Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1989)

MEMORANDUM^** 

Appellant George Willis Fendley appeals from his sentence of seventy months imprisonment after pleading guilty to inducing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction thereof in violation of 18 U.S.C. § 2251. We vacate the sentence and remand for reconsideration.

FACTUAL AND PROCEDURAL HISTORY

In May 1988, the Wallowa County, Oregon, District Attorney's Office placed an advertisement in a publication called "Erotic Connexions." The ad read " [w]hite female, 34, seeks the more unusual in life. My first experience was at a very young age. Seeks others with a similar view on society and sex. Write C.G., P.O. Box 21444, Phoenix, Arizona 85036." Fendley responded to the ad by sending "C.G." a photo of the genital area of a nude adult male and a letter. In the letter, he described his past sexual experience and his preference for young girls.

The District Attorney's office initiated an investigation into Fendley's activities. An investigator responded to Fendley's letter and began corresponding with him. Later, they began talking on the telephone. After nearly a year of communication, Fendley told the investigator that he would send him a copy of a photograph Fendley had taken of an eight-year-old girl in which Fendley's hand could be seen.

On May 15, 1989, Fendley mailed photographs of a young girl approximately eight years old to the investigator. One of the pictures shows a man's hand pulling the girl's pants down. The photograph exhibits the young girl's genitalia. The probation report states that Fendley also mailed to the investigator "several other photographs depicting minors engaged in sexual conduct."

After receiving these photographs in the mail, postal inspectors obtained a warrant to search Fendley's residence. Numerous photographs of nude minors, copies of the letters mailed to the District Attorney's investigator, guns, and girls' clothing were found during the search.

Fendley waived his Miranda rights. He admitted that he had taken the photographs of the eight-year-old girl and that the hand in the photograph was his in a handwritten statement given to the Postal Inspectors. The probation report states that " [h]e initially denied touching the victim; however, according to the case agent, later admitted that he had, in fact, touched her."

The eight-year-old victim told the Postal Inspectors that Fendley had told her how to pose and photographed her genitalia. She also told them that Fendley had touched her.

Initially, Fendley was indicated for mailing material involving the use of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a) (1). Thereafter, Fendley agreed to plead guilty to a superseding information charging him with inducing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251. In addition, as part of the plea agreement, Fendley agreed to plead guilty in state court to a violation of section 288 of the California Penal Code, and to register as a sex offender. It was agreed that the state sentence would run concurrently to the federal sentence and that custody would be in a federal institution. Section 288 makes it a crime for any person to

willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child....

The probation officer calculated Fendley's base offense level under United States Sentencing Commission, Guidelines Manual, Sec. 2G2.1(a) (U.S.S.G.), at offense level 25. That level was increased by two because the victim was under the age of twelve. The probation officer believed that Fendley had not accepted responsibility and recommended against a downward adjustment under U.S.S.G. Sec. 3E1.1(a). Based on an offense level of twenty seven and a criminal history category of I, the probation officer calculated a guideline range of seventy to eighty-seven months. The probation officer recommended eighty-seven months due to Fendley's possession of loaded firearms, the length of Fendley's involvement in the photography business, and his interest in establishing a network system with other pedophiles.

The reporter's transcript of the sentencing hearing reflects the following colloquy:

FENDLEY: I feel remorseful about this crime and being involved in this crime. I would respectfully request the Court to know that I am responsible for my share of the crime. I took full responsibility for doing that act. There was no malicious intent on my part. I can only accept my role in it and what I did, in my heart. I know that I'm wrong for doing it.

THE COURT: Doing what?

FENDLEY: Taking the photographs and sending the photographs and I take full responsibility for my role in that. Thank you.

Later during the same hearing, the following comments appear in the record:

FENDLEY: Again, your Honor, I'd like to apologize to the court and to society for doing this criminal act and--but I'd also like to point out that I had no malice of it, or awareness of the severity of it and the diminished capacity that I was under at the time made it hard for me to realize what I was doing. Using mind-altering drugs in order to finish building my cabin made me receptive to a lot of things that weren't natural and I'm sorry.

