PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1521
___________
UNITED STATES OF AMERICA
v.
ERIC S. DAHMEN,
Appellant
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 3-09-cr-00007-001)
District Judge: Honorable Kim R. Gibson
___________
Argued December 8, 2011
Before: HARDIMAN and BARRY, Circuit Judges
and RUFE*, District Judge
(Filed: March 27, 2012)
*
The Honorable Cynthia M. Rufe, District Judge for the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
Donovan J. Cocas [ARGUED]
Rebecca R. Haywood
Mary M. Houghton
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219-0000
John J. Valkovci
Office of the United States Attorney
319 Washington Street
224 Penn Traffic Building
Johnstown, PA 15901-0000
Attorneys for Plaintiff-Appellee
Thomas Livingston
Renee Pietropaolo [ARGUED]
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222-0000
Attorneys for Defendant-Appellant
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
2
At issue in this appeal is the Government’s alleged
breach of a plea agreement. Appellant Eric Dahmen pleaded
guilty to two federal crimes involving the sexual exploitation
of minors. That plea was memorialized in a written
agreement that included certain stipulations that the District
Court deemed binding pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure. After the plea
agreement was signed, the Probation Office recommended a
five-level enhancement pursuant to § 4B1.5(b) of the United
States Sentencing Guidelines. Although Dahmen conceded
the applicability of that enhancement in the District Court, he
claims for the first time on appeal that the Government
breached the plea agreement by requesting it. As a remedy,
Dahmen asks us to order the District Court to resentence him
pursuant to a Sentencing Guidelines range of 108 to 135
months’ imprisonment.
I
In July 2007, the discovery of pornographic images,
explicit internet chats, and suggestive text messages in the
home of a fourteen-year-old girl in Cambria County,
Pennsylvania, led state police officers to suspect that she was
engaged in a sexual relationship with the twenty-one-year-old
Dahmen. A search of Dahmen’s computer and cellular phone
yielded three videos and fifty-one photographs of the girl in
various states of undress and masturbation, as well as another
pornographic video involving a different minor. On October
12, 2007, Dahmen was arrested and charged with statutory
sexual assault and child pornography offenses.
Dahmen’s detention was short-lived. He posted bail
and soon thereafter began exchanging nude photographs and
explicit videos with a fifteen-year-old girl from North
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Carolina. A few months after he initiated contact with that
girl, Dahmen persuaded Matthew Ehredt to drive with him to
North Carolina to visit her. In spite of Ehredt’s warnings that
Dahmen’s conduct violated his bail conditions, Dahmen took
the girl from North Carolina to Pennsylvania. During the trip,
Dahmen had sexual contact with the girl while Ehredt
operated the vehicle, and the illicit relationship continued in
Pennsylvania. When officers arrested Dahmen several days
later, they recovered a cell phone video of Dahmen and the
girl engaged in sexual intercourse.
Pursuant to a written plea agreement, Dahmen pleaded
guilty to transportation of a minor with intent to engage in
criminal sexual activity in violation of 18 U.S.C. § 2423(a)
(Count One) and possession of material depicting the sexual
exploitation of a minor in violation of 18 U.S.C.
§ 2252(a)(4)(B) (Count Two). The agreement specified the
base offense level for each count and referenced certain
sentencing enhancements pursuant to Chapters 2 and 3 of the
United States Sentencing Guidelines (USSG or Guidelines),
but made no mention of any enhancements pursuant to
Chapter 4 of the Guidelines. The agreement noted that
Dahmen faced a statutory mandatory minimum sentence of
ten years’ imprisonment and a potential maximum sentence
of life imprisonment.
Dahmen’s plea agreement also contained a waiver of
his appellate rights, subject to three limited exceptions: (1) if
the Government appealed; (2) if the sentence exceeded the
statutory maximum; or (3) if the sentence exceeded the
applicable Guidelines range. The agreement also noted that
its “stipulations [were] not binding on the Court and [did] not
preclude the parties from bringing to the attention of the
4
United States Probation Office or the Court any other
information.”
Before accepting Dahmen’s plea, the District Court
clarified that though “the plea agreement at Paragraphs C(3),
(4), and (5) indicate[d] that the stipulations made between the
parties [were] . . . not binding on the court,” that language
was “incorrect.” The Court explained that “if [it] accept[ed
Dahmen’s] plea, the stipulations [would] be binding because
the nature of the stipulations fall under the classifications set
forth in Federal Rule of Criminal Procedure 11(c)(1)(C).”
Though given the opportunity to do so, neither party objected
to the Court’s analysis.
