NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-3286 ___________
UNITED STATES OF AMERICA
v.
PAUL STAMM, AKA “xxxsexsd”, AKA “Mitch Tryjankowski”, AKA “John Doe-8”
Paul Stamm, Appellant ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-16-cr-00082-009) District Judge: Honorable Yvette Kane ____________________________________
Submitted Under Third Circuit LAR 34.1(a) October 22, 2018
Before: KRAUSE, COWEN, and FUENTES, Circuit Judges
(Opinion filed: November 19, 2018)
OPINION *
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Paul Stamm appeals his conviction for conspiracy to produce child pornography,
arguing that the District Court erred by accepting his guilty plea and then later erred
again by not allowing him to withdraw the plea. For the reasons that follow, we will
affirm.
I. Background
Stamm was charged with and pleaded guilty to conspiracy to produce child
pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e). Five months after
pleading guilty—and just after the United States Probation Office submitted a
presentence report recommending a lengthy prison sentence—Stamm sought to withdraw
his plea. The District Court denied both Stamm’s initial motion to withdraw the plea, and
Stamm’s renewed motion. This appeal followed.
II. Discussion 1
Stamm makes three arguments concerning his guilty plea, two regarding the
District Court’s initial acceptance of his plea and a third regarding his attempt to
withdraw the plea. 2 None is persuasive.
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review an alleged Rule 11 violation raised for the first time on appeal for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). We review a District Court’s ruling on a motion to withdraw a guilty plea for abuse of discretion. United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011). 2 Both parties acknowledge that Stamm’s plea agreement contained an appellate waiver and take opposing positions about whether we should set the waiver aside. Because all of Stamm’s challenges on appeal concern the validity of his guilty plea itself, his argument that we should set aside the appeal waiver rises and falls with his other challenges. See
2 First, Stamm contends the District Court committed plain error by accepting his
plea because he never “ma[d]e any admission” that his victim was underage, Appellant’s
Br. 24, and therefore never pleaded guilty to an essential element of the charge:
exploitation of a “minor.” 18 U.S.C. § 2251(a). In support of this contention, Stamm
points out that the “Factual Basis” document he signed in connection with his guilty plea,
which was his affirmation of the facts underlying his conviction, did not explicitly state
that the victim (“Victim-1”) was a minor. Nor did he expressly concede Victim-1’s age
during his plea colloquy. Though technically true, these observations do not point up any
error that “affect[ed] . . . substantial rights,” as required for Stamm to establish plain
error. United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008). In the context of a
guilty plea, a defendant must establish that an error affected his substantial rights by
showing “a reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Stamm has not made this showing. To the contrary, the record is replete with
evidence that Victim-1 was a minor and that Stamm clearly understood that, by pleading
guilty, he was admitting this was true. For example, the superseding indictment alleged
that he conspired “to entice and coerce a minor, Victim-1, to engage in sexually explicit
conduct.” App. 33 (emphasis added). In addition, at his arraignment, the Magistrate
Judge stated that the only charge against him pertained to “conspiring to entice a minor to
United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (holding that an appellate waiver should be set aside if the defendant should have been allowed to withdraw his plea). Accordingly, we need not treat the validity of the appeal waiver as a separate issue.
3 engage in sexually explicit activity.” Transcript of Initial Appearance and Arraignment
Proceedings, United States v. Stamm, No. 1-16-cr-00082-YK, ECF No. 506, at 6 (May
31, 2017) (emphasis added). The Factual Basis document that Stamm criticizes also
refers to Victim-1 as a “boy” multiple times. App. 102–03. And the plea agreement
itself—signed by Stamm—makes clear that Stamm was pleading guilty to “Criminal
Conspiracy to Produce Child Pornography.” App. 59 (emphasis added). 3 Moreover,
even after Stamm sought to withdraw his guilty plea, he never posited that Victim-1 was
not a minor. In fact, he acknowledged the opposite when testifying at the hearing on his
motion to withdraw the plea by repeatedly referring to Victim-1 as a “minor.” App. 151.