THE COURT: What do you mean by that?

FENDLEY: After my divorce, I started experimenting with crystal methamphetamine and after my wife left me, I was using it in order to build my cabin and I wasn't aware of what I was doing all the time, especially when the Government was wire tapping me. I wasn't aware of what I was saying or doing and on that basis, I have no excuse for what happened, I just apologize for it and it will never happen again.

THE COURT: Now, you're not saying that you were so unaware that you're not guilty of this offense, are you?

FENDLEY: No, ma'am.

Judge Keep denied a two-point reduction for acceptance of responsibility. Recognizing Fendley's Vietnam service, the court imposed a sentence of seventy months, at the low end of the guideline range of seventy to eighty-seven months.

DISCUSSION

Fendley presents five issues in this appeal:

1. The district court clearly erred in denying a two-point credit for acceptance of responsibility.

2. The district court failed to comply with Rule 11(c) (1) of the Federal Rules of Criminal Procedure in accepting his plea of guilty.

3. The district court did not determine whether there was a factual basis for the plea as required by Rule 11(f).

4. The district court should have granted a downward departure due to exceptional military service pursuant to U.S.S.G. Sec. 5H1.4.

5. The district court should have granted a downward departure because Fendley suffers from diminished capacity pursuant to U.S.S.G. Sec. 5K2.13.

I. Did the district court err in finding that Fendley had not accepted responsibility to justify a two-point departure?

Fendley argues that the district court erred in not granting him a two-point reduction under the sentencing guidelines for acceptance of responsibility. U.S.S.G. Sec. 3E1.1(a). Whether a defendant has accepted responsibility for his crime is a factual determination we review for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). " 'The Sentencing judge is in a unique position to evaluate the defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference and should not be disturbed on review unless without foundation.' " Id. (quoting commentary to U.S.S.G. Sec. 3E1.1).

Fendley contends that the written statement he gave to the Postal Inspectors in which he acknowledged that he took the photographs and placed them in the mails, the fact that he entered a guilty plea, the fact that he was seeing a psychiatrist and trying to overcome his problem, and his comments at the sentencing hearing prove that he has accepted responsibility for his crime. The Commentary to the Guidelines specifically notes several of these factors as relevant in determining whether a defendant has accepted responsibility. "Entry of a plea of guilty prior to commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility for the purposes of this section." U.S.S.G. Sec. 3E1.1 comment. (n. 3). Such evidence of acceptance of responsibility, however, "may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility." Id.

In United States v. Piper, 918 F.2d 839 (9th Cir. 1990), we held that "the defendant's denial of responsibility for conduct of which he was not convicted," could not be considered as conduct inconsistent with acceptance of responsibility unless that denial bore on the defendant's acceptance of responsibility for the conduct of which he was convicted. Id. at 840. In Piper, the defendant pleaded guilty to one count of possession of a controlled substance with intent to distribute. On appeal, the Government argued "that the district court erred in failing to consider the defendant's denial of responsibility for conduct of which he was not convicted" in determining whether the defendant was entitled to a two-point reduction for acceptance of responsibility. 918 F.2d at 840. Because of our "concern [ ] that conditioning a U.S.S.G. Sec. 3E1.1 reduction on an admission of responsibility for conduct of which a defendant was not convicted could violate his Fifth Amendment rights," there was no error. Id. "We agreed [d] with the Tenth Circuit that a defendant may be entitled to a Sec. 3E1.1 reduction without being required to confess to unproved, uncharged conduct." Id.

In Piper, we adopted the rationale of the First Circuit in United States v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989). In Perez-Franco, the court concluded that "the only plausible reading of the Guidelines for cases in which a plea agreement has been made, is that 'acceptance of personal responsibility for his criminal conduct' means the criminal conduct to which the defendant pleads guilty." Id at 459. As we explained in Piper, " [t]o merit such a reduction [under 3E1.1], a defendant must show contrition for the crime of which he was convicted, but he need not accept blame for all crimes of which he may be accused." Id at 841.

