UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 93-1123

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN BURIAN,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

____________________________________________________

(April 7, 1994)

Before GOLDBERG, DAVIS and DeMOSS, Circuit Judges.

DAVIS, Circuit Judge:

John Burian appeals his conviction under 18 U.S.C. § 2252 for

knowingly receiving in the mail visual depictions of minor children

engaged in sexually explicit conduct. His primary challenge on

appeal is the constitutionality of § 2252. Because we interpret §

2252 as including a knowledge requirement, we affirm his

conviction. Burian also contends on appeal that the district court

erred in denying his request for a reduction in his guideline

sentence for acceptance of responsibility. We also find no error

in this ruling by the trial court and also affirm his sentence.

I.

In January, 1992, postal inspectors executed a search warrant

at an adult mail order business dealing in child pornography. The

postal inspectors found that John Burian had written requesting a
2

catalog and had ordered six tapes (one of which contained teen and

preteen minors engaged in sexually explicit conduct). They also

discovered records showing that the tapes had been sent to Burian.

The postal inspectors used the business as an undercover

operation. They sent Burian a letter notifying him that the

business had new video tapes for sale. Burian responded in a

letter stating that he had an interest in sexually explicit

material depicting teens and preteens. As a result, the postal

inspectors sent Burian a catalog, from which he ordered ten video

tapes that were described as depicting teen and preteen activity.

When Burian went to the post office to pick up the tapes, he was

apprehended by postal inspectors.

Burian was charged in a one count information with knowingly

receiving in the mail visual depictions of minor children engaged

in sexually explicit conduct, in violation of 18 U.S.C. §

2252(a)(4)(B). Burian waived indictment and pled guilty. Burian

stipulated as true that he "knowingly received these items through

the mail and possessed them, knowing that these video tapes, which

he had ordered, contained visual depictions of minors engaged in

sexually explicit conduct."

The trial court sentenced Burian to 14 months imprisonment, a

fine in the amount of $25,000, a two-year term of supervised

release, and a mandatory special assessment of $50. Burian timely

appealed, challenging the constitutionality of § 2252.

II.
 

1 Because X-Citement was decided after Burian's guilty plea,

he did not have an opportunity to raise the constitutional

challenge until his sentencing hearing.

 

2 In order for a defendant to preserve an issue for appellate

review, he must raise it before the district court. U.S. v.

Villarreal, 920 F.2d 1218, 1222 (5th Cir. 1991). At his sentencing

hearing, Burian stated that he was not moving to declare the

relevant statute unconstitutional and that he wished to retain his

guilty plea. We have serious doubts that Burian preserved this

issue on appeal. Ordinarily, a guilty plea waives all objections,

even constitutional ones, unless expressly reserved.

 

3 Burian challenges § 2252(a)(4)(B) which states that an

offense occurs if a person:

knowingly possesses 3 or more ... video tapes, or other

matter which contain any visual depiction that has been

3

At Burian's sentencing hearing, he presented a recent Ninth

Circuit case holding § 2252(a)(2) unconstitutional.1 U.S. v. XCitement Video, 982 F.2d 1285 (9th Cir. 1992), cert. granted, 127

L.Ed.2d 536, 62 U.S.L.W. 3573 (U.S. 1994). We assume, without

deciding, that Burian preserved the issue of the constitutionality

of the statute on appeal.2

Child pornography statutes must include some element of

defendant's scienter. New York v. Ferber, 458 U.S. 747, 765, 73

L.Ed.2d 1113 (1982). A statute that outlaws the reckless

possession or receipt of child pornography "plainly satisfies the

requirement laid down in Ferber that prohibitions on child

pornography include some element of scienter." Osborne v. Ohio,

495 U.S. 103, 115, 109 L.Ed.2d 98 (1990). Burian argues, relying

on X-Citement, that 18 U.S.C. § 2252(a)(4)(B) is unconstitutional

because it does not require knowledge of the performer's minority

as an element of the crime it defines.

In X-Citement, the Ninth Circuit held that § 2252(a)(2) did

not satisfy Ferber's knowledge requirement.3 Relying on its
mailed ... if--(i) the producing of such visual depiction

involves the use of a minor engaging in sexually explicit

conduct; and (ii) such visual depiction is of such

conduct.

X-Citement dealt with § 2252(a)(2) which states that an offense

occurs if a person:

knowingly receives, or distributes any visual depiction

that has been mailed ... if--(A) the producing of such

visual depiction involves the use of a minor engaging in

sexually explicit conduct; and (ii) such visual depiction

is of such conduct.

4

earlier decision in U.S. v. Thomas, 893 F.2d 1066 (9th Cir.), cert.

denied, 498 U.S. 826 (1990), the court stated:

In summary, then, we conclude that the First Amendment ...

mandates that a statute prohibiting the distribution, shipping

or receipt of child pornography require as an element

knowledge of the minority of at least one of the performers

who engage in or portray the specific conduct. Section 2252,

as authoritatively construed by Thomas, does not so require.

As a result, section 2252 is unconstitutional on its face ...

