[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-16321

Non-Argument Calendar

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D.C. Docket No. 8:11-cr-00058-EAK-TGW-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

WESLEY WILLIAM BRANDT, JR., 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 24, 2014)

Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM: 

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Wesley Brandt, Jr. appeals his convictions for three counts of producing 

child pornography, along with his total 1,080-month sentence following his guilty 

plea. After review of the record and the parties’ briefs, we affirm.

I

Because we write for the parties, we assume familiarity with the underlying 

facts of the case and recite only what is necessary to resolve this appeal.

Mr. Brandt was indicted on 13 counts stemming from, among other things, 

his production, receipt, and possession of child pornography. Pursuant to a plea 

agreement, Mr. Brandt pled guilty to three counts of producing child pornography

in violation of 18 U.S.C. § 2251(a) and (e). Under the agreement, he waived his 

right to raise an ineffective assistance of counsel claim, or to appeal his sentences 

except on the grounds that they violated his Eighth Amendment rights or exceeded 

his advisory guidelines range or maximum statutory penalties. In exchange, the 

government pledged, among other things, "to make known to the [district court]

and other relevant authorities the nature and extent of defendant's cooperation and 

any other mitigating circumstances.” The government nevertheless reserved the 

right to make any recommendations it deemed appropriate to the disposition of the 

case. 

At the plea colloquy, the magistrate judge summarized the pertinent portions 

of the plea agreement, and Mr. Brandt acknowledged that he understood those 

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provisions. The magistrate judge issued a report recommending that Mr. Brandt’s 

guilty plea be accepted; Mr. Brandt filed no timely objection, and the district court

accepted his guilty plea.

According to the pre-sentence investigation report, Mr. Brandt used the 

Internet to coerce three minor females - ranging from six to thirteen years of age -

to photograph themselves in a sexually explicit manner and then send him the 

photographs. The report also took into account Mr. Brandt’s actions with respect 

to four additional minor victims, including alleged sexual exploitation, and 

ultimately arrived at a total offense level of 43 and a criminal history category of I, 

yielding an advisory guidelines range of life imprisonment. Because the maximum 

statutory penalty for each count was 30 years’ imprisonment, however, the PSI set 

Mr. Brandt’s advisory guidelines range at 1,080 months (or 90 years). See 

U.S.S.G. § 561.2 (d).

At sentencing, Mr. Brandt sought a downward variance to 240 months’ 

imprisonment. The government in turn requested that, consistent with his advisory 

guidelines range, Mr. Brandt be sentenced to 1,080 months’ imprisonment. 

Characterizing Mr. Brandt’s crimes as “absolutely horrible,” and concluding that 

he should “never, never, never be put in a position again to do this,” the district 

court agreed with the government’s position and sentenced Mr. Brandt to three 

consecutive 30-year terms of imprisonment. Mr. Brandt now appeals.

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II

On appeal, Mr. Brandt challenges the voluntariness of his plea, alleging 

violations of Federal Rule of Criminal Procedure 11 based on the magistrate 

judge’s failure to inform him of his right to conflict-free counsel or inquire into his 

defense counsel’s alleged conflict of interest.1 He also argues that the government 

breached the plea agreement by recommending that the maximum sentences be 

imposed, and contends that his 1,080-month sentences violated the Eighth 

Amendment’s prohibition against cruel and unusual punishment. 2

A

Mr. Brandt first contends that his guilty plea was not knowing or voluntary 

because the magistrate judge did not inform him of his right to conflict-free 

counsel in connection with his waiver of the right to pursue an ineffective 

assistance of counsel claim. As a threshold matter, because Mr. Brandt failed to 

object to the magistrate judge’s report and recommendation that his guilty plea be 

accepted, his claim is not reviewable on appeal. See Fed. R. Crim. P. 59(b)(2); 

United States v. Garcia-Sandobal, 703 F.3d 1278, 1282-83 (11th Cir. 2013).

 

1 To the extent that Mr. Brandt also asserts an independent claim for a violation of the 

Sixth Amendment based on ineffective assistance of counsel, the record is not sufficient to 

address the claim on direct appeal. United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012).

2 Mr. Brandt’s plea agreement included a sentence appeal waiver. As this waiver was 

made knowingly and voluntarily, Mr. Brandt cannot appeal his sentence on reasonableness 

grounds. See United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Thus, his claim 

that his sentences are substantively unreasonable because the district court failed to consider 

certain 18 U.S.C. § 3553(a) factors is not reviewable on appeal. 

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Even if it were reviewable, Mr. Brandt’s argument would fail on the merits. 

Because he did not raise this claim in the district court, we review only for plain 

error. See United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). To 

prevail under this standard, Mr. Brandt must show (1) an error, (2) that was plain, 

(3) that affected his substantial rights, and (4) seriously affected the fairness of the 

judicial proceedings. See Id. at 1349. An error is not plain unless a decision from 

the Supreme Court or this court directly resolves the issue. See United States v. 

Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (per curiam).

