USCA4 Appeal: 21-4408 Doc: 105 Filed: 06/05/2025 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4408
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK VAN EPERN,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Kenneth D. Bell, District Judge. (3:20-cr-00368-KDB-DSC-1)
Submitted: February 25, 2025 Decided: June 5, 2025
Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Noell P. Tin, TIN FULTON WALKER & OWEN, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Elizabeth M. Greenough, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4408 Doc: 105 Filed: 06/05/2025 Pg: 2 of 7
PER CURIAM:
Mark Van Epern (“Appellant”) pled guilty to one count of production of child sexual
abuse material in violation of 18 U.S.C. §§ 2251(a) and 2251(e). 1 On appeal, he challenges
the factual basis of his plea and the substantive reasonableness of his sentence. We hold
that the district court correctly determined that Appellant provided an adequate factual
proffer for his plea by stipulating to the conduct set forth in the Presentence Investigation
Report (“PSR”). And, the appeal waiver in Appellant’s plea agreement precludes our
review of his challenge to the substantive reasonableness of his sentence.
For the foregoing reasons and as detailed below, we affirm.
I.
On January 6, 2021, Appellant entered into a plea agreement with the Government
(the “Plea Agreement”) in which he pled guilty to one count of production of child sexual
abuse material in violation of 18 U.S.C. §§ 2251(a) and 2251(e). In the Plea Agreement,
Appellant “stipulate[d] that there is a factual basis, as required by Rule 11(b)(3), for the
plea of guilty.” J.A. 15. 2 The factual basis set forth in the Plea Agreement stated that
sometime between January 1, 2010, and June 30, 2014, Appellant “employed, used,
persuaded, induced, enticed, or coerced, and attempted to employ, use, persuade, induce,
entice, or coerce [a minor] to take part in sexually explicit conduct for the purpose of
1 See United States v. Kuehner, 126 F.4th 319, 322 n.1 (4th Cir. 2025) (referring to “child pornography” as “child sexual abuse material” to “reflect more accurately the abusive and exploitative nature of child pornography”). 2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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producing a visual depiction of such conduct.” Id. at 19. Appellant stipulated that he used
materials with a nexus to interstate and foreign commerce to create the visual depiction of
the minor. In exchange for the Plea Agreement, Appellant “waive[d] all rights to contest
the conviction and sentence in any appeal or post-conviction action.” Id. at 16.
A magistrate judge conducted Appellant’s plea hearing and recommended that the
district court accept Appellant’s guilty plea. In advance of Appellant’s sentencing hearing,
the Probation Office prepared a PSR detailing the relevant conduct of Appellant’s offense.
As recounted in the PSR, Appellant used a hidden camera to capture videos of the minor
victim (“MV”), while she was naked in her bedroom. Appellant then excerpted still images
from those videos, which he cropped to focus on MV’s genitals. Appellant also created a
video of himself ejaculating onto a photo of “what appears to be [the face of] of MV pasted
onto a naked body of an unknown female.” J.A. 69.
At Appellant’s sentencing hearing, the district court asked the parties if they agreed
that there was a factual basis for the plea and “that the Court may rely on the offense
conduct set forth in the [PSR] to establish the factual basis[.]” J.A. 128. Both Appellant
and the Government so stipulated. “Based on that stipulation and the offense conduct set
forth in the [PSR], [Appellant’s] plea of guilty before the magistrate judge, and
[Appellant’s] admissions,” the court found a factual basis for Appellant’s guilty plea. Id.
at 128–29. The court also confirmed that Appellant did not object to any aspect of the
PSR. The court then adopted the PSR without change.
The district court determined Appellant’s United States Sentencing Guidelines
(“Guidelines”) range to be 135 to 168 months of imprisonment, with a mandatory
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minimum term of imprisonment of 180 months for a violation of 18 U.S.C. § 2251. After
receiving evidence and hearing argument from both parties, the court sentenced Appellant
to an upward variant sentence of 210 months of imprisonment. The court determined that
the upward variant sentence was a just punishment, “due to the serious nature of the
offense, the duration of the conduct, and the efforts [Appellant] took to conceal his
conduct.” S.A. 13. 3 The court also took into consideration Appellant’s “future
dangerousness and rehabilitation efforts.” Id.
Appellant timely noted his appeal.
II.
We review unpreserved challenges to the factual basis for a guilty plea for plain
error. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018).
We review the validity of an appeal waiver de novo. United States v. Smith, ---
F.4th ----, No. 22-4338, 2025 WL 1096245, at *4 (4th Cir. Apr. 14, 2025). Generally,
“[w]hen the government seeks to enforce an appeal waiver and has not breached the plea
agreement, we will enforce the waiver if it is valid and if the issue being appealed falls
within its scope.” United States v. Carter, 87 F.4th 217, 224 (4th Cir. 2023). But, “[w]e
will refuse to enforce an otherwise valid [appeal] waiver if to do so would result in a
miscarriage of justice.” Smith, --- F.4th ----, 2025 WL 1096245, at *10 (quoting United
States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016)).
