Kenneth L. Musslyn v. United States , 991 F.2d 801 ( 1993 )

991 F.2d 801

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
Kenneth L. MUSSLYN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 92-3485.

United States Court of Appeals,
Eighth Circuit.

Submitted: March 31, 1993.
Filed: April 2, 1993.

Before BOWMAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

1

Kenneth L. Musslyn appeals from the District Court's1 denial of his motion to vacate his sentence under 28 U.S.C. § 2255 (1988). We affirm.

2

In 1988 Musslyn entered a conditional plea of guilty to unlawfully receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) (1988) and was sentenced to six years in prison. We affirmed the conviction. United States v. Musslyn, 865 F.2d 945 (8th Cir. 1989) (per curiam). Musslyn, who is currently on supervised release, recently filed this motion claiming that he was entrapped to commit the offense through the government's use of an undercover sting operation.

3

We conclude that Musslyn waived this entrapment argument by entering a guilty plea. See United States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992). Even if this claim had not been waived, however, Musslyn could not prevail. A successful entrapment defense requires a showing that the defendant was not predisposed to commit the offense, § ee United States v. Gullickson, 982 F.2d 1231, 1235 (8th Cir. 1993), and we held on direct appeal that Musslyn was predisposed to order and collect child pornography. Musslyn, 865 F.2d at 946-47.

4

Accordingly, the decision of the District Court is affirmed.

1

The Honorable D. Brook Bartlett, United States District Judge for the Western District of Missouri