United States v. Rice, 10th Cir. (2009)

FILED
United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS February 4, 2009

Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 08-6036
(W.D. Oklahoma)
MARK D. RICE,
(D.C. No. CR-02-00003-F-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.
In 2002, Defendant/Appellant Mark D. Rice pled guilty to four counts

relating to the production, transportation and possession of child pornography,
and was sentenced to 262 months imprisonment, followed by three years of
supervised release. We affirmed his conviction, but remanded for resentencing
because the district court had erroneously double-counted certain uncharged
conduct in calculating his sentence under the United States Sentencing
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Commission, Guidelines Manual (USSG). United States v. Rice, 358 F.3d 1268
(10th Cir. 2004) (Rice I). The Supreme Court summarily reversed and
remanded our decision for further consideration in light of United States v.
Booker, 543 U.S. 220 (2005). See Rice v. United States, 543 U.S. 1103 (2005)
(Rice II). We accordingly remanded the case to the district court for
resentencing.
Following that remand for resentencing, on May 26, 2006, Rice filed a
motion to withdraw his guilty plea. After additional motions were filed by Rice
and by the government, an evidentiary hearing was held on four days in August
and September 2007. The district court denied Rices motion to withdraw his
guilty plea and resentenced Rice to the same previous term of imprisonment of
262 months. We affirm the denial of the motion to withdraw and we once again
affirm the sentence in this case.
BACKGROUND
The facts relating to Rices crime, conviction and previous sentence are
fully set forth in our decision in Rice I. Rice, 358 F.3d at 1271-73. We do not go
into them in detail here, other than as necessary for this opinion.
-2-
I. Denial of Motion to Withdraw Guilty Plea:

We review the district courts denial of [a] [m]otion to [w]ithdraw [a
guilty plea] for abuse of discretion. United States v. Sandoval, 390 F.3d 1294,
1297 (10th Cir. 2004). Defendants do not have an absolute right to withdraw a
guilty plea. United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). Fed.
R. Crim. P. 32(e) provides that [i]f a motion to withdraw a plea of guilty . . . is
made before sentence is imposed, the court may permit the plea to be withdrawn
if the defendant shows any fair and just reason. The burden is on the defendant
to establish a fair and just reason for the withdrawal of the plea. Siedlik, 231
F.3d at 748.
In determining whether the defendant has demonstrated a fair and just
reason for withdrawal of his guilty plea, we examine the following factors:
(1) whether the defendant has asserted his innocence; (2) whether
withdrawal would prejudice the government; (3) whether the
defendant delayed in filing his motion, and if so, the reason for the
delay; (4) whether withdrawal would substantially inconvenience the
court; (5) whether close assistance of counsel was available to the
defendant; (6) whether the plea was knowing and voluntary; and (7)
whether the withdrawal would waste judicial resources.
United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005).
Rice submits, as he did before the district court, that he meets all seven
factors. The district court rejected that argument, explaining in considerable
detail why the court found no reason to permit Rice to withdraw his guilty plea.
While we agree with the district courts thorough and careful explanation for
-3-
rejecting Rices motion to withdraw his guilty plea, we emphasize a few salient
factors.
First, Rice purports to assert both his legal and factual innocence to the
charges presented. Appellants Op. Br. at 18. As the district court found, Rice
purports to have asserted his innocence, but he has done so only in the most
highly technical sense. Whether his assertion of innocence be viewed as a legal
assertion or a factual assertion, his assertion of innocence is wholly implausible
and would, in any event, be futile. Tr. of Mot. to Withdraw Guilty Pleas, R. Vol.
5 at 547.
Rice argues that there were numerous allegedly exculpatory documents that
were never disclosed to him or his defense counsel, and he argues that a videotape
that formed the basis of at least one of the counts of conviction 1 was altered.
However, he never identified, either before the district court or at oral argument
in this appeal, what documents or evidence would have made any difference
before the district court, either at the point that he entered his guilty pleas or at
his sentencing. He suggests that a forensic investigation of computer drives and
videotapes would have demonstrated his factual innocence. However, Rice
identifies nothing specific that would have altered the situation at the time of his
guilty plea. Indeed, his counsel conceded at the evidentiary hearing on Rices
This videotape showed Rice masturbating in the presence of a young

female in a bathroom.
-4-
motion to withdraw his guilty plea that the section of the videotape depicting Rice
masturbating with a young girl in his presence was not edited or altered in any
way. Rices assertion of innocence is, indeed, merely technical and is based
entirely on conjecture. 2 We wholeheartedly agree with the district court that
Rices assertion of innocence leaves [us] entirely unpersuaded that the defendant
would have made any different choices in 2001 and 2002 if he and his counsel
had all of the facts that they now have. Id.
The district court considered other Yazzie factors to be either essentially
neutral or modestly favoring either Rice or the government. 3 The district court
carefully considered whether Rice had been provided with close and effective
assistance of counsel: The answer is absolutely. He did have close assistance of
counsel. One of the most competent sex offense lawyers in the State of
2
To the extent Rice argues he is legally innocent, based upon a claimed

