                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 26, 2018
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 16-6324
                                                (D.C. No. 5:16-CR-00002-F-1)
 JASON MARC JANATSCH,                                  (W.D. of Okla.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, BALDOCK, and BRISCOE, Circuit
Judges.


      Jason Janatsch worked as a freelance babysitter and occasional daycare

employee. He was indicted for taking sexually explicit pictures of himself with a

toddler. After he pleaded guilty to the charges, the court sentenced him to 360

months in prison and required him to pay a $5,000 special assessment pursuant to

18 U.S.C. § 3014(a)(3), a provision applicable to “any non-indigent person . . .




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
convicted of an offense . . . relating to sexual exploitation and other abuse of

children.”

      Janatsch appeals his sentence, arguing that (1) the district court improperly

enhanced his sentence based on his admission of a prior child molestation

incident for which he was never charged; (2) the sentence was substantively

unreasonable and “greater than necessary to comply with the purposes of criminal

punishment,” Aplt. Br. 13; and (3) the $5,000 special assessment should not be

imposed because he was indigent at the time of sentencing.

      We AFFIRM the district court’s sentence. Janatsch has waived his right to

challenge a sentence within the applicable United States Sentencing Guidelines

(USSG) range, and the district court did not err in imposing the mandatory

assessment.

                                 I. Background

      While babysitting in Enid, Oklahoma, Janatsch took pictures of himself

engaging in sexual conduct with a female toddler. A few months later, he used

the smartphone messaging application Kik to send some of these images to a

person in New Zealand and solicited child pornography in exchange.

      In September 2015, Homeland Security Investigations (HSI) Agents

downloaded child pornography from Kik user “lukebake4,” who was later

identified as Drew Webb of Christchurch, New Zealand. R., Vol. 2 at 11. In

October 2015, the New Zealand Police (NZP) Online Child Exploitation Across

                                         -2-
New Zealand (OCEANZ) team executed a search warrant. They searched Webb’s

home and conducted a forensic analysis of his Kik account, identifying Kik user

“TheLoverOfTheLittle” as a possible offender who traded images with

“lukebake4.” Id. at 12. In November 2015, a Department of Homeland Security

(DHS) summons was served on Kik related to this username. The DHS summons

revealed the IP address associated with the username, and a subsequent DHS

summons to AT&T traced the IP address to Janatsch’s mother’s residence.

      In December 2015, a magistrate judge issued a search warrant for the

residence. Investigators subsequently discovered that Janatsch had downloaded

numerous images of child pornography to his iPhone and computer hard drive,

including five images he had produced of the toddler. At the time of the

execution of the search warrant, Janatsch consented to a forensic interview the

following day at HSI’s Oklahoma City office. During the interview, Janatsch also

admitted that he had physically molested another child in 2014, for which he was

investigated in February 2015 but never charged after initially denying the

allegations.

      Following his indictment on child pornography charges, Janatsch pleaded

guilty to a single count of producing child pornography in exchange for the

dismissal of two counts for receipt and possession of child pornography.

      Because the counts for receipt and possession were dismissed, the sole

count for production carried a statutory minimum of 180 months and a statutory

                                        -3-
maximum of 360 months. 18 U.S.C. § 2251( e). Based on his total offense level

of 43 and criminal history category of I, his guidelines range would have been

life; however, the guidelines sentence becomes the statutory maximum in cases

where the calculated range exceeds the statutory maximum, making Janatsch’s

guidelines range 360 months. As part of a plea agreement, Janatsch waived “his

right to appeal his guilty plea” and “his sentence as imposed by the Court . . . and

the manner in which the sentence was determined,” provided it was not “above

the advisory guideline range determined by the Court to apply.” R., Vol. 1 at 32.

      The district court sentenced Janatsch to the guidelines sentence and

statutory maximum of 360 months’ imprisonment and lifetime supervised release.

The court also imposed a $5,000 special assessment pursuant to the Justice for

Victims of Trafficking Act of 2015—which the plea agreement did not mention.

See 18 U.S.C. § 3014(a)(3). In relevant part, 18 U.S.C. § 3014(a) states

             [T]he court shall assess an amount of $5,000 on any
             non-indigent person or entity convicted of an offense
             under . . .
                                        * * *
             (3) chapter 110 (relating to sexual exploitation and other
             abuse of children) . . . .

Janatsch’s conviction under § 2251 is contained within chapter 110 of 18 U.S.C.

Therefore, his crime triggers the $5,000 special assessment.




                                         -4-
                                   II. Analysis

      Janatsch contends (1) the district court improperly determined his sentence

by considering his admission to the prior child molestation incident; (2) the 360-

month sentence was substantively unreasonable; and (3) the $5,000 special

assessment was improper because of his indigency at the time of sentencing.

      The appellee urges us to apply the appeal waiver to each of the three

claims. We conclude the waiver applies to the challenge to the first two claims,

but not to the special assessment. While the special assessment claim was not

waived, the district court properly applied § 3014(a) in imposing the special

assessment.

      A. Appeal Waiver

      We enforce appeal waivers under the familiar framework set forth in United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). We consider whether “(1) the

disputed appeal falls within the scope of the waiver of appellate rights, (2) the

defendant knowingly and voluntarily waived his appellate rights, and (3)

enforcing the waiver would [not] result in a miscarriage of justice.” United States

v. Burke, 633 F.3d 984, 996 (10th Cir. 2011) (citing Hahn, 359 F.3d at 1325–28).

