               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0491n.06

                                          No. 14-1925
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Jul 09, 2015
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                           )     ON   APPEAL    FROM  THE
                                                    )     UNITED STATES DISTRICT
       Plaintiff-Appellee,                          )     COURT FOR THE WESTERN
                                                    )     DISTRICT OF MICHIGAN
v.                                                  )
                                                    )
DERIK EUGENE ROTHROCK,                              )
                                                    )
       Defendant-Appellant.                         )     OPINION


BEFORE:       CLAY and McKEAGUE, Circuit Judges; BERTELSMAN, District Judge.*

       PER CURIAM.           Pursuant to a Plea Agreement with the Government, Defendant-

Appellant Derik Rothrock pled guilty to receipt of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2)(A). The district court then sentenced Rothrock to 480 months’ imprisonment.

Rothrock now appeals, arguing that his guilty plea lacked a sufficient factual basis and that the

district court’s sentence is procedurally and substantively unreasonable. We AFFIRM.


                                               I.


       On January 9, 2014, a federal grand jury in the Western District of Michigan returned a

six-count indictment against Rothrock. Counts I–IV of the Indictment charged Rothrock with

*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 14-1925
United States v. Rothrock

sexual exploitation of three different children, in violation of 18 U.S.C § 2251(a). Those four

Counts also referenced 18 U.S.C. § 3559(e), giving Rothrock notice that he was subject to a

mandatory sentence of life imprisonment on each Count if convicted due to his prior convictions

for sex offenses against minors. Count V of the Indictment charged Rothrock with possession of

child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Count VI of the Indictment

charged Rothrock with commission of a felony offense involving a minor when required to

register as a sex offender, in violation of 18 U.S.C. § 2260A.


       On February 28, 2014, Rothrock entered into a Plea Agreement with the United States.

In exchange for the Government dropping the charges contained in the Indictment that would

have exposed him to mandatory life imprisonment, Rothrock agreed to waive his right to

indictment by a grand jury and to plead guilty to a Superseding Felony Information charging him

with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Rothrock also

agreed to two other important points in his Plea Agreement with the Government.


       First, paragraph two of the Plea Agreement ensured that Rothrock understood the

elements of the crime charged:

       In order for the Defendant to be guilty of violating [18 U.S.C. §] 2252A(a)(2)(A),
       the following must be true:

       a.      The Defendant knowingly received child pornography;

       b.        Such items of child pornography has [sic] been shipped and transported in
       . . . interstate or foreign commerce by any means, including by computer; and

       c.      The Defendant knew that such items constituted child pornography.

       The Defendant is pleading guilty because he is guilty of the charge described
       above.

Rothrock thus agreed in writing that he knowingly received child pornography.



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No. 14-1925
United States v. Rothrock

       Second, paragraph thirteen of the Plea Agreement contained a waiver of some of

Rothrock’s rights to appeal his sentence and a waiver of his right to attack collaterally his

conviction and sentence. That waiver states:

       The Defendant understands that the law affords the Defendant the right to appeal
       the sentence imposed. Acknowledging this, the Defendant knowingly waives the
       right to appeal the sentence as determined by the Court at sentencing, and the
       manner in which the sentence was determined on the grounds set forth in [18
       U.S.C. §] 3742. The Defendant also waives the right to challenge the conviction
       and sentence and the manner in which the sentence was determined in any
       collateral attack, including, but not limited to, a motion brought under [28 U.S.C.
       §] 2255 (except a challenge that goes to the validity of this waiver, such as a
       claim that the waiver was involuntary or the product of ineffective assistance of
       counsel). Nevertheless, as a matter of law, the Defendant retains the right to
       appeal a sentence that exceeds the statutory maximum, or is based upon an
       unconstitutional factor such as race, religion, national origin or gender. The
       Defendant also retains the right to appeal those objections preserved at sentencing
       that the Court incorrectly determined the final Guideline range. The Defendant
       acknowledges that this waiver is in exchange for the substantial concessions made
       by the U.S. Attorney’s Office in this plea agreement . . . .

Rothrock thus knowingly waived some of his post-conviction rights in the Plea Agreement,

including his right to appeal directly a sentence at or below the statutory maximum. But, as the

Government implicitly acknowledges, Rothrock did not waive his right to appeal directly his

conviction or guilty plea.


       On March 4, 2014, the parties filed their Plea Agreement with the district court. The

Government filed the Superseding Felony Information on the same day, charging Rothrock with

one count of receipt of child pornography pursuant to the Plea Agreement.


       On March 7, 2014, Rothrock appeared before a United States Magistrate Judge for a

change-of-plea hearing. In accordance with the Plea Agreement, Rothrock agreed in open court

to waive his right to indictment by grand jury. Rothrock also consented to have the Magistrate

Judge conduct the change-of-plea hearing.



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No. 14-1925
United States v. Rothrock

       At the hearing, the Magistrate Judge directed the Assistant United States Attorney to read

a summary of the provisions of the Plea Agreement into the record, including the entirety of the

waiver of appeal and collateral-attack rights. After all of the relevant provisions of the Plea

Agreement were in the record, the Magistrate Judge and Rothrock engaged in the following

colloquy:

       THE COURT: Next please turn to page 8. Page 8, it’s paragraph 13, waiver of
       appeal and collateral attack. That was just read into the record. You heard that --
       you have got to speak up just a little bit.