3 Citations to the “S.A.” refer to the Supplemental Appendix filed by the parties in this appeal.
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III.
A.
Appellant argues that his conviction should be vacated because there was not a
sufficient factual basis to support his plea. Pursuant to Federal Rule of Criminal Procedure
11(b)(3), a district court must “determine that there is a factual basis for the plea.” In
making this determination, a court need not “satisfy itself that a jury would find the
defendant guilty, or even that [the] defendant is guilty by a preponderance of the evidence.”
United States v.
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USCA4 Appeal: 21-4408 Doc: 105 Filed: 06/05/2025 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4408
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK VAN EPERN,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Kenneth D. Bell, District Judge. (3:20-cr-00368-KDB-DSC-1)
Submitted: February 25, 2025 Decided: June 5, 2025
Before THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Noell P. Tin, TIN FULTON WALKER & OWEN, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Elizabeth M. Greenough, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4408 Doc: 105 Filed: 06/05/2025 Pg: 2 of 7
PER CURIAM:
Mark Van Epern (“Appellant”) pled guilty to one count of production of child sexual
abuse material in violation of 18 U.S.C. §§ 2251(a) and 2251(e). 1 On appeal, he challenges
the factual basis of his plea and the substantive reasonableness of his sentence. We hold
that the district court correctly determined that Appellant provided an adequate factual
proffer for his plea by stipulating to the conduct set forth in the Presentence Investigation
Report (“PSR”). And, the appeal waiver in Appellant’s plea agreement precludes our
review of his challenge to the substantive reasonableness of his sentence.
For the foregoing reasons and as detailed below, we affirm.
I.
On January 6, 2021, Appellant entered into a plea agreement with the Government
(the “Plea Agreement”) in which he pled guilty to one count of production of child sexual
abuse material in violation of 18 U.S.C. §§ 2251(a) and 2251(e). In the Plea Agreement,
Appellant “stipulate[d] that there is a factual basis, as required by Rule 11(b)(3), for the
plea of guilty.” J.A. 15. 2 The factual basis set forth in the Plea Agreement stated that
sometime between January 1, 2010, and June 30, 2014, Appellant “employed, used,
persuaded, induced, enticed, or coerced, and attempted to employ, use, persuade, induce,
entice, or coerce [a minor] to take part in sexually explicit conduct for the purpose of
1 See United States v. Kuehner, 126 F.4th 319, 322 n.1 (4th Cir. 2025) (referring to “child pornography” as “child sexual abuse material” to “reflect more accurately the abusive and exploitative nature of child pornography”). 2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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producing a visual depiction of such conduct.” Id. at 19. Appellant stipulated that he used
materials with a nexus to interstate and foreign commerce to create the visual depiction of
the minor. In exchange for the Plea Agreement, Appellant “waive[d] all rights to contest
the conviction and sentence in any appeal or post-conviction action.” Id. at 16.
A magistrate judge conducted Appellant’s plea hearing and recommended that the
district court accept Appellant’s guilty plea. In advance of Appellant’s sentencing hearing,
the Probation Office prepared a PSR detailing the relevant conduct of Appellant’s offense.
As recounted in the PSR, Appellant used a hidden camera to capture videos of the minor
victim (“MV”), while she was naked in her bedroom. Appellant then excerpted still images
from those videos, which he cropped to focus on MV’s genitals. Appellant also created a
video of himself ejaculating onto a photo of “what appears to be [the face of] of MV pasted
onto a naked body of an unknown female.” J.A. 69.
At Appellant’s sentencing hearing, the district court asked the parties if they agreed
that there was a factual basis for the plea and “that the Court may rely on the offense
conduct set forth in the [PSR] to establish the factual basis[.]” J.A. 128. Both Appellant
and the Government so stipulated. “Based on that stipulation and the offense conduct set
forth in the [PSR], [Appellant’s] plea of guilty before the magistrate judge, and
[Appellant’s] admissions,” the court found a factual basis for Appellant’s guilty plea. Id.
at 128–29. The court also confirmed that Appellant did not object to any aspect of the
PSR. The court then adopted the PSR without change.
The district court determined Appellant’s United States Sentencing Guidelines
(“Guidelines”) range to be 135 to 168 months of imprisonment, with a mandatory
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minimum term of imprisonment of 180 months for a violation of 18 U.S.C. § 2251. After
receiving evidence and hearing argument from both parties, the court sentenced Appellant
to an upward variant sentence of 210 months of imprisonment. The court determined that
the upward variant sentence was a just punishment, “due to the serious nature of the
offense, the duration of the conduct, and the efforts [Appellant] took to conceal his
conduct.” S.A. 13. 3 The court also took into consideration Appellant’s “future
dangerousness and rehabilitation efforts.” Id.
Appellant timely noted his appeal.
II.
We review unpreserved challenges to the factual basis for a guilty plea for plain
error. See United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018).
