United States v. Jason M. Moriarty

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 04-13683 November 1, 2005

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 04-00005-CR-GKS-JGG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON M. MORIARTY,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 1, 2005)

Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:

Jason Moriarty, who pled guilty in open court to several child pornography-

related offenses, now appeals his convictions and sentence. Moriarty’s principal

claim on appeal is that his plea was not knowing and voluntary because the district

court failed to obtain an express plea of guilty from him during the plea colloquy,

and thereby violated the Fifth and Sixth Amendments to the Constitution, as well

as Federal Rule of Criminal Procedure 11 (“Rule 11”).1 In addition, Moriarty

contends that the district court erred by: enhancing his sentence under the United

States Sentencing Guidelines (the “Guidelines”) based on facts which Moriarty did

not admit; imposing a lifelong term of supervised release without prior notice;

declining to grant Moriarty a downward adjustment under the Guidelines for

acceptance of responsibility; and imposing a general sentence. The district court’s

failure to obtain an express guilty plea from Moriarty at the start of the plea

colloquy, and to follow Rule 11 carefully, warrants our express disapproval.

Nevertheless, we affirm Moriarty’s convictions for the reasons set forth below.

Most of Moriarty’s challenges to his sentence likewise lack merit, but the district

court’s imposition of a general sentence necessitates a limited remand for

clarification.

1

According to Moriarty, the district court also erred by failing to instruct him on several

other matters as required by Rule 11.

2

I. BACKGROUND

A three-count superseding indictment filed on February 4, 2004, charged

Moriarty with the following: (1) attempting to receive and receiving with intent to

sell child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), (a)(4)(B), and

(b)(1) (Count One); (2) attempting to possess and possessing child pornography,

in violation of § 2252A(a)(5)(B) and (b)(2) (Count Two); and (3) receiving and

possessing with intent to distribute an obscene visual depiction of a minor

engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1) and

(2) (Count Three). Moriarty decided to plead guilty to all three counts, and

appeared with his attorney Stephen Langs for a rearraignment hearing on April 21,

2004.

At the rearraignment, after counsel stated their appearances for the record

and Moriarty was sworn in, the district court initiated the plea colloquy as follows:

THE COURT: Mr. Moriarty, you have entered a plea of guilty to Count 1,

Count 2 and Count 3 of the Indictment. Count 1 charges you with

attempted receipt or possession of child pornography with the intent to sell

it. Count 2 charges you with receipt or possession of child pornography,

and Count 3 charges you with the receipt and possession with intent to

distribute obscene visual representations of the sexual abuse of children.

Do you understand what you are being charged with?

3

THE DEFENDANT: Yes, Your Honor.

The court proceeded to outline the essential elements of the foregoing offenses,

and Moriarty indicated that he understood what he was being charged with in

each. The court then informed Moriarty about his right to a jury trial:

THE COURT: And do you understand that by entering a plea of guilty to

Counts 1, 2, and 3 that you are giving up your right to a jury trial?

THE DEFENDANT: Yes, Your Honor.

THE COURT: By giving up this right, you are giving up your right to

appear before a jury with your counsel and to cross examine witness against

you. You are giving up your right to call witnesses in your own behalf

before a jury, and you are giving up your right to testify in your own behalf,

if you wish to do so. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

The court then explained the minimum and maximum penalties applicable to each

count, including “a term of supervised release of any term of years up to life,” and

Moriarty acknowledged that he understood the penalties. At this point Moriarty’s

counsel interposed an objection on an issue not relevant to this appeal. The

district judge noted the objection and preserved it for sentencing. He then

resumed the colloquy with Moriarty:

THE COURT: Has anybody threatened you in any way to get you to enter

into this plea?

THE DEFENDANT: No, sir. No, Your Honor.

4

THE COURT: Has anybody made any promises to you?

THE DEFENDANT: No, Your Honor.

THE COURT: During the time that you have been detained, have you

been under prescriptions of any kind that you feel might impair your ability

to understand this plea?

THE DEFENDANT: No, Your Honor.

THE COURT: Are you entering a plea of guilty because you are guilty or

for some other reason?

THE DEFENDANT: Because I am guilty.