Piper is not a complete ban on any consideration of uncharged and unproved conduct in considering a reduction under section 3E1.1. In United States v. Cooper, 912 F.2d 344 (9th Cir. 1990), we held that the consideration of continuing uncharged criminal conduct was proper where it was relevant to the determination of a defendant's "acceptance of responsibility for the offense of conviction. " Piper, 918 F.2d at 841 (quoting Cooper, 912 F.2d at 348 (emphasis in original)). In Cooper, the defendant pleaded guilty to bank fraud. The pre-sentence report originally recommended a reduction for acceptance of responsibility. After the report was filed, the probation officer became aware that the defendant had purchased a new car by giving a false name and false credit information. Id. at 345. He filed a supplemental pre-sentence report, recommending against a reduction for acceptance of responsibility. The court refused the section 3E1.1. reduction and Cooper appealed.

Cooper cited Perez-Franco and argued that the trial court had denied her the reduction solely because she had not told the probation officer of unproved, uncharged conduct. We held that

Perez is clearly distinguishable from the case presented here. The district court's denial of Cooper's request for the two level reduction was premised upon a finding that she had not met her burden of showing sincere contrition for the offense with which she was charged, not upon her failure to own up to the fraudulent car purchase.

Id. at 346 (emphasis in original). We held in Cooper that the district court, in so doing, had

legitimately considered evidence of Cooper's continued criminal conduct, about which she dissembled, to belie her professions of remorse and acceptance of responsibility for the offense of conviction.

Id. at 348 (emphasis in original).

It is unclear from the transcript of the sentencing hearing whether the court denied a reduction for acceptance of responsibility because Fendley's denial that he touched the victim belied his statement that he was "sorry" for violating section 2251. At the sentencing hearing, the Government relied heavily upon the report of Dr. Friedman, a psychiatrist appointed by the court to examine Fendley, in arguing that Fendley should be denied the reduction for acceptance of responsibility. Dr. Friedman's report states that Fendley denied "enticing or coercing" the victim and that "both [the victim] and her mother said he molested her, he denied he ever touched her in a sexual way." The report also states that " [p]edophiles are notorious deniers and Mr. Fendley is typical."

The district court appears to have relied, at least in part, on Dr. Friedman's conclusions in determining that Fendley had not accepted responsibility. The district court noted that Fendley "denied touching the victim in an inappropriate manner," and cited Dr. Friedman's report in discussing the difficulties pedophiles have in admitting their problems.

Touching a minor "in a sexual way" is not an element of the crime to which Fendley pleaded guilty. Section 2251 of Title 18 makes it a crime to "employ [ ], use [ ], persuade [ ], induce [ ], entice [ ], or coerce [ ] any minor to engage in ... sexually explicit conduct for the purpose of producing any visual depiction of such conduct" if the photograph is to be mailed or transported in interstate commerce. "Sexually explicit conduct" is defined in section 2256 of Title 18 as including "masturbation" and the "lascivious exhibition of the genitals or pubic area of any person." The Government is not required to prove that the defendant touched the victim in order to support a conviction of a violation of section 2251. Thus, a violation of section 2251 can be committed without "touching the victim in an inappropriate manner." The fact that Fendley denied committing the separate crime of sexual molestation of a minor may not be dispositive in determining whether he accepted responsibility for a violation of section 2251.

The allegation that Fendley touched the victim in a sexual way may nonetheless be relevant to discount his expression of remorse if the district court finds this conduct was inextricably intertwined with the offense conduct. Cf. United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987). It is unclear from the record whether the court considered that this "sexual touching" was inextricably intertwined with Fendley's behavior in inducing a minor to engage in sexually explicit conduct for the purposes of producing a visual depiction. If so, Fendley's denial that he touched the child also would be inconsistent with an acceptance of responsibility for his criminal conduct that led to the charge of inducing a minor to engage in sexually explicit conduct for the purpose of producing a sexual depiction thereof.

The record also shows that Fendley defended his conduct by relying on the concept of diminished capacity. The district court may have concluded that Fendley's statement that he was not aware of what he said, and did not understand his conduct, was inconsistent with an acceptance of responsibility. Unfortunately, the record is unclear as to the precise basis for the district court's decision to deny a reduction for acceptance of responsibility.

