                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0455n.06

                                         No. 15-1758


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
UNITED STATES OF AMERICA,                              )                      Aug 10, 2016
                                                       )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                             )
                                                       )
                                                              ON APPEAL FROM THE
v.                                                     )
                                                              UNITED STATES DISTRICT
                                                       )
                                                              COURT FOR THE WESTERN
RYAN VAN STEVENSON,                                    )
                                                              DISTRICT OF MICHIGAN
                                                       )
       Defendant-Appellant.                            )
                                                       )



BEFORE:       MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge.                 Ryan Van Stevenson appeals his

conviction of coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b). An

investigation conducted by the FBI in 2014 uncovered that Stevenson possessed and solicited

pornographic images of minors, including a 16-year-old girl, E.K. The government offered

Stevenson two separate plea agreements, and, accepting the first offer, he pleaded guilty to one

count of coercion and enticement of a minor.      After the release of the Probation Office’s

Presentence Report (PSR), Stevenson moved to withdraw his guilty plea. The United States

District Court for the Western District of Michigan denied his motion and sentenced him to

360 months of imprisonment. Stevenson argues on appeal that the district court abused its

discretion by refusing to grant his motion to withdraw his guilty plea, and by sentencing him

unreasonably. We AFFIRM.
No. 15-1758, United States v. Van Stevenson


                                                I.

        In February 2012, 29-year-old Ryan Van Stevenson met 15-year-old E.K. in an online

chatroom dedicated to bondage and discipline, sadism and masochism (BDSM).1                 They

developed a master-slave relationship, communicating and sending sexually explicit photographs

through email, text messages, and telephone. In May 2012, when E.K. was 16 years old,

Stevenson sent E.K. a self-authored document titled “Slave Assignment” ordering her to send

him sexually explicit photos and videos.2 E.K. complied.

        This relationship continued for two years until E.K., then 18 years old, graduated from

high school, left her parents and home in Portland, Oregon, and moved to Michigan to live with

Stevenson, his wife, and his two daughters. E.K.’s parents flew to Michigan and brought their

daughter back to Oregon with them, but soon thereafter, E.K. boarded another flight and flew

back to Michigan. E.K.’s parents hired private investigators, who gave the information they

collected to federal law enforcement officials, who obtained search warrants for various

locations, including Stevenson’s house. When FBI agents executed the search warrant, they

found CDs, a briefcase, photographs, rolls of film, and other electronic devices, many of which

contained pornographic images of E.K. when she was a minor and other pornographic images of

children.




1
  E.K. told Stevenson that she was 19 years old in the chatroom, but that same week she told him
in an email that she was younger. Stevenson acknowledged that the victim’s true age was 15
when he began communicating with her but he claims that he did not know this until discovery.
He admits that after E.K.’s 16th birthday in April 2012 he knew her true age, and, “[f]or the next
two years, [Stevenson] and EK exchanged sexually explicit photos and e-mail messages as part
of an online master-slave relationship.”
2
 We find nothing in the record that supports the concurrence’s claim that the the perpetrator was
mentally ill.
                                               -2-
No. 15-1758, United States v. Van Stevenson


                                                II.

        Stevenson was arrested and an indictment was filed in the United States District Court for

the Western District of Michigan, charging him with (1) coercion and enticement of a minor, in

violation of 18 U.S.C. § 2422(b)3; (2) receipt of child pornography, in violation of 18 U.S.C.

§§ 2256(8)(A), 2552A(a)(2)(A) and (b)(1); and (3) possession of child pornography, in violation

of 18 U.S.C. §§ 2256(8)(A), 2552A(a)(5)(B) and (b)(2). The factual basis for the charge of

coercion and enticement of a minor was that Stevenson had used the internet to communicate

with a girl under the age of 18 and to persuade her to send him images of herself engaged in

sexually explicit conduct.

        On September 29, 2014, the government offered Stevenson a plea agreement in which he

would plead guilty to coercion and enticement of a minor, an offense punishable by a term of

10 years’ to life imprisonment. On December 10, 2014, the government offered Stevenson an

alternative plea agreement in which he would plead guilty to the charge of sexual exploitation of

a child, an offense punishable by a term of 15 to 30 years’ imprisonment. Stevenson signed the

second plea agreement—with the 30-year maximum—on December 16, and the court scheduled

a change-of-plea hearing for December 19. On the morning of the hearing, however, Stevenson

changed his mind, signed the first plea agreement, and pleaded guilty to coercion and enticement

of a minor—with the life-term maximum—which the court accepted. Both plea agreements

contained identical waivers of rights to appeal, including a waiver of Stevenson’s right to appeal

his sentence.
3
  The government may charge in the conjunctive and prove in the disjunctive. See United States
v. Pirosko, 787 F.3d 358, 368 (6th Cir.), cert. denied, 136 S. Ct. 518 (2015) (holding that “[i]t is
settled law that an offense may be charged conjunctively in an indictment where a statute
denounces the offense disjunctively. Upon the trial the government may prove and the trial
judge may instruct in the disjunctive form used in the statute.” (quoting United States v. Murph,
707 F.2d 895, 896-97 (6th Cir. 1983) (citation omitted))).