THE COURT: Would you please state to the court, for the record, exactly

what you did?

THE DEFENDANT: I downloaded child pornography while I was here in

Orlando staying at my roommate’s house.

At the instruction of the district court, the Government then stated for the

record what it could have proven if the case went to trial. Among other things, the

Government stated that law enforcement officers conducted a consent search of

Moriarty’s room:

And in searching the room, found the envelope containing 43 images of

child pornography that had been printed off the computer and an additional

novel which contained 50 to 100 images of child pornography that had been

pasted within the pages of the novel. Among the images were images that

depicted sadistic sexual abuse of children who were bound and gagged,

images of child sexual torture, including some that were very violent, and a

motion photographic image of identifiable persons.

5

The Government explained that the images contained in the envelope (which was

labeled “KFC pictures”) and in the “Hollywood Kids” novel depicted real

children who have been identified as having been sexually abused. The

Government added:

After his arrest. Mr. Moriarty admitted to FBI agents . . . that he had brought

the Hollywood Kids novel containing the child pornography and the motion

images to Florida with him from Indiana. He referred to this as work in

progress. He also explained that he used a computer belonging to his

Orlando roommate . . . to access child pornography on the Internet –

photographs – at photoisland.com of which he was a member and of which

he and friends has used to trade images back and forth.

He explained that the initials KFC on the envelope containing the

pictures stood for “Kiddy Fuckers Club”, which is the way that he and his

club referred to themselves . . . and that he had downloaded the photographs

in order to sell them. He also said that they printed and sold images of child

pornography in the past.

After the Government completed its proffer, the district court stated:

THE COURT: Mr. Langs, anything you would like to add to that?

MR. LANGS: No, sir.

THE COURT: Is there anything that you would additionally like the court

to discuss regarding his rights as far as making his plea?

MR. LANGS: In that there were obviously – I shouldn’t say obviously –

there were potential motions to suppress in this case, Your Honor, one being

a 6th Amendment right violation on Indiana; potentially one in connection

with the search that was conducted down here in Florida, a 4th Amendment

violation.

6

I have talked to Mr. Moriarty about that. However, he has come

forward. He wants to accept responsibility for his conduct, and that he

would be waiving those potential motions in this case to avoid going to trial,

and I guess working out the more significant issues in this case, which are

sentencing matters.

THE COURT: Anything further from the Government?

MS. TYLKE: No, Your Honor.

THE COURT: All right. Mr. Moriarty, the court will accept your plea of

guilty to Counts 1, 2, and 3. I will order a pre-sentence report and set

sentencing for July 21st at 9:00 o’clock.

MR. LANGS: Thank you, Your Honor.

THE COURT: Anything further at this time?

MS. TYLKE: No, Your Honor.

THE COURT: Then we’ll stand adjourned.

At sentencing, Moriarty conceded the applicability of all but one sentencing

enhancement under the Guidelines–a five-level enhancement for engaging in a

pattern of activity involving the sexual abuse or exploitation of a minor. In

response, the Government called to the stand one of Moriarty’s neighbors, who

testified in detail to her belief that Moriarty had broken into her six-year old son’s

bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The

Government then elicited testimony from an FBI agent corroborating the

neighbor’s understanding of events. This included testimony about certain “Spy

7

Reports,” in which Moriarty graphically described his desire for and sexual

contact with the neighbor’s son and other children. Moriarty’s counsel conducted

cross-examinations, but called no witnesses to the stand. The district court

ultimately applied the disputed enhancement and found the presentence report

(“PSR”) to be correct in setting the offense level at 37 and the criminal history

category at two. The district court then offered Moriarty an opportunity to speak,

but he declined to do so. After hearing the arguments of Moriarty’s counsel, the

district court imposed the sentence:

THE COURT: Mr. Moriarty, you have–under the Guidelines you have a

total offense level of 37, criminal history category two. The Court finds

from the presentence report and from the testimony that you have a definite

problem with deviate conduct, that if you are not removed from society,

you’re going to endanger the lives of young children in the future. I can see

it coming. You need to be taken out of society so it can be prevented.

The Court is going to sentence you to 20 years in the Bureau of

Prisons, a lifetime of supervised release, and a $300 special assessment.

