Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-4095 (D.C. No. 4:21-CR-00115-JNP-PK-1) JASON WILLIAM DITTMER, (D. Utah)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, SEYMOUR, and MURPHY, Circuit Judges. _________________________________
I. INTRODUCTION
Jason Dittmer pleaded guilty to one count of possession of methamphetamine
with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(C), and one count of
conspiracy to obstruct justice, see 18 U.S.C. § 1512(c)(1), (k). In exchange for
Dittmer’s guilty plea, the government agreed to (1) dismiss three additional
possession-with-intent-to-distribute charges; (2) recommend Dittmer’s offense level
be decreased two levels for acceptance of responsibility, U.S.S.G. § 3E1.1(a), and
move for an additional one level acceptance-of-responsibility reduction, id.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 2
§ 3E1.1(b); and (3) and recommend Dittmer be sentenced at the low end of the
advisory Sentencing Guideline range. The district court varied downward from the
bottom of the advisory sentencing range and imposed upon Dittmer a sentence of
fifty months’ imprisonment.
Dittmer asserts his guilty plea was not knowing and voluntary because he was
not informed of all elements of the § 1512(c)(1) charge. He claims that to prove a
violation of § 1512(c)(1), the government must demonstrate he contemplated a
particular proceeding, at the time of his obstructive conduct, that was reasonably
likely to be federal (i.e., the “nexus” requirement). In response, the government notes
Dittmer did not raise this issue below and, thus, can only obtain appellate relief by
demonstrating the district court committed plain error. It further argues the nexus
requirement is not an element of a § 1512(c)(1) charge but is, instead, “an implicit
limitation” courts “have read into” § 1512(c)(1)’s mens rea element. Gov’t Response
Br. at 16. At a minimum, the government avers, the answer to this question is not
plain. And, in any event, according to the government, any error did not affect
Dittmer’s substantial rights because he failed to show a reasonable probability that,
absent the error, he would not have pleaded guilty. See United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
This court need not resolve whether the nexus requirement is an element of a
§ 1512(c)(1) charge or, even if not, whether the Due Process Clause still requires a
discussion of the nexus requirement as part of a knowing and voluntary plea. Nor
need we resolve whether the answer to these questions is clear or obvious. Instead, it
2 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 3
is enough to conclude Dittmer failed to demonstrate any assumed error affected his
substantial rights. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this
court affirms the district court’s judgment of conviction.
II. BACKGROUND
Dittmer has an extensive criminal history. His juvenile record includes fifty-
one incidents, including drug charges and crimes like assault, theft, and burglary. His
adult criminal record dates to 2003. It includes convictions in approximately twenty-
five separate cases of using/distributing drugs, burglary, and domestic violence.
On June 1, 2021, Dittmer sold heroin to a confidential informant working with
the Washington County Drug Task Force (“WCDTF”). Three days later, Dittmer sold
2.5 grams of methamphetamine to the informant in another WCDTF controlled
purchase. On August 3, 2021, a WCDTF officer stopped Dittmer for driving with a
suspended license. A drug dog indicated there were drugs inside Dittmer’s truck. The
officer searched the truck and Dittmer’s person and found 14.8 grams of
methamphetamine. Dittmer admitted the methamphetamine was his. On August 23,
2021, officers watched Dittmer as he sat in Anthony Ricketts’s car. Dittmer exited
Ricketts’s car and drove away in his own vehicle. Officers stopped both vehicles. In
Ricketts’s car, officers found syringes, a digital scale, and about 12 grams of
methamphetamine. Ricketts said Dittmer was a drug dealer and the drugs belonged to
Dittmer. Officers found more drugs and drug-dealing equipment in Dittmer’s
possession, including a digital scale, two bags of marijuana, glass pipes, oxycodone
3 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 4
and morphine pills, a syringe of heroin, and three baggies containing a total of
approximately 5.4 grams of methamphetamine.
Officers arrested Dittmer and booked him into jail. On August 24, 2021,
Dittmer called his friend Nicole Baty from a phone in the jail. A WCDTF officer
monitored the call. Dittmer told Baty officers had taken his phone “as evidence” and
said she needed “to log into my email and erase my phone.” Baty agreed to do so.
Dittmer provided Baty his account usernames and passwords. The next day, Dittmer
again phoned Baty in a monitored call. Baty said she had been “able to get into
[Dittmer’s] account,” “deleted [his] phone,” and then “locked it and secured it.”
