USA. v. Ginyard, 99-3113
| Decision Date | 16 June 2000 |
| Docket Number | No. 99-3113,99-3113 |
| Citation | 215 F.3d 83 |
| Parties | (D.C. 2000) United States of America, Appellee v. Harry A. Ginyard, a/k/a Brett Scott, a/k/a H. A. Ginyard, a/k/a Brett S. Ginyard, a/k/a Brett Scott Ginyard, a/k/a Brett Ginyard, a/k/a Brett D. Scott, a/k/a Brett Douglas Scott, Appellant |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia(No. 98cr00424-01)
Sandra G. Roland, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was on brief. David A. Howard, Assistant Federal Public Defender, entered an appearance.
Amul R. Thapar, Assistant United States Attorney, argued the cause for the appellee. Wilma A. Lewis, United States Attorney, and John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on brief.
Before: Edwards, Chief Judge, Henderson and Rogers, Circuit Judges.
Opinion for the court filed Per Curiam.
Appellant Harry Ginyard pleaded guilty to one count of receiving materials depicting a minor engaged in sexually explicit conduct in violation of 18 U.S.C. 2252(a)(2) and one count of wire fraud in violation of 18 U.S.C. 1343.In return, the government agreed to a sentence of 18 months' incarceration and $63,464.88 restitution. Ginyard entered his guilty plea pursuant to a written plea agreement within the scope of Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. The district court provisionally accepted the plea agreement pending review of the presentence report. After reviewing the presentence report the court rejected the proposed prison term but accepted the parties' subsequent oral agreement providing for a 24 month sentence. It then sentenced Ginyard without objection to 24 months' incarceration, $63,464.88 restitution, a $200 special assessment and three years' supervised release. The court also continued its pretrial order restricting Ginyard's computer use and telephone communications during his imprisonment. Ginyard challenges two aspects of his sentence, arguing that the district court violated the Rule 11(e)(1)(C) plea agreement by imposing a term of supervised release not included therein and lacked authority to restrict his computer use and telephone communications in prison. We conclude that although the district court appears to have erred in imposing the term of supervised release, the error was invited and, in any event, does not constitute "plain error" on this record. Additionally, as both parties agree, the district court's restriction on Ginyard's computer and telephone use in prison is beyond its authority and we therefore vacate that portion of the sentence.
Between 1991 and 1997, Ginyard made contact with various women through internet chat rooms, electronic mail and the telephone. Using several aliases, Ginyard initiated what he falsely represented as "committed relationship[s]" and lied about his background, employment and income. Government's Memorandum Statement of Facts 2 (May 10, 1999).At one point Ginyard was engaged to marry at least two different women and was involved in "serious romantic relationship[s]" with others. Status Call Tr. 5/12/99 at 21. Ginyard took control of each woman's finances for his own financial benefit and forced at least one woman into bankruptcy. Following Ginyard's arrest, the FBI searched Ginyard's computer files and discovered approximately 35 visual images which he had received through an internet chat program depicting a female under the age of 18 years engaged in sexually explicit conduct. On December 8, 1998 Ginyard was indicted on seven counts of wire fraud in violation of 18 U.S.C. 1343 and eight counts of mail fraud in violation of 18 U.S.C. 1341. On May 7, 1999 the government filed a superseding information charging Ginyard with receipt of materials depicting a minor engaged in sexually explicit conduct in violation of 18 U.S.C. 2252(a)(2).
On May 11, 1999 Ginyard agreed to plead guilty to one count of wire fraud and one count of receiving child pornography. In return the government agreed to a sentence of 18 months' imprisonment and $63,464.88 restitution and agreed to request dismissal of the remaining indictment counts and not to bring additional charges. On that date the parties entered into a written plea agreement under Rule 11(e)(1)(C).The plea agreement recited as a "justifiable reason[ ]" to depart from the sentence Ginyard faced under the United States Sentencing Guidelines (Guidelines) the desire to spare Ginyard's victims the adverse consequences from trial.1 At the plea hearing held on May 12 1999 the district court informed both parties that it was not "prepared to accept any plea agreement that binds [it] to a sentence of eighteen months." Id. at 5. Nevertheless, the district court provisionally accepted the plea agreement pending receipt of the presentence report as allowed under Rule 11(e)(2).
On August 3, 1999, after reviewing the presentence report, the district court rejected the plea agreement, declaring that 18 months' imprisonment did "not protect the public for the maximum period of time that it could be protected for."Sentencing Tr. 8/3/99 at 31. The government then asked whether the district court would be willing to accept the plea if "appellant were willing to be sentenced within a range."Id. at 33. Ginyard asked the district court for "some guidance as to what sentence it would be comfortable with." Id. at 34-35. The district court responded that it "could in good conscience live with the figure of twenty-four months." Id. at 35. The court then recessed the hearing so the parties could negotiate the sentence. After the recess the following exchange occurred:
....
COURT: Yes, he should. I am sorry. Twenty-four months in custody. There will be a period of supervised release of three years. There will be a special assessment of $200. There will be restitution, and this is, I believe, under the plea agreement as well, of $63,464.88,and the probation department will have to work out the details of the restitution.
Id. at 36-37. The court also continued the pretrial order which prohibited Ginyard from using computers and allowed him, while imprisoned, telephone contact with family members and counsel only. In addition, the court prohibited Ginyard during supervised release from having contact with any of his victims or entering an internet chatroom and allowed him to use a computer only for professional real estate purposes. Ginyard made no objection below to any aspect of his sentence. He now appeals the supervised release component of his sentence, claiming that it is aliunde the plea agreement, as well as the computer and telephone restrictions during imprisonment.
Ginyard challenges the district court's authority to vary from the provisions of the Rule 11(e)(1)(C) plea agreement by imposing a term of supervised release in addition to the sentence of imprisonment and restitution specified therein. Because Ginyard failed to object to the imposition of supervised release below, we review for plain error only. See United States v. Blackwell, 694 F.2d 1325, 1340 (D.C. Cir. 1982) (); see also United States v. Watley, 987 F.2d 841, 847 n.6 (D.C. Cir. 1993) (). A sentencing error is plain "where it is obvious under settled law and would result in grave prejudice or a miscarriage of justice if not corrected on appeal." United States v. Drew, 200 F.3d 871, 879 (D.C. Cir. 2000) (internal quotation marks and quotation omitted).
Ginyard entered into the plea agreement pursuant to Rule 11(e)(1)(C), which provides that the government "agree that a specific sentence or sentencing range is the appropriate disposition of the case."2 The plea agreement "is binding on the court once it is accepted by the court." Fed. R. Crim. P. 11(e)(1)(C).
The court may accept or reject a Rule 11(e)(1)(C) plea agreement or "may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report." Fed. R. Crim. P. 11(e)(2). The court may not, however, "participate in any discussions between the parties concerning any such plea agreement." Fed. R. Crim. P. 11(e)(1)(C). At the May 12 plea hearing the district court deferred its decision to accept the plea agreement pending review of the presentence report. At the August 3 sentencing hearing, after reviewing the presentence report, the district court rejected the plea agreement. See Sentencing Tr. 8/3/99 at 32. The district court then allowed the parties to confer on an alternate sentence of imprisonment and eventually Ginyard stated that he was "prepared to take [sic] a twenty-four month plea." Id. at 36.3 Had it been clear that
the parties were tendering a plea that specified only a 24month term of incarceration, the district court's imposition...
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