Anything you would like to state to the court now that you have been

sentenced?

THE DEFENDANT: No, Your Honor.

MR. LANGS: Just for the record, I would object to the lifetime

supervised release, Your Honor. I think that’s unconstitutional.

THE COURT: All right. Take that up with the 11th Circuit.

MR. LANGS: Thank you, Your Honor.

8

THE COURT: We will stand adjourned.

On appeal, Moriarty seeks reversal of his convictions on the grounds that

his plea was not knowing and voluntary, and was taken in violation of Fed. R.

Crim. P. 11. Moriarty further contends that the district court erred by: enhancing

his sentence based on facts to which Moriarty did not admit; imposing a lifelong

term of supervised release without prior notice; declining to grant Moriarty a

downward adjustment under the Guidelines for acceptance of responsibility; and

imposing a general sentence.

II. DISCUSSION

A. Guilty Plea

Moriarty contends that his guilty plea was not knowing and voluntary

because the district court failed to obtain an express guilty plea from him, in

violation of the Fifth and Sixth Amendments. He argues that due process requires

a deliberate and unequivocal declaration of guilt in response to the question “How

do you plead?” before a court may accept a defendant’s putative plea of guilty.

Moriarty further argues that the district court plainly erred under Rule 11 when it

failed to inform him of: (1) the Government’s right to prosecute him for perjury

for any statement that he made under oath; (2) his right to plead not guilty or

persist in an original plea of not guilty; (3) his right to be represented by counsel,

9

and, if necessary, have counsel appointed; (4) the possibility of forfeiture; (5) the

court’s authority to order restitution; and (6) the court’s duty to apply the

Guidelines.

Moriarty concedes that he failed to raise any of the foregoing issues before

the district court.2 Constitutional objections not raised before the district court are

reviewed only for plain error. United States v. Candelario, 240 F.3d 1300, 1306

(11th Cir. 2001). Likewise, when a defendant fails to object to a Rule 11

violation, we review only for plain error. United States v. Vonn, 535 U.S. 55, 59,

122 S. Ct. 1043, 1046, 152 L. Ed. 2d 90 (2002). To establish plain error, a

defendant must show there is (1) error, (2) that is plain, and (3) that affects

substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770,

1776, 123 L. Ed. 2d 508 (1993). If all three conditions are met, we may exercise

our discretion to recognize a forfeited error, but only if the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(internal quotations omitted) (alteration in original). Under plain error review,

“the defendant bears the burden of persuasion with respect to prejudice or the

effect on substantial rights.” United States v. Monroe, 353 F.3d 1346, 1352 (11th

2

Moriarty should have brought these issues to the district court’s attention prior to

appeal, by means of a motion to withdraw his plea.

10

Cir. 2003). When neither the Supreme Court nor this Court has resolved an issue,

and other circuits are split on it, there can be no plain error in regard to that issue.

United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam).

A guilty plea involves the waiver of a number of a defendant’s

constitutional rights, and must therefore be made knowingly and voluntarily to

satisfy the requirements of due process. See Brady v. United States, 397 U.S. 742,

748, 90 S. Ct. 1463, 1468-69, 25 L. Ed. 2d 747 (1970); Galbraith v. United

States, 313 F.3d 1001, 1006 (7th Cir. 2002). A court accepting a guilty plea must

comply with Rule 11 and specifically address three “core principles,” ensuring that

a defendant (1) enters his guilty plea free from coercion, (2) understands the nature

of the charges, and (3) understands the consequences of his plea. United States v.

Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998) (per curiam). To ensure

compliance with the third core concern, Rule 11(b)(1) provides a list of rights and

other relevant matters about which the court is required to inform the defendant

prior to accepting a guilty plea, including: the right to plead not guilty (or persist

in such a plea) and to be represented by counsel; the possibility of forfeiture; the

court’s authority to order restitution and its obligation to apply the Guidelines; and

the Government’s right, in a prosecution for perjury, to use against the defendant

11

any statement that he gives under oath. See Fed. R. Crim. P. 11(b)(1)(A)-(B), (D),

(J)-(K), (M).