       THE DEFENDANT: Yes, sir.

       THE COURT: In that paragraph you’re waiving certain rights you have to file an
       appeal or what’s known as a collateral attack. You’ve talked to your attorney
       about this?

       THE DEFENDANT: Yes, sir.

       THE COURT: You understand that paragraph?

       THE DEFENDANT: Yes, sir.

       THE COURT: And that’s your decision?

       THE DEFENDANT: Yes, sir.

       THE COURT: You’ve read and reviewed the entire plea agreement, correct?

       THE DEFENDANT: Yes, sir.

       THE COURT: You understand it all?

       THE DEFENDANT: Yes, sir.

       THE COURT: It’s all accurate?

       THE DEFENDANT: Yes, sir.

       THE COURT: You agree with it all?

       THE DEFENDANT: Yes, sir.




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United States v. Rothrock

Rothrock thus confirmed on the record that he understood all the terms of the Plea Agreement,

and specifically the appeal-waiver provision.


       The Magistrate Judge then proceeded to determine the factual basis for Rothrock’s plea:

       THE COURT: Mr. Rothrock, in your own words, what did you do that makes
       you think you’re guilty of this offense?

       THE DEFENDANT: I, what I said I used the phone, I talked to her, I knew how
       old she was.

       THE COURT: About how old did you understand her to be?

       THE DEFENDANT: 15. And I asked her for pictures of her body.

       THE COURT: When did this occur?

       THE DEFENDANT: Oh, in July.

       THE COURT: 2012 or 2013?

       THE DEFENDANT: Last year.

       THE COURT: July 2013. You were in Kalamazoo County?

       THE DEFENDANT: Yeah, I was there for three days, two days.

       THE COURT: You used your phone for this purpose?

       THE DEFENDANT: It was my iPhone 4S which I bought with my own money.

       THE COURT: And through use of this phone, text messaging[,] you sent
       messages to this woman you knew was 15 years old?

       THE DEFENDANT: Yes, sir.

       THE COURT: You asked her to send you some pictures?

       THE DEFENDANT: Yeah. Quite a few.

       THE COURT: And did she send you some pictures?

       THE DEFENDANT: Yeah, yeah, she sent me quite a few pictures.

       THE COURT: And those pictures depicted child pornography?

       THE DEFENDANT: Yes. Fully naked.


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No. 14-1925
United States v. Rothrock

Following this colloquy, the Magistrate Judge determined that Rothrock had entered his guilty

plea voluntarily and that the plea had a sufficient factual basis. Importantly, neither Rothrock

nor his counsel objected before the Magistrate Judge that Rothrock’s plea lacked a sufficient

factual basis.


        On the same day as the change-of-plea hearing, the Magistrate Judge issued a Report and

Recommendation, recommending to the District Judge that the court accept Rothrock’s guilty

plea. Neither Rothrock nor the Government objected to the Report and Recommendation; the

District Judge adopted it on March 27, 2014, adjudicating Rothrock guilty of the charge in the

Superseding Felony Information.


        On July 14, 2014, Rothrock appeared before the District Judge for sentencing. Although

the transcript from the sentencing hearing reveals some confusion between the court, counsel,

and the probation officer as to the proper Offense Level—due to the District Judge’s categorical

disagreement with the Guidelines and refusal to apply a sentence enhancement for use of a

computer, resulting in a lower Guidelines range for Rothrock1—neither Rothrock nor his counsel

objected to the final calculation. And after the district court announced its decision to vary

upward from the Guidelines range to the statutory-maximum sentence of 480 months’

imprisonment, again neither Rothrock nor his counsel objected.


        The district court entered judgment on the same day as the sentencing hearing. Rothrock

filed a timely Notice of Appeal on July 22, 2014.


1
  The District Judge initially stated that Rothrock’s Guidelines range would be 360 to 480
months’ imprisonment if she were to follow the recommendations of the presentence report.
Following the District Judge’s removal of the enhancement for use of a computer, Rothrock’s
Guidelines range became 324 to 405 months.


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No. 14-1925
United States v. Rothrock

                                                  II.


        Rothrock’s appeal challenges the validity of his guilty plea and the reasonableness of his

sentence. As to the challenge to his guilty plea, Rothrock argues that the district court failed to

determine that there was a sufficient factual basis for the plea pursuant to Federal Rule of

Criminal Procedure 11(b)(3). Plain-error review applies to this aspect of his appeal. United

States v. Vonn, 535 U.S. 55, 58 (2002) (holding “that a silent defendant has the burden to satisfy

the plain-error rule” when raising a Rule 11 challenge for the first time on appeal).


        As to the challenge to the reasonableness of his sentence, Rothrock argues first that the

involuntariness of his guilty plea invalidates the Plea Agreement. We review de novo whether a

defendant validly waived his right to appeal his sentence in a plea agreement. United States v.

