U.S. v. Mugan

• Decision Date: 28 March 2006
• Docket Number: No. 03-4074.,03-4074.
• Citation: 441 F.3d 622
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allan C. MUGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

441 F.3d 622

UNITED STATES of America, Plaintiff-Appellee, v. Allan C. MUGAN, Defendant-Appellant.

No. 03-4074.

United States Court of Appeals, Eighth Circuit.

Submitted: January 23, 2006.

Filed: March 28, 2006.

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Anne M. Laverty, Cedar Rapids, Iowa, for appellant.

Sean R. Berry, Assistant U.S. Attorney, Cedar Rapids, Iowa, for appellee.

Before MURPHY, HEANEY, and BEAM, Circuit Judges.

MURPHY, Circuit Judge.

We previously affirmed Allan Mugan's conviction and sentence, and his case is now back from the Supreme Court which granted his petition for certiorari, vacated our earlier judgment, and remanded for further proceedings in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Additional briefing was requested from the parties addressing the impact of Booker on this case. After studying these submissions as well as the record, we conclude that Mugan is not entitled to relief under Booker because he failed to raise a Sixth Amendment objection to his sentence in the district court¹, and he has not shown plain error. See United States v. Pirani, 406 F.3d 543, 548-49 (8th Cir.2005) (en banc). We affirm the judgment of the district court.

I.

Mugan used a digital camera to take sexually explicit photographs of himself having intercourse with his 13 year old daughter. The photographs were stored on a digital memory stick that had previously been shipped in interstate and foreign commerce. Because the photographs were stored in this way, they were capable of immediate and widespread distribution over the internet. Law enforcement officials discovered the memory card while executing a warrant at Mugan's residence. At that time they also found a videotape of Mugan's daughter dancing while the camera zoomed in on her pubic area.

Mugan was indicted for using a minor to engage in sexually explicit conduct for the purpose of producing a visual image, with the use of materials which had been shipped in interstate commerce, in violation of 18 U.S.C. § 2251(a).² The indictment also charged Mugan with knowing possession of child pornography produced with interstate materials, in violation of 18 U.S.C. § 2252A(a)(5)(B).³ Mugan moved to dismiss the indictment, contending that the federal government was without authority to prosecute him since he had not transported the stored images in interstate commerce, nor had he intended to do so.

Before the district court ruled on the motion to dismiss, Mugan entered a conditional plea of guilty to the charge under § 2251(a) of using a minor in order to produce child pornography. His plea agreement preserved his right to raise his constitutional issue on appeal, and the district court later denied his motion to dismiss. Mugan attempted to appeal prematurely from that ruling, but his appeal was dismissed for lack of jurisdiction.

Mugan's relationship with his attorney became strained over the course of the proceedings. His lawyer moved to withdraw from representation, complaining that Mugan failed to take legal advice or pay attorney fees. Mugan opposed the motion, and it was withdrawn before he pled guilty. The motion was later renewed and granted by the court; new counsel was then appointed for Mugan. One week prior to his sentencing hearing, Mugan filed a motion to withdraw his guilty plea. He contended that his first lawyer had not adequately explained the plea bargaining process and that he had been misled about the sentencing departures that would be sought by the government. The motion was denied, and the case came on for sentencing on Mugan's § 2251(a) conviction.

The district court assigned Mugan a base offense level of 27, see U.S.S.G. § 2G2.1(a), and increased it by four levels due to the age of the victim and her relationship to Mugan. See U.S.S.G. §§ 2G2.1(b)(1)(B), 2G2.1(b)(2). The district court also imposed a two level enhancement for obstruction of justice based on letters in which Mugan had solicited false, exculpatory testimony from family members. His adjusted offense level of 33, together with his criminal history category III, resulted in a sentencing range of 168 to 210 months.

