     Case: 17-40947      Document: 00514529708         Page: 1    Date Filed: 06/26/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-40947                              FILED
                                  Summary Calendar                        June 26, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID LEE VANN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-901-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant David Lee Vann was indicted on one count of
attempted enticement and coercion of a minor and four counts of possession of
child pornography. Vann pleaded guilty to attempted enticement and coercion
of a minor in violation of 18 U.S.C. § 2422(b). In consideration of Vann’s guilty
plea, the Government agreed to move to dismiss the four remaining counts of
the indictment at sentencing.            Vann was sentenced to 120 months of


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-40947    Document: 00514529708     Page: 2   Date Filed: 06/26/2018


                                 No. 17-40947

imprisonment and 10 years of supervised release. On appeal, Vann argues
that the Government breached the plea agreement by failing to move to
dismiss the remaining counts. He also asserts that the written judgment
incorrectly identifies his offense of conviction as enticement and coercion of a
minor rather than attempted enticement of a minor.
      “[A]n alleged breach of a plea agreement may be raised despite a waiver
provision.”   United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).
Because Vann failed to object to the Government’s alleged breach in the district
court, our review is limited to plain error. See United States v. Hinojosa, 749
F.3d 407, 411, 413 (5th Cir. 2014). In resolving whether a breach occurred,
this court considers whether the Government’s conduct was “consistent with
the defendant’s reasonable understanding of the agreement.”          Id. at 413
(internal quotation marks and citation omitted).
      We need not resolve whether the alleged breach constitutes plain error
as neither party disputes that the written judgment should be corrected to
reflect the dismissal of the remaining counts. In addition, although the written
judgment identifies the offense of conviction as enticement and coercion of a
minor, the record reflects that Vann pleaded guilty to attempted enticement
and coercion of a minor. Accordingly, we REMAND to the district court for the
limited purpose of entering a corrected judgment reflecting the dismissal of the
remaining counts and the offense of conviction as attempted enticement and
coercion of a minor. See FED. R. CRIM. P. 36.




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