United States v. Robert Blake Merryman

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 8, 2025
• Docket: 24-5777
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0235n.06

No. 24-5777 FILED UNITED STATES COURT OF APPEALS May 08, 2025 FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk

) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY ROBERT BLAKE MERRYMAN, ) ) Defendant-Appellant. ) OPINION )

Before: BATCHELDER, GIBBONS, and BLOOMEKATZ, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Robert Merryman pled guilty to one count

of sexual exploitation of children in violation of 18 U.S.C. § 2251; one count of distribution of

child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B); and one count of possession of

child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In exchange for Merryman’s

pleading guilty to these three counts, the government promised to recommend that Merryman

receive a sentence “at the lowest end of the applicable Guideline Range.” The Presentence Report

found that Merryman had an offense level of 43 and a criminal history category of I, which

produced a Guideline range of “life.” But because Merryman’s crimes carried a statutory

maximum sentence of 840 months, the Guideline range for his sentence effectively became the

statutory maximum.

When it later came time for the district court to sentence Merryman, the government filed

a sentencing memorandum recommending that Merryman receive “a sentence at the low end of No. 24-5777, United States v. Merryman

the applicable Guideline range.” The district court then held a sentencing hearing, and because

both parties expressly stated that they wanted to rely on the arguments that they had made in their

respective briefs, the district court proceeded directly to sentencing. The district court then

sentenced Merryman to 600 months’ imprisonment—a sentence that fell well short of the

applicable Guideline Range that both started and ended at the statutory maximum of 840 months.

On appeal, Merryman argues that the government breached his plea agreement because it

did not affirmatively recommend a particular sentence at his sentencing hearing.1 But when, as

here, the defendant does not object to the government’s alleged breach of his plea agreement before

the district court, we review for plain error only. Puckett v. United States, 556 U.S. 129, 143

(2009). To prevail under this plain-error standard, Merryman must establish four elements: (1) the

district court erred; (2) the error was plain, meaning it was “obvious or clear”; (3) the error affected

the defendant’s substantial rights; and (4) the error “seriously affected the fairness, integrity or

public reputation of the judicial proceedings.” United States v. Lanham, 617 F.3d 873, 883 (6th

Cir. 2010).

Here, we do not believe that the district court committed plain error when it sentenced

Merryman. First, there was no error here because the government did not breach Merryman’s plea

agreement when it failed to “state affirmatively at sentencing what it had already made clear in its

sentencing memorandum.” United States v. Simmonds, 62 F.4th 961, 968 (6th Cir. 2023). The

government’s sentencing memorandum recommended a sentence at the low end of the Guideline

Range, and the plea agreement required nothing more than that. Second, even if there was error,

1 The government argues that Merryman waived his right to appeal in the plea agreement. But because Merryman claims that the government breached his plea agreement, we cannot resolve this appeal using the agreement’s appeal-waiver provision. See United States v. Carter, 814 F. App’x 1000, 10006 (6th Cir. 2020) (explaining that an appeal-waiver provision becomes unenforceable if the government later breaches the agreement). -2- No. 24-5777, United States v. Merryman

Merryman still cannot show that any such error was “obvious.” Lanham, 617 F.3d at 883. Indeed,

an error cannot be clear or obvious when it rests upon an “arguable interpretive question,” and

here, the plea agreement did not unambiguously require the government to recommend a particular

sentence during sentencing hearing itself. See Simmonds, 62 F.4th at 967-68 (holding that there

cannot be plain error when the plea agreement’s “language is ambiguous about when and how the

government had to remind the district court of the stipulated base offense level”). Third, even if

the error was obvious, Merryman still cannot show that the alleged error affected his substantial

rights when the sentence that Merryman actually received (600 months) is 240 months lower than

the applicable Guideline sentence that government would have recommended under the plea

agreement (840 months). See Puckett, 556 U.S. at 141 (explaining that a defendant is not

prejudiced by the breach of a plea agreement when he still “obtained the benefits contemplated by

the deal”).

For these reasons, we AFFIRM the judgment of the district court.

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