insufficiency of probable cause to conduct the initial search which led to his
conviction, Rice is simply rearguing the propriety of our denial in Rice I of his
motion to suppress. That he cannot do.
3
With respect to whether withdrawal would prejudice the government, the

court concluded that [i]n terms of cost, the answer is yes; in terms of resources
the answer is yes; in terms of outcome, the answer, in all probability, is no. Tr.
of Mot. to Withdraw Guilty Pleas, R. Vol. 5 at 547. With respect to delay in
bringing the motion, and the reason for any delay, the court concluded on
balance, the delay factor is a factor that cuts against the defendant, but in the
Courts estimation, that is not a major factor under all of the circumstances. Id.
at 548. The district court then determined that withdrawal of the guilty plea
would not substantially inconvenience the court, inasmuch as the docket is light
in this district. Id. Regarding whether the withdrawal of the guilty plea would
waste judicial resources, the court indicated its reluctance to conclude that a
trial, if deserved, would ever be a waste of judicial resources. Id. at 549.
-5-
Oklahoma is [Rices trial counsel] J.W. Coyle. If J.W. Coyle had known in 2001
and 2002 as much about computer technology as did the technical witnesses who
testified at the hearing in this case earlier this summer, the result would not have
changed at all. Id. at 548. 4 Additionally, the district court found that Rices
plea of guilty was knowing and voluntary: I have found that [Rice] was alert,
that he grasped the realities of the situation, he understood what was going on, he
understood that he had no viable alternative to a conditional plea. His conditional
plea was the best he could make of a situation, which, from his perspective, was
an untenable situation legally and factually. Id. at 549. The district court
accordingly denied Rices motion to withdraw his guilty plea. As the above
analysis and explanation make clear, the district court did not abuse its discretion
in denying Rices motion to withdraw his guilty plea.
Rice suggests that there was confusion, and perhaps inaccuracy, in the
description conveyed to police of what was actually discovered on the school
computer by means of Rices America OnLine account. He further suggests that
this may have occurred because his attorney, Coyle, as well as the initial
investigating officer and/or the school official who first discovered apparently
pornographic materials on a school computer Rice had used, lacked sophistication
in computer science. See Mot. for Leave to Withdraw Conditional Pleas of Guilty
at 8 (Mr. Rice asserts his decision to enter conditional pleas of guilty was based
on counsels assessment of the legal defenses available to him. Counsels
assessment was based, in turn, on an incomplete understanding of the technology
that formed the predicate for the search warrant.).
We found in Rice I that the district court properly denied Rices motion to
suppress the materials seized for essentially this same reason (misunderstanding
as to the workings of computers). We reject Rices effort to somehow call into
question the propriety of that ruling.
-6-
II. Reasonableness of Sentence:

At Rices second sentencing hearing, the district court again imposed a
sentence of 262 months imprisonment. Rice argues this constituted an
impermissible upward variance from the advisory USSG range.
We review a district courts sentencing decision for an abuse of discretion,
inquiring whether the sentence is reasonable in view of the factors listed in 18
U.S.C. 3553(a). See United States v. Gall, 128 S. Ct. 586, 594 (2007) (Our
explanation of reasonableness review in the Booker opinion made it pellucidly
clear that the familiar abuse-of-discretion standard of review now applies to
appellate review of sentencing decisions.). Reasonableness has both a
procedural and a substantive component. See United States v. Hildreth, 485 F.3d
1120, 1127 (10th Cir. 2007). In general, a sentence that reflects a proper
Guidelines calculation and application of the 3553(a) factors is procedurally
reasonable. See United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007).
A sentence is substantively reasonable when it reflects the gravity of the crime
and the 3553(a) factors as applied to the case. Id. (quoting United States v.
Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007), overruled in part on other grounds
by, Irizarry v. United States, 128 S. Ct. 2198, 2202 n.1, 2203-04 (2008)). A
sentence which falls within a properly-calculated Guidelines range is presumed to
be substantively reasonable on appeal. United States v. Sells, 541 F.3d 1227,
1237 (10th Cir. 2008). [W]e apply [this] deferential abuse of discretion standard
-7-
with reasonableness review . . . whether the sentence imposed is inside or outside

the Guidelines range. United States v. Montgomery, 2008 WL 5401410, at *2
(10th Cir. Dec. 30, 2008).
At his 2002 sentencing hearing, Rice was sentenced to 262 months
imprisonment (an upward variance from the Guidelines range of 168-210
months), based upon, inter alia, the fact that his criminal history category did
not adequately reflect the seriousness of Rice past criminal conduct and the
likelihood that he would commit crimes again in the future. Rice I, 358 F.3d at
1273. We remanded for resentencing, however, on the ground that the district
court impermissibly double-counted certain conduct for both base offense level
and criminal history category computations. Rice argues that now, in his second
sentencing proceeding, it appears that the district court is still using the same
criteria, although referencing the criteria of 3553(a) to justify the upward
variance. Appellants Op. Br. at 40. We disagree.
There is no indication in the courts sentencing proceedings in 2006 that
the court again improperly calculated the advisory Guidelines range by doublecounting or in any other way. Rather, the courts comments indicated it was fully
aware of its sentencing obligations under recent Supreme Court case law. The
district court explained its reasons for imposing an above-Guidelines variance as
follows:
-8-
It is my duty to impose a sentence that is sufficient but not

