United States v. Johnson, 12-2450
| Decision Date | 03 June 2013 |
| Docket Number | No. 12-2450,12-2450 |
| Parties | United States of America Plaintiff - Appellee v. Delmarcus Deante Johnson Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from United States District Court
for the District of Minnesota - St. Paul
Before SMITH, MELLOY, and BENTON, Circuit Judges.
Delmarcus Deante Johnson pleaded guilty pursuant to a plea agreement to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Following entry of his guilty plea, Johnson moved to withdraw his plea.The district court1 denied Johnson's motion to withdraw his plea. On appeal, he argues that the district court failed to comply with Federal Rule of Criminal Procedure 11(b)(3) because his guilty plea lacks a factual basis. Specifically, he asserts that nothing in the record supports a finding that the video at issue was "produced" using materials that moved in interstate commerce. See 18 U.S.C. § 2252(a)(4)(B). Additionally, he contends that the district court abused its discretion in denying his motion to withdraw because he articulated a fair and just reason to withdraw his plea. We affirm.
(Emphasis added.)
Johnson, representing himself, and with stand-by counsel, entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) with the government in which Johnson agreed to plead guilty to the offense. Paragraph 2 of the plea agreement set forth the factual basis of the plea as follows:
The defendant agrees that in or about May 2010, in the State and District of Minnesota, he possessed a video which depicts him engaging in sexual intercourse with Minor A at a motel in the Minneapolis, Minnesota area. The defendant agrees that the video of the sex act was stored on a device that was manufactured outside of the state of Minnesota. Therefore, the defendant agrees that the image he possessed was stored on materials that had been mailed, shipped or transported in interstate commerce.
(Emphases added.)
In ¶ 6 of the plea agreement, "the parties agree[d] pursuant to Fed. R. Crim. P. 11(c)(1)(C) that a sentence that does not exceed 36 months imprisonment[] is appropriate after consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a)." The government agreed to "seek a sentence of 36 months," while Johnson reserved the right to "seek a lower sentence."
At the change-of-plea hearing, the district court expressed its intent to accept the plea agreement under Rule 11(c)(1)(C) and sentence Johnson to 36 months' imprisonment or less. The government then reviewed the plea agreement with Johnson. Johnson agreed that he was pleading guilty to "possession of child pornography[,] in violation of 18 United States Code Sections 2252(a)(4)(B) and 2252(b)(2)." The government then reviewed the factual basis for the plea with Johnson, and the following exchange occurred:
(Emphases added.)
During the hearing, the court advised Johnson that it "must be satisfied that [Johnson's] decision to enter into this [plea] is a knowing, voluntary, conscious decision on [his] part." The court explained that it had to satisfy itself that no one threatened or promised Johnson anything in return for his guilty plea and that "[t]hisis a voluntary decision on [Johnson's] part." Following the government's review of the factual basis for the plea, the court reviewed with Johnson his constitutional rights, including his right to proceed to trial on the charges against him. The court explained that Johnson was foregoing those rights by pleading guilty, and Johnson indicated that he understood. The court then asked Johnson's stand-by counsel whether he was "satisfied that the decision that [Johnson] is making here today is a voluntary, conscious decision on his part," and stand-by counsel replied, Stand-by counsel was not "aware of any reason [why the court] should not accept the plea agreement."
Before accepting Johnson's plea, the court inquired whether the government was "satisfied that [it] ha[d] sufficient admissible evidence to sustain a conviction to the charges in Count 1 of the Indictment if the matter did proceed to trial." The government confirmed that it did have sufficient evidence to sustain the conviction. After making sure that Johnson had no additional questions for the court or his stand-by counsel, the court asked Johnson whether he was "prepared to proceed . . . with a plea." Johnson responded that he was and then pleaded guilty to the charge. The court accepted Johnson's guilty plea.
Approximately one month after the change-of-plea hearing, Johnson filed his first motion to withdraw his guilty plea, contending that his plea was coerced, he was denied adequate assistance from his stand-by counsel, he was scared, he lacked access to a law library, and he was mislead about the plea bargain. Thereafter, he filed a "Continuing Motion to Withdraw Guilty Plea" in which he stated, among other things:
3. The justice of the law should protect me although I pleaded guilty (involuntarily, threatened and coerced) but not had also realized [sic] that my alleged conduct of allegedly claiming that a backpack that was twenty feet away from me was mines [sic] does not fall within . . . the charge of possession. . . . I was tricked into thinking that I would be found guilty to "those" circumstances of "that" back[p]ack holding the camera with the alleged pornographic image of a minor sitting in a corner which I never claimed to be mines [sic]! I believe that in my heart that I should not be found guilty and there is no factual basis for the plea, and would request that the involuntary plea be set aside and this matter be set for trial to protect my innocence.
(Emphasis added.)2
The court denied Johnson's motion to withdraw his guilty plea, rejecting Johnson's argument "that the [g]overnment cannot prove that the offense with which he was charged and to which he entered a guilty plea affects interstate commerce." According to the court:
[T]he government satisfied the interstate commerce element here. First, the plea agreement that the Defendant signed and agreed to specifically states that the materials used to produce the child pornography he is charged with possessing were produced and stored on "materials that had been mailed[,] shipped or transported in interstate commerce." Plea Agreement, ¶ 2. Second, the [g]overnment advised the [c]ourt that it had sufficient admissible evidence to support a conviction to the charge in the Indictment. Plea Transcript, 36. Finally, the Defendant in his sworn plea admitted that the images he possessed were produced using materials transported in interstate commerce. Plea Transcript, 30. Such evidence satisfies the jurisdictional requirement of 18 U.S.C. § 2252.
(Emphases added.)3
The court also rejected Johnson's claim that it should allow him to withdraw his guilty plea based on ineffective assistance of counsel, explaining that Johnson chose to proceed pro se after the court "warned of the perils of proceeding in such a manner." The court concluded that Johnson's "stand-by counsel could not have been ineffective" given that Johnson...
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