UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4519

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

DANNY BRACHTENDORF, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Martin K. Reidinger, 

District Judge. (3:07-cr-00250-MR-1) 

Argued: March 24, 2009 Decided: August 24, 2009 

Before DUNCAN and AGEE, Circuit Judges, and David A. FABER, 

Senior United States District Judge for the Southern District of 

West Virginia, sitting by designation. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Charlotte, North Carolina, for Appellant. Mark 

Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, 

North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, 

Executive Director, Ross H. Richardson, Emily Marroquin, FEDERAL 

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North 

Carolina, for Appellant. Gretchen C. F. Shappert, United States 

Attorney, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Danny Brachtendorf, a German citizen, appeals from a 

conviction and sentence imposed in the Western District of North 

Carolina for illegal entry into the United States after 

deportation. Finding no reversible error, we affirm. 

I. 

 On August 5, 2000, Brachtendorf, who was living in Oakdale, 

Minnesota, sent to an undercover Ohio detective by e-mail a 

photograph of a juvenile female undressed and exposing her 

vaginal area. The hard drive of a computer subsequently seized 

from Brachtendorf’s residence under a search warrant contained 

additional images of children in suggestive sexual poses. One 

of the items was titled “World Children Porn Archive” and 

depicted juveniles engaged in sexual intercourse. 

 Brachtendorf pleaded guilty in the state court to Count Two 

of a two-count complaint charging him with violating Minnesota 

Statue § 617.247, Subdivision 4, Possession of Pictorial 

Representations of Minors, which reads in pertinent part as 

follows: 

(a) A person who possesses a pornographic work or a 

computer disk or computer or other electronic, 

magnetic or optical storage system or a storage system 

of any other type, containing a pornographic work, 

knowing or with reason to know its content and 

character, is guilty of a felony and may be sentenced 

to imprisonment for not more than five years and a 

fine of not more than $5,000 for a first offense . . . 

. 

2 
 Minnesota Statute § 617.246, Subdivision 1(f) defines 

“pornographic work” as follows: 

“Pornographic work” means: 

(1) an original or reproduction of a picture, film 

photograph, negative, slide, videotape, videodisc, or 

drawing of a sexual performance involving a minor; or 

(2) any visual depiction, including any photograph, 

film, video, picture, drawing, negative, slide, or 

computer-generated image or picture, whether made or 

produced by electronic, mechanical, or other means 

that: 

(i) uses a minor to depict actual or simulated 

sexual conduct; 

(ii) has been created, adapted, or modified to 

appear that an identifiable minor is engaging in 

sexual conduct; or 

(iii) is advertised, promoted, presented, 

described, or distributed in such a manner that 

conveys the impression that the material is or 

contains a visual depiction of a minor engaging 

in sexual conduct. 

For the purposes of this paragraph, an identifiable 

minor is a person who was a minor at the time the 

depiction was created or altered, whose image is used 

to create the visual depiction. 

 During the state plea hearing, Brachtendorf acknowledged 

that the authorities had found between two and five obscene 

pictures of children on his computer. When asked, “And you had 

some knowledge that those were there?” Brachtendorf responded, 

“I had some knowledge of it.” (JA 104.) As a result of this 

state conviction Brachtendorf was ordered deported on September 

1, 2004. 

3 
 Subsequently, on October 17, 2007, Brachtendorf was 

arrested at the Charlotte-Douglas International Airport 

attempting to re-enter the country. He was traveling with his 

wife and children, who are all U.S. Citizens, ostensibly just to 

“drop them off” and return to Germany. A federal criminal 

complaint was filed alleging that Brachtendorf had attempted to 

re-enter the United States after having been deported, in 

violation of 8 U.S.C. § 1326(a). Although the complaint said 

nothing about the prior aggravating conviction, the affidavit 

accompanying the complaint sets forth details about the 

Minnesota conviction. An indictment was returned on October 24, 

2007, charging Brachtendorf under 8 U.S.C. § 1326(a), with no 

mention of a sentencing enhancement under § 1326(b) for a prior 

aggravated felony conviction. 

 Brachtendorf pleaded guilty before the magistrate judge on 

January 29, 2008, without benefit of a plea agreement. No 

mention was made of the prior conviction during the plea 

hearing, and the magistrate judge advised appellant that the 

charge he was pleading to carried “a two year maximum term of 

imprisonment and a fine of up to $250,000.” (JA 15.) No 

objections were made by either side to the magistrate judge’s 

description of the maximum penalties. 

 The Presentence Report (“PSR”) prepared by the probation 

office gave the statutory maximum sentence as a term of 

4 
imprisonment for not more than 20 years pursuant to 8 U.S.C. 

