USCA11 Case: 22-12338 Document: 34-1 Date Filed: 03/19/2024 Page: 1 of 10
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12338
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAYSON E. WRIGHT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cr-00033-WLS-TQL-1
____________________
Before BRANCH, GRANT, and ED CARNES, Circuit Judges.
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2 Opinion of the Court 22-12338
BRANCH, Circuit Judge:
Jayson Wright appeals his criminal conviction after pleading
guilty, pursuant to a written plea agreement, to one count of
producing child pornography by a parent or legal guardian in
violation of 18 U.S.C. § 2251(b) and (e), and one count of producing
child pornography in violation of 18 U.S.C. § 2251(a) and (e).
Wright was sentenced to a total of 720-months’ imprisonment. For
the first time on appeal, Wright contends that the district court
violated Rule 11 of the Federal Rules of Criminal Procedure in
taking his guilty plea on the § 2251(a) charge because (1) there was
not an adequate factual basis supporting his guilty plea and (2) the
district court did not adequately explain the nature of Wright’s
charge.
Wright, charged in the § 2251(a) count with taking
pornographic images of a sleeping minor girl, argues that the
minor needed to have volitionally participated in the sexual act to
sustain his conviction under 18 U.S.C. § 2251(a) and (e). 1 Because
the district court did not mention a volitional requirement during
the plea colloquy, and because Wright would not have pleaded
guilty had he known about what he contends is the volitional
requirement, Wright argues that he was prejudiced and his
conviction should be reversed. Because we have held that 18 U.S.C.
§ 2251(a) does not require the minor to volitionally participate in
1 Wright does not challenge his § 2251(b) conviction in this appeal.
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22-12338 Opinion of the Court 3
the sexual act, Wright’s challenge fails. Accordingly, after careful
review, we affirm.
I. Background
On August 17, 2020, Wright’s biological daughter, J.W.,
alerted a family friend that her parents had been sexually abusing
her.2 The family friend alerted police, who interviewed Wright and
his wife, searched their phones, and seized other electronic devices
from their house. The search of their electronic devices revealed
many images and videos depicting child pornography. Twentyeight videos were found depicting oral, vaginal, and anal sex
between J.W. and her parents over a two-year period. Wright also
had additional images of other minors—friends of J.W.—who had
slept over in the home, where Wright took photos of the minors
sleeping. In the photos, Wright is seen pulling the sleeping minors’
underwear to the side to expose their genitals and posing nude with
an erect penis near the exposed portions of their bodies. Finally,
other images of child pornography (not involving Wright, his wife,
or J.W.) were discovered, including 3,111 videos and 316 photos
depicting oral sex, anal sex, vaginal sex, bondage, and bestiality
involving minors.
2 We take the undisputed facts from the presentence investigation report and
from Wright’s plea colloquy. See United States v. Beckles, 565 F.3d 832, 844 (11th
Cir. 2009) (“[A] failure to object to allegations of fact in a PSI admits those facts
for sentencing purposes and precludes the argument that there was error in
them.”) (quotation omitted)).
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4 Opinion of the Court 22-12338
J.W. stated during her interview that Wright began sexually
abusing her when she was five years old, and that by 2020, when
she was twelve, Wright was forcing her to have sex with him 15 to
20 times per month. J.W. said that her mother also participated in
the sexual abuse and would try to calm her down during the abuse.
Wright was indicted on six counts of producing child
pornography involving his own minor daughter and other minors,
in violation of 18 U.S.C. § 2251(a), (b), and (e). 3 Wright reached a
written plea agreement, under which he pleaded guilty to one
count of producing child pornography of his daughter, J.W.
(Count 1), and one count of production of child pornography of
an unrelated minor victim, M.L. (Count 4), in exchange for
dismissal of the remaining four counts.
Only Count 4 is at issue in this appeal. Count 4 involved
fourteen photographs that Wright took of M.L., a friend of J.W.’s
whom J.W. had invited to their house to spend the night. While
M.L. was sleeping, Wright moved her underwear to the side and
took photos of her exposed vagina. In one of the photos, Wright
placed his bare, erect penis close to M.L.’s exposed vagina. M.L.
was nine years old at the time.
At the change-of-plea hearing, the district court confirmed
that Wright had received a copy of the indictment and that
3 The government also charged J.W.’s mother with three counts of production
of child pornography while being the parent of the minor victim in violation
of 18 U.S.C. § 2251(b) and (e). She later pleaded guilty to one count and
received a sentence of 360-months’ imprisonment.
