United States v. Farrar, 16-11161

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: RHESA HAWKINS BARKSDALE, Circuit Judge
• Citation: 876 F.3d 702
• Parties: UNITED STATES of America, Plaintiff–Appellee v. John R. FARRAR, Defendant–Appellant
• Docket Number: No. 16-11161,16-11161
• Decision Date: 29 November 2017

876 F.3d 702

UNITED STATES of America, Plaintiff–Appellee
v.
John R. FARRAR, Defendant–Appellant

No. 16-11161

United States Court of Appeals, Fifth Circuit.

FILED November 29, 2017

Emily Baker Falconer, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

Gabriel Reyes, Assistant Federal Public Defender, Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant.

Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.^*

RHESA HAWKINS BARKSDALE, Circuit Judge:

John Farrar pleaded nolo contendere to one count of possessing, while in federal prison for a child-pornography offense, obscene depictions of a minor engaged in sexually-explicit conduct (images), in violation of 18 U.S.C. § 1466A(b)(1). Although he was sentenced to the ten-year statutory minimum for repeat offenders, under 18 U.S.C. § 2252A(b)(2), the court ordered the sentence to run concurrently with Farrar's prior sentence, with the new sentence to run from the date of his offense. Farrar challenges his conviction and sentence, asserting: the images he possessed are not obscene; and his sentence violates the Eighth Amendment. Primarily at issue is whether we must review those images to determine whether they are obscene. AFFIRMED.

I.

In 2007, Farrar was sentenced to 180 months' imprisonment, after pleading guilty to six counts of child pornography. In May 2015, while he was in prison for those child-pornography offenses, guards found in his workstation "seven hand-drawn images depicting the [sexual] exploitation of minor females" and two hand-written books, describing sexual abuse of minors. Farrar admits purchasing the images from other inmates and writing the books.

Farrar was indicted on one count of possessing six obscene depictions of a minor engaging in sexually-explicit conduct, in violation of 18 U.S.C. §§ 1466A(b)(1) & (d)(5), which requires proof of "a visual depiction of any kind, including a drawing

876 F.3d 706

... that ... (1)(A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene". Farrar requested the district court's consent to plead nolo contendere .

As discussed infra , the magistrate judge (MJ) accepted the Government's offer of proof, and Farrar personally declined to contest that offer, apologizing for the court's having to view the images. Subsequent to Farrar's assuring the MJ he was not "try[ing] to hide behind the law and try[ing] to come out with some appeal issue", the MJ recommended the district judge accept Farrar's nolo contendere plea.

The district judge accepted the recommendation and, over Farrar's objection under the Eighth Amendment, sentenced him to the ten-year minimum required by 18 U.S.C. §§ 1466A(b)(1) and 2252A(b)(2). But, despite Farrar's being sentenced to that ten-year minimum, the court ordered his sentence to run concurrently with the child-pornography sentence he was serving, with the sentence to run from the date of the offense, May 2015, rather than the date of sentencing, July 2016. Farrar admits that, as a result, he will serve an additional four-and-a-half-years beyond what he is serving for his 2007 child-pornography conviction.

II.

Farrar challenges both his conviction and sentence. For the former, he contends: the images to which he pleaded nolo contendere to possessing are not obscene; and, although he pleaded nolo contendere , we are required to decide whether the images are obscene. His sentence is contested under the Eighth Amendment on two bases: it is grossly disproportionate to his crime as applied ; and, a ten-year minimum for repeat-offenders in possession of obscene material is categorically disproportionate.

A.

