UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

GINYARD, HARRY A.


99-3113a

D.C. Cir. 2000


*	*	*


Opinion for the court filed Per Curiam.


Concurring opinion filed by Circuit Judge Henderson.


Per Curiam: Appellant Harry Ginyard pleaded guilty to  one count of
receiving materials depicting a minor engaged in  sexually explicit
conduct in violation of 18 U.S.C. s 2252(a)(2)  and one count of wire
fraud in violation of 18 U.S.C. s 1343.  In return, the government
agreed to a sentence of 18 months'  incarceration and $63,464.88
restitution. Ginyard entered his  guilty plea pursuant to a written
plea agreement within the  scope of Rule 11(e)(1)(C) of the Federal
Rules of Criminal  Procedure. The district court provisionally
accepted the plea  agreement pending review of the presentence report.
After  reviewing the presentence report the court rejected the pro-
posed prison term but accepted the parties' subsequent oral  agreement
providing for a 24 month sentence. It then sen- tenced Ginyard without
objection to 24 months' incarceration,  $63,464.88 restitution, a $200
special assessment and three  years' supervised release. The court
also continued its pre- trial order restricting Ginyard's computer use
and telephone  communications during his imprisonment. Ginyard chal-
lenges two aspects of his sentence, arguing that the district  court
violated the Rule 11(e)(1)(C) plea agreement by impos- ing a term of
supervised release not included therein and  lacked authority to
restrict his computer use and telephone  communications in prison. We
conclude that although the  district court appears to have erred in
imposing the term of  supervised release, the error was invited and,


does not constitute "plain error" on this record. Additionally,  as
both parties agree, the district court's restriction on Gin- yard's
computer and telephone use in prison is beyond its  authority and we
therefore vacate that portion of the sen- tence.


I.


Between 1991 and 1997, Ginyard made contact with various  women through
internet chat rooms, electronic mail and the  telephone. Using several
aliases, Ginyard initiated what he  falsely represented as "committed
relationship[s]" and lied  about his background, employment and
income. Govern- ment's Memorandum Statement of Facts 2 (May 10, 1999).
 At one point Ginyard was engaged to marry at least two  different
women and was involved in "serious romantic rela- tionship[s]" with
others. Status Call Tr. 5/12/99 at 21. Gin- yard took control of each
woman's finances for his own  financial benefit and forced at least
one woman into bankrupt- cy. Following Ginyard's arrest, the FBI
searched Ginyard's  computer files and discovered approximately 35
visual images  which he had received through an internet chat program 
depicting a female under the age of 18 years engaged in  sexually
explicit conduct. On December 8, 1998 Ginyard was  indicted on seven
counts of wire fraud in violation of 18  U.S.C. s 1343 and eight
counts of mail fraud in violation of 18  U.S.C. s 1341. On May 7, 1999
the government filed a  superseding information charging Ginyard with
receipt of  materials depicting a minor engaged in sexually explicit
con- duct in violation of 18 U.S.C. s 2252(a)(2).


On May 11, 1999 Ginyard agreed to plead guilty to one  count of wire
fraud and one count of receiving child pornogra- phy. In return the
government agreed to a sentence of 18  months' imprisonment and
$63,464.88 restitution and agreed  to request dismissal of the
remaining indictment counts and  not to bring additional charges. On
that date the parties  entered into a written plea agreement under
Rule 11(e)(1)(C).  The plea agreement recited as a "justifiable
reason[ ]" to  depart from the sentence Ginyard faced under the United


States Sentencing Guidelines (Guidelines) the desire to spare 
Ginyard's victims the adverse consequences from trial.1 At  the plea
hearing held on May 12, 1999 the district court  informed both parties
that it was not "prepared to accept any  plea agreement that binds
[it] to a sentence of eighteen  months." Id. at 5. Nevertheless, the
district court provision- ally accepted the plea agreement pending
receipt of the  presentence report as allowed under Rule 11(e)(2).