The plea colloquy employed by the district court failed to inform Moriarty

of the foregoing matters as required by Rule 11. The requirements of Rule 11 are

not aspirational but mandatory, and deserve the careful attention of the district

courts. See Monroe, 353 F.3d at 1351. We depend upon both the district court

and counsel to avoid confusion over a defendant’s plea by ensuring that at the plea

colloquy, preferably at the outset, the defendant is asked: “How are you pleading

to (each of) Count(s) _____ as set forth in the Indictment [or Information, if

applicable]: guilty or not guilty?” When left unperformed, such tasks needlessly

generate issues for appeal that consume the increasingly scarce resources of this

Court.3

Although we acknowledge the deficiencies in the plea colloquy employed

by the district court, they do not necessarily render Moriarty’s plea invalid.

Moriarty does not cite, and our research has not uncovered, any Supreme Court or

Eleventh Circuit case holding that due process requires district courts to elicit an

3

This has become a recurring problem in the Eleventh Circuit. See, e.g., United States v.

Hernandez-Fraire, 208 F.3d 945 (11th Cir. 2000); United States v. Ortiz, No. 98-3698, 203 F.3d

839 (11th Cir. 1999) (per curiam) (unpublished); United States v. Leija-Vasquez, No. 99-2367,

192 F.3d 131 (11th Cir. 1999) (per curiam) (unpublished).

12

express guilty plea in the manner posited by Moriarty. See Aguillard, 217 F.3d at

1321. Moriarty argues that a valid guilty plea cannot be presumed “from a silent

record.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed.

2d 274 (1969). The record in the instant case, however, is not silent.4 When the

district court asked Moriarty whether he was pleading guilty because he was guilty

or for some other reason, Moriarty unequivocally responded: “Because I am

guilty.” Moriarty further admitted to downloading child pornography, and his

counsel made no objection to, or attempt to qualify, the Government’s factual

proffer. To the contrary, Moriarty’s counsel emphasized that Moriarty wanted “to

accept responsibility for his conduct.” Finally, Moriarty does not cite, and we do

not find, anything in the record indicating that he meant to plead other than guilty.

Thus, the district court’s failure to elicit an express declaration of Moriarty’s

guilty plea was not plain error.

As for the remainder of Moriarty’s Rule 11 claims, the district court did

commit plain error in failing to advise him of all the information contained in Rule

11(b)(1). See Monroe, 353 F.3d at 1351. Nevertheless, “[a] variance from the

requirements of [Rule 11] is harmless error if it does not affect substantial rights.”

4

In considering whether a Rule 11 error occurred or prejudiced a defendant, we may

consider the whole record, not just the plea colloquy. See Monroe, 353 F.3d at 1350 n.3.

13

Fed. R. Crim. P. 11(h); Monroe, 353 F.3d at 1353 n.6. Indeed, “a defendant who

seeks reversal of his conviction after a guilty plea, on the ground that the district

court committed plain error under Rule 11, must show a reasonable probability

that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, __, 124 S. Ct. 2333, 2340, 159 L. Ed. 2d 157

(2004). Moriarty does not even attempt to carry this burden, and nothing in the

record indicates that, but for the district judge’s error, Moriarty would not have

entered his guilty plea. In fact, at the plea colloquy Moriarty’s counsel explained

that one reason Moriarty had decided to plead guilty was to avoid going to trial.5

Accordingly, we affirm Moriarty’s convictions.

B. Sentencing

1. Booker Error

Moriarty contends that the district court committed both constitutional and

statutory errors under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160

5

Although Moriarty offers no reason why he would not have pled guilty if he had

received more thorough instructions under Rule 11, he compares his case to Hernandez-Fraire.

That case involved an “almost total failure” to address the third core concern of Rule 11. See

Monroe, 353 F.3d at 1355; Hernandez-Fraire, 208 F.3d at 950-51. By contrast, Moriarty’s

counsel admits that the district court in the instant case at least “touch[ed] on” the right to a jury

trial, the right to confront and cross-examine witnesses, and the right to compel attendance of

witnesses. Furthermore, the defendant in Hernandez-Fraire expressed confusion during the plea

colloquy as to the nature of his rights. See Hernandez-Fraire, 208 F.3d at 950-51. No such

confusion appeared in Moriarty’s plea colloquy. Thus, Hernandez-Fraire does not control the

outcome of the instant case.

