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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16321
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00058-EAK-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WESLEY WILLIAM BRANDT, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 24, 2014)
Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
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Wesley Brandt, Jr. appeals his convictions for three counts of producing
child pornography, along with his total 1,080-month sentence following his guilty
plea. After review of the record and the parties’ briefs, we affirm.
I
Because we write for the parties, we assume familiarity with the underlying
facts of the case and recite only what is necessary to resolve this appeal.
Mr. Brandt was indicted on 13 counts stemming from, among other things,
his production, receipt, and possession of child pornography. Pursuant to a plea
agreement, Mr. Brandt pled guilty to three counts of producing child pornography
in violation of 18 U.S.C. § 2251(a) and (e). Under the agreement, he waived his
right to raise an ineffective assistance of counsel claim, or to appeal his sentences
except on the grounds that they violated his Eighth Amendment rights or exceeded
his advisory guidelines range or maximum statutory penalties. In exchange, the
government pledged, among other things, "to make known to the [district court]
and other relevant authorities the nature and extent of defendant's cooperation and
any other mitigating circumstances.” The government nevertheless reserved the
right to make any recommendations it deemed appropriate to the disposition of the
case.
At the plea colloquy, the magistrate judge summarized the pertinent portions
of the plea agreement, and Mr. Brandt acknowledged that he understood those
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provisions. The magistrate judge issued a report recommending that Mr. Brandt’s
guilty plea be accepted; Mr. Brandt filed no timely objection, and the district court
accepted his guilty plea.
According to the pre-sentence investigation report, Mr. Brandt used the
Internet to coerce three minor females - ranging from six to thirteen years of age -
to photograph themselves in a sexually explicit manner and then send him the
photographs. The report also took into account Mr. Brandt’s actions with respect
to four additional minor victims, including alleged sexual exploitation, and
ultimately arrived at a total offense level of 43 and a criminal history category of I,
yielding an advisory guidelines range of life imprisonment. Because the maximum
statutory penalty for each count was 30 years’ imprisonment, however, the PSI set
Mr. Brandt’s advisory guidelines range at 1,080 months (or 90 years). See
U.S.S.G. § 561.2 (d).
At sentencing, Mr. Brandt sought a downward variance to 240 months’
imprisonment. The government in turn requested that, consistent with his advisory
guidelines range, Mr. Brandt be sentenced to 1,080 months’ imprisonment.
Characterizing Mr. Brandt’s crimes as “absolutely horrible,” and concluding that
he should “never, never, never be put in a position again to do this,” the district
court agreed with the government’s position and sentenced Mr. Brandt to three
consecutive 30-year terms of imprisonment. Mr. Brandt now appeals.
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II
On appeal, Mr. Brandt challenges the voluntariness of his plea, alleging
violations of Federal Rule of Criminal Procedure 11 based on the magistrate
judge’s failure to inform him of his right to conflict-free counsel or inquire into his
defense counsel’s alleged conflict of interest.1 He also argues that the government
breached the plea agreement by recommending that the maximum sentences be
imposed, and contends that his 1,080-month sentences violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. 2
A
Mr. Brandt first contends that his guilty plea was not knowing or voluntary
because the magistrate judge did not inform him of his right to conflict-free
counsel in connection with his waiver of the right to pursue an ineffective
assistance of counsel claim. As a threshold matter, because Mr. Brandt failed to
object to the magistrate judge’s report and recommendation that his guilty plea be
accepted, his claim is not reviewable on appeal. See Fed. R. Crim. P. 59(b)(2);
United States v. Garcia-Sandobal, 703 F.3d 1278, 1282-83 (11th Cir. 2013).
1
To the extent that Mr. Brandt also asserts an independent claim for a violation of the
Sixth Amendment based on ineffective assistance of counsel, the record is not sufficient to
address the claim on direct appeal. United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012).
2
Mr. Brandt’s plea agreement included a sentence appeal waiver. As this waiver was
made knowingly and voluntarily, Mr. Brandt cannot appeal his sentence on reasonableness
grounds. See United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Thus, his claim
that his sentences are substantively unreasonable because the district court failed to consider
certain 18 U.S.C. § 3553(a) factors is not reviewable on appeal.
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Even if it were reviewable, Mr. Brandt’s argument would fail on the merits.
Because he did not raise this claim in the district court, we review only for plain
error. See United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). To
prevail under this standard, Mr. Brandt must show (1) an error, (2) that was plain,
(3) that affected his substantial rights, and (4) seriously affected the fairness of the
judicial proceedings. See Id. at 1349. An error is not plain unless a decision from
the Supreme Court or this court directly resolves the issue. See United States v.
Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (per curiam).
