PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1521

___________

UNITED STATES OF AMERICA

v.

ERIC S. DAHMEN,

 Appellant

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 3-09-cr-00007-001)

District Judge: Honorable Kim R. Gibson

___________

Argued December 8, 2011

Before: HARDIMAN and BARRY, Circuit Judges

and RUFE*, District Judge

(Filed: March 27, 2012)

 

 

*

 The Honorable Cynthia M. Rufe, District Judge for the 

United States District Court for the Eastern District of 

Pennsylvania, sitting by designation.
2

Donovan J. Cocas [ARGUED]

Rebecca R. Haywood

Mary M. Houghton

Laura S. Irwin

Office of the United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219-0000

John J. Valkovci

Office of the United States Attorney

319 Washington Street

224 Penn Traffic Building

Johnstown, PA 15901-0000

Attorneys for Plaintiff-Appellee

Thomas Livingston

Renee Pietropaolo [ARGUED]

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222-0000

Attorneys for Defendant-Appellant

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.
3

At issue in this appeal is the Government’s alleged 

breach of a plea agreement. Appellant Eric Dahmen pleaded 

guilty to two federal crimes involving the sexual exploitation 

of minors. That plea was memorialized in a written 

agreement that included certain stipulations that the District 

Court deemed binding pursuant to Rule 11(c)(1)(C) of the 

Federal Rules of Criminal Procedure. After the plea 

agreement was signed, the Probation Office recommended a 

five-level enhancement pursuant to § 4B1.5(b) of the United 

States Sentencing Guidelines. Although Dahmen conceded 

the applicability of that enhancement in the District Court, he 

claims for the first time on appeal that the Government 

breached the plea agreement by requesting it. As a remedy, 

Dahmen asks us to order the District Court to resentence him 

pursuant to a Sentencing Guidelines range of 108 to 135 

months’ imprisonment.

I

In July 2007, the discovery of pornographic images, 

explicit internet chats, and suggestive text messages in the 

home of a fourteen-year-old girl in Cambria County, 

Pennsylvania, led state police officers to suspect that she was 

engaged in a sexual relationship with the twenty-one-year-old 

Dahmen. A search of Dahmen’s computer and cellular phone 

yielded three videos and fifty-one photographs of the girl in 

various states of undress and masturbation, as well as another 

pornographic video involving a different minor. On October 

12, 2007, Dahmen was arrested and charged with statutory 

sexual assault and child pornography offenses.

Dahmen’s detention was short-lived. He posted bail 

and soon thereafter began exchanging nude photographs and 

explicit videos with a fifteen-year-old girl from North 
4

Carolina. A few months after he initiated contact with that 

girl, Dahmen persuaded Matthew Ehredt to drive with him to 

North Carolina to visit her. In spite of Ehredt’s warnings that 

Dahmen’s conduct violated his bail conditions, Dahmen took

the girl from North Carolina to Pennsylvania. During the trip, 

Dahmen had sexual contact with the girl while Ehredt 

operated the vehicle, and the illicit relationship continued in 

Pennsylvania. When officers arrested Dahmen several days 

later, they recovered a cell phone video of Dahmen and the 

girl engaged in sexual intercourse.

Pursuant to a written plea agreement, Dahmen pleaded 

guilty to transportation of a minor with intent to engage in 

criminal sexual activity in violation of 18 U.S.C. § 2423(a) 

(Count One) and possession of material depicting the sexual 

exploitation of a minor in violation of 18 U.S.C. 

§ 2252(a)(4)(B) (Count Two). The agreement specified the 

base offense level for each count and referenced certain 

sentencing enhancements pursuant to Chapters 2 and 3 of the 

United States Sentencing Guidelines (USSG or Guidelines), 

but made no mention of any enhancements pursuant to 

Chapter 4 of the Guidelines. The agreement noted that 

Dahmen faced a statutory mandatory minimum sentence of 

ten years’ imprisonment and a potential maximum sentence 

of life imprisonment.

Dahmen’s plea agreement also contained a waiver of 

his appellate rights, subject to three limited exceptions: (1) if 

the Government appealed; (2) if the sentence exceeded the 

statutory maximum; or (3) if the sentence exceeded the 

applicable Guidelines range. The agreement also noted that 

its “stipulations [were] not binding on the Court and [did] not 

preclude the parties from bringing to the attention of the 
5

United States Probation Office or the Court any other 

information.”

Before accepting Dahmen’s plea, the District Court 

clarified that though “the plea agreement at Paragraphs C(3), 

(4), and (5) indicate[d] that the stipulations made between the 

parties [were] . . . not binding on the court,” that language 

was “incorrect.” The Court explained that “if [it] accept[ed 

Dahmen’s] plea, the stipulations [would] be binding because 

the nature of the stipulations fall under the classifications set 

forth in Federal Rule of Criminal Procedure 11(c)(1)(C).” 

