US v. John Haye

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00124-1 Copies to all parties and the district court/agency. [999588717].. [14-4658]

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Appeal: 14-4658 Doc: 39 Filed: 05/22/2015 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4658 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN D. HAYES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:13-cr-00124-1) Submitted: April 30, 2015 Decided: May 22, 2015 Before SHEDD, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath, Acting Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Jennifer Rada Herrald, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 14-4658 Doc: 39 Filed: 05/22/2015 Pg: 2 of 6 PER CURIAM: Following a bench trial, John D. Hayes was convicted of attempted distribution and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(2), (5)(B) (2012). district court sentenced Hayes to 180 months in prison. appeals his convictions and sentence. Finding no The Hayes error, we affirm. Hayes contends that the district court erred in rejecting his guilty plea to possession of child pornography. “Before a court may enter judgment on a plea of guilty, it must find a sufficient factual basis to support the plea.” United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997); see Fed. R. Crim. P. 11(b)(3). The factual basis requirement “ensures that the court make clear exactly what a defendant admits to, and whether those admissions alleged crime.” (4th Cir. 1991). are factually sufficient to constitute the United States v. DeFusco, 949 F.2d 114, 120 “The trial court has wide discretion in determining whether a factual basis exists,” United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990), and the court may make that determination “by having the accused describe the conduct that gave rise to the charge,” Santobello v. New York, 404 U.S. 257, 261 (1971). To prove possession of child pornography, the Government must show that the defendant knowingly possessed images of child 2 Appeal: 14-4658 Doc: 39 pornography. is done Filed: 05/22/2015 Pg: 3 of 6 18 U.S.C. § 2252A(a)(5). “voluntarily and An act is knowing if it intentionally and mistake or accident or other innocent reason.” not because of United States v. Shrader, 675 F.3d 300, 309 (4th Cir. 2012) (internal quotation marks omitted). “A possessor of child pornography videos need not know that it is such at the time of download, so long as he discovers that it is child pornography after the download and decides to keep it anyway.” United States v. Carani, 492 F.3d 867, 875 (7th Cir. 2007). In this case, the court exercised its discretion to reject the guilty plea because it concluded that Hayes refused to admit to the core conduct of the offense, thus raising questions about the factual basis for the plea. In light of Hayes’ testimony at the plea hearing and the “deference [that we must accord] to the trial court’s decision as to how best to conduct the mandated colloquy with the defendant,” DeFusco, 949 F.2d at 116, we cannot conclude that the court erred in this respect. Hayes next asserts a Confrontation Clause challenge to the admission pornography of reports over a indicating peer-to-peer that he network. was The sharing child reports were generated automatically by a computer program, not by a person. “Evidence implicates the Confrontation Clause only if it constitutes a testimonial statement—that is, a statement made with a primary purpose of creating an out-of-court substitute 3 Appeal: 14-4658 Doc: 39 Filed: 05/22/2015 for trial testimony.” (4th Cir. 2015) Pg: 4 of 6 United States v. Reed, 780 F.3d 260, 269 (internal quotation marks omitted). Data generated by a machine, where the only source of the statement is the machine printout and not a person, is not subject to the Confrontation Clause. United States v. Washington, 498 F.3d 225, 229-30 (4th Cir. 2007); see also United States v. Lamons, 532 F.3d machines 1251, and 1264 not by Confrontation Clause). (11th Cir. humans 2008) are (statements exempt by purview from made of We conclude that the admission of the challenged reports did not violate the Confrontation Clause. Hayes supporting next his challenges conviction child pornography. the for sufficiency the attempted of the evidence distribution of We review the sufficiency of the evidence underlying a criminal conviction “by determining whether there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” United States (internal v. Jaensch, quotation marks 665 F.3d 83, 93 omitted). In (4th Cir. 2011) evaluating the sufficiency of the evidence, we do not review the credibility of the witnesses, and we assume that the factfinder resolved all contradictions in the testimony in favor of the Government. United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). We will not overturn a verdict if “any rational trier of fact could have found the essential elements 4 of the crime beyond a Appeal: 14-4658 Doc: 39 Filed: 05/22/2015 reasonable doubt.” Pg: 5 of 6 United States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012) (internal quotation marks and emphasis omitted). The evidence established that Hayes possessed substantial knowledge about computers and knowingly used a file-sharing program that allowed others to access child pornography files stored in his shared folder. sufficient to distribution. support We conclude that the evidence was Hayes’ conviction for attempted See United States v. Collins, 642 F.3d 654, 656- 57 (8th Cir. 2011) (finding sufficient evidence of attempted distribution of child pornography where defendant downloaded, installed, and used file-sharing program and possessed knowledge of computers); see also United States v. Dunn, 777 F.3d 1171, 1175 (10th Cir. 2015) (defendant’s placement of child pornography files into shared folder accessible to other users was sufficient to establish distribution even without active transfer of possession to another user). Finally, Hayes claims that his sentence of 15 years was unconstitutional because the indictment existence of a prior conviction. ∗ did not allege the As Hayes acknowledges, his claim is foreclosed by Supreme Court precedent as well as our ∗ Hayes was previously convicted in assault in the second degree, involving him to a mandatory minimum sentence of and a maximum possible sentence of 40 § 2252A(b)(1) (2012). 5 West Virginia of sexual a minor, which subjects 15 years’ imprisonment years. See 18 U.S.C. Appeal: 14-4658 Doc: 39 Filed: 05/22/2015 own and is thus unavailing. Pg: 6 of 6 See Almendarez-Torres v. United States, 523 U.S. 224, 233-36, 243-44 (1998); United States v. Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005) (reaffirming continued validity of Almendarez-Torres following United States v. Booker, 543 U.S. 220 (2005)). Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 6

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