United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1948
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
William Baker, *
*
Appellant. *
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Submitted: January 9, 2012
Filed: March 28, 2012
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Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
William Baker pled guilty, pursuant to a written plea agreement, to one count
of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a). In the plea
agreement, the Government agreed to recommend a sentence at the low end of Baker’s
advisory sentencing guidelines range. The district court,1 however, imposed a longer
1
The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
sentence, and Baker now appeals, arguing that the Government breached the
agreement with its comments at sentencing. We affirm.
At his change-of-plea hearing, Baker admitted the truthfulness of the following
facts set forth in the plea agreement. Baker arranged and photographed a sexual
encounter at his residence between a fifteen-year-old male and a fifteen-year-old
female. The acts photographed by Baker included oral, anal, and vaginal sex between
the minors. Baker provided alcohol to the minors before and during the encounter,
showed them pornographic videos to “instruct” them how to do certain acts, and at
one point touched the female minor’s genitals. Law enforcement recovered 114
photographs of the encounter from digital media at Baker’s residence. Baker also had
a previous Missouri conviction for first-degree sexual abuse. At the change-of-plea
hearing, Baker confirmed that he understood his plea agreement contained a waiver
of his right to appeal “on any ground except claims of ineffective assistance of
counsel, prosecutorial misconduct or an illegal sentence.”
At Baker’s sentencing hearing, the district court determined an advisory
guidelines range of 360 months to life, with the upper end of the range modified to
600 months by the statutory maximum. See 18 U.S.C. § 2251(e) (imposing a statutory
range of imprisonment of twenty-five to fifty years for offenders with one qualifying
prior conviction). The female victim and her mother each spoke on behalf of Baker
and requested that the district court impose a sentence of less than 360 months. Baker
also filed a letter in which he acknowledged that his punishment was warranted but
stated, “I just wish it wasn’t so severe.” Thereafter, the Government acknowledged
that it was bound under the plea agreement to recommend a sentence at the low end
of the guidelines range (that is, 360 months), briefly summarized the offense conduct,
and then stated:
They don’t get much worse than this, Your Honor. They don’t.
And the defendant has made it abundantly clear by his own actions that
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he has a sexual preference for young children, and he’s never going to
stop. Presumably 30 years will be enough to prevent him from ever
doing this again.
And for those reasons, Your Honor, I believe that the guidelines
adequately address the defendant’s actions here, and the government will
stand by the plea agreement in this case.
Baker’s counsel did not object to any of these statements. The district court
pronounced a sentence of 480 months, citing in particular the factors of protecting the
public and providing adequate deterrence. Baker now appeals, arguing that the
Government breached its agreement to recommend a sentence at the low end of the
guidelines range.
Where “a defendant seeks to avoid an appellate waiver contained in a plea
agreement by arguing, for the first time on appeal, that the government breached the
plea agreement, this court will review the forfeited claim (and related claims) under
the plain error test of Fed. R. Crim. P. 52(b).” United States v. Lovelace, 565 F.3d
1080, 1086 (8th Cir. 2009). The plain error test requires a finding of “(1) error, (2)
that is plain, and (3) that affects substantial rights.” Id. at 1087 (quoting United States
v. Keller, 413 F.3d 706, 710 (8th Cir. 2005)). Such an error may be remedied “only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting Keller, 413 F.3d at 710) (internal quotation marks
omitted). “Issues concerning the interpretation and enforcement of a plea agreement
are reviewed de novo.” Id. at 1086-87 (quoting United States v. Paton, 535 F.3d 829,
835 (8th Cir. 2008)).
Here, there is no error, much less plain error, because the Government in fact
made the recommendation it was obligated to make. The fact that the
recommendation was made in other than the most enthusiastic terms does not breach
the agreement. See United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir. 2001)
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(“[The plea agreement] required the government to recommend a reduction for
acceptance of responsibility, and the government made this recommendation at
sentencing. . . . While the attorney’s recommendation was less than enthusiastic, this
lack of enthusiasm does not breach the agreement.”). In addition, Baker’s letter and
the testimony on Baker’s behalf at the sentencing hearing could be construed as an
argument for a below-guidelines sentence, and the Government was not prohibited
from opposing a below-guidelines sentence even if such opposition conceivably could
cut against a sentence at the low end of the guidelines range as well. Cf. United States
v. Yellow, 627 F.3d 706, 709 (8th Cir. 2010) (finding that, although the government
presented evidence relating to obstruction of justice that was used to deny an
acceptance-of-responsibility reduction, the government did not breach its plea
agreement obligation to recommend an acceptance-of-responsibility reduction
“because the government never promised to refrain from presenting evidence of
obstruction of justice”).
Furthermore, even if the Government’s statements were held to be a breach of
the plea agreement, the breach would not have affected Baker’s substantial rights as
required for a finding of reversible plain error. See Lovelace, 565 F.3d at 1087. To
satisfy this prong of the plain error test, Baker would need to “show a ‘reasonable
probability, based on the appellate record as a whole, that but for the error he would
have received a more favorable sentence.’” Id. at 1088 (quoting United States v.
Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc)). The district court’s statements
at sentencing reflect just the opposite, however:
Not everybody has thoughts that they want to have sex with a young
child, Mr. Baker. This is abnormal. This is illegal. This is sick. So you
-- you’ve acted on these at least twice that we know of. Well, more than
that based on the presentence investigation . . . . It suggests to this Court
that in my role, in considering the goals of punishment where I have to
look at protecting the public, I don’t feel a lot of comfort that when you
get out of prison that kids are going to be safe around you. I don’t see
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how that -- it defies logic that any child will ever be safe around William
Baker.
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Here’s another [factor]. To afford adequate deterrence. So people know
when they have sex with children, there’s a harsh punishment related to
that. It should be. If we can’t protect children as a society, we’re
lost. . . .
I’m just shocked. I’ve seen a lot of ugliness in my business, and I am
shocked by this behavior.
Based on the record, there is no indication that, but for the Government’s statements,
the district court would have imposed a sentence more favorable to Baker. Thus, even
if the Government were held to have breached the plea agreement, Baker’s breach
claim would fail the plain error test of Rule 52(b). See Lovelace, 565 F.3d at 1088.
For the foregoing reasons, we affirm.
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