USA v. Daranda

Filing

UNPUBLISHED OPINION FILED. [09-30054 Affirmed ] Judge: EBC , Judge: LHS , Judge: CH Mandate pull date is 01/10/2011 for Appellant Ben Daranda [09-30054]

USA v. Daranda

Case: 09-30054 Document: 00511326808 Page: 1 Date Filed: 12/20/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 20, 2010 N o . 09-30054 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. B E N DARANDA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 1:07-CR-10022-1

B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. P E R CURIAM:* B e n Daranda was convicted on one count of sexual exploitation of children in violation of 18 U.S.C. § 2251(a). The district court determined that Daranda's p r io r state convictions for child molestation required it to sentence Daranda to life imprisonment under 18 U.S.C. § 3559(e). Daranda appeals the imposition of a life sentence. Because the district court did not plainly err by applying 18 U .S .C . § 3559(e), we AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-30054 Document: 00511326808 Page: 2 Date Filed: 12/20/2010

No. 09-30054 F A C T S AND PROCEEDINGS I n a superceding indictment, a grand jury charged Daranda with sexual e x p lo it a t io n of children in violation of 18 U.S.C. § 2251(a), possession of child p o r n o g r a p h y in violation of 18 U.S.C. § 2252A(a)(5)(B), and the forfeiture of illic it materials pursuant to 18 U.S.C. § 2253. The government moved for d is m is s a l of the child pornography charge, and Daranda proceeded to trial on the s e x u a l exploitation of children charge. At trial, the government presented e v id e n c e that Daranda had taken sexually-explicit photographs of two fifteeny e a r -o ld girls in a public park after telling them that he was a photographer. The ju r y found Daranda guilty. Daranda waived the right to a jury trial on the third c h a r g e of the indictment, and the district court subsequently entered a forfeiture order. Prior to Daranda's sentencing, the United States Probation Office p r e p a r e d a Presentence Investigation Report (PSR). The PSR calculated an o ffe n s e level of 42 and a criminal history category of II, the combination of which r e s u lt e d in a guidelines range of 360 months' imprisonment to life imprisonment. It also summarized Daranda's extensive history of state sex-crime convictions. I n 1992, he was charged with two counts of sexual battery in Louisiana for a t t a c k in g two female Louisiana State University (LSU) students after posing as a photographer. He pleaded guilty to two counts of simple battery. In 2000, he was charged with two counts of aggravated oral sexual battery a n d two counts of molestation of a juvenile in Louisiana after molesting two c h ild r e n , ages seven and nine. The PSR stated that Daranda required the c h ild r e n to perform oral sex on him and to "manually masturbate him." He p le a d e d guilty in 2001 to a reduced charge of four counts of molestation of a ju v e n ile and was given a suspended sentence of five years' imprisonment with

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No. 09-30054 t w o years' probation. The PSR failed to note that Daranda entered his guilty p le a pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).1 In 2004, Daranda was charged with sexual battery and with "enter/ R e m a in in Places/ on Land After Being Forbidden," again for sexually assaulting a n LSU student after posing as a fashion photographer. Daranda pleaded guilty t o simple battery and "Remaining After Being Forbidden," and was sentenced t o probation. Finally, Daranda was charged in state court with two counts each o f Pornography Involving Juveniles and Contributing to the Delinquency of J u v e n ile s for the conduct at issue in the instant case. He pleaded guilty and was s e n te n c e d to a suspended sentence of two years' imprisonment and two years' p r o b a t io n . The PSR noted that the 2001 convictions for child molestation may trigger a mandatory life sentence under 18 U.S.C. § 3559(e). Under § 3559(e), "[a] p e r s o n who is convicted of a Federal sex offense"--including one under § 2251, t h e statute Daranda was convicted of violating in this case--"in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex c o n v ic t io n in which a minor was the victim." 18 U.S.C. § 3559(e)(2)(A). Daranda d id not object to the PSR or to the application of § 3559(e). The district court a d o p t e d the PSR, found that § 3559(e) applied to Daranda, and sentenced D a r a n d a to life imprisonment. D a r a n d a 's judgment of conviction was entered on November 25, 2008. His p r o se notice of appeal was untimely filed with the district court on January 22, 2009.