Murdock, 398 F.3d 491, 496 (6th Cir. 2005). He next argues that the district court committed a

procedural sentencing error by failing to make a ruling clarifying confusion as to the correctness

of the Guidelines calculation and a substantive sentencing error by basing its upward variance

primarily on concerns of recidivism.


        A.      Challenge to Guilty Plea


        To succeed on his challenge that the district court plainly erred under Rule 11(b)(3) by

failing to determine that there was a sufficient factual basis for his guilty plea, Rothrock “must

show that there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three

conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings.”

United States v. Lalonde, 509 F.3d 750, 757–58 (6th Cir. 2007) (quoting Murdock, 398 F.3d

at 496) (internal quotation marks omitted).


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No. 14-1925
United States v. Rothrock

       Additionally, in order to satisfy the plain-error standard when raising an unpreserved

Rule 11 challenge, this Court requires a defendant to make “a heightened showing of prejudice”

on the substantial-rights prong. United States v. Taylor, 627 F.3d 1012, 1018 (6th Cir. 2010)

(citing United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). To meet this heightened

burden, a defendant “must show a reasonable probability that, but for the error, he would not

have entered the plea.” Id. (quoting Dominguez Benitez, 542 U.S. at 83) (internal quotation

marks omitted). When assessing the effect of an unpreserved Rule 11 error, this Court looks to

the entire record, not just the plea proceedings. Id. (citing Dominguez Benitez, 542 U.S. at 80).


       Looking at the entire record and assuming arguendo in Rothrock’s favor that the district

court committed a plain Rule 11(b)(3) error (a generous assumption), Rothrock cannot meet the

“heightened showing of prejudice” required by this Court’s decision in Taylor, 627 F.3d at 1018.

There is little room for doubt that Rothrock would have entered the Plea Agreement offered by

the Government. First, the evidence of Rothrock’s guilt on the crimes charged in the Indictment

is overwhelming. Second, conviction on the crimes charged in the Indictment would have

resulted in Rothrock receiving a mandatory sentence of life imprisonment plus ten years.


       The Indictment shows that the Government possessed evidence that all but guaranteed

Rothrock’s conviction on all the Counts charged. As to Count I, the Government possessed

copies of text-message conversations between Rothrock and Minor #1 wherein Rothrock

requested fully nude images from Minor #1 and Minor #1 agreed to provide those images. The

Government also possessed the images that Minor #1 sent to Rothrock. As to Count II, the

Government possessed a copy of the sexually explicit image that Rothrock took of Minor #2

while engaged in sexual acts with her. As to Count III, the Government possessed copies of text-




                                               -8-
No. 14-1925
United States v. Rothrock

message conversations between Rothrock and Minor #2 wherein Rothrock requested fully nude

images from Minor #2 and Minor #2 agreed to provide those images. The Government also

possessed the images that Minor #2 sent to Rothrock.            As to Count IV, the Government

possessed the same categories of evidence, text messages and fully nude images, from

Rothrock’s interactions with Minor #3. As to Count V, the Government possessed Rothrock’s

cell phone that contained all of the images previously referenced.


       In the event that Rothrock had chosen to proceed to trial on the crimes charged in the

Indictment, then he would have exposed himself to almost-certain incarceration for life plus ten

years. Conviction on any one of the Counts of sexual exploitation of a minor would have

required the district court to sentence Rothrock to life imprisonment pursuant to 18 U.S.C.

§ 3559(e).   Conviction on Count VI would have required the district court to impose an

additional, consecutive ten-year sentence pursuant to 18 U.S.C. § 2260A.


       Faced with such overwhelming evidence of his guilt and the distinct possibility of dying

in federal prison, there is no reasonable probability that, but for the alleged Rule 11(b)(3) error,

Rothrock would not have pled guilty. We accordingly hold that Rothrock cannot satisfy the

heightened plain-error standard in order for this Court to set aside his guilty plea.


       B.      Sentencing Challenge


       A district court meets the requirements of Rule 11 “by ensuring that the appellate-waiver

provision was discussed in open court and that [the defendant] understood his plea agreement.”

United States v. Sharp, 442 F.3d 946, 952 (6th Cir. 2006). Because the Magistrate Judge

discussed the appeal-waiver provision of the Plea Agreement with Rothrock at the change-of-




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No. 14-1925
United States v. Rothrock

plea hearing and ensured that Rothrock understood all the terms of the Plea Agreement, we

conclude that Rothrock validly waived his right to appeal most aspects of his sentence.


       Rothrock therefore may only appeal his sentence if his appeal falls within one of the

exceptions to the appeal-waiver provision of the Plea Agreement. Rothrock’s sentence does not

exceed the statutory maximum, and he does not argue that the district court based the sentence

on unconstitutional factors. Furthermore, neither Rothrock nor his counsel objected to the final

Guidelines calculation at sentencing, despite having two opportunities to do so. We accordingly

decline to address Rothrock’s arguments with respect to the procedural and substantive

reasonableness of his sentence.


                                               III.


       For the foregoing reasons, we AFFIRM the judgment of the district court.




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