Though given the opportunity to do so, neither party objected 

to the Court’s analysis.

After the District Court accepted Dahmen’s written 

plea agreement and guilty plea, the Probation Office prepared 

a Presentence Investigation Report (PSR). The Government 

objected to the PSR, claiming that Dahmen’s Guidelines 

range was subject to enhancement pursuant to USSG 

§ 4B1.5(b), which applies to defendants who “engaged in a

pattern of activity involving prohibited sexual conduct.” The 

Probation Office agreed with the Government’s objection and 

issued an amended PSR that increased Dahmen’s offense 

level by five levels pursuant to § 4B1.5(b). In response to 

this “dramatic change,” Dahmen’s counsel moved to 

postpone his sentencing, noting that “[b]ecause the plea 

negotiations, plea agreement, the guilty plea colloquy, and the 

[PSR] did not contemplate or anticipate the application of 

§ 4B1.5(b),” counsel required more time to “discuss 

§ 4B1.5(b) and its potential impact” with his client. The issue 

resurfaced in Dahmen’s motion for a downward variance, in 

which he “object[ed] to the 5 level ‘bump’ which § 4B1.5(b) 

calls for, and . . . to the corresponding Total Offense Level of

36 and the corresponding ‘210–262’ guideline range.”
6

The sentencing hearing was held on February 7, 2011. 

After having ample time to study the matter, Dahmen’s 

experienced and able trial counsel did “not object[] to the 

soundness of the application of 4B1.5.” After the Court 

applied the enhancement and concluded that Dahmen’s total 

offense level was 36, counsel were asked if they “agree[d] 

with the calculation of the guidelines as set forth by the 

Court,” and both answered in the affirmative. Later in the 

proceedings, the Court gave counsel another opportunity to 

object, asking if there was “anything . . . in either the 

sentencing options or in the sentencing guideline calculations 

that [they] believe[d] need[ed] to be corrected.” Again, 

Dahmen did not object to the District Court’s decision 

regarding the applicable Guidelines range. Because neither 

party sought a departure under the Guidelines, the District 

Court proceeded to the third and final step of the sentencing 

process, during which Dahmen argued for a downward 

variance and the Government requested a bottom-of-theGuidelines sentence of 210 months’ imprisonment.

While arguing for a downward variance, Dahmen’s 

counsel returned to the issue of the § 4B1.5(b) enhancement. 

Counsel conceded that “[a]fter thoroughly researching [the 

enhancement, he] verified factually it did, in fact, fit” and 

consequently did “not object to its application.” 

Nevertheless, he advocated for a variance, arguing that the 

application of § 4B1.5(b) was redundant because the factors it 

addressed were “already contemplated by the sentencing 

guidelines under 2G1.3, 2G2.2, 4A1.1,” all of which had been 

included in the plea agreement. The Court disagreed, rejected 

Dahmen’s request for a downward variance, calculated the 

applicable range as 210 to 252 months, and sentenced him to 

216 months in prison.
7

II

Because Dahmen was charged with violations of 

federal criminal law, the District Court had subject matter 

jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction over Dahmen’s appeal under 28 U.S.C. § 1291.

Before we consider the merits of Dahmen’s argument 

that the District Court erred by increasing his total offense 

level pursuant to USSG § 4B1.5(b), we must determine the 

appropriate standard of review, which the parties dispute. 

Dahmen claims that we exercise plenary review, citing United 

States v. Rivera, in which we held that “‘whether the 

government violated the terms of a plea agreement is a 

question of law subject to plenary review.’” 357 F.3d 290, 

294 (3d Cir. 2004) (quoting United States v. Queensborough, 

227 F.3d 149, 156 (3d Cir. 2000)).

The Government, on the other hand, argues that we 

review Dahmen’s claim for plain error because of his failure 

to object in the District Court. In support of this argument, 

the Government cites Puckett v. United States for the 

proposition that when a defendant waits until his appeal to 

allege a violation of his plea agreement, our authority to 

remedy the alleged error is “strictly circumscribed.” 556 U.S. 

129, 134 (2009). According to Puckett, we have “discretion 

to remedy [such] error” only where it: (1) constitutes a 

“‘[d]eviation from a legal rule’”; (2) is “clear or obvious, 

rather than subject to reasonable dispute”; (3) “affect[s] the 

appellant’s substantial rights”; and (4) “‘seriously affect[s] 

the fairness, integrity or public reputation of judicial 

proceedings.’” Id. at 135 (quoting United States v. Olano, 

507 U.S. 725, 732–34, 736 (1993)).
8

We agree with the Government because our 

application of plenary review in Rivera is no longer good law 

in light of the Supreme Court’s decision in Puckett. In 

Puckett’s plea agreement, the government “agree[d] that [he] 

. . . demonstrated acceptance of responsibility and thereby 

qualifie[d] for a three-level reduction in his offense level.” 