We review the validity of an appeal waiver de novo. United States v. Smith, ---
F.4th ----, No. 22-4338, 2025 WL 1096245, at *4 (4th Cir. Apr. 14, 2025). Generally,
“[w]hen the government seeks to enforce an appeal waiver and has not breached the plea
agreement, we will enforce the waiver if it is valid and if the issue being appealed falls
within its scope.” United States v. Carter, 87 F.4th 217, 224 (4th Cir. 2023). But, “[w]e
will refuse to enforce an otherwise valid [appeal] waiver if to do so would result in a
miscarriage of justice.” Smith, --- F.4th ----, 2025 WL 1096245, at *10 (quoting United
States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016)).
3 Citations to the “S.A.” refer to the Supplemental Appendix filed by the parties in this appeal.
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III.
A.
Appellant argues that his conviction should be vacated because there was not a
sufficient factual basis to support his plea. Pursuant to Federal Rule of Criminal Procedure
11(b)(3), a district court must “determine that there is a factual basis for the plea.” In
making this determination, a court need not “satisfy itself that a jury would find the
defendant guilty, or even that [the] defendant is guilty by a preponderance of the evidence.”
United States v. Miller, 75 F.4th 215, 225 (4th Cir. 2023) (quoting United States v. Carr,
271 F.3d 172, 178 n.6 (4th Cir. 2001)). Rather, the court’s inquiry is satisfied if “the
conduct to which the defendant admits is in fact an offense under the statutory provision
under which he is pleading guilty.” Id. (citing United States v. Mitchell, 104 F.3d 649, 652
(4th Cir. 1997)).
The statute to which Appellant pled guilty criminalizes using a minor to engage in
sexually explicit conduct for producing a visual depiction of such conduct, where that
visual depiction was made using materials with a nexus to interstate commerce. 18 U.S.C.
§ 2251(a). “[S]exually explicit conduct” includes “actual or simulated . . . lascivious
exhibition of the anus, genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(A).
Appellant argues that the videos he stipulated to in the PSR do not constitute a lascivious
exhibition.
The crux of the issue here is what constitutes a “lascivious exhibition.” As we
explained in our recent decision in United States v. Deritis, using a hidden camera to
capture naked images of a minor’s genitals does not present a close factual question for a
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violation of § 2251. United States v. Deritis, --- F.4th ----, No. 23-4150, 2025 WL
1386211, at *6 (4th Cir. May 14, 2025) (“[C]ases where an adult obtains a video of a naked
minor’s genitals through manipulative means such as a hidden camera do not present a
close question for finding “lascivious exhibition.” (discussing United States v. Courtade,
929 F.3d 186, 193 (4th Cir. 2019), as amended (July 10, 2019) (holding that a “video
objectively depict[ed] a ‘lascivious exhibition’” where the defendant relied on “deceit [and]
manipulation” to film a minor’s genitals)). To be sure, a reasonable jury might find
otherwise in a close case, but that is a question of fact not law. Here, there is no doubt that
Appellant’s conduct is an offense pursuant to the statute. See Deritis, --- F.4th ----, No.
23-4150, 2025 WL 1386211, at *8 (holding that substantially similar conduct was adequate
and sufficient to sustain a conviction for violating § 2251(a)). This conclusion is all the
more obvious given that Appellant admitted to conduct that leaves no doubt as to whether
the images he captured were “intended or designed to elicit a sexual response.” United
States v. Sanders, 107 F.4th 234, 262 (4th Cir. 2024) (explaining that whether a visual
depiction was “intended or designed to elicit a sexual response [in the viewer]” is a relevant
consideration for “determining whether the visual depiction is lascivious” (relying on
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986))).
Therefore, we hold that the district court committed no error -- plain or otherwise -
- in holding that Appellant’s stipulated conduct provided an adequate factual basis for his
plea to production of sexually explicit conduct involving a minor.
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B.
Appellant also challenges the substantive reasonableness of his sentence. In an
effort to circumvent the appeal waiver in the Plea Agreement, Appellant argues for the first
time in his reply brief that enforcing the appeal waiver would amount to a miscarriage of
justice “because [his sentence] is substantively unreasonable . . . [and] because the
applicable Guideline is itself unjust.” Appellant’s Reply Br. at 16.
Appellant is correct that “[w]e will refuse to enforce an otherwise valid waiver if to
do so would result in a miscarriage of justice.” United States v. Adams, 814 F.3d 178, 182
(4th Cir. 2016). But an appellant must proffer more than a substantively unreasonable
sentence or a policy disagreement with the Sentencing Guidelines in order to meet this
exacting standard. See United States v. Smith, --- F.4th ----, No. 22-4338, 2025 WL
1096245, at *10–12 (4th Cir. Apr. 14, 2025) (explaining the “narrow class of claims” for
which we have declined to enforce otherwise valid appeal waivers).
Appellant makes no argument that the substantive reasonableness of his sentence
falls outside the scope of the appeal waiver. See United States v. Blick, 408 F.3d 162, 169
(4th Cir. 2005) (valid appeal waivers preclude appellate review of issues “within the scope
of the waiver”). Accordingly, we enforce the valid appeal waiver in Appellant’s Plea
Agreement and will not consider his challenge to the substantive reasonableness of his
sentence.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.