The district court departed upward two levels on the grounds that Mugan's administration of sleeping medication to his daughter to facilitate the production of the sexually explicit photographs was a factor not accounted for in the sentencing guidelines, see 18 U.S.C. 3553(b), and that Mugan's criminal history failed to reflect the seriousness of his past conduct. See U.S.S.G. § 4A1.3(a)(1). The resulting total offense level of 35 placed Mugan in a range of 210 to 262 months imprisonment, and the district court sentenced him to the statutory maximum of 240 months in prison. His sentence also included three years supervised release, $4,500 restitution to his wife for wages lost when she was fired as a result of his conduct, and a $100 special assessment. Mugan appealed from the judgment, challenging both his conviction and sentence.

II.

Mugan argues that the statutes under which he was charged are beyond the constitutional authority of Congress to regulate interstate and foreign commerce because they target the purely intrastate production and possession of child pornography. U.S. Const. Art. I, § 8, Cl. 3. Mugan contends that the intrastate production and possession of child pornography without a proven intent to distribute it beyond the state is noneconomic conduct outside the reach of the commerce power, citing United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Although the statutes contain a jurisdictional element which requires that the child pornography have been produced with interstate materials, he says they fail to ensure a connection between the images and interstate commerce. He also claims that Congress has not made findings addressing the effects of intrastate pornography on interstate commerce and that the connection between purely local child pornography and interstate commerce is attenuated.

The government responds that this court has already upheld the constitutionality of § 2251(a) and other child pornography provisions, based on their express jurisdictional elements requiring that interstate materials have been used in the production of the pornography. Since Mugan was shown to have used a digital memory card obtained through interstate commerce in producing the images, the government maintains that his prosecution is constitutional. The government further argues that the prosecutor need not prove commercial distribution or an intent to distribute commercially because the child pornography industry as a whole substantially affects interstate commerce.

While we review a challenge to the constitutionality of a statute de novo, United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.1997), cert. denied, 522 U.S. 934, 118 S.Ct. 341, 139 L.Ed.2d 264 (1997), "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds," United States v. Morrison, 529 U.S. at 607, 120 S.Ct. 1740.

Congress has the power under the Commerce Clause to regulate "activities that substantially affect interstate commerce," as well as the channels and instrumentalities of interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Whether an activity is one that substantially affects interstate commerce is determined by focusing on four factors in particular: (1) whether the regulated activity is economic in nature; (2) whether the statute contains an express jurisdictional element which limits its application to activities with "an explicit connection with or effect on interstate commerce"; (3) whether there are congressional findings about the regulated activity's effects on interstate commerce; and (4) whether the connection between the activity and a substantial effect on interstate commerce is attenuated. Morrison, 529 U.S. at 610-13, 120 S.Ct. 1740.

We have already upheld the constitutionality of federal child pornography prosecutions under the statute of which Mugan was convicted and under similar statutes. The first of our cases preceded the Supreme Court's Morrison decision, but the other two came after it. In United States v. Bausch, 140 F.3d 739 (8th Cir. 1998), we affirmed a conviction for possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). We rejected the defendant's claim that his prosecution was unconstitutional, for the statute's "express jurisdictional element," which limits prosecution to cases in which the depictions or the underlying materials had been transported in interstate commerce, ensured that "each defendant's pornography possession affected interstate commerce." Id. at 741. Then in United States v. Hoggard, 254 F.3d 744, 746 (8th Cir.2001), we upheld a conviction under § 2251(b) for pornographic photographs of children engaged in sex acts with the defendant's wife which were produced with interstate materials. In the opinion authored by Judge Richard S. Arnold, the court held that it was "bound by the reasoning of Bausch" and it distinguished Morrison and Lopez because in neither of those cases "did the statute involved contain an express jurisdictional element, requiring the government to prove, in each case, a concrete connection with interstate commerce." Id.

Our third precedent was one involving the same statute under which Mugan was convicted. The defendant in United States v. Hampton, 260 F.3d 832, 833-34 (8th Cir.2001), cert. denied, 535 U.S. 1058, 122 S.Ct. 1919, 152 L.Ed.2d 828 (2002), was prosecuted under §§ 2251(a) and 2252(a)(4)(B) for the intrastate production and possession of child pornography on videotapes transported in interstate commerce. The defendant argued that Bausch was "no longer good law" in light of Morrison, Jones...