In short, on this point, Stamm has not demonstrated error, let alone plain error. 4
Second, Stamm quibbles with an apparent slip of the tongue by the Magistrate
Judge at his plea hearing, who stated that Stamm was being charged with violating
subsection (b) of 18 U.S.C. § 2251, when Stamm had actually been indicted under
subsections (a) and (e). He argues that this error “materially hampered [his] ability to
assess the risks and benefits of pleading guilty,” Appellant’s Br. 18 (citing United States
v. Powell, 269 F.3d 175, 185 (3d Cir. 2001)), and that the District Court therefore
3 That some of this evidence is drawn from “outside the four corners of the transcript of the plea hearing and Rule 11 colloquy” is of no moment. Vonn, 535 U.S. at 75. Contrary to Stamm’s contention that this rule applies only to certain types of Rule 11 errors, Vonn is not so limited. See id. at 74 (holding that the scope of an appellate court’s inquiry into “a Rule 11 violation” goes beyond plea proceedings). 4 As Stamm concedes, to accept a guilty plea, the District Court needed only “sufficient evidence in the record as a whole to justify a conclusion of guilt.” United States v.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-3286 ___________
UNITED STATES OF AMERICA
v.
PAUL STAMM, AKA “xxxsexsd”, AKA “Mitch Tryjankowski”, AKA “John Doe-8”
Paul Stamm, Appellant ____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-16-cr-00082-009) District Judge: Honorable Yvette Kane ____________________________________
Submitted Under Third Circuit LAR 34.1(a) October 22, 2018
Before: KRAUSE, COWEN, and FUENTES, Circuit Judges
(Opinion filed: November 19, 2018)
OPINION *
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.
Paul Stamm appeals his conviction for conspiracy to produce child pornography,
arguing that the District Court erred by accepting his guilty plea and then later erred
again by not allowing him to withdraw the plea. For the reasons that follow, we will
affirm.
I. Background
Stamm was charged with and pleaded guilty to conspiracy to produce child
pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e). Five months after
pleading guilty—and just after the United States Probation Office submitted a
presentence report recommending a lengthy prison sentence—Stamm sought to withdraw
his plea. The District Court denied both Stamm’s initial motion to withdraw the plea, and
Stamm’s renewed motion. This appeal followed.
II. Discussion 1
Stamm makes three arguments concerning his guilty plea, two regarding the
District Court’s initial acceptance of his plea and a third regarding his attempt to
withdraw the plea. 2 None is persuasive.
1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review an alleged Rule 11 violation raised for the first time on appeal for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). We review a District Court’s ruling on a motion to withdraw a guilty plea for abuse of discretion. United States v. Siddons, 660 F.3d 699, 703 (3d Cir. 2011). 2 Both parties acknowledge that Stamm’s plea agreement contained an appellate waiver and take opposing positions about whether we should set the waiver aside. Because all of Stamm’s challenges on appeal concern the validity of his guilty plea itself, his argument that we should set aside the appeal waiver rises and falls with his other challenges. See
2 First, Stamm contends the District Court committed plain error by accepting his
plea because he never “ma[d]e any admission” that his victim was underage, Appellant’s
Br. 24, and therefore never pleaded guilty to an essential element of the charge:
exploitation of a “minor.” 18 U.S.C. § 2251(a). In support of this contention, Stamm
points out that the “Factual Basis” document he signed in connection with his guilty plea,
which was his affirmation of the facts underlying his conviction, did not explicitly state
that the victim (“Victim-1”) was a minor. Nor did he expressly concede Victim-1’s age
during his plea colloquy. Though technically true, these observations do not point up any
error that “affect[ed] . . . substantial rights,” as required for Stamm to establish plain
error. United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008). In the context of a
guilty plea, a defendant must establish that an error affected his substantial rights by
showing “a reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Stamm has not made this showing. To the contrary, the record is replete with
evidence that Victim-1 was a minor and that Stamm clearly understood that, by pleading
guilty, he was admitting this was true. For example, the superseding indictment alleged
that he conspired “to entice and coerce a minor, Victim-1, to engage in sexually explicit
conduct.” App. 33 (emphasis added). In addition, at his arraignment, the Magistrate
Judge stated that the only charge against him pertained to “conspiring to entice a minor to
United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (holding that an appellate waiver should be set aside if the defendant should have been allowed to withdraw his plea). Accordingly, we need not treat the validity of the appeal waiver as a separate issue.
3 engage in sexually explicit activity.” Transcript of Initial Appearance and Arraignment
Proceedings, United States v. Stamm, No. 1-16-cr-00082-YK, ECF No. 506, at 6 (May
31, 2017) (emphasis added). The Factual Basis document that Stamm criticizes also
refers to Victim-1 as a “boy” multiple times. App. 102–03. And the plea agreement
itself—signed by Stamm—makes clear that Stamm was pleading guilty to “Criminal
Conspiracy to Produce Child Pornography.” App. 59 (emphasis added). 3 Moreover,
even after Stamm sought to withdraw his guilty plea, he never posited that Victim-1 was
not a minor. In fact, he acknowledged the opposite when testifying at the hearing on his
motion to withdraw the plea by repeatedly referring to Victim-1 as a “minor.” App. 151.
