirming the district court. (D.C.Cir.1992)) (citation omitted) (em added).4 phasis But Rule now par- contrary, allows the On the the fact that the court restricted agree Ginyard’s comput ties to instead that a “particular er use and contact with his provision during victims ... Guidelines supervised release manifests is or is applicable to the case.”2 With thought supervised release necessary. was respect to language, advisory this com- to, With no reason not the district court state, mittee notes “the would have required impose been super ... actually defense agree[ ] on what Therefore, vised release. hаd Ginyard appropriate amounts to an sentence or been sentenced under Rule agree[] specified to one compo- amended, I believe that the district court’s 11(e) nents.” advisory Fed.R.Crim.P. imposition of supervised release after im (1999) added). (emphasis committee’s note *7 prisonment would not have been error.5 If fails to address a specific provision Guidelines, partic- оne,
ularly a mandatory the district court’s
acceptance of a Rule not, view, my would prohibit ed). 2.Rule amended also departure, allows the A howev- er, "agree specific 5D1.1, that a ... sen- governed by Application section tencing range appropriate disposition Note 1. (amended language emphasized). the case” refers, "Range” my opinion, only to the Application 3. Note 1 four other includes bаses term of See U.S.S.G. on release, impose which decline to § lBl.l(g) (Application to "deter- Instruction applicable none of which is here. guideline range mine corresponds ... history to the offense level criminal cate- holdings 4. and Perkins Atkins involved (h) gory”) (Application & Instruction to deter- departures is, "range,” from the Guidelines "[f|or particular guideline range, mine ... applicable imprisonmеnt period. sentencing requirements options supra 2.n. conditions”); supervision lated 5A, ("The Application U.S.S.G. Note 1 in- Interestingly, Ginyard challenge 5. tersection of did the Offense Level and Criminal history Category displays Range the Guideline district court's failure to advise him of the imprisonment.") (emphases mandatory supervised months add- before ac- term KALKA, Appellant,
Ben al., Appellees. HAWK, et
Kathleen
No. 98-5485. Appeals, Court
United States Circuit.
District Columbia 11, 2000. Jan.
Argued 23,
Decided June *8 circumstances.”); record, see some also lines under According cepting plea. his Watley, 987 F.2d n. to mention both court failed ("The (D.C.Cir.1993) government concedes per mandatory $100 assessment lease and the entirely overlooked one that the district felony condition- before court's conviction accepting 11(c) specification hearing. [before May plea Rule acceptance at the al ("Before did not infоrm 11(c)(1) guilty plea]; that the court accepting See Fed.R.Crim.P. ..., supervised release term Watley he the defen- court must address receive.”). might Had two conditions open personally inform dant Per of, set in the the defen- been out and determine that defendant n.4, might Op. at 7 the court well court is re- Curiam dant understands them to before condi- sentencing have recited any applicable quired to consider guilty plea. accepting tionally his guide- may depart those guidelines but