U.S. v. Lasaga

• Decision Date: 02 May 2003
• Docket Number: Docket No. 02-1144.
• Parties: UNITED STATES of America, Appellee, v. Antonio LASAGA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 61

328 F.3d 61

UNITED STATES of America, Appellee, v. Antonio LASAGA, Defendant-Appellant.

Docket No. 02-1144.

United States Court of Appeals, Second Circuit.

Argued: January 10, 2003.

Decided: May 2, 2003.

John A. Danaher, III, United States Attorney, District of Connecticut, New Haven, Connecticut (Kari A. Dooley, Jeffrey A. Meyer, William J. Nardini, Assistant

United States Attorneys, on brief), for Appellee.

Diane Polan, Law Offices of Diane Polan, L.L.C., New Haven, Connecticut, for Appellant.

Before: F.I. PARKER, STRAUB, SACK, Circuit Judges.

F.I. PARKER, Circuit Judge.

Defendant-Appellant Antonio Lasaga appeals from a conviction and sentence entered in the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge), following a guilty plea to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Lasaga was sentenced principally to 180 months' imprisonment on the receipt of pornography count, and 60 months' imprisonment on the possession of pornography count, to be served concurrently. On appeal, Lasaga argues that this court should vacate his conviction on the possession count on the grounds that the enactment of 18 U.S.C. § 2252A(a)(5)(B) exceeded Congress' power under the Commerce Clause. Lasaga also argues that this court should remand for re-sentencing because the district court erred by (1) departing upward under U.S.S.G. § 5K2.3, and (2) departing upward on the basis of the large quantity of child pornography defendant received.

I.

After being notified by defendant's employer that defendant was downloading child pornography on the employer's computer, federal law enforcement agents searched defendant's home, seizing more than 200 "Zip" disks, a computer hard drive, and other diskettes containing images of minors posed in the nude or engaged in various sexual acts. The agents also seized two videotapes depicting sexually explicit conduct involving a young boy whom Lasaga had mentored since the boy was seven years of age. Subsequently, the boy was interviewed and described sexual abuse by the defendant beginning at the age of 11 or 12.

On June 17, 1999, Lasaga was indicted on four counts of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and three counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5). On February 18, 2000, defendant pled guilty to Counts Two and Six of the Indictment. Count Two charged that on or about November 1, 1998 defendant knowingly received "numerous graphic image files" of child pornography in violation of 18 U.S.C. § 2252A(a)(2). Count Six charged that on or about November 6, 1998, defendant knowingly possessed "two video tapes containing images of child pornography," in violation of § 2252A(a)(5).

On March 18, 2000, an initial sentencing hearing was held at which defendant moved to withdraw his guilty plea to Count Six and to dismiss that Count on the theory that § 2252A(a)(5)(B) unconstitutionally exceeded Congress's power under the Commerce Clause. Three days before the hearing, the United States Supreme Court had invalidated a statute on that theory in the landmark case of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). After further briefing on defendant's motion, the district court elected to reserve judgment pending this court's resolution of a similar Commerce Clause challenge in United States v. Griffith, 284 F.3d 338 (2d Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 461, 154 L.Ed.2d 352 (2002).

However, after the motion had been pending for more than a year, defendant moved on January 7, 2002 to withdraw his challenge and requested that the court proceed to sentencing. He did so in order to obtain a deal in a related state court proceeding that required him to be sentenced in federal court first. To withdraw his motion, defendant signed a document entitled "Waiver of Right to Prosecute Motion to Dismiss and to Withdraw Guilty Plea."

On February 12, 2002, the district court conducted another sentencing hearing, and Lasaga was sentenced on the following day. The government recommended an offense level of 33, subject to the upward departures then sought. Lasaga challenged his presentence report, seeking a "grouping" of offenses, which the government had not done. The district court ultimately ruled that the sentences should be grouped, thereby reducing the adjusted offense level to 31. The court then made two upward adjustments, resulting in an adjusted offense level of 34. First, the district court departed upward two levels based on the quantity of child pornography in Lasaga's possession. Second, the district court departed upward one level under U.S.S.G. § 5K2.3, which allows for upward departure where a victim "suffered psychological injury much more serious than that normally resulting from commission of the offense." The district court then chose to sentence Lasaga "near the top of the range", imposing a sentence of 180 months' imprisonment on the receipt of pornography count, and a concurrent sentence of 60 months' imprisonment on the possession of pornography count. The district court stated that it believed that it would have sentenced Lasaga to the same amount of imprisonment even if the conviction on the possession count had been struck down as unconstitutional.¹

Defendant-appellant now appeals his conviction on Count Six, and both upward departures.

II.

A. Defendant's argument that his conviction is unconstitutional

Defendant has waived his argument that his conviction was unconstitutional. A defendant who pleads guilty unconditionally admits all elements of the formal charge and, in the absence of court-approved reservation of issues for appeal, waives all challenges to prosecution except those going to the court's jurisdiction. United States v. Maher, 108 F.3d 1513, 1528 (2d Cir.1997); United States v. Coffin, 76 F.3d 494, 496 (2d Cir.1996); Hayle v. United States, 815 F.2d 879, 881 (2d Cir.1987).

Here defendant did not reserve the right to appeal, and his Commerce Clause attack is non-jurisdictional in nature. See United States v. Carr, 271 F.3d 172, 178 (4th Cir.2001); United States v. Riddle, 249 F.3d 529, 535-36 (6th Cir.2001); United States v. Beck, 250 F.3d 1163, 1167 (8th Cir.2001); United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.1998); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (defining jurisdiction as a court's statutory or constitutional power to adjudicate a case). Indeed, this court has explained that "[i]n order to sustain a challenge to the district court's jurisdiction, the defendant who has pleaded guilty must establish that the face of the indictment discloses that the count or counts to which he pleaded guilty failed to charge a federal offense." Hayle, 815 F.2d at 881. Lasaga's indictment, by contrast, charged him with violating a specific criminal statute. Accordingly, by pleading guilty unconditionally, defendant waived his right to challenge the constitutionality of § 18 U.S.C. § 2252A(a)(5)(B). Therefore, defendant's argument that his withdrawal of his motion to withdraw his guilty plea to Count Six and to dismiss that Count should not be construed as a waiver of his right to challenge the constitutionality of § 18 U.S.C. § 2252A(a)(5)(B) is unavailing because, by pleading guilty, he had already waived that right.²

B. Defendant's argument that the district court erred in granting upward departures

Appellant's right to appeal his sentence is governed by 18 U.S.C. § 3742(a), which permits appellate review of a sentence if it is: 1) "imposed in violation of law"; 2) "imposed as a result of an incorrect application of the sentencing guidelines"; 3) "greater than the sentence specified in the applicable guideline range ..."; or 4) "imposed for an offense for which there is no sentencing guideline and is plainly unreasonable."

1. Departure under § 5K3.2

The district court erred in departing upward under U.S.S.G. § 5K2.3 without finding that the harm to the victim was much more serious than that normally resulting from the underlying offense. U.S.S.G. § 5K2.3 states that:

If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.

Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant's conduct.

Lasaga argues that each of the above paragraphs sets forth a separate prong of the test for an upward departure under § 5K2.3. The government, by contrast, portrays the second paragraph as a set of "factors" that a district court should use to determine whether application of the guideline is appropriate. The district court also appears to have understood the second paragraph to identify factors which lead to the inference that an injury is "much more serious than that normally resulting from commission of the offense."

In United States v. Mandel, 991 F.2d 55 (2d Cir.1993), we explained that the second paragraph of § 5K2.3 articulates an additional requirement:

An upward departure based on psychological injury is appropriate only when the...