X-Citement, 982 F.2d at 1292. The court held that the word

"knowingly" modified only "receives" and not the rest of the

paragraph. Therefore, the statute lacked the required "knowledge"

element.

However, the X-Citement majority ignored the long-standing

rule that federal courts have a duty to interpret statutes in a

manner consistent with the Constitution, if such an interpretation

is possible. Edward J. De Bartolo Corp. v. Florida Gulf Coast

Building & Constr. Trades Council, 485 U.S. 568, 575, 99 L.Ed.2d

645 (1988); U.S. v. 37 Photographs, 402 U.S. 363, 369-370, 28

L.Ed.2d 822 (1971). As Judge Kozinski pointed out in his dissent

in X-Citement, the court was bound by constitutional narrowing to

interpret § 2252 to require some degree of knowledge of a

performer's minority as an element of the offense.
5

Moreover, this circuit has already interpreted § 2252 as

containing as an element that the person receiving or possessing

the child pornography has actual knowledge of the performer's

minority or is reckless with regard to the performer's age. In

U.S. v. Marchant, 803 F.2d 174, 177 (5th Cir. 1986), this court at

least implicitly required knowledge of a performer's minority as an

essential element of the crime. The defendant argued that the

evidence was insufficient to establish that he knowingly received

child pornography. Id. at 176. This court concluded that the

evidence was ample to support the verdict that he knew what he

received was going to be child pornography. Id. at 77. See also,

U.S. v. Rubio, 834 F.2d 442 (5th Cir. 1987).

Other circuits have also interpreted § 2252 to require some

knowledge of a performer's minority. See, U.S. v. Duncan, 896 F.2d

271, 278 (7th Cir. 1990) (ample evidence to conclude that defendant

ordered and received what he knew to be child pornography); U.S. v.

Brown, 862 F.2d 1033, 1036 (3d Cir. 1988) (where defendant had

received different child pornography than requested, the statute

does not require that recipient of child pornography know precise

contents of material received, but need only know that material is

child pornography); U.S. v. Garot, 801 F.2d 1241, 1247 (10th Cir.

1986)(trial court did not abuse its discretion by admitting certain

evidence because evidence was relevant to prove the scienter

required by § 2252).

Both the First and the Third Circuits recently disagreed with

the X-Citement decision and held the statute constitutional. U.S.

v. Cochran, 1994 U.S. App. LEXIS 2455 (3d. Cir. Feb. 2, 1994); U.S.
6

v. Gifford, 1994 U.S. App. LEXIS 3175 (1st Cir. Feb. 24,

1994)(holding that the "X-Citement opinion is something of a

pariah"). Both courts ruled that the word "knowingly" modifies the

entire paragraph and imposes a scienter element as to the nature of

the visual depictions. See also, U.S. v. Prytz, 822 F. Supp. 311,

321 (D.S.C. 1993) (although Ninth Circuit reading is grammatically

correct, it is not reasonable nor consistent with courts'

obligation to avoid unconstitutionality if possible); U.S. v.

Kempton, 826 F. Supp. 386, 388-89 (D.Kan. 1993) (same).

The Ninth Circuit majority in X-Citement declined to interpret

§ 2252 in a way that prevents constitutional infirmity. We decline

to follow X-Citement and choose instead to follow our earlier

decisions and those of our sister circuits interpreting the statute

to require actual knowledge or reckless disregard of a performer's

minority. Because Burian stipulated that he knew that the tapes he

possessed depicted minors engaged in sexually explicit conduct, we

reject his challenge to the constitutionality of § 2252.

III.

Burian next argues that the district court erred by failing to

grant a two-level reduction to the offense level for acceptance of

responsibility. The probation officer recommended this reduction

in the presentence investigation report even though Burian had

submitted a statement explaining his conduct, in which he claimed

he had never been interested in child pornography and had only

ordered the tapes because he thought the company would never send

them. Burian claimed, in his statement, that he wanted to catch

the company in false advertising.
7

At the sentencing hearing, the district court ruled that

Burian's statement showed that he had not accepted responsibility.

Burian testified that his statement was an attempt to explain his

feelings and emotions, not to diminish his responsibility and that

perhaps he had made a poor choice of words. The court found that

Burian had not carried his burden of proof of clearly demonstrating

acceptance of responsibility and denied the two-level decrease in

offense level.

The standard of review for a trial court's determination of

acceptance of responsibility is more deferential than the clearly

erroneous standard. U.S. v. Pofahl, 990 F.2d 1456, 1485 (5th

Cir.); cert. denied, 126 L.Ed.2d 218 (1993). The district court

refused to accept Burian's argument at the sentencing hearing that

his earlier statement was not an attempt to deny his involvement in

knowingly ordering child pornography. Burian's attempt to minimize

or deny his involvement in the offense supports the district

court's refusal to grant a two level reduction for acceptance of

responsibility. U.S. v. Watson, 988 F.2d 544, 551 (5th Cir. 1993),

cert. denied, 126 L.Ed.2d 665 (1994). The district court did not

clearly err in refusing to decrease Burian's offense level.

AFFIRMED.