IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10791

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JAMES L. RUDZAVICE,

Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

James Rudzavice was convicted in a bench trial for one count of knowingly

receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count

of attempting to transfer obscene material to a minor under the age of 16 in

violation of 18 U.S.C. § 1470. On appeal, Rudzavice argues that: (1) the district

court erred in refusing to acquit him of the charge of violating § 1470 because he

did not attempt to transfer obscene materials to an individual who was in fact

under the age of 16; (2) § 1470 is unconstitutionally vague because it fails to

define the terms “obscene” and “sexual conduct”; (3) he should have received an

offense-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1;

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2009

Charles R. Fulbruge III

Clerk
No. 08-10791

See 18 U.S.C. § 2252(b)(1). 1

2

and (4) the district court erred by failing to adequately explain its sentence in

terms of the factors in 18 U.S.C. § 3553(a). We affirm. 

I

A grand jury indicted James L. Rudzavice for one count of knowingly

receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count One)

and one count of attempting to transfer obscene material to a minor under the

age of 16 in violation of 18 U.S.C. § 1470 (Count Two). Two additional counts

sought forfeiture of various computer equipment allegedly used in the offenses.

Rudzavice signed a plea agreement with the Government in which he pleaded

guilty only to Count One of the indictment and pleaded true to the forfeiture

provisions, and in exchange, the Government agreed to dismiss Count Two. The

Probation Office prepared a Presentence Report (PSR). The statutory maximum

sentence on Count One was 20 years.1

At the sentencing hearing, the court rejected the plea agreement,

expressing concern that the dismissal of Count Two “would prevent the Court

from going as high as the advisory guidelines indicate would be appropriate as

a sentence in this case, which would be for 324 to 405 months.” Rudzavice

decided to persist in his plea of guilty to Count One and pleas of true to the

forfeiture allegations.

Rudzavice moved to dismiss Count Two, arguing that the statute’s use of

the word “obscene” was unconstitutionally vague. At a hearing on the matter,

the district court also questioned whether the statute could be violated when the

person receiving the materials was not actually under the age of 16, and the

court ordered the Government to brief both issues. The Government filed a brief

in opposition to Rudzavice’s motion, and the district court denied the motion.
No. 08-10791

3

Rudzavice waived his right to a jury trial and agreed to a stipulation of

evidence. The case proceeded to trial, and the district court received the

stipulation of facts into evidence along with 31 stipulated Government exhibits.

The Government called only one witness, Agent Katherine Smith, who described

her undercover conversation with Rudzavice in an internet chat room and the

images Rudzavice sent to her during the conversation. She also confirmed on

cross-examination that she was not under the age of 16 at the time the

conversation transpired. At the conclusion of the trial, Rudzavice moved for

acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that venue

was improper; no evidence of the community standards of El Paso, Texas, was

presented; the images sent by Rudzavice were not in fact obscene; and that the

court had to acquit Rudzavice of Count Two because the person to whom he

attempted to transfer the materials was not in fact under age 16 at the time.

The court denied the motion and found Rudzavice guilty.

The Probation Office prepared a revised PSR. Rudzavice filed several

written objections, including an objection to the denial of an offense-level

reduction for acceptance of responsibility. The Probation Office recommended

that the reduction not be granted because Rudzavice “did not discuss his offense

of conviction with this probation office, other than his stipulation to the court.”

Rudzavice filed a written response to the PSR Addendum, maintaining that

credit for acceptance of responsibility should be applied. The Government took

no position on whether the reduction should be granted.

At sentencing, Rudzavice again objected to the denial of a reduction for

acceptance of responsibility, but the court overruled the objection. The court

adopted the PSR, and, after hearing Rudzavice’s attorney make a lengthy

argument for a downward departure or a below-Guidelines sentence based on

the 18 U.S.C. § 3553(a) factors, the court denied the motion for downward

departure and the alternate request for sentencing variance. The court
No. 08-10791

See United States v. Harris, 566 F.3d 422, 435 (5th Cir. 2009). 2

 18 U.S.C. § 1470. 3

4

sentenced Rudzavice to terms of imprisonment of 240 months for Count One and

120 months for Count Two, to run consecutively, in accordance with the

Guidelines. The court also ordered Rudzavice to serve concurrent terms of

supervised release for life as to Count One and for two years as to Count Two.