In Alford, the Supreme Court allowed a defendant charged with capital murder to plead guilty to a lesser charge, which enabled him to avoid the death penalty, while maintaining his innocence. 400 U.S. at 37. "[A]n express admission of guilt," the Court explained, "is not a constitutional requisite to the imposition of criminal penalty." Id. "A defendant entering an Alford plea pleads guilty but affirmatively protests his factual innocence to the charged offense." United States v. Harlan, 35 F.3d 176, 180 n.1 (5th Cir. 1994).

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No. 09-30054 S T A N D A R D OF REVIEW D a r a n d a contends that the district court erred by enhancing his sentence p u r s u a n t to § 3559(e). Because Daranda did not object to the application of § 3559(e) at sentencing, this court's review is for plain error. United States v. G o n z a le z -T e r r a z a s , 529 F.3d 293, 296 (5th Cir. 2008). Plain error occurs when: " (1 ) there was an error; (2) the error was clear and obvious; and (3) the error a ffe c t e d the defendant's substantial rights." Id. (quotation omitted). "If each of t h e s e conditions is satisfied, we may exercise our discretion to correct the error o n ly if the error seriously affects the fairness, integrity, or public reputation of ju d ic ia l proceedings." Id. (quotation omitted). DISCUSSION A . Untimely Notice of Appeal D a r a n d a filed his notice of appeal after the ten-day deadline imposed by F e d e r a l Rule of Appellate Procedure 4(b)(1)(A)(i) (2008) and after the additional 3 0 days during which Rule 4(b)(4) (2008) allows a defendant to seek an extension b a s e d on good cause or excusable neglect. The government acknowledged the u n t im e ly filing but did not move for dismissal on that basis. The notice of appeal d e a d lin e in criminal cases is not jurisdictional and can be waived. United States v . Martinez, 496 F.3d 387, 388­89 (5th Cir. 2007) (per curiam). Because the g o v e r n m e n t waived this argument, we will review the merits of Daranda's claim. S e e United States v. Ortiz, 613 F.3d 550, 554 (5th Cir. 2010). B . Section 3559(e) Section 3559(e) requires a court to impose a life sentence on certain d e fe n d a n t s who commit repeated sex offenses against minors. "A person who is c o n v ic t e d of a Federal sex offense in which a minor is the victim shall be s e n te n c e d to life imprisonment if the person has a prior sex conviction in which a minor was the victim, unless the sentence of death is imposed." 18 U.S.C. § 3559(e)(1). The government contends that Daranda's state-law child 4

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No. 09-30054 m o le s t a t io n convictions qualify as "prior sex conviction[s]" because each falls u n d e r the definition of "a State sex offense." Id. § 3559(e)(2)(C). This statute d e fin e s a "State sex offense" as "an offense under State law that is punishable b y more than one year in prison and consists of conduct that would be a Federal s e x offense" if it had occurred within federal jurisdiction. Id. § 3559(e)(2)(B). D a r a n d a argues that none of his child molestation convictions count as p r io r "State sex offense[s]" under § 3559(e)(2)(B) because LA. REV. STAT. ANN. § 14:81.2 criminalizes a broader array of conduct than that punished by any of t h e enumerated "Federal sex offenses."2 Because the statutes are not congruent, h e contends, the district court erred by finding that he committed a qualifying o ffe n s e . D a r a n d a is correct that LA. REV. STAT. ANN. § 14:81.2 criminalizes a b r o a d e r range of conduct than the enumerated federal statutes (18 U.S.C. § § 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2422(b), and 2423(a)). Louisiana defines "molestation of a juvenile" as: [T ]h e commission by anyone over the age of seventeen of any le w d or lascivious act upon the person or in the presence of a n y child under the age of seventeen, where there is an age d iffe r e n c e of greater than two years between the two persons, w it h the intention of arousing or gratifying the sexual desires o f either person, by the use of force, violence, duress, menace, p s y c h o lo g ic a l intimidation, threat of great bodily harm, or by th e use of influence by virtue of a position of control or

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The statute defines "Federal sex offense" as: [A]n offense under section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a) (relating to transportation of minors).