On November 3, 2021, a federal grand jury indicted Dittmer on five counts:
(1) distributing heroin on June 1, 2021, see 21 U.S.C. § 841(a)(1), (b)(1)(C);
(2) distributing methamphetamine on June 4, see id.; (3) possessing five grams or
more of methamphetamine with intent to distribute it on August 3, see id.
§ 841(a)(1), (b)(1)(B); (4) possessing methamphetamine with intent to distribute on
August 23, see id. § 841(a)(1), (b)(1)(C); and (5) conspiring to obstruct justice, see
18 U.S.C. § 1512(c)(1), (k). The parties negotiated a plea agreement. Dittmer agreed
to plead guilty to Count 4 (possessing methamphetamine with intent to distribute)
and Count 5 (conspiring to obstruct justice). The government agreed to dismiss the
three remaining counts, including Count 3, a possession-with-intent-to-distribute
count that carried a five-year mandatory minimum sentence. See 21 U.S.C.
§ 841(b)(1)(B)(viii). The government also agreed to move for a full three-level
4 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 5
reduction in Dittmer’s offense level for acceptance of responsibility and to
recommend a sentence at the low end of the Sentencing Guidelines range.
The plea agreement described the elements of the obstruction charge as
follows: (1) “The defendant did knowingly and intentionally combine, conspire,
confederate, and agree with another”; (2) “To corruptly alter, destroy, mutilate, and
conceal a record and document, that is, content of his cell phone”; (3) “With the
intent to impair its integrity and availability for use in an official proceeding.” The
plea agreement also incorporated a stipulation of facts. Dittmer agreed he “knowingly
and intentionally combined, conspired, confederated, and agreed with [Baty] to
corruptly alter, destroy, mutilate, and conceal a record and document, that is, content
of my cell phone, with the intent to impair its integrity and availability for use in an
official proceeding.” He further stipulated his “conduct obstructed justice by
destroying evidence in a federal narcotics investigation.”
The plea agreement stated Dittmer understood the charges and “what the
United States [was] required to prove” to convict him. Dittmer asserted he had an
opportunity to discuss the nature of the charges with his attorney and his attorney
explained the nature of the charges against him. He acknowledged he discussed this
case and this plea with his lawyer as much as he wished, was satisfied with [his]
lawyer, and had no additional questions. At the change of plea hearing on January 24,
2022, Dittmer told the district court he reviewed the plea agreement “in detail” with
his counsel. He affirmed he had enough time to discuss his case with his lawyer and
was satisfied with his representation. The district court recited the factual stipulation
5 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 6
for the obstruction count. Dittmer agreed those facts were true. The district court
accepted Dittmer’s guilty plea, finding he was “aware of the nature of [his] pleas and
charges and the consequences of them” and his plea was knowing and voluntary and
supported by facts.
A few months after the district court accepted his guilty plea, defense counsel,
Paul Riddle, informed the court Dittmer wanted new counsel appointed so he could
potentially pursue withdrawing his plea. He believed evidence existed that would
question the “credibility of the investigation.” The district court granted Dittmer’s
request to consult with a different attorney and appointed Robert Hunt for that
limited purpose. At a hearing on May 16, 2022, Riddle told the district court both he
and Hunt discussed the issue with Dittmer and both attorneys agreed there was no
basis for a motion to withdraw the plea. Because Dittmer continued to desire to move
forward with an attempt to withdraw his guilty plea, the district court allowed Riddle
to withdraw and appointed Ariel Taylor to represent Dittmer. On August 29, 2022,
Taylor informed the court he had investigated Dittmer’s allegations and found “no
basis in the facts or the law” to support them. Taylor concluded any motion to
withdraw the plea “would be frivolous.” Because Dittmer still believed his claims
warranted withdrawing his plea, the district court allowed Dittmer to represent
himself for purposes of such a motion.
The district court ultimately denied Dittmer’s pro se motion to withdraw his
plea. It explained Dittmer had suggested several grounds for withdrawal, including
that a particular detective was not credible, some evidence was inappropriately
6 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 7
obtained, law enforcement searched the wrong phone, and Dittmer had been
inappropriately arrested on a warrant that should have been rescinded. The district
court concluded none of these constituted a “fair and just reason” for withdrawing the
plea and the factors governing motions to withdraw a plea weighed against Dittmer’s
request. The court explained Dittmer had not asserted a claim of innocence, had
benefited from a long record of assistance of counsel from three different defense
lawyers, and his plea was knowing and voluntary.
