1 Circuit Judge of the 7th Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 93-8210

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERNEST SCHMELTZER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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(April 28, 1994)

Before WOOD,1 SMITH, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant-Appellant Ernest Schmeltzer seeks reversal of his

conviction on constitutional grounds, and alternatively, reversal

and remand of his sentence. Finding the statutes of conviction

constitutional and no error in the sentence, we affirm.

I.

Upon his guilty plea Defendant Ernest Schmeltzer was convicted

under 18 U.S.C. § 2252(a)(4)), of knowingly possessing three or

more items of child pornography, and under §§ 1462 and 2, of

knowingly receiving obscene matters from a common carrier and

aiding and abetting. Defendant argues that the crimes of receiving

and possessing pornography or obscene matters should require some
2

proof of knowledge of the contents of the material to withstand a

constitutional challenge. 

The constitutionality of 18 U.S.C. § 2252(a)(4) was recently

determined in United States v. Burian, No. 93-1123, 1994 WL 114645

(5th Cir. Apr. 7, 1994) (declining to follow United States v. XCitement Video, Inc., 982 F.2d 1285 (9th Cir. 1992), cert. granted,

114 S.Ct. 1186 (1994)). 

Because this Court construes § 2252 to include scienter, the

statute is constitutional as applied. Id. at *1-2. The scienter

requirement for conviction of knowingly receiving obscene matters

under § 1462 is general knowledge that the material is sexually

oriented. United States v. Hill, 500 F.2d 733, 740 (5th Cir.

1974), cert. denied, 420 U.S. 952 (1975). Defendant admitted

knowledge that the items he possessed depicted minors and knowledge

of the content and overall character of the material he received

from a common carrier. As applied, the statutes include scienter

as an element of the crimes. Defendant's constitutional challenge

fails. Burian, 1994 WL 114645, at *3.

II.

Defendant originally pleaded guilty in 1991 to receiving child

pornography under 18 U.S.C. § 2252(a)(2) and was sentenced to only

39 months' imprisonment. On appeal we vacated the sentence as

inconsistent with the statutory minimum 60-month prison term for a

second conviction under § 2252(a)(2) and (b). After a superseding

indictment, Defendant pleaded guilty to four different charges, one

count for possessing three or more items of child pornography, and
2 We reject Defendant's suggestion that the court's upward

departure caused any discrepancy between the two sentences, as the

court departed upward both times, choosing a sentence within the

range for an offense level four levels higher each time and giving

similar reasons each time.

3

three counts for receiving obscene matters. The court imposed a

60-month term of imprisonment on each count (to run concurrently).

Schmeltzer argues that the increase in his sentence after

remand violated his due process rights to appeal. See North

Carolina v. Pearce, 395 U.S. 711, 726 (1969). A defendant has a

right to appeal free from fear of judicial retaliation for exercise

of that right. Id. at 724-25. Defendant charges that his

receiving an increased sentence the second time around gives rise

to a presumption that the district judge engaged in judicial

vindictiveness, because the reasons given for the sentence do not

identify conduct or an event concerning culpability occurring after

the original sentence to justify the increased sentence. 

Defendant's argument focuses on the reasons given for

departure2 rather than the most basic reason for a sentence))the

offense level. Defendant's offense level for the 1991 conviction

on a single count was 15. After an upward departure, Defendant was

sentenced to 39 months, which is within the range for offense level

19 (category II, 33-41 months). The second presentence report

after the conviction for four different counts suggests an offense

level of 19; after an upward departure, Defendant was sentenced to

60 months, which is within the range for offense level 23 (category

II, 51-63 months). 
3 This case arguably does not fall under Pearce because Schmeltzer

"was not sentenced after a new trial, one of the stated

prerequisites for triggering the Pearce presumption." United

States v. Vontsteen, 910 F.2d 187, 190 (5th Cir. 1990) (dicta),

cert. denied, 498 U.S. 1074 (1991), adhered to on reh'g en banc,

950 F.2d 1086, cert. denied, 112 S.Ct. 3039 (5th Cir. 1992).

"Factors that come into play concomitant with a new trial, such as

the burden imposed on the trial judge, and which might give rise to

vindictiveness, are not present here." Id.; cf. Alabama v. Smith,

490 U.S. 794, 803 (1989) (finding no presumption of vindictiveness

where heavier second sentence is imposed after trial and first

sentence was imposed after guilty plea).

4

Even if the Pearce presumption were to apply,3 we hold that

objective information justifying the increase rebuts any

presumption of vindictiveness. Consideration of the new

convictions obtained is "manifestly legitimate." Wasman v. United

States, 468 U.S. 559, 570-71 (1984) (discussing Pearce). Pearce

concerned defendants who were resentenced to longer prison terms

upon new convictions for the same offenses they had overturned on

appeal. The second time around the probation officer brought to

the court's attention a four-level increase applicable to

Schmeltzer under § 2G2.2(b)(3) for material portraying sadism,

masochism, or violence; this specific offense characteristic was

evidently overlooked by the first probation officer. Consideration

of information developed after the first sentencing was entirely

proper upon the resentencing. See Wasman, 468 U.S. at 571. The

changed circumstances))the convictions for four different charges

and the increased offense level))are sufficient objective events

and information justifying an increase so as to rebut any

presumption of vindictiveness.
5

III. 