On the Government’s motion, the court dismissed the forfeiture allegations.

Rudzavice timely filed a notice of appeal.

II

Rudzavice first argues that the district court erred in refusing to acquit

him of the charge of violating § 1470 because he did not attempt to transfer

obscene materials to an individual who was in fact under the age of 16. The

Government maintains that the statute’s proscription of attempted offenses

covers Rudzavice’s conduct and that Rudzavice’s interpretation of the statute

would require law enforcement to endanger an actual minor in apprehending

and prosecuting sexual predators like Rudzavice. Because Rudzavice moved for

a judgment of acquittal at the conclusion of the bench trial, we review de novo.2

Section 1470 provides that:

Whoever, using the mail or any facility or means of

interstate or foreign commerce, knowingly transfers

obscene matter to another individual who has not

attained the age of 16 years, knowing that such other

individual has not attained the age of 16 years, or

attempts to do so, shall be fined under this title,

imprisoned not more than 10 years, or both.3

The facts stipulated by Rudzavice and the trial testimony of Agent Katherine

Smith of the Texas Attorney General’s Office established that Agent Smith

entered a chat room posing as a 15-year-old girl named Shelly, Agent Smith was

in fact 38 years old at the time, and Agent Smith received a chat message from
No. 08-10791

See United States v. Hubbard, 480 F.3d 341, 346 (5th Cir. 2007) (“When a statute 4

criminalizes conduct because the victim or intended victim is a minor, we have held that it is

of no moment that the person with whom a defendant attempted to engage in prohibited

conduct was actually an adult as long as the defendant believed the intended victim to be a

minor . . . .”).

 251 F.3d 510, 511-13 (5th Cir. 2001) (construing 18 U.S.C. § 2422(b)).

5

Id. at 513. 6

Id.

7

Id.

8

5

Rudzavice, to whom she identified herself as a 15-year-old girl from El Paso,

Texas. Rudzavice contends that these facts cannot support a conviction under

§ 1470. 

This court has repeatedly rejected similar arguments in challenges to

convictions under other statutes that criminalize conduct aimed at minors. For 4

example, in United States v. Farner, we held that a person could commit the

offense of attempting to use a facility or means of interstate commerce to induce

or entice an individual younger than 18 years old to engage in prostitution or

any unlawful sexual activity even if the victim in the case was an adult,

undercover law enforcement officer. This court stated that “criminal attempt 5

cases” require “proof of two elements: first, that the defendant acted with the

kind of culpability otherwise required for the commission of the underlying

substantive offense, and, second, that the defendant had engaged in conduct

which constitutes a substantial step toward commission of the crime.” “The 6

substantial step must be conduct which strongly corroborates the firmness of

[the] defendant’s criminal attempt.” Because “Farner’s scheme, if fully carried 7

out as he ‘desired’ or ‘planned,’ was not to engage in sexual relations with an

adult FBI officer” but a 14-year-old girl, we affirmed Farner’s criminal attempt

conviction.8
No. 08-10791

 18 U.S.C. § 1470. 9

Accord United States v. Spurlock, 495 F.3d 1011, 1013 (8th Cir. 2007) (rejecting the 10

argument that a criminal attempt conviction under § 1470 could not be supported where the

evidence showed that the victim was an adult, undercover officer); see also United States v.

Dodge, 554 F.3d 1357, 1359 n.2 (11th Cir. 2009) (stating in dicta that the court would reach

the same holding if the issue were raised), reh’g en banc granted and opinion vacated, 566 F.3d

976 (11th Cir. 2009).

Kolender v. Lawson, 461 U.S. 352, 357 (1983). 11

United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999). 12

6

Rudzavice focuses on the language of § 1470 stating that the actor must

transfer images while knowing that such other individual “has not attained the

age of 16 years.” Rudzavice argues that this specific mens rea element requires

that the Government prove that the victim was under the age of 16 even when

the alleged offense was inchoate. We disagree. 