§ 1326(b)(2), and calculated the base offense level as 8 under 

United States Sentencing Guidelines Manual § 2L1.2. The PSR 

recommended a 16-level increase under § 2L1.2(b)(1)(A)(iv), 

because the appellant “was previously deported after having been 

convicted of a felony that is a child pornography offense.”1 (JA 

68.) The court applied this increase, overruling Brachtendorf’s 

objection that the government had not demonstrated that the 

prior conviction constituted a child pornography offense under 

the guidelines. Brachtendorf received a three-level downward 

adjustment for acceptance of responsibility, for a total offense 

level of 21. Although his criminal history category was 

calculated at II, for a sentencing range of 41 to 51 months, the 

district court departed downward to category I on the basis that 

category II overrepresented his criminal history.2 His revised 

 1

 Under this guidelines section, a “‘Child pornography 

offense’ means (I) an offense described in 18 U.S.C. § 2251, 

§ 2251(a), § 2252, § 2252A, or § 2260; or (II) an offense under 

state or local law consisting of conduct that would have been an 

offense under any such section if the offense had occurred 

within the special maritime and territorial jurisdiction of the 

United States.” U.S. Sentencing Guidelines Manual § 2L1.2, App. 

Note (B)(iii). 

2

 Appellant’s criminal history was originally calculated at 

category II because he committed the instant offense while on 

supervised probation. The court concluded that the category 

should be reduced, however, because appellant “was unable to 

complete all of the requirements regarding his probation in 

Minnesota because he had been deported.” (JA 46.) 

5 
guideline range was then 37 to 46 months, and he received a 

sentence of 37 months, making no objection that it was in excess 

of the statutory maximum for the underlying conviction. 

 Brachtendorf raises three points on appeal. First, he 

contends that the district court incorrectly determined that his 

prior Minnesota conviction was an aggravated felony and a child 

pornography offense warranting a 16-level increase under 8 

U.S.C. § 1326(b)(2) and U.S. Sentencing Guidelines Manual 

§ 2L1.2(b)(1)(A)(iv). Second, he maintains the court erred in 

imposing a sentence above the two-year statutory maximum 

provided by the unenhanced statute of conviction. Third, he 

argues that the court could not properly impose a sentence above 

the unenhanced statutory maximum because he was told at his plea 

hearing that the maximum penalty he faced was two years in 

prison. 

II. 

 In considering the legality of Brachtendorf’s sentence 

under his first assignment of error, the court reviews “legal 

questions, including the interpretation of the guidelines, de 

novo, while factual findings are reviewed for clear error.” 

United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). 

His other two contentions, asserted for the first time on 

appeal, are subject to the plain error standard. United States 

v. Higgs, 353 F.3d 281, 309 (4th Cir. 2003); Fed. R. Crim. P. 

6 
52(b). Plain error involves (1) an error, (2) which is plain, 

(3), which affects substantial rights, and (4) which seriously 

affects the fairness, integrity or public reputation of judicial 

proceedings. United States v. Brewer, 1 F.3d 1430, 1434-35 (4th 

Cir. 1993) (citing United States v. Olano, 507 U.S. 725, 732-737 

(1993)). The burden is on the defendant to prove that the error 

was not harmless, and the requirement that an error affect 

substantial rights “typically means that the defendant is 

prejudiced by the error in that it affected the outcome of the 

proceedings.” United States v. Stewart, 256 F.3d 231, 252 (4th 

Cir. 2001). 

III. 

A. 

 The enhancement under 8 U.S.C. § 1326(b)(2) and U.S. 

Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(iv) may only be 

applied if the Minnesota conviction fits the definition for the 

offenses described in 18 U.S.C. § 2251, 2251A, 2252, 2252A, or 

2260, apart from the jurisdictional requirements of those 

statutes. The district court made no specific finding as to 

which offense applied, instead concluding simply that 

Brachtendorf’s prior offense was a child pornography offense. 

The relevant statute here is 18 U.S.C. § 2252(a)(4), which 

prohibits possession of “1 or more books, magazines, 

periodicals, films, video tapes, or other matter which contain 

7 
any visual depiction . . . if . . . the producing of such visual 

depiction involves the use of a minor engaging in sexually 

explicit conduct[,] and such visual depiction is of such 

conduct.” 

 Brachtendorf contends that the Minnesota statute 

encompasses a broader range of conduct than does § 2252, as the 

federal statute does not extend to a “drawing” generally, or to 

a “drawing of a sexual performance involving a minor.” 

(Appellant’s brief at 17.) 

 We disagree with Brachtendorf’s characterization of the 

Minnesota statute as broader than the federal statute. The 

Minnesota statute defines “pornographic work” to include “an 

original or reproduction of a picture, film, photograph, 

negative, slide, videotape, videodisc, or drawing of a sexual 

performance involving a minor” and “any visual depiction, 

including any photograph, film, video, picture, drawing, 

negative, slide, or computer-generated image or picture . . . 

that . . . uses a minor to depict actual or simulated sexual 

conduct; . . . has been created, adapted, or modified to appear 

that an identifiable minor is engaging in sexual conduct; or . . 

. conveys the impression that the material is or contains a 

visual depiction of a minor engaging in sexual conduct.” Minn. 

Stat. § 617.246, Subd. 1(f). 