Defendant next complains of error in adding two levels to his

offense level for pornography depicting children under age twelve.

The PSR recommended a two-level increase under U.S.S.G.

§ 2G2.2(b)(1), appropriate if the material involved either a minor

under age twelve or a pre-pubescent minor. 

The PSR reveals that many items found in his home showed prepubescent boys and girls. 2nd PSR paras. 12, 16, 17. 

Defendant would limit the sentencing court's consideration to

the facts alleged in the indictment and stipulated in the plea,

which provide no suggestions of ages under twelve or puberty

status. A sentencing court's wide discretion in the source of

information it may consider in imposing sentence is not so limited.

See U.S.S.G. § 6A1.3 (court may consider relevant information

without regard to its admissibility if satisfied with its

reliability); Vontsteen, 910 F.2d at 190 (sentencing court entitled

to accord some minimal indicium of reliability of information

contained in PSR). Accordingly the two-level increase was properly

assessed in reliance on the PSR. 

IV.

The sentencing court gave three reasons for its upward

departure: the Defendant's sexual abuse of children, Defendant

possessed the same type of pornographic material as was involved in

his previous conviction, and the aggravating factors are not taken

into account in formulating the guidelines. 

Defendant complains that the sentencing commission indeed
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adequately considered that an accused might violate a law he had

previously violated in the Guidelines on Criminal History Category.

In making a departure, a sentencing court must find an aggravating

circumstance not adequately taken into consideration by the

Commission in formulating the guidelines. U.S.S.G. § 5K2.0; 18

U.S.C. § 3553(b). The PSR relates more than just commission of the

offenses while on probation for a prior conviction; the earlier

conviction was for a very similar offense. In fact, Defendant

obtained copies of the very same child pornography which had been

seized from his possession in 1987. 2nd PSR paras. 12, 72. The

essential similarity of a prior conviction supports a departure,

because it may indicate the Defendant's increased likelihood of

recidivism or lack of recognition of the gravity of the original

wrong. United States v. De Luna-Trujillo, 868 F.2d 122, 124-25

(5th Cir. 1989).

The court gave as an additional reason for departure

Defendant's sexual abuse of children. The Application Notes to

U.S.S.G. § 2G2.2 require an upward departure "[i]f the defendant

sexually exploited or abused a minor at any time." Defendant

argues that there was no proof he had sex with a minor. The PSR

brought out ample evidence, however, in the postcard of a girl

about aged eight with Defendant's handwritten note stating "this

was about the same age as the youngest one I had"; also the manager

of a nudist video distributor stated that Defendant described

"'lewd and somewhat bizarre' contact he had had with children."

2nd PSR paras. 9, 12, 14. 
7

Defendant also complains that if he had intercourse with a

minor in a foreign country, our courts lack jurisdiction. We need

not decide whether conduct outside the United States may merit a

departure. In addition to the Defendant's admission to a

confidential witness that the had sexual intercourse with a

Taiwanese girl of no more than thirteen, Defendant "also advised

the CW [that] he once had sexual intercourse with a junior high

girl because 'she wanted it.'" 2nd PSR para. 9. This admission

was in addition to the admitted incident in Taiwan, and the phrase

"junior high girl" suggests a student in the United States. 

Defendant also contends that the court erred in jumping from

criminal history category II to category V in making a departure.

The court had wide discretion in determining the extent of

departure. United States v. Moore, 997 F.2d 30, 37 (5th Cir.),

cert. denied, 114 S.Ct. 647 (1993). 

We reject Defendant's suggestion that the court departed to a

higher criminal history category. In determining the level of an

upward departure for sexual abuse of children, the Application Note

requires the court to consider "the offense levels provided in

§§ 2A3.1, 2A3.2, and 2A3.4 most commensurate with the defendant's

conduct." The PSR suggested consideration of the guideline on

Criminal Sexual Abuse, § 2A3.1, which carries a base offense level

of 27. The court apparently applied a lesser four-level departure

to offense level 23 as suggested in the PSR. Level 23 yields a

sentencing range of 51-63 months, still within category II. The

record and the 60-month sentence thus reflect that the court did
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not depart to a higher criminal history category. 

V.

Defendant finally maintains that he accepted responsibility so

as to merit a decrease in his offense level. The determination by

the sentencing judge that the Defendant did not accept

responsibility is entitled to "great deference." Application Note

foll. § 3E1.1. According to the PSR, Defendant was constantly

excusing his behavior and refusing to admit that he ordered or

viewed the materials. 2nd PSR paras. 13, 20, 22-23. The court did

not err in finding no acceptance of responsibility.

 

AFFIRMED.