                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2956
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                         v.

                              Eric Michael Zurheide

                                     Defendant - Appellant
                                   ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: April 14, 2020
                               Filed: May 26, 2020
                                  ____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

       Pursuant to a written plea agreement, Eric Michael Zurheide pled guilty to one
count of receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and
(b)(1). In the plea agreement, the parties jointly agreed to recommend a 70-month
term of imprisonment but the district court1 imposed an 84-month sentence. Zurheide
claims the government breached its agreement when it discussed a guidelines range
sentence with the district court. We have jurisdiction under 28 U.S.C. § 1291 and we
affirm.

I. Background

      Zurheide was arrested in a police sting in St. Louis County, Missouri, when he
arrived at a local McDonald’s with the intent to follow through with a pre-arranged
sexual contact with a supposed minor. He was in possession of two cell phones, one
of which contained child pornography. Zurheide faced a two-count indictment: (1)
attempt to entice or coerce a minor to engage in sexual activity in violation of 18
U.S.C. § 2422(b), and (2) receipt of child pornography in violation of 18 U.S.C. §
2252A(a)(2).       The parties entered into a written plea agreement under
Rule11(c)(1)(A) of the Federal Rules of Criminal Procedure, the terms of which
required the joint sentence recommendation. Zurheide acknowledges he knew at the
time of sentencing that the plea agreement did not bind the district court.

      At sentencing, the district court correctly determined the applicable guidelines
range was 70 to 87 months. From the beginning, the district court expressed concern
about the “particularly disturbing” facts of the case. After the defense had been
heard, the court noted the joint recommendation, and asked the prosecutor if there
was “anything you want to tell me with regard to sentencing considerations.” In
response the prosecutor stated:

      Well, your Honor, only that [defense counsel] is correct that it did take
      the parties a long time to reach this recommendation. The Court is
      correct that the underlying facts are disturbing, but part of the

      1
       The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
                                         -2-
       Government’s concern and desire was to make sure that the Defendant
       did receive a guideline range. So the guideline range is the 70 to 87
       months. The 70 months that we have agreed to is reflected at the bottom
       of the guideline. The Government wanted to make sure because of how
       severe, or how serious the facts are, that the guideline range was, in fact,
       recommended to the Court.

       Zurheide’s counsel failed to object to the government’s statements. The district
court imposed an 84-month sentence. Zurheide appeals.

II. Discussion

       Because the prosecutor’s comments were unobjected to, we review the claim
of breach for plain error. United States v. Rendon, 752 F.3d 1130, 1133 (8th Cir.
2014). The plain error test requires an “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Baker, 674 F.3d 1066, 1068 (8th Cir. 2012)
(internal quotation marks omitted). The error may only be remedied if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

       Zurheide contends that while the government paid lip service to its duty to
jointly recommend a 70-month sentence, it breached the agreement when it failed to
argue for the joint recommendation. Contrary to Zurheide’s contentions, the
government fulfilled its duty when it recommended the court follow the joint
recommendation. By the time the prosecutor addressed the court, she was aware that
the sentencing judge was dubious of the recommendation. The prosecutor explained
why she agreed to the recommendation. The government was not obligated to
zealously defend the joint recommendation in the face of the court’s hostility. See id.
(“The fact that the recommendation was made in other than the most enthusiastic
terms does not breach the agreement.”). No error, plain or otherwise, exists on this
record.



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       Even if error was assumed, Zurheide would not merit relief because he has
failed to show “a reasonable probability that the district court would have imposed
a lesser sentence had the government not breached the agreement.” Rendon, 752 F.3d
at 1135 (internal quotation marks omitted). Before the prosecutor had a chance to
address the court, the district judge had already expressed doubt about the joint
recommendation. When it explained the sentence, the court emphasized that the case
was about more than receiving child pornography, noting: “The facts are just so
disturbing and concerning that it is just not possible for me not to consider a sentence
at the top of the guideline range.” In view of these statements, Zurheide cannot
establish that he would have received a lesser sentence absent the prosecutor’s
comments. See Jeffries v. United States, 721 F.3d 1008, 1015 (8th Cir. 2013) (“In
view of the judge’s comments at sentencing, it is unlikely that he would have been
moved by a tepid statement by the prosecutor conforming strictly to the stipulation.”).

III. Conclusion

      For the foregoing reasons, we affirm.
                      ______________________________




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