“We construe a defendant’s plea agreement ‘according to contract principles and

what the defendant reasonably understood when he entered his plea.’” United

States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011) (quoting United States v.

Veri, 108 F.3d 1311, 1313 (10th Cir. 1997)).

                                         -5-
                               1. Length of Sentence

      In his plea agreement, Janatsch waived the “right to appeal his sentence as

imposed by the Court . . . and the manner in which the sentence was determined,”

provided it was not “above the advisory guideline range determined by the Court

to apply.” R., Vol. 1 at 32. The Guidelines only allowed 360 months’

imprisonment for his crime, the sentence selected by the district court.

      On appeal, although conceding the sentence was within the scope of the

plea agreement, Janatsch claims “[t]he severity of the sentence given the facts of

this case affects the fairness, integrity or public reputation of judicial

proceedings”—thus violating the third prong of Hahn. Aplt. Br. 4. Janatsch

forfeited his argument that he did not enter the plea agreement knowingly and

voluntarily under the second prong of Hahn because he raised it for the first time

in his reply brief.

      The third prong of Hahn instructs us to consider whether enforcing the

waiver would advance a miscarriage of justice. In doing so, we examine whether

“(1) the district court relied on an impermissible factor such as race, (2)

ineffective assistance of counsel in connection with the negotiation of the waiver

renders the waiver invalid, (3) the sentence exceeds the statutory maximum, or (4)

the waiver is otherwise unlawful.” Burke, 633 F.3d at 996 (citing Hahn, 359 F.3d

at 1327).




                                          -6-
      Janatsch argues the waiver is “otherwise unlawful” because “[t]he severity

of the sentence given the facts of this case affects the fairness, integrity or public

reputation of judicial proceedings.” Aplt. Br. 11. He does not, however, attempt

to provide any evidence to support this bare assertion, nor could he since the

sentence was within the guidelines range. In fact, Janatsch pleaded guilty to the

charges knowing he could be sentenced up to 360 months.

      Because the waiver satisfies all three prongs of the Hahn framework, we

find that the waiver is enforceable for Janatsch’s term of imprisonment.

                       2. Special Assessment and Indigency

      Janatsch also contends the appeal waiver did not apply to the district

court’s imposition of the $5,000 special assessment because he was indigent at

the time of sentencing.

      Since the plea agreement does not mention the $5,000 special assessment,

Janatsch did not explicitly waive his right to appeal the assessment, as he did with

the other components of his sentence. Furthermore, Janatsch challenges the

legality of the special assessment—an argument we have held is not waived by an

appeal waiver.

      We considered a similar situation in United States v. Gordon, 480 F.3d

1205 (10th Cir. 2007). In that case, we found an appeal waiver similar to this one

did not prevent a defendant from challenging whether the sentence was “beyond

that authorized by the pertinent statutes.” Id. at 1210. Here, Janatsch argues the

                                          -7-
district court imposed a special assessment that was not authorized by § 3014(a)

since he was indigent at the time. Because his argument questions the legality of

the assessment based on his indigent status, the waiver does not bar his challenge.

      B. 18 U.S.C. § 3014(a)(3)

      Section 3014(a), in relevant part, states

             [T]he court shall assess an amount of $5,000 on any
             non-indigent person or entity convicted of an offense
             under . . .
                                        * * *
             (3) chapter 110 (relating to sexual exploitation and other
             abuse of children) . . . .

(emphasis added).

      The operative provisions of the Guidelines provide that “[t]he court shall

impose a fine in all cases, except where the defendant establishes that he is unable

to pay and is not likely to become able to pay any fine.” USSG § 5E1.2(a)

(emphasis added); United States v. Vigil, 644 F.3d 1114, 1123 (10th Cir. 2011)

(applying USSG § 5E1.2(a)).

      Janatsch contends he was indigent at sentencing and the district court

should not have imposed the additional assessment. The district court imposed

the fine based on two factors: (1) a finding that Janatsch was not sufficiently

indigent under the statute based on the presentence report, and (2) Janatsch’s

future ability to pay, noting that “he’s going to have plenty of time to pay that off

while incarcerated.” R. Vol. 3 at 13.


                                         -8-
      The district court did not abuse its discretion in imposing the $5,000

special assessment. The context of the sentencing hearing shows the district court

reasonably found Janatsch had not met his burden of proving indigency for

purposes of the statute. And nothing in the statute precludes an examination of

future ability to pay as part of a holistic assessment of the indigency

determination.

      The Eighth Circuit reached a similar conclusion in United States v. Kelley,

861 F.3d 790, 802 (8th Cir. 2017). In that case, the defendant had a negative net

worth at the time of sentencing. But the defendant was an “Eagle Scout with a

college degree,” who in the future “certainly has the education and skills to be

employed and to earn money from which he could pay this assessment.” Id. The

court explained after considering “all the factors of Kelley’s financial situation,”

he “would, at some point, be able to pay the special assessment.” Id. “This

ability to earn money in the future precluded a finding of indigence for purposes

of § 3014.” Id.

      Likewise, the district court here did not err in concluding that Janatsch

would have the ability to pay the special assessment in the future.




                                          -9-
                       III. Conclusion

We AFFIRM the district court’s sentence and special assessment.

                            ENTERED FOR THE COURT


                            Timothy M. Tymkovich
                            Chief Judge




                             -10-