14

L. Ed. 2d 621 (2005), when it applied a sentencing enhancement under Guidelines

§ 2G2.2(b)(4) and treated the Guidelines as mandatory. As Moriarty raised this

issue below, our review is de novo, though we will vacate and remand only for

harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per

curiam). Section 2G2.2(b)(4) provides for a five-level enhancement where “the

defendant engaged in a pattern of activity involving the sexual abuse or

exploitation of a minor.” U.S.S.G. § 2G2.2(b)(4) (2003). The Government

concedes that the district court committed constitutional and statutory Booker

error when it applied this enhancement under a mandatory Guidelines scheme

based upon facts that were not admitted by Moriarty (or found by a jury). See

United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, ___

U.S. ___, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005).

We may disregard preserved constitutional Booker error only when the

Government proves that the error did not affect the substantial rights of the

parties; that is, that the error was harmless beyond a reasonable doubt. Paz, 405

F.3d at 948. “‘This standard is met only where it is clear beyond a reasonable

doubt that the error complained of did not contribute to the [sentence] obtained.’”

Id. (quoting Candelario, 240 F.3d at 1307 (internal quotes omitted)) (alteration in

original). Although this is a high burden, it is not insurmountable. See United

15

States v. Robles, 408 F.3d 1324, 1327 (11th Cir. 2005) (per curiam). In the instant

case, the district judge applied the five-level enhancement to reach a total offense

level of 37, criminal history category two–and thus a sentencing range of 235-293

months. As the Government points out, the district court then sentenced Moriarty

to 240 months–the statutory maximum6 on his more serious offenses–and a

lifetime of supervised release, commenting that Moriarty was “going to endanger

the lives of young children in the future,” and needed to be “taken out of society

so it can be prevented.” Thus, this is not a case where we “simply do not know”

what the district court would have done under an advisory Guidelines scheme. See

United States v. Davis, 407 F.3d 1269, 1271 (11th Cir. 2005) (per curiam). Given

the severity of the sentence imposed, the lifelong term of supervised release, and

the district court’s expressed intent to take Moriarty “out of society,” it is clear

beyond a reasonable doubt that the district court would not have imposed a lesser

sentence under an advisory Guidelines scheme, and the constitutional Booker error

was therefore harmless. The statutory Booker error was likewise harmless, for

this error is subject to a less demanding standard of review than the “harmless

6

Although in theory the district court could have imposed consecutive sentences at the

statutory maximum on each count–totaling 50 years–this would have far exceeded the range

recommended by the Guidelines, which the district judge treated as mandatory, and which tend to

favor the grouping of closely related counts and the imposition of concurrent sentences. See

U.S.S.G. §§ 3D1.1-1.5; 5G1.2 (2003).

16

beyond a reasonable doubt” standard that the Government has already satisfied.

See United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005) (per

curiam).

2. Section 2G2.2(b)(4)

Moriarty also argues that the district court’s inclusion of the § 2G2.2(b)(4)

five-level enhancement in its Guidelines calculations was not supported by a

preponderance of the evidence.7 “We review a district court’s factual findings for

clear error and its application of the Sentencing Guidelines to those facts de novo.”

United States v. Phillips, 413 F.3d 1288, 1292 (11th Cir. 2005) (per curiam)

(emphasis added).

“When a defendant objects to a factual finding that is used in calculating his

guideline sentence . . . the government bears the burden of establishing the

disputed fact by a preponderance of the evidence.” Rodriguez, 398 F.3d at 1296.

According to Moriarty, the application of § 2G2.2(b)(4) was not supported by a

preponderance of the evidence because the district court failed to make any

factual, reliability, or credibility findings regarding the applicability of §

2G2.2(b)(4). However, “a sentencing court’s failure to make individualized

7

We note that even in the post-Booker era, district courts still have the obligation to

calculate the applicable Guidelines range accurately. See United States v. Crawford, 407 F.3d

1174, 1179 (11th Cir. 2005).