The statute criminalizes an attempt to “transfer[] obscene matter to

another individual who has not attained the age of 16 years, knowing that such

other individual has not attained the age of 16 years.” Rudzavice’s conduct was 9

an attempt to engage in precisely the prohibited conduct. Because Rudzavice,

like Farner, would have violated the law if his scheme were fully carried out as

he desired or planned, he is liable for criminal attempt under § 1470.10

III

Rudzavice next argues that § 1470 is unconstitutionally vague because it

fails to define the terms “obscene” and “sexual conduct.” The

“void-for-vagueness” doctrine “requires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Whether a criminal statute is unconstitutionally 11

vague is a question of law, which we review de novo. 

12
No. 08-10791

 18 U.S.C. § 1470. 13

 413 U.S. 15, 24-25 (1973). 14

See Hamling v. United States, 418 U.S. 87, 105 (1974) (holding that 18 U.S.C. § 1461 15

incorporates Miller); United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 130

n.7 (1973) (incorporating Miller “[i]f and when such a ‘serious doubt’ is raised as to the

vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to

describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462”); United States v.

Thevis, 484 F.2d 1149, 1152 (5th Cir. 1973) (construing 18 U.S.C. § 1462 and noting that “[t]he

term ‘obscene’ as used in the statute is a legal term of art, not merely a generic or descriptive

term” and “has been the subject of much explication in Supreme Court opinions”).

See 18 U.S.C. § 1461.

16

Reeves v. McConn, 638 F.2d 762, 763-764 (5th Cir. 1981). 17

7

Section 1470 prohibits the interstate transfer of “obscene matter” to an

individual under the age of 16. In Miller v. California, the Supreme Court 13

articulated a three-part test for determining whether material is “obscene” and

therefore falls outside the scope of First Amendment protections. Courts read 14

that test into federal obscenity statutes in order to construe them in a manner

consistent with the Constitution. Accordingly, the fact that § 1470 does not 15

specifically define the word “obscene” does not render it unconstitutionally

vague. 

Nevertheless, Rudzavice argues that § 1470 is distinguishable from the

statutes construed as incorporating Miller, and therefore upheld as

constitutional, because § 1470 only prohibits “obscene” material whereas the

other statutes prohibited material that was “obscene, lewd, lascivious, indecent,

filthy or vile.” However, this court has held that a local ordinance prohibiting 16

“the amplification of words or sounds that are ‘obscene,’ with no further

definition of that term” was not unconstitutionally vague when the term was

construed to conform to the requirements of the First Amendment as set forth

in Miller. Rudzavice’s claim is without merit. 17
No. 08-10791

United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003); see also United States

18

v. Spires, 79 F.3d 464, 467 (5th Cir. 1996) (“Because the trial court’s assessment of a

defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’

standard will nearly always sustain the judgment of the district court.”).

Washington, 340 F.3d at 227. 19

 U.S.S.G. § 3E1.1 (2008). 

20

8

IV

Rudzavice’s final two contentions relate to his sentencing. Rudzavice

argues that he should have received an offense-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1. We “review[] a district court’s refusal to

reduce a defendant’s offense level for acceptance of responsibility under § 3E1.1

with a standard even more deferential than a purely clearly erroneous

standard.” We will not disturb a district court’s ruling that a defendant is not 18

entitled to a sentencing reduction for acceptance of responsibility unless “it is

without foundation.”19

Section 3E1.1 provides for a reduction of the offense level “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense.”20

The commentary states:

2. This adjustment is not intended to apply to a

defendant who puts the government to its burden of

proof at trial by denying the essential factual elements

of guilt, is convicted, and only then admits guilt and

expresses remorse. Conviction by trial, however, does

not automatically preclude a defendant from

consideration for such a reduction. In rare situations a

defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he

exercises his constitutional right to a trial. This may

occur, for example, where a defendant goes to trial to

assert and preserve issues that do not relate to factual

guilt (e.g., to make a constitutional challenge to a

statute or a challenge to the applicability of a statute to

his conduct). In each such instance, however, a
No. 08-10791

 U.S.S.G. § 3E1.1 cmt. n.2 (2008). 21

United States v. Ragsdale, 426 F.3d 765, 781 (5th Cir. 2005). 22

See United States v. Cordero, 465 F.3d 626, 632 (5th Cir. 2006) (considering the fact 23

that the defendant had “moved for a judgment of acquittal at the end of the trial ‘on the

grounds that the Government . . . failed to prove its case beyond a reasonable doubt’” in

determining that the defendant had not “proven his entitlement to an acceptance-ofresponsibility reduction”).