At sentencing, the district court calculated a base offense level of twenty-four
under the Sentencing Guidelines. That level was established mainly by the attribution
to Dittmer of 13.75 grams of “actual” methamphetamine. See U.S.S.G. § 2D1.1. The
district court applied a three-level downward adjustment for acceptance of
responsibility, resulting in a total offense level of twenty-one. The total offense level
of twenty-one, when combined with Dittmer’s criminal history category VI, yielded
an advisory sentencing range of 77-96 months’ imprisonment. The district court
specifically noted that the obstruction charge, with a base offense level of only 14,
did not affect the Guidelines calculation. The district court varied downward from the
advisory range and imposed a sentence of fifty months’ imprisonment.
III. ANALYSIS
To obtain appellate relief on the unpreserved claim of error he advances on
appeal, Dittmer must demonstrate the district court committed plain error. United
States v. Rosales-Miranda, 755 F.3d 1253, 1257-58 (10th Cir. 2014). To satisfy this
demanding standard, Dittmer must “demonstrate: (1) an error, (2) that is plain, which
7 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 8
means clear or obvious under current law, and (3) that affects substantial rights. If he
satisfies these criteria, this Court may exercise discretion to correct the error if (4) it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. at 1258 (quotation and emphasis omitted). “[R]elief on plain error review is
difficult to get, as it should be.” Id. (quotations omitted). “Accordingly, we will find
plain error only when an error is particularly egregious and the failure to remand for
correction would produce a miscarriage of justice.” Id. (quotation omitted).
In this appeal, the question whether the nexus requirement is an element of a
§ 1512(c)(1) charge or, alternatively, whether it is an evidentiary aspect of any such
charge that must be discussed during a plea colloquy to render a guilty plea to such a
charge knowing and voluntary, is quite difficult. Likewise, the issue of plainness is
difficult. On the other hand, the question whether any such assumed error affected
Dittmer’s substantial rights is straight forward. Accordingly, this court proceeds
directly to assess whether the alleged error, assuming it is plain, affected Dittmer’s
substantial rights. See United States v. Parson, 84 F.4th 930, 939-40 (10th Cir. 2023)
(assuming existence of an error that is plain and proceeding to a substantial-rights
analysis); United States v. Penn, 601 F.3d 1007, 1012 (10th Cir. 2010) (same).
To prove the assumed error affected his substantial rights, Dittmer must
“demonstrate a reasonable probability that but for the error claimed, the result of the
proceeding would have been different.” Parson, 84 F.4th at 940 (quotation omitted).
In the context of a guilty plea, this requirement obligates the defendant to show “a
reasonable probability that, but for the error, he would not have entered the plea.”
8 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 9
Dominguez Benitez, 542 U.S. at 83; see also United States v. Trujillo, 960 F.3d 1196,
1201-08 (10th Cir. 2020) (holding this requirement applies to the exact assertion of
error raised by Dittmer in this appeal—“a case where the district court neglects to
advise a defendant of a single element of a charge”). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Parson, 84 F.4th at
940 (quotation omitted). “The reasonable-probability standard is not the same as, and
should not be confused with, a requirement that a defendant prove by a
preponderance of the evidence that but for error things would have been different.”
Dominguez Benitez, 542 U.S. at 83 n.9 (quotation omitted).
“In the uninformed-guilty-plea context, a defendant might be able to satisfy
the third prong of plain-error review by establishing a plausible defense based on an
erroneously omitted element.” United States v. Perez-Perez, 992 F.3d 970, 975 (10th
Cir. 2021). Recognizing this state of the law, the parties tussle over the question
whether Dittmer could establish a plausible defense to the nexus requirement. This
court concludes, based on the particular facts here, that the parties’ arguments on this
issue are beside the point. This is true because this is one of those unusual cases in
which “establishing a plausible defense based on the omitted element” is not
“sufficient to show that the error affected [Dittmer’s] substantial rights.” Id. at 978.
That is, even if Dittmer is correct in asserting he can establish a plausible defense to
the nexus element, an argument this court finds doubtful, he still cannot demonstrate
an effect on his substantial rights.