8 
 The federal statute’s prohibited material is set forth as 

“books, magazines, periodicals, films, video tapes, or other 

matter which contain any visual depiction [where] the producing 

of such visual depiction involves the use of a minor engaging in 

sexually explicit conduct [and] such visual depiction is of such 

conduct.” 18 U.S.C. § 2252(a)(4)(A) (emphasis added). The 

federal statute’s prohibited material extends to any visual 

depictions – including a drawing – that satisfied the remaining 

requirements of the statute. Accordingly, the mere fact that 

the Minnesota statute specifically lists a “drawing” among the 

prohibited material would not preclude a drawing from being 

prohibited material under the federal statute. While both the 

Minnesota and federal statute are subject to constitutional 

limitations regarding whether the depicted image constitutes 

“child pornography,” both statutes allow for the medium to be a 

“drawing.” Accordingly, Brachtendorf’s argument lacks merit.3

 3

 Brachtendorf, citing United States v. X-Citement Video, 

Inc., 513 U.S. 64 (1994), argues that the mens rea requirement 

of the Minnesota statute under which he was convicted is lesser 

than that of 18 U.S.C. § 2252, which requires that a defendant 

act “knowingly.” It is unnecessary to address this particular 

argument because Brachtendorf’s admission during the course of 

the Minnesota proceedings that he had knowledge of the obscene 

pictures found on his computer satisfies the mens rea 

requirement of the federal statute. 

9 
B. 

 The indictment in this case charged Brachtendorf with a 

violation of “§ 1362(a)” without reference to subsection (b) of 

the statute. Under Almendarez-Torres v. United States, 523 U.S. 

224 (1998), a statutory section like § 1362(b)(2) is considered 

a “penalty provision, which simply authorizes a court to 

increase the sentence for a recidivist. It does not define a 

separate crime. Consequently, neither the statute nor the 

Constitution requires the Government to charge the factor that 

it mentions, an earlier conviction, in the indictment.” Id. at 

226-27. 

 Brachtendorf attempts to distinguish Almendarez-Torres on 

the basis that the indictment in that case simply charged a 

violation of “Section 1326” without reference to either 

subsection. (Appellant’s brief at 26.) Moreover, it appears 

that the prior aggravated felonies at issue in Almendarez–Torres

were discussed at that defendant’s plea hearing, whereas there 

was no mention of them at Brachtendorf’s. The distinction 

Brachtendorf tries to make is misplaced, given that subsections 

(a) and (b) do not set forth different offenses. As AlmendarezTorres holds, subsection (b) is a penalty provision, and someone 

sentenced under it is necessarily convicted under subsection 

(a), whether the indictment specifies it or not. See United 

States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005)(reaffirming 

10 
validity of Almendarez-Torres following United States v. Booker, 

543 U.S. 220 (2005)). 

C. 

 It is well established that a court must inform a defendant 

of the statutory maximum and mandatory minimum sentences he 

faces before accepting his guilty plea. Fed. R. Crim. P. 

11(b)(1); United States v. Good, 25 F.3d 218, 221 (4th Cir. 

1994). The Fourth Circuit has found error in cases in which the 

district court did not do so at a plea hearing, and has further 

held that setting forth the statutory sentences in a PSR does 

not cure the error. United States v. Goins, 51 F.3d 400, 405 

(4th Cir. 1995). It does not follow that the error is 

reversible, however, where the standard of review is for plain 

error. 

 Essentially, Brachtendorf would have to prove under the 

Olano plain error standard that he would not have pleaded guilty 

had the magistrate judge properly informed him of the 20-year 

maximum penalty he faced. See United States v. DominguezBenitez, 542 U.S. 74, 81 (2004). 

When determining whether a Rule 11 error affected a 

defendant’s substantial rights, we consider what 

information was provided to the defendant when he 

pleaded guilty, what additional information would have 

been provided by a proper rule 11 colloquy, and how 

the additional information would have affected the 

decision to plead guilty. 

United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008). 

11 
 The burden a defendant faces under Dominquez-Benitez

“should not be too easy”: 

First, the standard should enforce the policies that 

underpin Rule 52(b) generally, to encourage timely 

objections and reduce wasteful reversals by demanding 

strenuous exertion to get relief for unpreserved 

error. Second, it should respect the particular 

importance of the finality of guilty pleas, which 

usually rest, after all, on a defendant’s profession 

of guilt in open court, and are indispensable in the 

operation of the modern criminal justice system. And, 

in this case . . . the violation claimed was of Rule 

11, not of due process. 

Dominquez-Benitez, 542 U.S. at 82-83. 

 In this case, Brachtendorf was aware of the aggravating 

felony, as the federal criminal complaint described both the 

prior conviction and his subsequent deportation. He thus had 

notice that the conviction was relevant to this current case. 

Additionally, the evidence against him was overwhelming, which 

is relevant because “one can fairly ask a defendant seeking to 

withdraw his plea what he might ever have thought he could gain 

by going to trial.” Id. at 85. Additionally, Brachtendorf 

received a lenient sentence – the court departed downward from 

the guidelines finding that his criminal history was 

overrepresented. Id. Because appellant has failed to carry his 

burden to show that he would not have pleaded guilty if properly 

advised, the inaccurate advice given him at his plea hearing 

does not amount to a reversible error under the plain error 

standard. 

12 
13 

 For all these reasons, the judgment below is 

AFFIRMED.