Mr. Brandt has not made a showing of plain error. He relies heavily on
Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980), for the proposition that “a
defendant who shows that a conflict of interest actually affected the adequacy of
his representation need not demonstrate prejudice in order to obtain relief.” We
have limited the applicability of Cuyler’s so-called presumed prejudice rule,
however, to conflicts of interest arising from concurrent representation of multiple
defendants. See Downs v. Sec’y, Fla. Dep’t of Corrections, 738 F.3d 240, 265
(11th Cir. 2013). Because that scenario is not before us here, Mr. Brandt cannot
avail himself of a presumption of prejudice. Moreover, we have previously upheld
plea agreements that include waivers of defendants’ right to raise ineffective
assistance of counsel at sentencing. See Williams v. United States, 396 F.3d
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1340, 1342 (11th Cir. 2005). Because Mr. Brandt has not shown plain error, we
reject his challenge to the knowing and voluntary nature of his guilty plea. 3
B
Mr. Brandt also contends for the first time on appeal that the government
breached the plea agreement when it recommended that he receive the maximum
penalty at sentencing and - in so doing - undercut his request for a downward
variance. We disagree.
We generally review de novo the question of whether the government
breached a plea agreement. See United States v. Copeland, 381 F.3d 1101, 1104
(11th Cir. 2004). Where a defendant fails to object to an alleged breach before the
district court, however, such a claim is reviewed only for plain error. See United
States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). In analyzing a claim
that the government breached a plea agreement, we must determine the scope of
the government’s promises. See Copeland, 381 F.3d at 1105. When considering
the meaning of any disputed terms in an agreement, we apply an objective standard
to determine whether the government’s actions were inconsistent with what the
defendant reasonably understood when he pled guilty. See Id.
3
Mr. Brandt’s reliance on Florida Bar Ethics Opinion AO 12-1, which states that “a
criminal defense lawyer has a personal conflict of interest when advising a client regarding
waiving the right to later collateral proceedings regarding ineffective assistance of counsel,” does
not change this result. Florida Bar ethics opinions do not abrogate our binding precedent and are
merely advisory.
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The government did not breach the plea agreement by recommending that
the district court impose the maximum allowable sentences. The government
complied with the terms of the agreement by informing the district court of Mr.
Brandt’s cooperation and acceptance of responsibility, and Mr. Brandt identifies no
mitigating factors that the government neglected to bring to the district court’s
attention. The agreement did not require the government to recommend a
particular sentence or to stand silent on the issue of sentencing; rather, it reserved
the government’s right to recommend any disposition it deemed appropriate within
Mr. Brandt’s advisory guidelines range. Mr. Brandt has failed to establish that the
government’s actions amounted to a breach of the plea agreement. Accordingly,
there was no error, plain or otherwise.
C
Mr. Brandt likewise maintains that the 1,080-month prison sentences that the
district court imposed amount to cruel and unusual punishment in violation of his
Eighth Amendment rights. We are not persuaded.
We typically review Eighth Amendment challenges de novo. See United
States v. Flanders, 752 F.3d 1317, 1342 (11th Cir. 2014). Because Mr. Brandt did
not object to his sentences on this ground in the district court, however, we review
for plain error. See Id. In evaluating an Eighth Amendment challenge in a non-
capital case, a defendant must make a threshold showing that the sentence imposed
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is grossly disproportionate to the offense committed. See United States v. Johnson,
451 F.3d 1239, 1243 (11th Cir. 2006). In general, a defendant whose sentence falls
within the limits imposed by statute cannot make the threshold showing of gross
disproportionality. See Id. If the defendant establishes that the sentence is grossly
disproportionate, we compare the defendant’s sentence to the sentences imposed
on others convicted of similar offenses. See Id. We have “never found a term of
imprisonment to violate the Eighth Amendment, and outside the special category
of juvenile offenders the Supreme Court has found only one to do so.” United
States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010).
Mr. Brandt has failed to make a threshold showing that his sentences are
grossly disproportionate to his crimes. The sentences fall within the limits
imposed by statute, suggesting that they did not run afoul of the Eighth
Amendment. See Moriarty, 429 F.3d at 1024 (“In general, a sentence within the
limits imposed by statute is neither excessive nor cruel and unusual under the
Eighth Amendment.”) (citation and quotation marks omitted). Although Mr.
Brandt points out that he had no physical contact with his victims, this fact cannot
serve to minimize - much less neutralize - the devastating psychological impact
that his offenses left in their wake, as exemplified by the poignant statements of
one of his teenage victims and the victims’ families at sentencing. See Farley, 607
F.3d at 1345 (“[T]he sexual abuse of children, and the use of the Internet to
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facilitate that abuse, are serious problems affecting the health and welfare of the
nation.”). Accordingly, the district court’s sentences are not grossly
disproportionate to Mr. Brandt’s offenses, and no plain error has been shown.
III
The district court’s convictions and sentences are affirmed.
AFFIRMED.
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