The record does not disclose whether the crime of child molestation, to which Fendley entered a plea in state court as part of the same plea agreement, involved a sexual touching of the victim in this matter. Thus, we can not tell from this record whether his denial of the touching of the victim in this matter is inconsistent with his plea of guilty to a molestation of the same child during the taking of the photographs showing sexually explicit conduct.

Piper prohibits denial of a reduction for acceptance of responsibility solely because the defendant denies responsibility for uncharged crimes. Under some circumstances, however, such a denial by the defendant may be relevant in determining whether the defendant has accepted responsibility for the crime charged. United States v. Cooper, 912 F.2d at 346-48. The district court made its sentencing decision in this matter prior to the publication of Piper. For this reason, the district court was unaware of the importance, for the purpose of appellate review, of its reliance, if any, upon Fendley's refusal to admit that he "touched the victim in an inappropriate manner." Upon remand the district court will have the opportunity to make express findings to demonstrate its compliance with Piper and Cooper and to determine whether a sexual molestation of the eight-year-old child was inextricably linked with inducing her to engage in sexually explicit conduct. Cf. United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (evidence of other crimes not prohibited by Fed.R.Evid. 404(b) where other crimes are "inextricably intertwined" with crime charged).

II. Did Fendley understand the nature of the charge to which he pled guilty as required by Rule 11(c) (1) of the Federal Rules of Criminal Procedure permitting the district court to accept his guilty plea?

Fendley argues that because the plea bargain was not explained to him there was a violation of Rule 11(c) (1) of the Federal Rules of Criminal Procedure. He claims that he did not understand the consequences of his plea since no one explained to him the differences between the crime set forth in 18 U.S.C. § 2251 and the conduct prohibited by 18 U.S.C. § 2252. Specifically, he argues that the judge failed to explain to him that he was pleading guilty to a superseding information which carried a higher base offense level than the prior charge. Id. at 5.

Rule 11(c) (1) provides that

[b]efore accepting a plea of guilty ..., the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term.

The district court complied with Rule 11(c) (1). In United States v. Kamer, 781 F.2d 1380 (9th Cir.), cert. denied, 479 U.S. 819 (1986), we held that "in non-complex cases, a reading of the indictment may suffice." Id at 1384 (quoting United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979), cert. denied, 445 U.S. 904 (1980)).

The charge against Fendley is a simple charge. The superseding information charged him as follows:

On or about February 29, 1989, within the District Court of California, defendant George Willis Fendley, did knowingly and intentionally employ, use, persuade, induce, entice and coerce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, knowing and having reason to know that such visual depiction would be mailed, in violation of Title 18, United States Code, Section 2251.

The statute contains plain simple words used in ordinary speech except for the term "sexually explicit conduct." Fendley stipulated, however, that the photograph depicted sexually explicit conduct. The record is clear that Fendley understood the nature of the conduct forbidden by the statute.

Fendley waived the reading of the information. He has not claimed that he was unaware of the contents of the information prior to entering his plea. Judge Keep asked Fendley several times whether he understood the charges or had any questions. Fendley responded that he understood and had no questions. Thus, the district court met the standard set forth in Kamer.

Moreover, the record does not support Fendley's claim that the judge failed to explain to him that he was pleading guilty to an offense that carried a higher base offense level than the prior charge. First, the prosecution specifically stated, in the defendant's presence, that " [t]he superseding information essentially charges the Defendant with the production of child pornography which carries with it more of a sentence under the sentencing guidelines than the simple mailing of child pornography." Later, Judge Keep stated "Mr. Fendley, ... you're going to ... plead guilty to this charge of sexual exploitation of children, which is a bit more serious under the possible maximum sentence I can give you than the charge that you are currently facing." Fendley responded that he was aware of the maximum sentence he could receive. Thus, Fendley was aware that the superseding information charged him with an offense carrying a more serious maximum sentence than the prior charge. Therefore, the district court did not violate Rule 11(c) (1).