17

findings regarding the scope of the defendant’s activity is not grounds for vacating

a sentence if the record support [sic] the court’s determination with respect to the

offense conduct . . . .” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir.

2002); cf. United States v. Saunders, 318 F.3d 1257, 1269 n.18 (11th Cir. 2003)

(holding that where sentencing court did not depart from Guidelines range and

clearly resolved all disputed factual issues in favor of presentence report, the

failure to make explicit findings of fact and conclusions of law was not clear

error).

Section 2G2.2(b)(4) applies if “the defendant engaged in a pattern of

activity involving the sexual abuse or exploitation of a minor,” and contains the

following application note:

“Pattern of activity involving the sexual abuse or exploitation of a minor”

means any combination of two or more separate instances of the sexual

abuse or sexual exploitation of a minor by the defendant, whether or not the

abuse or exploitation (A) occurred during the course of the offense; (B)

involved the same or different victims; or (C) resulted in a conviction for

such conduct.

U.S.S.G. § 2G2.2 cmt. n.1 (2003).8 At sentencing, one of Moriarty’s neighbors

testified to a number of facts indicating that on one occasion, Moriarty had broken

8

“‘Sexual abuse or exploitation’ means conduct constituting criminal sexual abuse of a

minor, sexual exploitation of a minor, abusive sexual contact of a minor, any similar offense

under state law, or an attempt or conspiracy to commit any of the above offenses.” U.S.S.G.

§ 2G2.2 cmt. n.1 (2003). It does not include “trafficking in material relating to the sexual abuse

or exploitation of a minor.” Id.

18

into her six-year old son’s bedroom, sexually assaulted him, and stolen his pull-up

pajama pants. Subsequent testimony from an FBI agent–including testimony

about the graphically detailed “Spy Reports” compiled by Moriarty

himself–corroborated the mother’s version of events, and indicated that Moriarty

had sexually abused and exploited the child, as well as other children, on

numerous occasions. Having reviewed the record, we conclude that the district

court did not commit clear error in applying § 2G2.2(b)(4). Cf. United States v.

Richardson, 304 F.3d 1061, 1066 (11th Cir. 2002) (“We have examined [the

witness’s] testimony and find no fault in the court’s decision to believe what she

said. We therefore reject appellant’s challenge to the court’s application of

§ 2G2.2(b)(4).”).

3. Downward Adjustment

Moriarty further contends that the district court erred in denying him a

downward adjustment under § 3E1.1 of the Guidelines, for acceptance of

responsibility. We review the district court’s determination for clear error. United

States v. Brenson, 104 F.3d 1267, 1288 (11th Cir. 1997). “The sentencing judge is

in a unique position to evaluate a defendant’s acceptance of responsibility. For

this reason, the determination of the sentencing judge is entitled to great deference

on review.” U.S.S.G. § 3E1.1 cmt. n.5 (2003). Thus, we will not set aside a

19

district court’s determination that a defendant is not entitled to a § 3E1.1

adjustment unless the facts in the record clearly establish that the defendant has

accepted responsibility. United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir.

1999).

“The defendant bears the burden of clearly demonstrating acceptance of

responsibility and must present more than just a guilty plea.” Id. Although a

guilty plea can constitute significant evidence of acceptance of responsibility, it

may be outweighed by conduct of the defendant inconsistent with an acceptance of

responsibility. See U.S.S.G. § 3E1.1 cmt. n.3 (2003). Moriarty argues that he was

entitled to a § 3E1.1 adjustment because he did not take the Government to trial,

conceded the applicability of all Guidelines enhancements except for one, and

submitted an acceptance of responsibility letter to probation.9 He notes that “a

defendant is not required to volunteer, or affirmatively admit, relevant conduct

beyond the offense of conviction in order to obtain a reduction [for acceptance of

responsibility].” Id. cmt. n.1(a). Likewise, a defendant “may remain silent in

9

Moriarty also argues that the district court’s determination was “without foundation”

because the court did not place its rationale on the record. It appears from the record, however,

that the district court adopted the PSR, which determined that Moriarty had not accepted

responsibility for his criminal conduct because he was contesting facts established at the plea

hearing and attempting to minimize his offense conduct after pleading guilty. Moriarty’s

acceptance of responsibility letter stated little more than that he, “essentially, possessed child

pornography when [he] knew it was against the law to do so,” was “deeply sorry,” and promised

“never to do anything like this again.”

