United States Court of Appeals

for the Fifth Circuit ____________

No. 23-40706

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Sean Michael Kriss, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:21-CR-4-1 

______________________________

Before Smith, Stewart, and Duncan, Circuit Judges.

Per Curiam:*

Sean Michael Kriss pleaded guilty to sexual exploitation of children 

and possession of child pornography. He was sentenced to a total term of 

480 months of imprisonment and 10 years of supervised release. On appeal, 

Kriss argues the Government breached the plea agreement. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2024

Lyle W. Cayce

Clerk

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No. 23-40706

2

In the plea agreement, the Government agreed to move under 

U.S.S.G. § 3E1.1(b) for a one-level reduction if the district court determined 

that Kriss qualified for the two-level reduction under § 3E1.1(a) and the 

offense level prior to operation of § 3E1.1(a) was 16 or greater. Kriss argues 

that the Government breached the agreement when it (1) emphasized that he 

filed a motion to withdraw his guilty plea 18 months after he pleaded guilty, 

(2) claimed that he was making a “big deal” about his autism diagnosis, and 

(3) stated that he needed to be held accountable because it was hard to deter 

someone like him who did not believe that he had a problem. 

We review for plain error review because Kriss did not raise this claim 

before the district court. He must show an error that is clear or obvious and 

that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 

135-36 (2009). If he makes this showing, we will exercise our discretion to 

correct the error only if it “seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Id. (internal quotation marks, brackets, 

and citation omitted). While the burden is on the defendant to demonstrate 

by a preponderance of the evidence that the Government breached a plea 

agreement, the terms of the agreement are strictly construed against the 

Government as the drafter. United States v. Casillas, 853 F.3d 215, 217 (5th 

Cir. 2017). “A breach occurs if the Government’s conduct was inconsistent 

with a reasonable understanding of its obligations.” Id. 

Kriss’s argument is unavailing because the Government complied 

with its obligations under the plea agreement. See id. at 218. The plea 

agreement did not prohibit the Government’s arguments that the two-level 

reduction under § 3E1.1(a) was not warranted and that the sentencing factors 

outlined in 18 U.S.C. § 3553(a) supported the statutory maximum sentence. 

See United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014). 

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No. 23-40706

3

Because Kriss has not demonstrated that the Government breached 

the plea agreement, the appeal waiver contained in that agreement is 

enforceable and bars the current appeal. The appeal is DISMISSED. 

Case: 23-40706 Document: 56-1 Page: 3 Date Filed: 09/24/2024