                                                -3-
No. 15-1758, United States v. Van Stevenson


        Stevenson’s initial PSR was released on March 9, 2015. The PSR calculated Stevenson’s

Guidelines range as life imprisonment based on a total offense level of 43 and a criminal-history

category of II. Four days later, Stevenson told his counsel that he wanted to withdraw his guilty

plea. Stevenson subsequently filed a motion to withdraw his guilty plea on March 26, 2015. On

April 2, 2015, the district court denied Stevenson’s motion.

        Following the production of a revised PSR, the district court held a sentencing hearing in

June 2015.      Stevenson raised only two objections at sentencing.      First, he challenged the

application of a four-level enhancement for images reflecting sadistic or masochistic conduct.

The court sustained the objection. Second, Stevenson challenged the application of a two-level

enhancement for the use of a computer in furtherance of the offense. The court overruled that

objection.

        After ruling on these objections, the district court calculated a total offense level of 40

and a criminal-history category of II, which yielded a Guidelines range of 324 to 405 months’

imprisonment. The district court then sentenced Stevenson to 360 months’ imprisonment, which

was well within the Guidelines range. After the court imposed sentence, Stevenson did not raise

any further objections.

                                               III.

        We review for abuse of discretion the district court’s ruling on a motion to withdraw a

plea of guilty. United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). A district court

abuses its discretion when “it relies on clearly erroneous findings of fact, or when it improperly

applies the law or uses an erroneous legal standard.” Id. (quoting United States v. Spikes, 158

F.3d 913, 927 (6th Cir. 1998)).




                                                -4-
No. 15-1758, United States v. Van Stevenson


        We review sentences for both procedural and substantive reasonableness under the abuse-

of-discretion standard. United States v. Jones, 641 F.3d 706, 711 (6th Cir. 2011). Sentences are

procedurally unreasonable if the district court does not calculate the Guidelines range or

calculates it improperly, treats the Guidelines as mandatory, fails to consider the factors in

18 U.S.C. § 3553(a), selects a sentence based on clearly erroneous facts, or gives an inadequate

explanation for the sentence. Id. When, as here, a defendant fails to “object to the sentence upon

inquiry from the district court,” we review a claim of procedural unreasonableness for plain

error. United States v. Solano-Rosales, 781 F.3d 345, 351 (6th Cir. 2015). “The sentence may

be substantively unreasonable if the district court chooses the sentence arbitrarily, grounds the

sentence on impermissible factors, or unreasonably weighs a pertinent factor.” United States v.

Brooks, 628 F.3d 791, 796 (6th Cir. 2011).

                                               A.

        “The withdrawal of a guilty plea prior to sentencing is not an absolute right but is a

matter within the broad discretion of the district court.” United States v. Head, 927 F.2d 1361,

1375 (6th Cir. 1991) (quoting United States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987)). “A

defendant may withdraw a plea of guilty . . . after the court accepts the plea, but before it

imposes sentence if . . . the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d).

        We consider various factors to determine whether a defendant has shown a fair and just

reason for requesting withdrawal, including:

        (1) the amount of time that elapsed between the plea and the motion to withdraw
        it; (2) the presence (or absence) of a valid reason for the failure to move for
        withdrawal earlier in the proceedings; (3) whether the defendant has asserted or
        maintained his innocence; (4) the circumstances underlying the entry of the guilty
        plea; (5) the defendant’s nature and background; (6) the degree to which the



                                               -5-
No. 15-1758, United States v. Van Stevenson


        defendant has had prior experience with the criminal justice system; and
        (7) potential prejudice to the government if the motion to withdraw is granted.

United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006) (quoting United States v. Bashara, 27

F.3d 1174, 1181 (6th Cir. 1994)). “This rule is designed ‘to allow a hastily entered plea made

with unsure heart and confused mind to be undone, not to allow a defendant to make a tactical

decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes he made

a bad choice in pleading guilty.’” Id. at 280-81 (quoting United States v. Alexander, 948 F.2d

1002, 1004 (6th Cir. 1991)).

