from the United States District Court for the Northern
District of Texas
BARKSDALE, DENNIS, and CLEMENT, Circuit Judges. [*]
HAWKINS BARKSDALE, CIRCUIT JUDGE.
Farrar pleaded nolo contendere to one count of
possessing, while in federal prison for a child-pornography
offense, obscene depictions of a minor engaged in
sexually-explicit conduct (images), in violation of 18 U.S.C.
§ 1466A(b)(1). Although he was sentenced to the ten-year
statutory minimum for repeat offenders, under 18 U.S.C.
§ 2252A(b)(2), the court ordered the sentence to run
concurrently with Farrar's prior sentence, with the new
sentence to run from the date of his offense. Farrar
challenges his conviction and sentence, asserting: the images
he possessed are not obscene; and his sentence violates the
Eighth Amendment. Primarily at issue is whether we must
review those images to determine whether they are obscene.
2007, Farrar was sentenced to 180 months' imprisonment,
after pleading guilty to six counts of child pornography. In
May 2015, while he was in prison for those child-pornography
offenses, guards found in his workstation "seven
hand-drawn images depicting the [sexual] exploitation of
minor females" and two hand-written books, describing
sexual abuse of minors. Farrar admits purchasing the images
from other inmates and writing the books.
was indicted on one count of possessing six obscene
depictions of a minor engaging in sexually-explicit conduct,
in violation of 18 U.S.C. §§ 1466A(b)(1) &
(d)(5), which requires proof of "a visual depiction of
any kind, including a drawing . . . that . . . (1)(A) depicts
a minor engaging in sexually explicit conduct; and (B) is
obscene". Farrar requested the district court's
consent to plead nolo contendere.
discussed infra, the magistrate judge (MJ) accepted
the Government's offer of proof, and Farrar personally
declined to contest that offer, apologizing for the
court's having to view the images. Subsequent to
Farrar's assuring the MJ he was not "try[ing] to
hide behind the law and try[ing] to come out with some appeal
issue", the MJ recommended the district judge accept
Farrar's nolo contendere plea.
district judge accepted the recommendation and, over
Farrar's objection under the Eighth Amendment, sentenced
him to the ten-year minimum required by 18 U.S.C.
§§ 1466A(b)(1) and 2252A(b)(2). But, despite
Farrar's being sentenced to that ten-year minimum, the
court ordered his sentence to run concurrently with the
child-pornography sentence he was serving, with the sentence
to run from the date of the offense, May 2015, rather than
the date of sentencing, July 2016. Farrar admits that, as a
result, he will serve an additional four-and-a-half-years
beyond what he is serving for his 2007 child-pornography
challenges both his conviction and sentence. For the former,
he contends: the images to which he pleaded nolo
contendere to possessing are not obscene; and, although
he pleaded nolo contendere, we are required to
decide whether the images are obscene. His sentence is
contested under the Eighth Amendment on two bases: it is
grossly disproportionate to his crime as applied;
and, a ten-year minimum for repeat-offenders in possession of
obscene material is categorically disproportionate.
contesting his conviction stemming from his nolo
contendere plea, Farrar claims the images he possessed
are not obscene within the meaning of 18 U.S.C. § 1466A
and the First Amendment. Along that line, Farrar cites
Supreme Court, and our court, precedent for the proposition
that he is entitled to an independent judicial review by our
court to determine whether the images are obscene. Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
508 n.27 (1984); Miller v. California, 413 U.S. 15,
25 (1973); United States v. Ragsdale, 426 F.3d 765,
780 (5th Cir. 2005); Penthouse Int'l, Ltd. v.
McAuliffe, 610 F.2d 1353, 1364 (5th Cir. 1980);
Clicque v. United States, 514 F.2d 923, 926-27 (5th
Cir. 1975); United States v. Gates, 481 F.2d 605,
605-06 (5th Cir. 1973); United States v. Thevis, 484
F.2d 1149, 1155 (5th Cir. 1973). He contends the review is
mandated, even though: he did not contest obscenity in
district court, and, instead, as shown infra,
affirmatively agreed the images are obscene, apologized for
the court's having to view them, and advised the court he
was not "try[ing] to hide behind the law and try[ing] to
come out with some appeal issue".
nolo contendere plea, permitted by Federal Rule of
Criminal Procedure 11, is also referred to as a plea of
"no contest". As the Court has explained,
[a]lthough it is said that a plea of nolo contendere means
literally I do not contest [the charge], and is a mere
statement of unwillingness to contest and no more, it does
admit every essential element of the offense (that is) well
pleaded in the charge. Hence, it is tantamount to an
admission of guilt for the purposes of the case, and nothing
is left but to render judgment, for the obvious reason that
in the face of the plea no issue of fact exists, and none can
be made while the plea remains of record.
Lott v. United States, 367 U.S. 421, 426 (1961)
(internal quotations omitted).
addition, Rule 11, and our court's opinion in
Prince, foreclose a factual basis' being
required for a nolo contendere plea. United
States v. Prince, 533 F.2d 205, 208 (5th Cir. 1976).