After the District Court accepted Dahmen’s written
plea agreement and guilty plea, the Probation Office prepared
a Presentence Investigation Report (PSR). The Government
objected to the PSR, claiming that Dahmen’s Guidelines
range was subject to enhancement pursuant to USSG
§ 4B1.5(b), which applies to defendants who “engaged in a
pattern of activity involving prohibited sexual conduct.” The
Probation Office agreed with the Government’s objection and
issued an amended PSR that increased Dahmen’s offense
level by five levels pursuant to § 4B1.5(b). In response to
this “dramatic change,” Dahmen’s counsel moved to
postpone his sentencing, noting that “[b]ecause the plea
negotiations, plea agreement, the guilty plea colloquy, and the
[PSR] did not contemplate or anticipate the application of
§ 4B1.5(b),” counsel required more time to “discuss
§ 4B1.5(b) and its potential impact” with his client. The issue
resurfaced in Dahmen’s motion for a downward variance, in
which he “object[ed] to the 5 level ‘bump’ which § 4B1.5(b)
calls for, and . . . to the corresponding Total Offense Level of
36 and the corresponding ‘210–262’ guideline range.”
5
The sentencing hearing was held on February 7, 2011.
After having ample time to study the matter, Dahmen’s
experienced and able trial counsel did “not object[] to the
soundness of the application of 4B1.5.” After the Court
applied the enhancement and concluded that Dahmen’s total
offense level was 36, counsel were asked if they “agree[d]
with the calculation of the guidelines as set forth by the
Court,” and both answered in the affirmative. Later in the
proceedings, the Court gave counsel another opportunity to
object, asking if there was “anything . . . in either the
sentencing options or in the sentencing guideline calculations
that [they] believe[d] need[ed] to be corrected.” Again,
Dahmen did not object to the District Court’s decision
regarding the applicable Guidelines range. Because neither
party sought a departure under the Guidelines, the District
Court proceeded to the third and final step of the sentencing
process, during which Dahmen argued for a downward
variance and the Government requested a bottom-of-the-
Guidelines sentence of 210 months’ imprisonment.
While arguing for a downward variance, Dahmen’s
counsel returned to the issue of the § 4B1.5(b) enhancement.
Counsel conceded that “[a]fter thoroughly researching [the
enhancement, he] verified factually it did, in fact, fit” and
consequently did “not object to its application.”
Nevertheless, he advocated for a variance, arguing that the
application of § 4B1.5(b) was redundant because the factors it
addressed were “already contemplated by the sentencing
guidelines under 2G1.3, 2G2.2, 4A1.1,” all of which had been
included in the plea agreement. The Court disagreed, rejected
Dahmen’s request for a downward variance, calculated the
applicable range as 210 to 252 months, and sentenced him to
216 months in prison.
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II
Because Dahmen was charged with violations of
federal criminal law, the District Court had subject matter
jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction over Dahmen’s appeal under 28 U.S.C. § 1291.
Before we consider the merits of Dahmen’s argument
that the District Court erred by increasing his total offense
level pursuant to USSG § 4B1.5(b), we must determine the
appropriate standard of review, which the parties dispute.
Dahmen claims that we exercise plenary review, citing United
States v. Rivera, in which we held that “‘whether the
government violated the terms of a plea agreement is a
question of law subject to plenary review.’” 357 F.3d 290,
294 (3d Cir. 2004) (quoting United States v. Queensborough,
227 F.3d 149, 156 (3d Cir. 2000)).
The Government, on the other hand, argues that we
review Dahmen’s claim for plain error because of his failure
to object in the District Court. In support of this argument,
the Government cites Puckett v. United States for the
proposition that when a defendant waits until his appeal to
allege a violation of his plea agreement, our authority to
remedy the alleged error is “strictly circumscribed.” 556 U.S.
129, 134 (2009). According to Puckett, we have “discretion
to remedy [such] error” only where it: (1) constitutes a
“‘[d]eviation from a legal rule’”; (2) is “clear or obvious,
rather than subject to reasonable dispute”; (3) “affect[s] the
appellant’s substantial rights”; and (4) “‘seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 135 (quoting United States v. Olano,
507 U.S. 725, 732–34, 736 (1993)).
7
We agree with the Government because our
application of plenary review in Rivera is no longer good law
in light of the Supreme Court’s decision in Puckett. In
Puckett’s plea agreement, the government “agree[d] that [he]
. . . demonstrated acceptance of responsibility and thereby
qualifie[d] for a three-level reduction in his offense level.”