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22-12338 Opinion of the Court 5
Wright’s lawyer had explained the charges to him. The district
court then read the charge in Count 4 to Wright and explained each
element of the charge. In pertinent part, the district court
explained that the government would have to prove beyond a
reasonable doubt (1) that Wright did or attempted to either
“employ, use, induce, entice, [or] coerce” M.L. (2) “to engage in
sexually explicit conduct.” The district court did not define what it
meant “to engage in sexually explicit conduct.” The district court
asked Wright if he understood this charge and gave him a chance
to ask questions. Wright confirmed that he understood the charge
and did not have any questions.
The government then recited the facts relevant to Count 4,
namely that Wright took explicit photos of M.L. while she was
having a sleep over with J.W., and that the photographs depicted
M.L.’s exposed vagina and Wright’s erect penis positioned over
M.L.’s vagina. Wright admitted these facts and that the
government could prove them beyond a reasonable doubt if the
case went to trial. Accordingly, the district court found that there
was an adequate factual basis for Count 4. Wright at no point
objected to the district court’s explanation of the elements of
Count 4, the factual basis for Count 4, or otherwise challenged the
validity of his plea.
The district court sentenced Wright to 360 months for both
Count 1 and Count 4 to run consecutively for a total sentence of
720-months’ imprisonment. Wright now appeals his conviction as
to Count 4.
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6 Opinion of the Court 22-12338
II. Discussion
Wright argues, for the first time on appeal, that the district
court violated Federal Rules of Criminal Procedure 11(b)(1)(G) and
(b)(3) in accepting his guilty plea.4 The two asserted violations
stem from the same alleged error. Wright argues that to convict
him under 18 U.S.C. § 2251(a), the government needed to prove
that M.L. volitionally participated in the sexually explicit conduct.
Because the district court did not discuss a volitional requirement
when instructing Wright on the nature of his charge or require the
government to make a factual showing that M.L. volitionally
participated in the conduct, Wright argues that the district court
violated the requirements of Rules 11(b)(1)(G) and (b)(3) in taking
his guilty plea. And because M.L. was sleeping when Wright
photographed her, Wright argues he would not have pleaded guilty
if he knew M.L. had to have volitionally participated in the sexually
explicit conduct.
Wright asserts these Rule 11 errors for the first time on
appeal, so we review them for plain error only. See United States v.
Puentes-Hurtado, 794 F.3d 1278, 1285 (11th Cir. 2015). On “plain
error review, [Wright] bears the burden of establishing that
4 Although Wright’s plea agreement contained an appeal waiver, he argues
that the appeal waiver does not prevent this appeal because his claims would
render the plea agreement invalid and unenforceable. The government
agrees. The parties are correct that Wright’s appeal waiver does not bar the
instant appeal. See United States v. Puentes-Hurtado, 794 F.3d 1278, 1284–85
(11th Cir. 2015) (explaining that asserted violations of Rule 11(b)(1)(G) and
Rule 11(b)(3) “are not barred by [an] appeal waiver in [a] plea agreement”).
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22-12338 Opinion of the Court 7
(1) there is an error; (2) that is plain or obvious; (3) affecting his
substantial rights in that it was prejudicial and not harmless; and
(4) that seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Aguilar-Ibarra, 740 F.3d
587, 592 (11th Cir. 2014) (quotation omitted). As for the second
requirement, “a district court’s error is not ‘plain’ or ‘obvious’ if
there is no precedent directly resolving [the] issue,” United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (quotation
omitted), or if the error is not “plain . . . in view of the
unequivocally clear words of a statute or rule.” Aguilar-Ibarra, 740
F.3d at 592. Moreover, “[a]n error cannot be plain if neither the
Supreme Court nor this Court has ever resolved the issue, and
other circuits are split on it.” United States v. Bobal, 981 F.3d 971, 975
(11th Cir. 2020) (quotation omitted).