greater than necessary to comply with the statutory purposes of
sentencing. And it is with that duty in mind that I have heard the
very competent and thorough presentations that have been made
today. I am required also to take into account all of the Section 3553
factors, which I do, to the extent that I give any consideration to an
upward variance, I take into account only those factors which are set
forth in the December 3, 2007 order, which was entered in this
case.[ 5]
[Although Rices counsel sought a downward departure] I
cannot conclude and I do not conclude that the Section 3553 factors
carefully considered and taken together indicate that a belowguideline sentence ought to be imposed. To the contrary, it is my
conclusion, for the reasons that Im about to state and for the reasons
that have been discussed, that an upward variance is entirely
appropriate in this case and will be embodied in the Courts sentence.
The reasons for the sentence the Court is about to impose are
as follows. And what Im about to say will be incorporated as the
statement of reasons in the judgment and sentence. Mr. Rice, you are
a repeat sex offender and an unrepentant predator. I use the word
unrepentant advisedly. You have been almost defiant in your
personal rejection of responsibility for your criminal conduct.
Nothing that Im aware of that you have said or done suggests to me
that you have the capacity to change your ways. To that extent, this
is an exceedingly sad case as well as an exceedingly serious case.
The predominant purpose to be served by sentencing in this
case is incapacitation. In this case, incapacitation is a compelling
reason for imposing a lengthy period of incarceration because you
are demonstrably unable to keep yourself from exploiting little girls
for your own gratification. And your predation has played itself out
on the most helpless and vulnerable among us.
5
The December 3, 2007, order notified the parties that the court was
considering an upward departure from the advisory Guidelines range, in view of
the 3553(a) factors, the district courts comments at Rices original 2002
sentencing, the revised presentence report, the courts comments made at a
September 7, 2007, hearing, and the materials submitted in connection with
Rices motion to withdraw his guilty pleas.
-9-
[A] critical distinguishing feature of your disorder is that you

have a special and serious lack of ability to control your behavior.
Conduct like yours with victims who are so vulnerable as to be
essentially defenseless leaves those victims with potentially life-long
emotional and psychological scars. The damage that you could do
and I believe have done as a pedophile leads the Court to the
conclusion that if theres any room for doubt or uncertainty as to the
length of your sentence, any such doubt must be resolved against you
and in favor of societys interest in incapacitating you from further
predatory conduct as a pedophile and repeat sex offender.
Tr. of Sentencing at 135-38, R. Vol. 6. The court went on to note that, while
societys interest in incapacitating Rice was a compelling reason for the
sentence in this case, the court also based Rices sentence on the need to reflect
the seriousness of the offense, the need to provide just punishment for the
offense, and the need to afford adequate deterrence to criminal conduct. The
upward variance embodied in this sentence is based upon those statutory factors,
all of which I have very carefully considered against the backdrop of the
extensive record in this case. Id. at 138.
In so sentencing Rice, the district court was very familiar with Rice and his
case. Indeed, the district court observed on several occasions that Rice lacked
credibility: Mr. Rice has increasingly and completely eroded his credibility as a
witness in this case by numerous . . . activities during the long history of this
case. Id. at 35. On the stand last year, [Rice] denied at least some of the
counts in the indictment and gave a preposterous story to explain his videotaped
masturbation in the presence of a female toddler. Id. at 68-69.
-10-
In short, we have considered all of Rices arguments, and we have no doubt

that the district court properly exercised its discretion and sentenced Rice to a
sentence above the advisory Guidelines range. We perceive neither procedural
nor substantive unreasonableness in the sentence in this case.
CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-11-

United States v. Rice, 10th Cir. (2009)

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS February 4, 2009

UNITED STATES OF AMERICA,

(D.C. No. CR-02-00003-F-1)

ORDER AND JUDGMENT *

Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.

In 2002, Defendant/Appellant Mark D. Rice pled guilty to four counts

I. Denial of Motion to Withdraw Guilty Plea:

This videotape showed Rice masturbating in the presence of a young

To the extent Rice argues he is legally innocent, based upon a claimed

With respect to whether withdrawal would prejudice the government, the

II. Reasonableness of Sentence:

with reasonableness review . . . whether the sentence imposed is inside or outside

It is my duty to impose a sentence that is sufficient but not

[A] critical distinguishing feature of your disorder is that you

In short, we have considered all of Rices arguments, and we have no doubt

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