In contesting his conviction stemming from his nolo contendere plea, Farrar claims the images he possessed are not obscene within the meaning of 18 U.S.C. § 1466A and the First Amendment. Along that line, Farrar cites Supreme Court, and our court, precedent for the proposition that he is entitled to an independent judicial review by our court to determine whether the images are obscene. Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485, 508 n.27, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) ; Miller v. California , 413 U.S. 15, 25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ; United States v. Ragsdale , 426 F.3d 765, 780 (5th Cir. 2005) ; Penthouse Int'l, Ltd. v. McAuliffe , 610 F.2d 1353, 1364 (5th Cir. 1980) ; Clicque v. United States , 514 F.2d 923, 926–27 (5th Cir. 1975) ; United States v. Gates , 481 F.2d 605, 605–06 (5th Cir. 1973) ; United States v. Thevis , 484 F.2d 1149, 1155 (5th Cir. 1973). He contends the review is mandated, even though: he did not contest obscenity in district court, and, instead, as shown infra , affirmatively agreed the images are obscene, apologized for the court's having to view them, and advised the court he was not "try[ing] to hide behind the law and try[ing] to come out with some appeal issue".

A nolo contendere plea, permitted by Federal Rule of Criminal Procedure 11, is also referred to as a plea of "no contest". As the Court has explained,

[a]lthough it is said that a plea of nolo contendere means literally I do not contest [the charge], and is a mere statement of unwillingness to contest and no more, it does admit every essential element of the offense (that is) well pleaded in the charge. Hence, it is tantamount to an admission of guilt for the purposes of the case, and nothing is left but to render

876 F.3d 707

judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record.

Lott v. United States , 367 U.S. 421, 426, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961) (internal quotations omitted).

In addition, Rule 11, and our court's opinion in Prince , foreclose a factual basis' being required for a nolo contendere plea. United States v. Prince , 533 F.2d 205, 208 (5th Cir. 1976). Rule 11 distinguishes guilty pleas from nolo contendere pleas: " Rule 11 does not require that the district court find a factual basis for a plea of nolo contendere, as opposed to a plea of guilty". Id. at 208. Rule 11(a)(3) states that, "[b]efore accepting a plea of nolo contendere, the court must consider the parties' views and the public interest in the effective administration of justice". Fed. R. Crim. P. 11(a)(3). By contrast, for a guilty plea, Rule 11(b)(3) requires the court "determine that there is a factual basis for the plea". Fed. R. Crim. P. 11(b)(3).

Even though a factual basis is not required for a nolo contendere plea under Rule 11, "[g]enerally, a challenge to the legal sufficiency of an undisputed factual basis [for a plea] is a straightforward question of law, reviewed de novo ". United States v. Butler , 637 F.3d 519, 521 (5th Cir. 2011) (internal quotations omitted). And, the court's decision to accept a nolo contendere plea is reviewed for abuse of discretion. United States v. Smith , 417 F.3d 483, 486 (5th Cir. 2005) ; see also United States v. Bearden , 274 F.3d 1031, 1035 (6th Cir. 2001). In addition, the Government urges we instead review the decision to accept the plea under the more limited standard for plain error: "where a defendant does not raise a challenge to the adequacy of the factual basis underlying [his] guilty plea in the district court ... this court reviews for plain error". Butler , 637 F.3d at 521 (internal quotation omitted).

Of course, no authority need be cited for the well-established rule that we, not the parties, determine our standard of review. In this instance, we sua sponte first review de novo , to determine whether the doctrines of judicial estoppel or waiver bar Farrar's challenge to his conviction.

Following the images and books being found in May 2015, and after Farrar was indicted that November, he presented the MJ with a memorandum expressing his intent to plead nolo contendere and listing the elements of the charged offense. They include, inter alia , defendant's possessing an image that is obscene under the three-part Miller test for obscenity. Miller , 413 U.S. at 24, 93 S.Ct. 2607 ("(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value") (internal quotations omitted)).

Farrar stated in his memorandum that, because "twelve unlucky members of the community [as the jury] ... must view these images and make a determination of whether these particular images are obscene ... how can [he] do anything other than enter a plea of nolo contendere "? Consistent with that position, he stated: he would not contest the factual basis underlying the charge; and, instead, "[he] will not and does not object to this Court accepting the government's offer of proof to support this Court's acceptance of this plea of nolo contendere ".

He also stated he had considered making a facial challenge to the constitutionality

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