NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 7

- 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

____________________________________ Submitte d U nder Third Cir cuit LAR 34.1(a) October 22 , 201 8 Before: KRAUSE, COWEN , and FUENTES, Circuit Judge s (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 bin ding precedent.2 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, w e will affirm.
I. Background Stamm was charged with and pleaded guilty to conspiracy to produce chil d 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

. T he District Court denied both Stamm’s initial motion to withdraw the plea, and
Stamm’s renewed motion. This appeal followed.
I I . Discussion 1
Stamm makes three argu ments 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 a n 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 waiv er 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. See3 First , Stamm contends the District Court committed plain error by accepting his plea because he never “m a [d] e any admission” that his victim was underage, Appellant’s
Br . 24, and therefore never pleaded guilty to an es sential 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 no t 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 affecte d 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, t he record is replete with evidence that Victim

- 1 was a minor and that Stamm clearly understood that , b y pleading guilty , he was admitting this was true

. For example, the superseding indictment alleged that he conspired “ to entice and coerce a minor , Victi m - 1 , to engage in sexually explicit conduct. ” App. 33 (emphasis added)

. In addition, at his arraignment, the M agistrate
J udge 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 wa iver as a separate issue

.4 engage in sexually explicit activity

. ” Tr anscript 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)

. T he 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 a cknowledged 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 demon strated error, let alone plain error. 4
Second , Stamm quibbles with an apparent slip of the tongue by the Magistrate
J udge at his plea hearing, who stated that Stamm was being charged with violating subsection (b) of 18 U.S.C. § 2251, when Stamm had actua lly 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 th is 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 i nquiry into

“ a Rule 11 violation ” goes beyond plea proceedings).

4 As Stamm concedes, to accept a guilty plea, the District Court need ed 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 her e was more than sufficient.5 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 ; t he M agistrate J udge 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 reflec ts the correct subsections of § 225 1 ; 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 M agistrate
J udge’s misstatement did not “materially hamper[] [Stamm’s] ability to assess the risks and b enefits of pleading guilty,” Appellant’s Br. 18, much less support “a reasonable

5 In any event, subsection (b) i s so obviously inapplicable, Stamm’s suggest ion 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 ).6 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 at torney 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 arg ument amounts to a recycling of the p oints 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 o ur review of the record reveals none. Rather, the record shows that in weighing “the strength of [Stamm’s] rea sons 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 tha t 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 be st positioned
to assess th at conflicting tes timony, and the record presents no reason to question its
assessment. See United States v. Mallory , 765 F.3d 373, 382 (3d Cir. 2014). T he District
Court thus did not abuse its discretion in denying Stamm’s motion to withdraw his plea

.7 III. Conclusion For th e reasons stated abo ve, we will affirm.