                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 9 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50471

                Plaintiff-Appellee,             D.C. No.
                                                2:09-cr-00932-CAS-1
 v.

ERIK LEONARDUS PEETERS, AKA                     MEMORANDUM*
Alex,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted August 13, 2019
                              Pasadena, California

Before: CALLAHAN, D.M. FISHER,** and CHRISTEN, Circuit Judges.

      Erik Peeters was charged with and pled guilty to engaging in illicit sexual

conduct in foreign places, in violation of 18 U.S.C. § 2423. He appeals the District

Court’s denial of his motions to dismiss the indictment and withdraw his guilty



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
plea. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and dismiss

in part.

       Peeters initially argued on appeal that the District Court should have granted

his motion to dismiss his indictment because § 2423 is, in part, unconstitutional.

He asserted that the statute’s prohibition of non-commercial sexual activity abroad

exceeds the scope of Congress’s power under the Foreign Commerce Clause.

Shortly before oral argument, this Court rejected that precise argument in a

different case, United States v. Lindsay, 931 F.3d 852, 863 (9th Cir. 2019). Peeters’

counsel conceded at oral argument that Lindsay resolves his constitutional

challenge.

       Peeters also challenges the District Court’s denial of his motions to

withdraw his guilty plea, arguing that the plea was based on insufficient facts—

specifically, that his plea agreement did not draw the requisite causal connection

between the gifts and money he gave his victims and the sexual acts he inflicted on

them. He admits that this argument falls within the scope of the plea agreement’s

appellate waiver. However, he asserts that the waiver does not apply because,

where a plea agreement is invalid due to an insufficient factual basis, any appellate

waiver it contains is invalid as well. Peeters is correct on this point of law. United

States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999). He did not attack the

factual sufficiency of his plea agreement in the District Court, so we review for


                                           2                                    16-50471
plain error. United States v. Monzon, 429 F.3d 1268, 1271 (9th Cir. 2005).

      There was no error, plain or otherwise. Peeters’ plea agreement admits that

he engaged in illicit sexual conduct as defined in § 2423(f)(2)—namely, “any

commercial sex act,” which is “any sex act, on account of which anything of value

is given to or received by any person.” (emphasis added) (first quoting 18 U.S.C.

§ 2423(f)(2); then quoting id. § 1591(e)(3)). Thus, the plea agreement spells out

the required causation.

      Nor is Peeters released from the plea agreement by the Government’s

actions. The agreement preserved Peeters’ right to “seek review of the adverse

determination of [his] motion to dismiss the indictment for alleged violation of the

Commerce Clause.” Peeters contends that the Government went back on its word

by arguing on appeal that the constitutional issue is waived. The Government,

however, does not argue classic waiver, i.e., failure to preserve the issue. Rather,

the Government asserts that Peeters’ argument regarding non-commercial activity

cannot succeed because he admitted that he engaged in commercial activity. In its

brief, the Government uses the term “waiver” loosely—it might have done better

by calling the argument “foreclosed”—but the Government’s less-than-meticulous

word choice does not constitute a breach of the agreement. The Government

promised Peeters could appeal the constitutional issue; it did not promise to refrain

from counterargument.


                                          3                                    16-50471
         Because no infirmity of the plea agreement and no Government action

undermines Peeters’ valid waiver of his right to appeal all issues except the

constitutional one resolved by Lindsay, 931 F.3d at 863, we dismiss his challenge

to the denial of his motions to withdraw his guilty plea. United States v. Harris,

628 F.3d 1203, 1205 (9th Cir. 2011) (“Where an appeal raises issues encompassed

by a valid, enforceable appellate waiver, the appeal generally must be dismissed.”).



We AFFIRM the denial of the motion to dismiss the indictment and DISMISS the

appeal insofar as it pertains to the denial of the motions to withdraw the guilty

plea.1




1
  We deny Peeters’ motion to augment the record with a plea agreement that the
Government offered and he rejected. The parties told the District Court there had
been fruitless negotiations, but they did not attempt to submit the rejected
agreement to the Court. Therefore, it was not omitted from the record due to error
or accident. See Fed. R. App. P. 10(e)(2) (“If anything material to either party is
omitted from or misstated in the record by error or accident, the omission or
misstatement may be corrected . . . .”); United States v. Bischel, 61 F.3d 1429,
1436 n.7 (9th Cir. 1995) (denying motion “because the proffer is not a ‘correction
or modification’ of the record within the meaning of F.R.A.P. 10(e) but a new,
post-trial addition to it”). In any event, we have reviewed Peeters’ argument
regarding the rejected agreement, and even if the agreement were part of the
record, our analysis would not change.

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