Rule 11(b)(1)(G) requires a district court, before accepting a
guilty plea, to “inform the defendant of, and determine that the
defendant understands . . . the nature of each charge to which the
defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). The purpose
of this nature-of-the-charge rule is to “ensure that a defendant’s
guilty plea is knowing.” United States v. Lopez, 907 F.2d 1096, 1099
(11th Cir. 1990). A district court’s approach to this task is not
governed by mechanical rules, and it “may be done in different
ways depending on various factors.” United States v. Wiins, 131
F.3d 1440, 1443 (11th Cir. 1997). We have said that what is required
varies based on the complexity of the charge; ranging from reading
the indictment and allowing the defendant to ask questions for
simpler charges, to explaining the offense like that given to the jury
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8 Opinion of the Court 22-12338
in its instructions for “charges of extreme complexity.” United
States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979). 5
Relatedly, Rule 11(b)(3) requires a district court, before
entering judgment on a guilty plea, to “determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). This rule
“requires that the factual basis for each essential element of the
crime be shown.” United States v. Boatright, 588 F.2d 471, 475 (5th
Cir. 1979). “The purpose of this requirement is to protect a
defendant who mistakenly believes that his conduct constitutes the
criminal offense to which he is pleading.” Lopez, 907 F.2d at 1100.
In relevant part, 18 U.S.C. § 2251(a) provides that “[a]ny
person who employs, uses, persuades, induces, entices, or coerces
any minor to engage in . . . sexually explicit conduct for the purpose
of producing any visual depiction of such conduct . . . shall be
punished as provided under subsection (e).” (emphasis added).
While Wright’s case was pending appeal, we rejected an
identical argument to that made by Wright. We held that § 2251(a)
does not require that the minor volitionally participate in the
sexually explicit conduct. United States v. Dawson, 64 F.4th 1227,
5 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit issued before the close of
business on September 30, 1981, are binding precedent in the Eleventh
Circuit).
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22-12338 Opinion of the Court 9
1236–39 (11th Cir.), cert. denied 144 S.Ct. 343 (2023). 6 In Dawson, we
addressed
whether an offender ‘uses’ a minor in violation of
§ 2251(a) only by having the minor engage in sexually
explicit conduct, or whether an offender ‘uses’ a
minor when the minor’s presence is the object and
focal point of the offender’s sexual desire as the
offender, not the minor, engages in the sexually
explicit conduct.
Id. at 1236. We held that the phrase “to engage in” in § 2251(a) does
not require a minor “to be actively engaged in [the] sexually explicit
conduct.” Id. Rather, the different verbs in the statute—“employs,
uses, persuades, induces, entices, or coerces”—“suggest a
continuum of participation by the minor covering a broad range of
criminal conduct.” Id. at 1237. And “[o]n the passive end of the
spectrum, . . . the verbs ‘employs’ and ‘uses,’ suggest[] the passive
involvement of the minor, rather than the active engagement of
the minor, in the offender’s sexually explicit conduct.” Id.
Thus, even though the minor in Dawson sat passively
unaware in the defendant’s presence while he filmed himself
6 After the government filed a citation of supplemental authority pursuant to
Federal Rule of Appellate Procedure 28(j) addressing Dawson, we directed
Wright to file a supplemental letter brief addressing whether Dawson
foreclosed his argument. In that letter brief, Wright argues that Dawson is
distinguishable because the minor victim in that case was awake, and Wright’s
minor victim was sleeping. This difference is not meaningful. Based on
Dawson and the plain language of § 2251(a), Wright’s argument fails.
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10 Opinion of the Court 22-12338
masturbating, we upheld the defendant’s conviction under
§ 2251(a). Id. at 1238–39. We reasoned that the defendant’s
“actions constituted the use of a minor to engage in sexually
explicit conduct in violation of ” § 2251(a) because the minor served
as “the object of [defendant’s] sexual desire as he engage[d] in
sexually explicit conduct.” Id. at 1238.
Dawson squarely forecloses Wright’s argument. Although
M.L. was sleeping, it is clear that she was “employ[ed]” or “use[d]
as the object of [Wright’s] sexual desire as he engage[d] in sexually
explicit conduct.” Id. Because 18 U.S.C. § 2251(a) “does not require
the minor to be actively engaged in sexually explicit conduct,”
Dawson, 64 F.4th at 1236, such a factual showing was not necessary
under Rule 11(b)(3), nor was it part of the nature of the charge that
the district court needed to explain to Wright under Rule
11(b)(1)(G). Accordingly, the district court did not commit plain
error in taking Wright’s guilty plea without finding M.L.
volitionally participated in the sexual act.7
AFFIRMED.8
7 Wright also argues that the rule of lenity should apply to read § 2251(a) to
exclude his conduct. But as we explained in Dawson, because “the traditional
tools of statutory interpretation provide sufficient clarity on the meaning of
§ 2251(a)[,] . . . the rule of lenity does not apply.” 64 F.4th at 1239.
8 This appeal was originally scheduled for oral argument, but the panel
unanimously agreed to remove it from the oral argument calendar under 11th
Circuit Rule 34-3(f).