Rule 11 distinguishes guilty pleas from nolo
contendere pleas: "Rule 11 does not require that
the district court find a factual basis for a plea of nolo
contendere, as opposed to a plea of guilty".
Id. at 208. Rule 11(a)(3) states that,
"[b]efore accepting a plea of nolo contendere, the court
must consider the parties' views and the public interest
in the effective administration of justice". Fed. R.
Crim. P. 11(a)(3). By contrast, for a guilty plea, Rule
11(b)(3) requires the court "determine that there is a
factual basis for the plea". Fed. R. Crim. P. 11(b)(3).
though a factual basis is not required for a nolo
contendere plea under Rule 11, "[g]enerally, a
challenge to the legal sufficiency of an undisputed factual
basis [for a plea] is a straightforward question of law,
reviewed de novo". United States v.
Butler, 637 F.3d 519, 521 (5th Cir. 2011) (internal
quotations omitted). And, the court's decision to accept
a nolo contendere plea is reviewed for abuse of
discretion. United States v. Smith, 417 F.3d 483,
486 (5th Cir. 2005); see also United States v.
Bearden, 274 F.3d 1031, 1035 (6th Cir. 2001). In
addition, the Government urges we instead review the decision
to accept the plea under the more limited standard for plain
error: "where a defendant does not raise a challenge to
the adequacy of the factual basis underlying [his] guilty
plea in the district court . . . this court reviews for plain
error". Butler, 637 F.3d at 521 (internal
course, no authority need be cited for the well-established
rule that we, not the parties, determine our standard of
review. In this instance, we sua sponte first review
de novo, to determine whether the doctrines of
judicial estoppel or waiver bar Farrar's challenge to his
the images and books being found in May 2015, and after
Farrar was indicted that November, he presented the MJ with a
memorandum expressing his intent to plead nolo
contendere and listing the elements of the charged
offense. They include, inter alia, defendant's
possessing an image that is obscene under the three-part
Miller test for obscenity. Miller, 413 U.S.
at 24 ("(a) whether the average person, applying
contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or
scientific value") (internal quotations omitted)).
stated in his memorandum that, because "twelve unlucky
members of the community [as the jury] . . . must view these
images and make a determination of whether these particular
images are obscene . . . how can [he] do anything other than
enter a plea of nolo contendere"? Consistent
with that position, he stated: he would not contest the
factual basis underlying the charge; and, instead, "[he]
will not and does not object to this Court accepting the
government's offer of proof to support this Court's
acceptance of this plea of nolo contendere".
stated he had considered making a facial challenge to the
constitutionality of 18 U.S.C. § 1466A, but decided not
to do so, "[i]n hopes of appearing before [the district
court] as soon as possible . . . in hopes of receiving the
same sentence as [a fellow inmate]-[who] appeared before [the
court] with an almost identical case and received a mandatory
minimum sentence of ten-years of imprisonment that [the
court] ordered to be served concurrent to the sentence that
[the inmate] was already serving". Therefore, Farrar
stated he would "knowingly forgo that time consuming
and most likely fruitless argument" about the statute
and plead nolo contendere.
plea hearing before the MJ, Farrar waived his right to enter
a plea before the district court. The MJ explained
Farrar's constitutional rights and the consequences of
his nolo contendere plea, commenting that,
"[g]enerally, a defendant who is accused of a crime
cannot plead [nolo contendere] unless he is actually
guilty of that offense". The MJ questioned Farrar
extensively regarding his nolo contendere plea to
ensure it was entered into knowingly and voluntarily. The
Government read the charges against him and elements of the
offense, which, of course, included obscenity.
admitted "that there [was] evidence in this case of the
commission by [Farrar] of these essential elements"; his
counsel stated "[h]e doesn't dispute that the
government can prove . . . each of these elements beyond a
reasonable doubt"; and Farrar stated he understood the
"effect of [his] no contest plea [would be] the same as
a guilty plea", and acknowledged that, because he was a
repeat-offender, his sentence carried a mandatory minimum of
ten, and a maximum of 20, years, with a possible $250, 000
fine. Nevertheless, Farrar pleaded nolo contendere.
Farrar's "Notice Regarding Entry of a Plea of
Guilty", he had crossed out the word "guilty"
five times and inserted "no contest". The MJ
expressed reservations about the nolo contendere
plea because, "in 15 and a half years as a prosecutor
and now six as a judge, I have never seen [a nolo
contendere plea]. And I have confirmed that neither has
[the district judge]". Farrar addressed the MJ's
concern by stating his "goal [was] not to try to hide
behind the law and try to come out with some appeal issue.
That's the kind of thing [that] only comes back and
haunts people later".
even though not required to establish a factual basis under
Rule 11, the Government submitted an offer of proof for the
evidence it could prove beyond a reasonable doubt: in sum,
Farrar was serving a prison sentence for child-pornography
offenses when found in possession of obscene images depicting
the sexual abuse of minors. The Government again ...