9 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 10
Dittmer cannot establish the assumed error affected his substantial rights
because nothing in the record suggests his decision to enter the guilty plea depended
on the § 1512(c)(1) charge. The benefits Dittmer obtained by pleading guilty do not
relate to the obstruction charge. Indeed, the record demonstrates the § 1512(c)(1)
charge played no part in setting his advisory sentencing range. Instead, by entering
the guilty plea, Dittmer obtained relief from the far more serious sentencing exposure
he faced from his drug charges. In exchange for his guilty plea, the government (1)
dismissed three drug counts, one of which carried a five-year mandatory minimum
sentence; (2) recommended a full three-level reduction for acceptance of
responsibility; and (3) recommended a sentence at the low end of the Guidelines
range. The record indicates Dittmer’s plea deal was motivated by a desire to receive a
significantly reduced sentence for distribution of methamphetamine. No reasonable
probability exists that Dittmer’s awareness of a potential defense to the § 1512(c)(1)
charge would have made a difference to his strategic calculation.
This conclusion is compelled by our decision in Perez-Perez, 992 F.3d at 978-
80. In Perez-Perez, Perez was indicted on two drug-distribution counts, each of
which carried five-year mandatory minimum sentences. Id. at 978. Perez ultimately
pleaded guilty to (1) an 18 U.S.C. § 922(g)(5) firearms offense and (2) a drug count
not subject to a mandatory minimum sentence. Id. For the first time on appeal, Perez
asserted his guilty plea to the gun charge was not knowing and voluntary because he
was not adequately informed of the mens rea element. Id. at 974. To determine
whether this error affected Perez’s substantial rights, Perez-Perez examined “what
10 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 11
the plea agreement did for Perez and what it did not do, and how those considerations
sp[o]ke to Perez’s motivations for accepting the agreement.” Id. at 978. Because his
guilty plea was structured to avoid a mandatory minimum sentence on a separate
drug charge, that review led the court to conclude Perez could not demonstrate an
effect on his substantial rights, even though he had a plausible defense on an element
erroneously omitted from his plea colloquy on the gun charge. Id. at 978-79. Perez-
Perez held that, even if Perez had known of the omitted elements in his gun charge,
“there [was] no reason to believe that would have impacted his decision to plead,
because it would not have impacted his motivation . . . . to avoid the mandatory
minimums.” Id. at 979. In these circumstances, whether Perez had a plausible defense
to the gun charge was not meaningful. Id. “[W]hat really mattered was the
government’s ability to prove the initial drug charges” that carried a mandatory
minimum sentence. Id. Because Perez did not claim the government would have
difficulty proving the drug charges, he failed to show his substantial rights were
affected. Id.
As was true in Perez-Perez, Dittmer’s assertion of a potential defense to the
obstruction charge does not establish an effect on his substantial rights because the
strategic calculation underlying his guilty plea was avoiding a higher sentence and a
mandatory minimum for the drug charges. As was true of Perez, Dittmer does not
argue “the government would have had any difficulty in proving” the drug charges.
Id. at 989. Dittmer was caught making controlled sales and possessing drugs and
paraphernalia associated with drug distribution on his person and in his vehicle. He
11 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 12
confessed the drugs and paraphernalia were his. When the record shows “both a
controlled sale of drugs to an informant and a confession,” it is “hard to see . . . how”
the allegedly deficient plea colloquy “could have had an effect on [the defendant’s]
assessment of his strategic position.” Dominguez Benitez, 542 U.S. at 85.
Dittmer contends Perez-Perez is distinguishable because, several months after
pleading guilty, he attempted to withdraw his plea. Dittmer’s motion to withdraw his
plea, however, had nothing to do with the nexus requirement. Dittmer’s motion was
based on claims “a particular detective was not credible,” “some evidence was
inappropriately obtained,” “law enforcement searched the wrong phone,” and he was
“inappropriately arrested on a warrant that should have been rescinded.” Dittmer
does not contend on appeal that the district court erred in denying his motion. Nor
does he otherwise dispute the conclusion of various trial counsel that his motion was
meritless. See supra at 6 (explaining how each of three separate attorneys viewed
Dittmer’s motion to withdraw his guilty plea). Dominguez Benitez establishes that
Dittmer’s motion to withdraw his guilty plea does not support his third-prong plain
error argument unless he can establish a “causal link” between the grounds
underlying that motion and the alleged deficiency in his plea that he raises on appeal.
542 U.S. at 85. Dittmer does not assert the existence of any such causal link here.
Accordingly, Dittmer’s motion to withdraw his plea does nothing to show that, but
for the assumed error in failing to discuss the nexus requirement during the plea
colloquy, he would not have entered the plea in the first place.
12 Appellate Case: 22-4095 Document: 010111058505 Date Filed: 05/31/2024 Page: 13
IV. CONCLUSION
For those reasons set out above, the judgment entered by the United States
District Court for the District of Utah is hereby AFFIRMED.
Entered for the Court
Michael R. Murphy Circuit Judge