                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3286
                                       ___________

                            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
                      ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 22, 2018

              Before: KRAUSE, COWEN, and FUENTES, Circuit Judges

                           (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 binding precedent.
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, we will

affirm.

          I. Background

          Stamm was charged with and pleaded guilty to conspiracy to produce child

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. The District Court denied both Stamm’s initial motion to withdraw the plea, and

Stamm’s renewed motion. This appeal followed.

          II. Discussion 1

          Stamm makes three arguments 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 an 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 waiver
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. See

                                              2
       First, Stamm contends the District Court committed plain error by accepting his

plea because he never “ma[d]e any admission” that his victim was underage, Appellant’s

Br. 24, and therefore never pleaded guilty to an essential 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 not 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 affected 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, the record is replete with

evidence that Victim-1 was a minor and that Stamm clearly understood that, by pleading

guilty, he was admitting this was true. For example, the superseding indictment alleged

that he conspired “to entice and coerce a minor, Victim-1, to engage in sexually explicit

conduct.” App. 33 (emphasis added). In addition, at his arraignment, the Magistrate

Judge 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 waiver as a separate
issue.

                                               3
engage in sexually explicit activity.” Transcript 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). The 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 acknowledged 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 demonstrated error, let alone plain error. 4

       Second, Stamm quibbles with an apparent slip of the tongue by the Magistrate

Judge at his plea hearing, who stated that Stamm was being charged with violating

subsection (b) of 18 U.S.C. § 2251, when Stamm had actually 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 this 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 inquiry into
“a Rule 11 violation” goes beyond plea proceedings).
4
 As Stamm concedes, to accept a guilty plea, the District Court needed 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 here
was more than sufficient.

                                              4
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; the Magistrate Judge 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 reflects the correct subsections of

§ 2251; 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 Magistrate

Judge’s misstatement did not “materially hamper[] [Stamm’s] ability to assess the risks

and benefits of pleading guilty,” Appellant’s Br. 18, much less support “a reasonable


5
 In any event, subsection (b) is so obviously inapplicable, Stamm’s suggestion 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).

                                               5
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 attorney

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 argument

amounts to a recycling of the points 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 our review of the record reveals none.

Rather, the record shows that in weighing “the strength of [Stamm’s] reasons 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 that 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 best positioned

to assess that conflicting testimony, and the record presents no reason to question its

assessment. See United States v. Mallory, 765 F.3d 373, 382 (3d Cir. 2014). The District

Court thus did not abuse its discretion in denying Stamm’s motion to withdraw his plea.




                                             6
III. Conclusion

For the reasons stated above, we will affirm.




                                     7