On August 3, 1999, after reviewing the presentence report,  the
district court rejected the plea agreement, declaring that  18 months'
imprisonment did "not protect the public for the  maximum period of
time that it could be protected for."  Sentencing Tr. 8/3/99 at 31.
The government then asked  whether the district court would be willing
to accept the plea  if "appellant were willing to be sentenced within
a range."  Id. at 33. Ginyard asked the district court for "some guid-
ance as to what sentence it would be comfortable with." Id.  at 34-35.
The district court responded that it "could in good  conscience live
with the figure of twenty-four months." Id. at  35. The court then
recessed the hearing so the parties could  negotiate the sentence.
After the recess the following ex- change occurred:


DEFENSE: Your Honor, Mr. Ginyard is prepared to  take a twenty-four
month plea, or sentence I should say,  and we can see no need to have
another hearing. We are  prepared to go forward at this time.


COURT: And does the government agree to that as  well?


PROSECUTOR: Yes, Your Honor.


COURT: Mr. Howard, I think under the Rules of Crimi- nal Procedure your
client has the right to speak, al- though given the agreements I am
not sure that anything 




__________

n 1 According to section 6B1.2(c) of the Guidelines (Standards for 
Acceptance of Plea Agreements (Policy Statement)) the district  court
"may accept the [Rule 11(e)(1)(C) plea] agreement if the court  is
satisfied ... that ... the agreed sentence departs from the 
applicable guideline range for justifiable reasons."


can change. But just to make sure that the Rules are  completely
complied with, if he wishes to speak I do  believe that he has the
right under the Federal Rules.


DEFENSE: We decline, Your Honor.


COURT: The sentence in this case will be a sentence of  twenty-four
months in custody.


DEFENSE: Should he come forward, Your Honor?


....


COURT: Yes, he should. I am sorry. Twenty-four  months in custody.
There will be a period of supervised  release of three years. There
will be a special assess- ment of $200. There will be restitution, and
this is, I  believe, under the plea agreement as well, of $63,464.88, 
and the probation department will have to work out the  details of the
restitution.


Id. at 36-37. The court also continued the pretrial order  which
prohibited Ginyard from using computers and allowed  him, while
imprisoned, telephone contact with family mem- bers and counsel only.
In addition, the court prohibited  Ginyard during supervised release
from having contact with  any of his victims or entering an internet
chatroom and  allowed him to use a computer only for professional real
 estate purposes. Ginyard made no objection below to any  aspect of
his sentence. He now appeals the supervised  release component of his
sentence, claiming that it is aliunde  the plea agreement, as well as
the computer and telephone  restrictions during imprisonment.


II.


Ginyard challenges the district court's authority to vary  from the
provisions of the Rule 11(e)(1)(C) plea agreement by  imposing a term
of supervised release in addition to the  sentence of imprisonment and
restitution specified therein.  Because Ginyard failed to object to
the imposition of super- vised release below, we review for plain
error only. See  United States v. Blackwell, 694 F.2d 1325, 1340 (D.C.
Cir.  1982) (plain error review of defendant's argument not raised 


below that district court "breached" plea agreement); see  also United
States v. Watley, 987 F.2d 841, 847 n.6 (D.C. Cir.  1993) (plain error
review of district court's unobjected to  failure to inform defendant
of supervised release prior to  accepting plea agreement). A
sentencing error is plain  "where it is obvious under settled law and
would result in  grave prejudice or a miscarriage of justice if not
corrected on  appeal." United States v. Drew, 200 F.3d 871, 879 (D.C.
Cir.  2000) (internal quotation marks and quotation omitted).


Ginyard entered into the plea agreement pursuant to Rule  11(e)(1)(C),
which provides that the government "agree that a  specific sentence or
sentencing range is the appropriate dis- position of the case."2 The
plea agreement "is binding on the  court once it is accepted by the
court." Fed. R. Crim. P.  11(e)(1)(C).