Mr. Brandt has not made a showing of plain error. He relies heavily on 

Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980), for the proposition that “a 

defendant who shows that a conflict of interest actually affected the adequacy of 

his representation need not demonstrate prejudice in order to obtain relief.” We 

have limited the applicability of Cuyler’s so-called presumed prejudice rule, 

however, to conflicts of interest arising from concurrent representation of multiple 

defendants. See Downs v. Sec’y, Fla. Dep’t of Corrections, 738 F.3d 240, 265 

(11th Cir. 2013). Because that scenario is not before us here, Mr. Brandt cannot 

avail himself of a presumption of prejudice. Moreover, we have previously upheld 

plea agreements that include waivers of defendants’ right to raise ineffective 

assistance of counsel at sentencing. See Williams v. United States, 396 F.3d 

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1340, 1342 (11th Cir. 2005). Because Mr. Brandt has not shown plain error, we 

reject his challenge to the knowing and voluntary nature of his guilty plea.3

B

Mr. Brandt also contends for the first time on appeal that the government 

breached the plea agreement when it recommended that he receive the maximum 

penalty at sentencing and - in so doing - undercut his request for a downward 

variance. We disagree.

We generally review de novo the question of whether the government 

breached a plea agreement. See United States v. Copeland, 381 F.3d 1101, 1104 

(11th Cir. 2004). Where a defendant fails to object to an alleged breach before the 

district court, however, such a claim is reviewed only for plain error. See United 

States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). In analyzing a claim 

that the government breached a plea agreement, we must determine the scope of 

the government’s promises. See Copeland, 381 F.3d at 1105. When considering 

the meaning of any disputed terms in an agreement, we apply an objective standard 

to determine whether the government’s actions were inconsistent with what the 

defendant reasonably understood when he pled guilty. See Id. 

 

3 Mr. Brandt’s reliance on Florida Bar Ethics Opinion AO 12-1, which states that “a 

criminal defense lawyer has a personal conflict of interest when advising a client regarding 

waiving the right to later collateral proceedings regarding ineffective assistance of counsel,” does 

not change this result. Florida Bar ethics opinions do not abrogate our binding precedent and are 

merely advisory. 

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The government did not breach the plea agreement by recommending that 

the district court impose the maximum allowable sentences. The government 

complied with the terms of the agreement by informing the district court of Mr. 

Brandt’s cooperation and acceptance of responsibility, and Mr. Brandt identifies no 

mitigating factors that the government neglected to bring to the district court’s 

attention. The agreement did not require the government to recommend a 

particular sentence or to stand silent on the issue of sentencing; rather, it reserved 

the government’s right to recommend any disposition it deemed appropriate within 

Mr. Brandt’s advisory guidelines range. Mr. Brandt has failed to establish that the 

government’s actions amounted to a breach of the plea agreement. Accordingly, 

there was no error, plain or otherwise.

C

Mr. Brandt likewise maintains that the 1,080-month prison sentences that the 

district court imposed amount to cruel and unusual punishment in violation of his 

Eighth Amendment rights. We are not persuaded.

We typically review Eighth Amendment challenges de novo. See United 

States v. Flanders, 752 F.3d 1317, 1342 (11th Cir. 2014). Because Mr. Brandt did 

not object to his sentences on this ground in the district court, however, we review 

for plain error. See Id. In evaluating an Eighth Amendment challenge in a noncapital case, a defendant must make a threshold showing that the sentence imposed 

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is grossly disproportionate to the offense committed. See United States v. Johnson, 

451 F.3d 1239, 1243 (11th Cir. 2006). In general, a defendant whose sentence falls 

within the limits imposed by statute cannot make the threshold showing of gross 

disproportionality. See Id. If the defendant establishes that the sentence is grossly 

disproportionate, we compare the defendant’s sentence to the sentences imposed 

on others convicted of similar offenses. See Id. We have “never found a term of 

imprisonment to violate the Eighth Amendment, and outside the special category 

of juvenile offenders the Supreme Court has found only one to do so.” United 

States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010).

Mr. Brandt has failed to make a threshold showing that his sentences are 

grossly disproportionate to his crimes. The sentences fall within the limits 

imposed by statute, suggesting that they did not run afoul of the Eighth 

Amendment. See Moriarty, 429 F.3d at 1024 (“In general, a sentence within the 

limits imposed by statute is neither excessive nor cruel and unusual under the 

Eighth Amendment.”) (citation and quotation marks omitted). Although Mr. 

Brandt points out that he had no physical contact with his victims, this fact cannot 

serve to minimize - much less neutralize - the devastating psychological impact 

that his offenses left in their wake, as exemplified by the poignant statements of 

one of his teenage victims and the victims’ families at sentencing. See Farley, 607 

F.3d at 1345 (“[T]he sexual abuse of children, and the use of the Internet to 

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facilitate that abuse, are serious problems affecting the health and welfare of the 

nation.”). Accordingly, the district court’s sentences are not grossly 

disproportionate to Mr. Brandt’s offenses, and no plain error has been shown. 

III

The district court’s convictions and sentences are affirmed.

AFFIRMED.

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