Lastly, Fendley argues that the district court violated Rule 11(c) (1) because it failed to advise him "of the mandatory minimum penalty provided by law as mandated by the Federal Sentencing Guidelines." Rule 11(c) (1) was promulgated prior to the adoption of the Sentencing Guidelines. At the time of its adoption, the language in Rule 11(c) (1) requiring the court to inform the defendant of the "mandatory minimum penalty provided by law"¹  referred to the statutory mandatory minimum penalties such as provided by section 2251.

Applying Rule 11(c) (1) to the guideline range would require a substantial modification of court procedures. At the time a plea is taken the presentence report has not been prepared. The judge cannot inform the defendant of a guideline minimum range when the plea is entered because the probation officer's investigation of the guideline factors and the computation necessary to ascertain the guideline range has not been initiated.

Preparation of a presentence report before plea would pose many serious problems. For example, acceptance of responsibility before plea would invoke a forfeiture of fifth-amendment rights. A strong argument can be made that there is no "mandatory minimum" guideline range because the judge has the power under certain circumstances to depart from the guideline range. See e.g. U.S.S.G. Sec. 5K1.1 (Judge can impose a sentence below the guideline if the prosecution indicates substantial assistance). See also U.S.S.G. Sec. 5H1.4 (Judge can impose a sentence other than imprisonment in case of defendant's extraordinary physical impairment), or U.S.S.G. Sec. 5K2.13 (Judge may impose a lower sentence if the defendant suffers from reduced mental capacity). Thus, the language in Rule 11(c) (1) requiring the judge to advise defendant "of the mandatory minimum penalty" is not applicable to sentencing guideline ranges. It refers only to the minimum mandatory penalty provided by statute.

III. Was there a sufficient factual basis in accordance with Rule 11(f) of the Federal Rules of Criminal Procedure permitting the district court to accept Fendley's guilty plea?

Fendley argues that the district court violated Rule 11(f) of the Federal Rules of Criminal Procedure by failing to make a sufficient inquiry to determine a factual basis for the plea. Fendley claims that in order for the court to find a factual basis, the court would have had to have observed the picture to determine that the picture met the five factors set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff'd, United States v. Weigand, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856 (1987), for determining whether or not the picture is a lascivious exhibition of genitals or pubic areas. Fendley asserts that the court did not see the picture and therefore could not establish whether the picture met the Dost factors. The government argues that the record demonstrates that Judge Keep actually saw the picture and had a clear recollection of it and that she sufficiently developed a factual basis to accept Fendley's guilty plea.

"Rule 11(f) requires the court to explore the factual basis in order to determine the accuracy of the plea." United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984). "The rule prescribes no specific method of establishing the factual basis. However, it must be established on the record that there is sufficient evidence to support the conclusion that the defendant is guilty." Id. (citations omitted). Fendley pleaded guilty to one count of sexual exploitation of children in violation of 18 U.S.C. § 2251. Section 2251(a) prohibits inducing a minor to engage in "sexually explicit conduct" for the purpose of creating a visual depiction which is going to be mailed.

We disagree with Fendley's contention that "in order for there to be a sufficient factual basis, the court must have found that the pictures in question met the Dost factors." Appellant's Brief at 8. In United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986) aff'd, United States v. Weigand, 812 F.2d 1239, cert. denied, 484 U.S. 856 (1987), the district court set forth several factors which "the trier of fact should look to, ... among any others that may be relevant in the particular case" to define "lascivious exhibition," which is one of the definitions of sexually explicit conduct as set forth in 18 U.S.C. § 2255.

The parties stipulated that the photograph depicts a minor engaged in sexually explicit conduct. Therefore, the district court was not required to consider whether the picture was a "lascivious exhibition."

The district court did not violate Rule 11(f).

IV. Did the district court err in failing to depart downward from the guidelines based on Fendley's exceptional military service and his diminished capacity?

Fendley argues that the district court should have departed downward from the guidelines pursuant to U.S.S.G. Secs. 5H1.4 and 5K2.13. This court is without jurisdiction to review a district court's decision not to depart below the guidelines. United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

The judgment of conviction is AFFIRMED. The sentence is VACATED AND REMANDED.