        Turning to the first factor, Stevenson pleaded guilty on December 19, 2014, but he did

not file his motion to withdraw his plea until three months later, on March 26, 2015. This circuit

has previously concluded that delays far shorter than Stevenson’s weigh in favor of affirming a

district court’s denial of a motion to withdraw. See, e.g., United States v. Baez, 87 F.3d 805, 808

(6th Cir. 1996) (stating that the strongest factor supporting the district court’s denial of the

defendant’s motion to withdraw was a 67-day delay and the defendant’s failure to justify it);

United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (recognizing 55-day delay as

lengthy and supported denial of motion to withdraw). Stevenson’s 97-day delay—more than

three months—weighs in favor of affirming the district court’s denial of his motion to withdraw.

        Stevenson attempts to provide a valid reason for the delay, contending that he repeatedly

tried to contact his counsel prior to March 2015 to alert counsel that he regretted pleading guilty.

The record does not support his claim. Moreover, even if Stevenson did contact his counsel or

try to file a motion to withdraw the plea on or about February 4, as he claims, the delay would

still have been greater than six weeks, and this circuit has counted delays of less than six weeks

against the defendant when evaluating the propriety of granting a motion to withdraw. See

Spencer, 836 F.2d at 239 (holding that the district court did not abuse its discretion where there

                                                -6-
No. 15-1758, United States v. Van Stevenson


was a five-week delay). The timing of Stevenson’s motion also undermines his claim: four days

after the release of his PSR, which calculated his Guidelines imprisonment term as life

imprisonment, he told his counsel that he wanted to withdraw his plea. Both the delay in

Stevenson’s filing his motion to withdraw and his failure to provide a valid reason for the delay

weigh in favor of affirming the district court’s denial of his motion.

        Stevenson also argues that he is innocent of the crime of coercion and enticement of a

minor “because he did not coerce EK into any activity.” However, to be guilty of a violation of

18 U.S.C. § 2422(b), a defendant must have “knowingly persuade[d], induce[d], entice[d], or

coerce[d] any individual who has not attained the age of 18 years, to engage in . . . any sexual

activity for which any person can be charged with a criminal offense, or attempt[ed] to do so.”

(emphasis added). Stevenson does not dispute that the production of child pornography, that is,

the sexually explicit photographs that he persuaded E.K. to send to him, is such activity.

18 U.S.C. § 2427. Rather, he simply claims that nothing that he did with regard to E.K.

constituted coercion. But this circuit has made it plain that § 2422(b) requires only that “the

defendant had an intent to persuade or to attempt to persuade” a minor to engage in prohibited

sexual activity. United States v. Bailey, 228 F.3d 637, 638 (6th Cir. 2000). Stevenson’s plea

agreement uses the disjunctive language of § 2422(b), and it makes clear that he at least

persuaded or attempted to persuade E.K. to engage in the prohibited activities. And Stevenson

specifically acknowledged at the change-of-plea hearing that he had carried on a lengthy cyber

relationship with E.K. that included his demanding, and her sending, quantities of sexually

explicit pictures.

        The circumstances underlying Stevenson’s entry of his guilty plea do not suggest that he

misunderstood what he was doing. He argues that he was confused about the plea because



                                                 -7-
No. 15-1758, United States v. Van Stevenson


(1) each of the two plea agreements “describe[d] complicated charges,” (2) he did not have

enough time to consider the second plea agreement, and (3) he switched between the two plea

agreements just before the change-of-plea hearing.         However, during the plea colloquy,

Stevenson confirmed that he understood the terms of the agreement and was freely and

voluntarily pleading guilty to Count One of the indictment. He confirmed that he had had an

adequate opportunity to discuss the plea agreement with his counsel and that he was satisfied

with his counsel. He also stated that he did not have any questions regarding the plea agreement

or the charge. He repeated his desire to plead guilty to the charge after the government read

Count One into the record and he stated that he understood that the minimum sentence was

10 years’ imprisonment and that the maximum sentence was life imprisonment. Stevenson also

had sufficient time to consider his plea agreement. He received the first plea agreement, which

he ultimately accepted, on September 29.        On December 10 he received the second plea

agreement, which included a lower maximum sentence of 30 years’ imprisonment, but a higher,

15-year, minimum sentence. Although Stevenson initially signed the second agreement, he

ultimately decided to plead guilty under the terms of the first agreement, which he had had more

than two months to consider.