9

determination that a defendant has accepted

responsibility will be based primarily upon pre-trial

statements and conduct.21

“The defendant bears the burden of proving entitlement to a decrease in offense

level for acceptance of responsibility.”22

Rudzavice argues that he is entitled to a reduction for acceptance of

responsibility because the only reason he went to trial was to make a

constitutional challenge to § 1470 and to challenge the applicability of the

statute to his conduct. Rudzavice further argues that he cooperated with the

police twice before he was ever indicted, and that, prior to trial, he had

stipulated to every element the court ruled necessary to convict him of the

offense.

We cannot conclude that the district court’s refusal to grant the reduction

in offense levels is without foundation. Although Rudzavice argues that the only

reason he went to trial was to make a constitutional challenge to § 1470 and to

challenge the applicability of the statute to his conduct, Rudzavice moved for a

judgment of acquittal at the end of the trial on the grounds that there was

insufficient evidence to establish the elements of the offense. Rudzavice argued 23

that there was insufficient evidence of the community standards that would

apply in this case and that there was insufficient evidence that the images were
No. 08-10791

See Ragsdale, 426 F.3d at 782 (holding that defendants who went to trial to dispute 24

whether materials satisfied the obscenity test under Miller were challenging their factual

guilt, and therefore not “qualif[ied] for a sentencing credit under the rare circumstance where

the defendant proceeds to trial but can still qualify for a § 3E1.1 reduction”).

See United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999) (“Conditional pleas may 25

be permitted, and this is the usual procedural avenue for preserving the defendant’s objection

to a dispositive pretrial ruling and obviating the need for a full trial.”).

See United States v. Farias, 469 F.3d 393, 400 (5th Cir. 2006) (noting that the 26

defendant “did not go to trial to preserve his plea agreement argument—after the court ruled

on that issue, he could have asked for a conditional plea allowing him to appeal that ruling,

a request he never made,” and concluding that “[t]he court’s refusal to find acceptance of

responsibility was not without foundation”). 

See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). 27

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). 

28

10

“obscene with regard to the community standard anywhere in the United

States.” By making these arguments, Rudzavice challenged his factual guilt.24

Rudzavice also could have avoided a full trial by asking for a conditional

plea under Federal Rule of Criminal Procedure 11(a)(2) after the district court

ruled on his constitutional and applicability arguments and denied his motion

to dismiss. This further undermines Rudzavice’s argument that the only 25

reason he went to trial was to make a constitutional challenge to § 1470 and to

challenge the applicability of the statute to his conduct. Under these 26

circumstances, we will not disturb the district court’s denial of a reduction for

acceptance of responsibility. 

V

Rudzavice also argues that the district court erred by failing to explain

adequately its sentence in terms of the factors in § 3553(a). Rudzavice never

challenged the sentence as unreasonable in the district court on this basis, and

therefore we review for plain error only. To establish plain error, the appellant 27

must show an error that is clear or obvious and that affects his substantial

rights. If the appellant makes such a showing, we have the discretion to 28
No. 08-10791

Id.

29

 551 U.S. 338, 358 (2007). 30

Id.

31

11

correct the error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings.29

In this case, Rudzavice’s attorney argued at length during the sentencing

hearing for a below-Guidelines sentence based on the § 3553(a) factors, in

addition to having filed sentencing memoranda urging the same. The district

court expressly rejected these arguments, and then proceeded to announce its

sentencing decision after Rudzavice declined to make a personal statement. In

addition, the court’s written statement of reasons states that “[t]he sentence is

within the advisory guideline range, and the court finds no reason to depart.”

In Rita v. United States, the defendant argued for a below-Guidelines

sentence based on the § 3553(a) factors. The Supreme Court held that district 30

court’s statement of reasons was legally sufficient where the record revealed that

the judge listened to each of the defendant’s arguments and stated simply that

the district court found the Guidelines sentencing range more “appropriate” than

a sentence below the Guidelines range. Similarly, the district court here 31

considered Rudzavice’s arguments for a lower sentence, expressly overruled

them, and stated that the Guidelines range was more appropriate. The district

court’s explanation of its sentencing decision was not plain error, and it did not

affect Rudzavice’s substantial rights.

* * *

Therefore, for the reasons discussed above, we AFFIRM the district court’s

judgment.