In short, on this point, Stamm has not demonstrated error, let alone plain error. 4
Second, Stamm quibbles with an apparent slip of the tongue by the Magistrate
Judge at his plea hearing, who stated that Stamm was being charged with violating
subsection (b) of 18 U.S.C. § 2251, when Stamm had actually been indicted under
subsections (a) and (e). He argues that this error “materially hampered [his] ability to
assess the risks and benefits of pleading guilty,” Appellant’s Br. 18 (citing United States
v. Powell, 269 F.3d 175, 185 (3d Cir. 2001)), and that the District Court therefore
3 That some of this evidence is drawn from “outside the four corners of the transcript of the plea hearing and Rule 11 colloquy” is of no moment. Vonn, 535 U.S. at 75. Contrary to Stamm’s contention that this rule applies only to certain types of Rule 11 errors, Vonn is not so limited. See id. at 74 (holding that the scope of an appellate court’s inquiry into “a Rule 11 violation” goes beyond plea proceedings). 4 As Stamm concedes, to accept a guilty plea, the District Court needed only “sufficient evidence in the record as a whole to justify a conclusion of guilt.” United States v. Lessner, 498 F.3d 185, 197 (3d Cir. 2007). For the reasons explained, the record here was more than sufficient.
4 committed plain error by accepting his plea. This argument fails both because Stamm is
citing the standard for harmless error review, not plain error review, see Powell, 269 F.3d
at 185, and because, as with Stamm’s first argument, the record makes clear that Stamm
knew precisely what crime he was admitting to and made a knowing and voluntary
decision to admit to it.
Both Stamm’s superseding indictment and his signed plea agreement state the
correct subsections of § 2251; the Magistrate Judge referred to each of those documents
throughout the plea hearing and confirmed that Stamm understood he was pleading guilty
to Count 2 of the superseding indictment, which reflects the correct subsections of
§ 2251; and the Government’s counsel summarized the plea agreement at the plea
proceeding, recounting that Stamm was pleading guilty to “Count 2 of the . . .
indictment[,] [which] . . . charges him with conspiracy to produce child pornography, in
violation of . . . Section 2251(a)[,] . . . brought pursuant to . . . Section 2251(e),” App.
113–14 (emphasis added). 5 The plea agreement also advised Stamm explicitly of the
risks and benefits of pleading guilty, including his minimum and maximum sentence
exposure for the charged offenses, the rights he was giving up, and the Government’s
agreement not to bring further criminal charges against him. Accordingly, the Magistrate
Judge’s misstatement did not “materially hamper[] [Stamm’s] ability to assess the risks
and benefits of pleading guilty,” Appellant’s Br. 18, much less support “a reasonable
5 In any event, subsection (b) is so obviously inapplicable, Stamm’s suggestion that he was confused on this point is implausible. See 18 U.S.C. § 2251(b) (applying to a “parent, legal guardian, or person having custody or control of a minor” who allows the minor to be used in the production of child pornography).
5 probability,” Dominguez Benitez, 542 U.S. at 83, that he would not have entered the plea
but for the error.
Third, Stamm argues that the District Court abused its discretion by denying
Stamm’s renewed motion to withdraw his guilty plea, which was predicated on Stamm’s
alleged “overwhelming mental and physical stress” at his plea hearing that supposedly
affected his comprehension of the plea, as well as allegations that his attorney
misinformed him about the elements of the charge against him and the mandatory
minimum sentence attending the charge. Appellant’s Br. 21. At bottom, this argument
amounts to a recycling of the points already considered by the District Court in denying
Stamm’s motion to withdraw the plea.
We perceive no error in that denial. Stamm does not highlight any specific way in
which the District Court abused its discretion, and our review of the record reveals none.
Rather, the record shows that in weighing “the strength of [Stamm’s] reasons for
withdrawing [his] plea” and Stamm’s “assert[ion] [of] his innocence,” United States v.
Jones, 336 F.3d 245, 252 (3d Cir. 2003), the District Court considered testimony from
both Stamm and Stamm’s attorney that supported its ultimate decision. That decision
depended in part on a credibility assessment that led the District Court to believe the
account of Stamm’s attorney over that of Stamm. The District Court was best positioned
to assess that conflicting testimony, and the record presents no reason to question its
assessment. See United States v. Mallory, 765 F.3d 373, 382 (3d Cir. 2014). The District
Court thus did not abuse its discretion in denying Stamm’s motion to withdraw his plea.
6 III. Conclusion
For the reasons stated above, we will affirm.