The court may accept or reject a Rule 11(e)(1)(C) plea  agreement or
"may defer its decision as to the acceptance or  rejection until there
has been an opportunity to consider the  presentence report." Fed. R.
Crim. P. 11(e)(2). The court  may not, however, "participate in any
discussions between the  parties concerning any such plea agreement."
Fed. R. Crim.  P. 11(e)(1)(C). At the May 12 plea hearing the district
court  deferred its decision to accept the plea agreement pending 
review of the presentence report. At the August 3 sentenc- ing
hearing, after reviewing the presentence report, the dis- trict court
rejected the plea agreement. See Sentencing Tr.  8/3/99 at 32. The
district court then allowed the parties to  confer on an alternate
sentence of imprisonment and eventu- ally Ginyard stated that he was
"prepared to take [sic] a  twenty-four month plea." Id. at 36.3 Had it




__________

n 2 Rule 11(e)(1)(C) was amended effective December 1, 1999 while  this
appeal was pending. We quote from and apply the rule as  amended since
our holding would be the same under either version.  See Langraf v.
USI Film Prods., 511 U.S. 244, 275 & n.29 (1994).


3 The district court correctly indicated that its participation in 
arriving at an acceptable sentence under the plea agreement was  "an
uncomfortable conversation" in light of Rule 11(e)(1). Sentenc- ing
Tr. 8/3/99 at 35.


the parties were tendering a plea that specified only a 24- month term
of incarceration, the district court's imposition of  a term of
supervised release would have been error.4 Super- vised release is
punishment, see United States v. Gilchrist,  130 F.3d 1131, 1133 (3d
Cir. 1997) (quoting United States v.  Dozier, 119 F.3d 239 (3d Cir.
1997)), and therefore part of the  "sentence" within the meaning of
Rule 11(e)(1)(C). See Unit- ed States v. Jamison, 934 F.2d 371, 373-74
(D.C. Cir. 1991)  ("sentence" in statute authorizing imposition of
supervised  release, 18 U.S.C. s 3583(a), includes both imprisonment
and  supervised release). Rule 11(e)(1)(C) also makes clear that  the
agreed-to sentence constitutes the "disposition" of the  case,
precluding the imposition of additional punishment.  Thus, if
supervised release is not specified as part of the  sentence in a Rule
11(e)(1)(C) plea agreement, it cannot be  imposed.


Here, however, the district court's acceptance of the 24- month term
was ambiguous. On the one hand, the district  court could have
understood the parties to have agreed to a  guideline sentence that
included the normally-attendant term  of supervised release. See
U.S.S.G. s 5D1.1(a). Under this  interpretation of the court's
acceptance, it did not breach the  plea agreement.


On the other hand, the record provides some support for  Ginyard's view
that the parties had not agreed to a term of  supervised release when
they amended the Rule 11(e)(1)(C)  plea agreement, and under this
interpretation of the court's  acceptance, it did breach the agreement
by imposing such a  term as part of the sentence. Because the record
is ambigu- ous on this point, we cannot say the district court plainly
 erred. Assuming, however, that the district court erroneous- ly
amended the plea agreement by varying the terms without 




__________

n 4 The government's failure to include both the supervised release 
and the special assessment components, see U.S.S.G. s 5E1.3 & 
Application Note 2A; 18 U.S.C. s 3013, in the plea agreement,  which
it acknowledged at oral argument is standard procedure, is  troubling
and may have led the district court astray in the first  instance.