20

respect to relevant conduct beyond the offense of conviction without affecting his

ability to obtain a reduction [for acceptance of responsibility].” Id.

As the Government points out, however, “‘a defendant who falsely denies,

or frivolously contests, relevant conduct that the court determines to be true has

acted in a manner inconsistent with acceptance of responsibility.’” United States

v. Williams, 408 F.3d 745, 756 (11th Cir. 2005) (per curiam) (quoting U.S.S.G.

§ 3E1.1 cmt. n.1(a)). Having considered the record, including Moriarty’s

opposition to the § 2G2.2(b)(4) enhancement that was supported by his own “Spy

Reports,” we hold that the district court did not commit clear error in denying

Moriarty an adjustment for acceptance of responsibility.

4. Supervised Release

Moriarty contends that the district court’s imposition of a lifelong term of

supervised release constitutes cruel and unusual punishment in violation of the

Eighth Amendment, and was also an improper departure from the Guidelines

recommendation. We review de novo the legality of a sentence, including the

imposition of a term of supervised release. United States v. Tatum, 998 F.2d 893,

894 (11th Cir. 1993) (per curiam), abrogated on other grounds by Johnson v.

United States, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 2d 727 (2000). Moriarty

did not raise his Guidelines objection below, however, and we therefore review

21

that matter only for plain error. See United States v. Neely, 979 F.2d 1522, 1523

(11th Cir. 1992) (per curiam).

Initially, we note that 18 U.S.C. § 3583(k) authorized the imposition of a

lifelong term of supervised release only as to Counts One and Two. See 18 U.S.C.

§§ 2252A, 3583(k).10 Although a guilty plea to violations of 18 U.S.C. §

1466A(a) subjects the offender to “the penalties provided in section 2252A(b)(1),”

a lifelong term of supervised release is not a penalty provided in § 2252A(b)(1).

See 18 U.S.C. §§ 1466A(a), 2252A(b)(1). Rather, § 3583(k) separately authorizes

a term of supervised release of “any term of years or life” for certain offenses,

including those contained in § 2252A. See id. § 3583(k). Section 1466A,

however, is not listed among these provisions, and the list appears to be exclusive

and comprehensive. See id. Thus, the maximum term of supervised release

applicable to Count Three, a class C felony, is three years. See id. §§ 3559(a),

3583(b). Because a lifelong term of supervised release exceeds that statutory

maximum on Count Three, and because the district court imposed a lifelong term

of supervised release as part of a general sentence, see infra, we must remand for

10

While Moriarty does not raise this issue in so many words, we reach it because it is

essentially interwoven with his claim that a lifelong term of supervised release exceeded the

limits set forth in Guidelines § 5D1.2, which reflect in part the limits imposed by 18 U.S.C. §

3583(b).

22

clarification as to the term of supervised release imposed on Count Three.

Nevertheless, given that the lifetime term of supervised release was statutorily

authorized on Counts One and Two, we will reach Moriarty’s Eighth Amendment

claim.11

“The Eighth Amendment, which forbids cruel and unusual punishments,

contains a narrow proportionality principle that applies to noncapital sentences.”

Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185, 155 L. Ed. 2d 108

(2003) (internal quotes omitted). “The Supreme Court has made it clear that

‘[o]utside the context of capital punishment, successful challenges to the

proportionality of sentences [are] exceedingly rare.’” United States v. Raad, 406

F.3d 1322, 1323 (11 Cir.) (per curiam) (quoting Solem v. Helm, 463 U.S. 277,

289-90, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637 (1983)) (emphasis and alterations

11

As we are remanding for clarification of the term of supervised release imposed on

Count Three, we need not further address Moriarty’s claim that the lifelong term of supervised

release departed from the Guidelines, at least with respect to Count Three. As to Counts One

and Two, we reject Moriarty’s claim that imposition of the lifelong term authorized by § 3583(k)

constitutes an improper departure from the Guidelines. See 18 U.S.C. § 3583(k); United States v.

Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997) (“The statute controls in the event of a conflict

between the guideline and the statute.”). Indeed, the Guidelines were amended in 2004 to

“make[] § 5D1.2 (Term of Supervised Release) consistent with changes made by the PROTECT

Act regarding the applicable terms of supervised release under 18 U.S.C. § 3583 for sex

offenders.” U.S.S.G. supp. to app. C, amend. 664, at 63 (2004). Furthermore, the Guidelines in

2003 and 2004 recommended the statutory maximum term of supervised release where the

offense of conviction was a sex offense. See U.S.S.G. §§ 5D1.2(c) (2003), 5D1.2(b) (2004).

23

in original), cert. denied, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (2005).

On Eighth Amendment challenges,

a reviewing court must make a threshold determination that the sentence

imposed is grossly disproportionate to the offense committed and, if it is

grossly disproportionate, the court must then consider the sentences

imposed on others convicted in the same jurisdiction and the sentences

imposed for commission of the same crime in other jurisdictions.

Id. (quoting United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (per

curiam)). “In general, a sentence within the limits imposed by statute is neither

excessive nor cruel and unusual under the Eighth Amendment.” United States v.

Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005).

Moriarty nevertheless argues that a lifelong term of supervised release is

cruel and unusual in light of his age (21), his experience of years of sexual abuse

at the hands of a neighborhood pedophile and his own father, and his repeated

exposure to deviant sexual materials as a child. Whatever relevance these facts

may have to the degree of moral responsibility Moriarty bears for his actions, they

do not lessen the need for supervised release. “Congress intended supervised

release to assist individuals in their transition to community life. Supervised

release fulfills rehabilitative ends, distinct from those served by incarceration.”

Johnson, 529 U.S. at 59, 120 S. Ct. at 1118. For example, the House Conference

24

Report on the PROTECT Act, which authorized the imposition of lifelong terms of

supervised release under 18 U.S.C. § 3583(k), states in relevant part:

This section responds to the long-standing concerns of Federal judges and

prosecutors regarding the inadequacy of the existing supervision periods for

sex offenders, particularly for the perpetrators of child sexual abuse crimes,

whose criminal conduct may reflect deep-seated aberrant sexual disorders

that are not likely to disappear within a few years of release from prison.

The current length of the authorized supervision periods is not consistent

with the need presented by many of these offenders for long-term–and in

some cases, life-long–monitoring and oversight.

H.R. Conf. Rep. No. 108-66, at 49-50 (2003), reprinted in 2003 U.S.C.C.A.N.

683, 684. Having considered the record, including the connection between

Moriarty’s possession of child pornography and his apparent propensity for

engaging in the sexual abuse of children, we conclude that a lifetime term of

supervised release is not grossly disproportionate to his child pornography

offenses under 18 U.S.C. § 2552A, and his Eighth Amendment claim therefore

fails.

5. General Sentence

Finally, Moriarty argues that the district court erred by imposing a general

sentence of 20 years when the statutory maximum on Count Two was 10 years.

As stated above, we review the legality of a sentence de novo. See Tatum, 998

F.2d at 894. “‘A general sentence is an undivided sentence for more than one

25

count that does not exceed the maximum possible aggregate sentence for all the

counts but does exceed the maximum allowable sentence on one of the counts.’”

Jones v. United States, 224 F.3d 1251, 1259 (11th Cir. 2001) (quoting United

States v. Woodard, 938 F.2d 1255, 1256 (11th Cir. 1991) (per curiam)). Such

sentences are per se illegal in this circuit, and require a remand. See id. at 1259-

60. Here, the district judge’s 20-year sentence exceeds the statutory maximum of

10 years on Count Two. See 18 U.S.C. § 2252A(b)(2). It is difficult to determine

the intention of the district court. Accordingly, we must vacate Moriarty’s

sentence and remand for clarification as to the sentence imposed on each count of

conviction.

III. CONCLUSION

Although we affirm Moriarty’s convictions, the district court erred by

imposing a general sentence. We therefore vacate the sentence and remand the

case for clarification of the sentence, including the term of supervised release,

applicable to each count to which Moriarty pled.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

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