        Stevenson does not argue that his nature and background suggest a fair and just reason to

request withdrawal. He does argue, however, that his lack of experience with the federal justice

system weighs in his favor because his last criminal conviction prior to the instant offense

occurred in 2001, and the present case was his first contact with the federal criminal justice

system. Although both of these statements are true, they do not suggest that he is unfamiliar

with guilty pleas. In fact, he has pleaded guilty to criminal charges on four separate occasions in

three different states.



                                               -8-
No. 15-1758, United States v. Van Stevenson


          Because the balance of the first six factors weighs in favor of affirming the district

court’s denial of Stevenson’s motion to withdraw his guilty plea we need not evaluate any

prejudice to the government. See United States v. Spencer, 836 F.2d 236, 240 (6th Cir. 1987)

(stating that “the government is not required to establish prejudice that would result from a plea

withdrawal[] unless and until the defendant advances and establishes a fair and just reason for

allowing the withdrawal”). The district court accordingly acted within its discretion when it

denied Stevenson’s motion to withdraw.

                                                B.

          Stevenson next argues that his sentence was procedurally and substantively unreasonable

because the district court did not consider certain 18 U.S.C. § 3553(a) factors and because it

based his sentence on a disdain for BDSM relationships. These claims cannot get out of the gate,

however, because of the appeal waiver in Stevenson’s plea agreement.

          “A defendant in a criminal case may waive ‘any right, even a constitutional right,’ by

means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001)

(quoting United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995)). Stevenson waived “the

right to appeal the sentence as determined by the Court at sentencing” and the right to appeal

“the manner in which the sentence was determined on the grounds set forth in 18 U.S.C.

§ 3742.” He retained the “right to appeal a sentence that exceeds the statutory maximum of the

count of conviction or is based upon an unconstitutional factor” and the right to appeal “those

objections preserved at sentencing that the Court incorrectly determined the final Guideline

range.”

          Stevenson’s waiver was knowing and voluntary and neither of his briefs argues that the

appeal waiver is invalid. He denied having any questions about his plea agreement, confirmed



                                                -9-
No. 15-1758, United States v. Van Stevenson


that he had an adequate opportunity to thoroughly discuss this matter with his attorney, and

confirmed that he understood that he would be giving up certain rights legally to collaterally

attack a sentence that the court would be required to impose. He has waived the challenges to

his sentence that he raises on appeal and his claims do not fall under any of his retained rights to

appeal. Because waivers of rights to appeal in a plea agreement are enforceable, we deem this

claim waived. See Fleming, 239 F.3d at 763-64; see also United States v. Beals, 698 F.3d 248,

255 (6th Cir. 2012) (holding that “[c]riminal defendants may waive their right to appeal as part

of a plea agreement so long as the waiver is made knowingly and voluntarily. When they do so,

[o]nly challenges to the validity of the waiver itself will be entertained on appeal.” (internal

quotation marks and citations omitted, alteration in original)).

                                                IV.

        For the aforementioned reasons we AFFIRM the judgment of the district court.




                                                -10-
No. 15-1758, United States v. Van Stevenson


        MERRITT, Circuit Judge, concurring. The defendant here pled guilty to using the

“internet to communicate with a girl approximately 15 to 17 years old and persuaded . . . her into

sending images of herself engaged in sexually explicit conduct and the lascivious display of her

pubic area” in violation of 18 U.S.C. § 2422(b), according to the indictment.              For so

communicating with the young girl, the statute provides for a “mandatory minimum” sentence of

not less than ten years and a maximum of life imprisonment. The plea agreement allows the

defendant to appeal any sentence that is “unconstitutional.” The defendant has appealed his 30

year sentence. All of the young girl’s conduct here was apparently consensual prompted by her

desire to send sexually explicit pictures to the defendant, to engage in sexual intercourse with

him and to act as his sex “slave.”


        In this case we have a mentally ill perpetrator of the crime and an unusually willing,

perhaps mentally disturbed, victim. The perpetrator, a sexual sadist, sought to “enslave” the girl;

and the girl apparently sought to be his sex “slave.” The psychology and the neuroscience

underlying the conduct of both the man and the young girl are a puzzle. It is difficult for the

judicial system to decide what kind of sentence should be imposed in this kind of case. It will

probably cost the taxpayers $1 million or more to keep the defendant incarcerated for 30 years,

and we cannot know now at the time of this appeal whether rehabilitation is likely. The question

of release into community confinement or other forms of supervision must be left to the U.S.

Bureau of Prisons or any future parole system that may be created to deal with sex offenders as

they age and may lose their sadistic sexual proclivities.       Like the district court and my

colleagues, I do not know of any better sentence to impose at this time.




                                               -11-