the parties' agreement, Ginyard invited the error when he  solicited
the district court's opinion on an acceptable sentence  and then
negotiated, through counsel, the restrictions of  supervised release.
See Sentencing Tr. 8/3/99 at 34-35 (DE- FENSE: "I don't know if the
court feels comfortable giving  us some guidance as to what sentence
it would be comfortable  with, but otherwise I guess it would be--it
would come down  to sort of a bidding process where we come back and
say  twenty months, or twenty-two, something of that nature. So  if
the court could provide some guidance."); id. at 43 (DE- FENSE: "And
if the court were maybe to restrict [Gin- yard's] use of the internet
to matters related to real estate  during that period [supervised
release], then that may be a  reasonable middle ground."). If a
defendant invites error by  the district court, he is "barred from
complaining about it on  appeal." United States v. Harrison, 103 F.3d
986, 992 (D.C.  Cir. 1997); cf. United States v. Wiggins, 530 F.2d
1018, 1020  (D.C. Cir. 1976). More important, Ginyard failed to object
to  the district court's imposition of supervised release, and, 
assuming the district court erred in doing so, it did not plainly 


Finally, both parties agree that the district court lacked  statutory
authority to restrict Ginyard's computer and tele- phone use during
confinement. See Appellee's Br. 21-22 &  n.11; Reply Br. 11 n.5;
United States v. Sotelo, 94 F.3d 1037,  1040-41 (7th Cir. 1996)
("[B]ecause there is no federal law  authorizing an
incarceration-communication restriction as  part of a sentence ordered
by a district court ..., the district  court lacked the authority to
impose the restriction."). Ac- cordingly, we vacate the portion of the
sentence imposing  restrictions on Ginyard's telephone and computer
use in  prison. In all other respects, Ginyard's sentence is


So ordered.


Karen LeCraft Henderson, Circuit Judge, concurring in  part:


While I agree that the district court did not plainly err in  imposing
supervised release, I do not believe that the error  was invited. See
In re Sealed Case, 108 F.3d 372, 374 (D.C.  Cir. 1997) ("Appellant may
have acquiesced in what he now  claims is error, but he did not invite
it.") (citing United States  v. Harrison, 103 F.3d 986, 992 (D.C. Cir.
1997)). After the  district court rejected the plea agreement, Ginyard
did seek  its input in the plea discussions. In response, the district
 court reluctantly, but nevertheless erroneously,1 declared that  it
"could in good conscience live with a [sentence] of twenty- four
months." Sentencing Tr. 8/3/99 at 35. This error (which  was invited),
however, did not extend to the district court's  separate imposition
of supervised release after Ginyard  agreed to the 24-month term of
imprisonment. See id. at 36.  Once the district court imposed
supervised release, Ginyard  did not object but, again, his conduct
more resembled acqui- escence than invitation.


Whether the district court erred at all depends, in my  opinion, not on
the ambiguous nature of the district court's  acceptance of the plea
agreement as my colleagues believe,  see Per Curiam Op. 6-7, but on
the wording of Rule  11(e)(1)(C). While I agree that our holding is
"the same  under either version," id. at 6 n.2, that is so only
because our  review is for plain error. But I do not agree that the 
amended version has not effected a change that could, de- pending on
the language of the plea agreement, change the  results on appeal.


Under the unamended version of Rule 11(e)(1)(C) the gov- ernment may
agree "that a specific sentence is the appropri- ate disposition of
the case." This is the version under which  Ginyard was sentenced and,
as we have recognized, see  United States v. Jamison, 934 F.2d 371,
373-74 (D.C. Cir.  1991), because supervised release is part of the
sentence, the  district court's acceptance of Ginyard's plea agreement
(as  amended) bound the court to its terms. See United States v. 




__________

n 1 See Fed. R. Crim. P. 11(e)(1)(C) ("The court shall not participate 
in any discussions between the parties concerning any such plea 
agreement.").


Blackwell, 694 F.2d 1325, 1363-64 (D.C. Cir. 1982). I there- fore agree
with my colleagues that, "assuming the district  court erred ..., it
did not plainly err," Per Curiam Op. 8, and  I therefore join in
affirming the district court.


