United States v. Raylin Richard

Citation: 901 F.3d 514Docket: 17-30654

Court: Court of Appeals for the Fifth Circuit; August 23, 2018; Federal Appellate Court

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Raylin Richard appeals his guilty plea acceptance for transporting child pornography under 18 U.S.C. 2252A(a)(1) and his resulting sentence, raising four main arguments: 

1. The factual basis for his plea was insufficient to support a knowing transport conviction.
2. The district court incorrectly applied a cross reference to U.S.S.G. 2G2.1.
3. An enhancement for obstructing justice under U.S.S.G. 3C1.1 was improperly applied.
4. His within-Guidelines sentence is grossly disproportionate to the severity of his offense, violating the Eighth Amendment's prohibition against excessive sentences.

The background reveals that Richard was indicted in 2015 on multiple counts related to child pornography. He later waived indictment for a single charge and pleaded guilty under a bill of information. The factual basis disclosed that Richard had nude photographs of a 12-year-old girl, the daughter of a woman he was romantically involved with. Following a report by the mother, law enforcement found videos and images on Richard's phone and computer. Additionally, while incarcerated, Richard attempted to influence the mother of another minor with whom he had inappropriate communications.

The presentence report (PSR) identified a base offense level of 32 for Richard, citing cross-referencing to U.S.S.G. 2G2.1 due to the involvement of a minor in sexually explicit conduct. Various enhancements were applied due to the minor’s age, Richard’s custodial relationship with the minor, and his obstruction of justice, leading to a total offense level of 35 after accounting for a reduction for acceptance of responsibility. The court ultimately affirmed the district court’s decisions.

Richard was assessed a criminal history category of III, which included two points for violating a protective order and an additional two points for committing the current offense while on probation. With an offense level of 35, he faced an advisory sentencing range of 210 to 240 months in prison, capped by a statutory maximum of 20 years under 18 U.S.C. 2252A(b)(1). At sentencing, Richard's objections to the presentence report (PSR) were overruled by the district court, which sentenced him to the minimum of 210 months in prison and a 15-year supervised release term. Richard subsequently appealed the decision.

The court reviews unpreserved challenges to guilty pleas for plain error, and the interpretation of Guidelines is reviewed de novo, while factual findings are assessed for clear error. Richard contended that the factual basis for his guilty plea under 18 U.S.C. 2252A(a)(1) was insufficient, arguing that transferring a file from his phone to a computer did not constitute "transportation." The United States claimed that Richard had waived this argument, which necessitated determining if the waiver was valid.

A waiver occurs when a defendant voluntarily gives up a remedy, often for perceived benefits. The district court indicated that if Richard believed the factual basis was incorrect, he should have moved to withdraw his guilty plea. His attorney, however, did not pursue this course of action, instead stating that they accepted the facts of the case as they related to the Guidelines while aiming to preserve a three-level deduction for acceptance of responsibility. This response indicated a deliberate choice to forego a challenge to the factual sufficiency of the plea in pursuit of a more favorable outcome for Richard.

Richard waived any challenge to the factual sufficiency of his guilty plea due to the favorable plea agreement he accepted, which prevented him from contesting the single count of conviction. He argued that the district court incorrectly applied a cross-reference under U.S.S.G. 2G2.1 related to sexually explicit conduct, claiming he did not cause the victim to engage in such conduct. However, the court found no clear error in applying the cross-reference, citing similarities to United States v. McCall, where the defendant's actions resulted in the victim's engagement in sexually explicit conduct.

Additionally, Richard contested a two-level enhancement of his base offense level for obstructing justice under U.S.S.G. 3C1.1, arguing that his phone call to a friend regarding compromising photographs did not constitute obstruction related to his offense of conviction. The court clarified that the enhancement applies if the obstructive conduct relates to the offense of conviction or any closely related offense, which was satisfied in this case as Richard's actions were relevant to the investigation of his conviction.

Lastly, Richard claimed his sentence was excessive and violated the Eighth Amendment but failed to substantiate this argument in his appellate brief, resulting in waiver of the issue. Therefore, the court affirmed the district court's decisions and sentencing.