18 U.S.C. § 3559(e)(2)(A).

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No. 09-30054 s u p e r v is io n over the juvenile. Lack of knowledge of the ju v e n ile 's age shall not be a defense. LA. REV. STAT. ANN. § 14:81.2 (emphases added). The closest federal analogues t o this statute are 18 U.S.C. §§ 2241 (aggravated sexual abuse) and 2242 (sexual a b u s e ). Section 2241(c) punishes all "sexual acts"3 with children under the age o f twelve; § 2242(2) punishes "sexual acts" with a person "incapable of appraising t h e nature of the conduct" or "physically incapable of declining participation," b u t does not include an age requirement for the victim. Neither federal statute c r im in a liz e s a lewd or lascivious act that merely occurred "in the presence of" a n o t h e r individual, and neither necessarily punishes sexual abuse accomplished o n ly "by the use of influence by virtue of a position of control or supervision over t h e juvenile" unless the juvenile is under the age of twelve. Daranda's indictment alone does not sufficiently demonstrate that D a r a n d a 's prior conviction was a predicate offense under the modified c a t e g o r ic a l approach. in d ic t m e n t state that: [D a r a n d a ] did . . . commit a lewd or lascivious act upon a p e r s o n who was under the age [of] (17) seventeen years with Both child molestation counts listed in Daranda's

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A "sexual act" is defined as: (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight [sic]; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

18 U.S.C. § 2246(2).

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No. 09-30054 t h e intention of arousing his sexual desires of either person, [ s i c ] by the use of influence by virtue of a position of s u p e r v is io n over said child whose identity will be disclosed at t r ia l, in violation of La.R.S. 14:81.2. The indictment shows that Daranda was charged with performing "lewd or la s c iv io u s " acts upon the persons of his victims rather than "in the presence of" t h e m . However, "lewd or lascivious acts" are not defined in the state statute and m a y not be congruent to some or all of the conduct proscribed by the listed " F e d e r a l sex acts." The factual basis set forth at the hearing on Daranda's Alford plea in d ic a te d that the victims in question were his two stepdaughters aged seven a n d nine at the time. Daranda's PSR, to which he did not object, similarly stated t h a t he made two children, ages seven and nine, perform oral sex on him and " m a n u a lly masturbate him." This conduct falls under 18 U.S.C. § 2241(c), which p u n is h e s all "sexual acts" with children under the age of twelve. According to t h e undisputed facts in the PSR, Daranda's prior child molestation convictions fa ll under the definition of "a State sex offense," as they are "offense[s] under S t a te law that [are] punishable by more than one year in prison and consist[] of c o n d u c t that would be a Federal sex offense" if they had occurred within federal ju r is d ic t io n . Id. §§ 3559(e)(2)(B)-(C). D a r a n d a argues that the district court's reliance on the undisputed PSR which mirrored in large part the factual basis underlying the Alford plea was p la i n error. Daranda also argues that the sentencing judge is forbidden from r e ly in g on the factual basis recited at his Alford plea colloquy under Shepard v. U n ite d States, 544 U.S. 13 (2005), because Daranda did not confirm the factual b a s is presented by the prosecutor. For an error to be plain, "the legal error must b e clear or obvious, rather than subject to reasonable dispute." Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009) (citation omitted); see also United States v. J a c k s o n , 549 F.3d 963, 978 (5th Cir. 2008) ("`Plain' is synonymous with `clear' or 7

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No. 09-30054 `o b v io u s ,' and at a minimum, contemplates an error which was clear under c u r r e n t law."). "`Under plain error, if a defendant's theory requires an extension o f precedent, any potential error cannot have been plain.'" Jackson, 549 F.3d at 9 7 7 (quoting United States v. Garcia Rodriguez, 415 F.3d 452, 455 (5th Cir. 2 0 0 3 )). "There is no plain error if the legal landscape at the time showed the is s u e was disputed, even if . . . the district court turns out to have been wrong." U n ite d States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009). E v e n if reliance on an undisputed PSR would be considered plain error, n e ith e r the precise conduct reached by § 3559(e) nor the effect of a factual basis u n d e r ly in g an Alford plea on this determination have been decided by this court. N o circuit court has squarely decided how courts should determine whether a g iv e n state conviction is a prior sex conviction under § 3559(e). Because the ju x t a p o s it io n of an Alford plea factual basis with the contours of the Louisiana s t a t u t e in question judged against the requirements of 3559(e) is an open q u e s t io n under current law, no error could be clear or obvious; therefore, relief o n plain error review is not available. CONCLUSION The district court committed no plain error, and we AFFIRM Daranda's s e n te n ce .

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