But Rule 11(e)(1)(C) now allows the parties to agree in- stead that a
"particular provision of the Sentencing Guide- lines ... is or is not
applicable to the case."2 With respect to  this language, the advisory
committee notes state, "the gov- ernment and defense ... actually
agree[ ] on what amounts to  an appropriate sentence or ... agree[ ]
to one of the specified  components." Fed. R. Crim. P. 11(e) advisory
committee's  note (1999) (emphasis added). If the plea agreement fails
to  address a specific provision of the Guidelines, particularly a 
mandatory one, the district court's acceptance of a Rule  11(e)(1)(C)
plea agreement would not, in my view, prohibit it  from imposing the
unaddressed "component" of the sentence.


The Guidelines require a district court to "order a term of  supervised
release to follow imprisonment when a sentence of  imprisonment of
more than one year is imposed." U.S.S.G.  s 5D1.1. The district court
may depart from the mandate of  section 5D1.1 only if, inter alia,
supervised release is not  required "to protect the public welfare."
Id., Application  Note 1.3 Here the district court made no finding
that super-




__________

n 2 Rule 11(e)(1)(C) as amended also allows the government to  "agree
that a specific ... sentencing range is the appropriate  disposition
of the case" (amended language emphasized). "Range"  refers, in my
opinion, only to the term of imprisonment. See  U.S.S.G. s 1B1.1(g)
(Application Instruction to "determine the  guideline range ... that
corresponds to the offense level and  criminal history category") &
(h) (Application Instruction to deter- mine "[f]or the particular
guideline range, ... the sentencing  requirements and options related
to ... supervision conditions");  U.S.S.G. s 5A, Application Note 1
("The intersection of the Offense  Level and Criminal history Category
displays the Guideline Range  in months of imprisonment.") (emphases
added). A supervised  release departure, however, is governed by
section 5D1.1, Applica- tion Note 1.


3 Application Note 1 includes four other bases on which to decline  to
impose supervised release, none of which is applicable here.


vised release was not necessary to protect the public welfare.  Cf.
United States v. Atkins, 116 F.3d 1566, 1572 n.8 (D.C. Cir.  1997)
("[A] departure from the applicable Guidelines range  must be
supported by 'specific reasons explaining the extent  of [the]
departure.' ") (quoting United States v. Perkins, 963  F.2d 1523, 1528
(D.C. Cir. 1992)) (citation omitted) (emphasis  added).4 On the
contrary, the fact that the court restricted  Ginyard's computer use
and contact with his victims during  supervised release manifests that
it thought supervised re- lease was necessary. With no reason not to,
the district court  would have been required to impose supervised
release.  Therefore, had Ginyard been sentenced under Rule 
11(e)(1)(C) as amended, I believe that the district court's 
imposition of supervised release after imprisonment would  not have




__________

n 4 The Atkins and Perkins holdings involved departures from the 
Guidelines "range," that is, the applicable imprisonment period.  See
supra n.2.


5 Interestingly, Ginyard did not challenge the district court's 
failure to advise him of the mandatory supervised release term  before
accepting his plea. According to the record, the court failed  to
mention both supervised release and the mandatory $100 assess- ment
per felony conviction before the court's conditional acceptance  at
the May 12 plea hearing. See Fed. R. Crim. P. 11(c)(1) ("Before 
accepting a plea ..., the court must address the defendant person-
ally in open court and inform the defendant of, and determine that 
the defendant understands ... that the court is required to consid- er
any applicable sentencing guidelines but may depart from those 
guidelines under some circumstances."); see also United States v. 
Watley, 987 F.2d 841, 847 n.6 (D.C. Cir. 1993) ("The government 
concedes that the district court entirely overlooked one Rule 11(c) 
specification [before accepting guilty plea]: that the court did not 
inform Watley of the supervised release term he might receive.").  Had
the two conditions been set out in the plea agreement, see Per  Curiam
Op. at 7 n.4, the court a might well have recited them to  Ginyard
before conditionally accepting his guilty plea.