Id. at 131. But Puckett’s commission of another offense prior 

to sentencing led the government to oppose any reduction for 

acceptance of responsibility. Consequently, the district court 

increased Puckett’s sentencing range. Id. at 132–33. Like 

Dahmen, Puckett received a sentence at the low end of the 

applicable range and never moved to withdraw his plea. Id. 

The Supreme Court noted that “at no time during the 

exchange did Puckett’s counsel object that the Government 

was violating its obligations under the plea agreement” and 

concluded that, though “the Government’s breach of a plea 

agreement is a serious matter,” Puckett’s forfeiture of the 

claim warranted plain-error review. Id. at 133, 143. Because 

we are bound by Puckett, we review Dahmen’s first 

contention for plain error.

III

A

Dahmen claims that the District Court erred when it 

applied a five-level enhancement pursuant to USSG 

§ 4B1.5(b) after finding that he “engaged in a pattern of 

activity involving prohibited sexual conduct.” Consistent 

with his trial counsel’s position before the District Court, 

Dahmen does not deny on appeal that he “engaged in a 

pattern of activity involving prohibited sexual conduct.” 

Instead, he argues that once the District Court deemed itself 

bound by a written plea agreement that made no mention of 
9

that particular enhancement, it was prohibited from applying 

it at sentencing. Dahmen focuses on the following comment 

made by the District Court at the time he entered his plea:

I wish to note for the record that the plea 

agreement at Paragraphs C(3), (4), and (5) 

indicate that the stipulations made between the 

parties are indicated to be not binding upon the 

Court. However, this language in the plea letter 

is incorrect. I want the defendant to know that 

if I accept your plea, the stipulations will be 

binding because the nature of the stipulations 

fall under the classifications set forth in Federal 

Rule of Criminal Procedure 11(c)(1)(C).

The gravamen of Dahmen’s claim is that the District 

Court’s statement that the stipulations were binding pursuant 

to Rule 11(c)(1)(C) precluded the application of any other 

unmentioned enhancements, including those pursuant to 

Chapter 4 of the Guidelines. We disagree. Contrary to 

Dahmen’s argument, the District Court referred only to 

Paragraphs C(3), (4), and (5) of the agreement, which address 

only Chapters 2 and 3 of the Guidelines, relating to 

calculations of base offense level, conduct-related 

enhancements, and adjustments for multiple counts. Neither 

the District Court nor the written plea agreement adverted to 

§ 4B1.5(b) or any other Chapter 4 enhancements, which relate 

to criminal history.

Dahmen urges that the Government and the District 

Court violated the stipulations of the plea agreement by 

seeking and imposing a five-level increase under USSG 

§ 4B1.5(b). In his reply brief, he protests that his guilty plea 

was not knowing, intelligent, and voluntary because he relied
10

on the District Court’s statement during his plea colloquy that 

the Court was bound by the stipulations. We disagree with 

Dahmen in this regard because his argument is based on the 

fallacy that the Government or the District Court breached 

one or more of those stipulations. Dahmen has not cited, and 

we have not found, any provision of the written agreement, or 

any statement by the Government or the District Court, that 

Dahmen was immune from a Chapter 4 enhancement. Absent 

such a promise, neither the Government nor the District Court 

could have violated the agreement by deeming § 4B1.5(b) 

applicable (or inapplicable). Accordingly, we hold that the 

Government did not breach its agreement with Dahmen and 

that the District Court did not err when it fixed Dahmen’s 

final advisory Guidelines range at 210 to 252 months’ 

imprisonment.

B

Dahmen next claims that his sentence of 216 months’ 

imprisonment is unreasonable. In light of Dahmen’s 

appellate waiver, however, his argument in this respect must 

rely on his prior claim that he was sentenced above the 

applicable Guidelines range. Having determined that the 

District Court did not err in determining that Dahmen’s 

Guidelines range was 210 to 252 months’ imprisonment, it is 

apparent that his 216-month sentence is within the Guidelines 

range.

We do not review the merits of an appeal where “we 

conclude (1) that the issues [the defendant] pursues on appeal 

fall within the scope of his appellate waiver and (2) that he 

knowingly and voluntarily agreed to the appellate waiver, 

unless (3) enforcing the waiver would work a miscarriage of 

justice.” United States v. Corso, 549 F.3d 921, 927 (3d Cir. 
11

2008). Dahmen has not cited any evidence that his 

acceptance of the plea agreement was anything but knowing 

and voluntary; indeed, he repeatedly assured the District 

Court that it was knowing and voluntary during the changeof-plea hearing. His within-Guidelines sentence is plainly no 

miscarriage of justice.

III

The District Court committed no error, much less plain 

error, by enhancing Dahmen’s Guidelines range pursuant to 

§ 4B1.5(b), and Dahmen’s appellate waiver prevents us from 

considering the challenge to the reasonableness of his 

sentence. Consequently, we will affirm the District Court’s 

judgment of sentence.