Id. at 131. But Puckett’s commission of another offense prior
to sentencing led the government to oppose any reduction for
acceptance of responsibility. Consequently, the district court
increased Puckett’s sentencing range. Id. at 132–33. Like
Dahmen, Puckett received a sentence at the low end of the
applicable range and never moved to withdraw his plea. Id.
The Supreme Court noted that “at no time during the
exchange did Puckett’s counsel object that the Government
was violating its obligations under the plea agreement” and
concluded that, though “the Government’s breach of a plea
agreement is a serious matter,” Puckett’s forfeiture of the
claim warranted plain-error review. Id. at 133, 143. Because
we are bound by Puckett, we review Dahmen’s first
contention for plain error.
III
A
Dahmen claims that the District Court erred when it
applied a five-level enhancement pursuant to USSG
§ 4B1.5(b) after finding that he “engaged in a pattern of
activity involving prohibited sexual conduct.” Consistent
with his trial counsel’s position before the District Court,
Dahmen does not deny on appeal that he “engaged in a
pattern of activity involving prohibited sexual conduct.”
Instead, he argues that once the District Court deemed itself
bound by a written plea agreement that made no mention of
8
that particular enhancement, it was prohibited from applying
it at sentencing. Dahmen focuses on the following comment
made by the District Court at the time he entered his plea:
I wish to note for the record that the plea
agreement at Paragraphs C(3), (4), and (5)
indicate that the stipulations made between the
parties are indicated to be not binding upon the
Court. However, this language in the plea letter
is incorrect. I want the defendant to know that
if I accept your plea, the stipulations will be
binding because the nature of the stipulations
fall under the classifications set forth in Federal
Rule of Criminal Procedure 11(c)(1)(C).
The gravamen of Dahmen’s claim is that the District
Court’s statement that the stipulations were binding pursuant
to Rule 11(c)(1)(C) precluded the application of any other
unmentioned enhancements, including those pursuant to
Chapter 4 of the Guidelines. We disagree. Contrary to
Dahmen’s argument, the District Court referred only to
Paragraphs C(3), (4), and (5) of the agreement, which address
only Chapters 2 and 3 of the Guidelines, relating to
calculations of base offense level, conduct-related
enhancements, and adjustments for multiple counts. Neither
the District Court nor the written plea agreement adverted to
§ 4B1.5(b) or any other Chapter 4 enhancements, which relate
to criminal history.
Dahmen urges that the Government and the District
Court violated the stipulations of the plea agreement by
seeking and imposing a five-level increase under USSG
§ 4B1.5(b). In his reply brief, he protests that his guilty plea
was not knowing, intelligent, and voluntary because he relied
9
on the District Court’s statement during his plea colloquy that
the Court was bound by the stipulations. We disagree with
Dahmen in this regard because his argument is based on the
fallacy that the Government or the District Court breached
one or more of those stipulations. Dahmen has not cited, and
we have not found, any provision of the written agreement, or
any statement by the Government or the District Court, that
Dahmen was immune from a Chapter 4 enhancement. Absent
such a promise, neither the Government nor the District Court
could have violated the agreement by deeming § 4B1.5(b)
applicable (or inapplicable). Accordingly, we hold that the
Government did not breach its agreement with Dahmen and
that the District Court did not err when it fixed Dahmen’s
final advisory Guidelines range at 210 to 252 months’
imprisonment.
B
Dahmen next claims that his sentence of 216 months’
imprisonment is unreasonable. In light of Dahmen’s
appellate waiver, however, his argument in this respect must
rely on his prior claim that he was sentenced above the
applicable Guidelines range. Having determined that the
District Court did not err in determining that Dahmen’s
Guidelines range was 210 to 252 months’ imprisonment, it is
apparent that his 216-month sentence is within the Guidelines
range.
We do not review the merits of an appeal where “we
conclude (1) that the issues [the defendant] pursues on appeal
fall within the scope of his appellate waiver and (2) that he
knowingly and voluntarily agreed to the appellate waiver,
unless (3) enforcing the waiver would work a miscarriage of
justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir.
10
2008). Dahmen has not cited any evidence that his
acceptance of the plea agreement was anything but knowing
and voluntary; indeed, he repeatedly assured the District
Court that it was knowing and voluntary during the change-
of-plea hearing. His within-Guidelines sentence is plainly no
miscarriage of justice.
III
The District Court committed no error, much less plain
error, by enhancing Dahmen’s Guidelines range pursuant to
§ 4B1.5(b), and Dahmen’s appellate waiver prevents us from
considering the challenge to the reasonableness of his
sentence. Consequently, we will affirm the District Court’s
judgment of sentence.
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