United States v. Waltman, 070813 FED6, 12-3235

Docket Nº:12-3235
Opinion Judge:PER CURIAM.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JONATHAN WALTMAN, Defendant-Appellant.
Judge Panel:BEFORE: KEITH, WHITE, and STRANCH, Circuit Judges.
Case Date:July 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JONATHAN WALTMAN, Defendant-Appellant.

No. 12-3235

United States Court of Appeals, Sixth Circuit

July 8, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: KEITH, WHITE, and STRANCH, Circuit Judges.

PER CURIAM.

Jonathan Waltman appeals from the district court's judgment entered after his guilty plea to attempted transportation of a minor with intent to engage in criminal sexual activity and attempted travel with intent to engage in illicit sexual conduct. As set forth below, we affirm.

Following his arrest through a child exploitation undercover operation, Waltman pleaded guilty to a two-count indictment charging him with: (1) attempting to transport an eight-year-old girl in foreign commerce from Canada to Michigan with the intent that such girl engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) and (e), and (2) attempting to travel in interstate commerce from Ohio to Michigan for the purpose of engaging in illicit sexual conduct with an eight-year-old girl, in violation of 18 U.S.C. § 2423(b) and (e). (R. 15, Indictment, Page ID # 36–37; R. 32, Guilty Plea, Page ID # 112). The district court calculated Waltman's total offense level as 35 and his criminal history category as V, resulting in a guidelines range of 262 to 327 months' imprisonment. (Presentence Report 24; R. 42, Sentencing Tr., Page ID # 204). The court sentenced Waltman to concurrent terms of 294 months' imprisonment and 25 years of supervised release. (R. 35, Judgment, Page ID # 139–40).

This timely appeal followed. Waltman contends that: (1) the district court violated Federal Rule of Criminal Procedure 11(b)(3) by entering judgment on the attempted transportation charge in the absence of a factual basis to support his guilty plea to that charge and (2) his 294-month sentence is procedurally and substantively unreasonable.

Waltman first argues that his guilty plea to the attempted transportation charge lacked a factual basis as required by Rule 11(b)(3). Waltman consented to the receipt of his guilty plea by a magistrate judge. (R. 28, Consent to Order of Referral, Page ID # 79–80). Following the plea hearing, the magistrate judge issued a report stating in relevant part that the parties provided "sufficient information about the charged offense(s) and the Defendant's conduct to establish a factual basis for the plea" and recommending that the district court accept Waltman's guilty plea. (R. 29, Report & Recommendation, Page ID # 81). Despite the magistrate judge's warning that failure to file objections might waive the right to appeal, Waltman did not object to the magistrate judge's report and recommendation, which the district court adopted. (R. 29, Report & Recommendation, Page ID # 82; R. 31, Order Accepting Plea, Page ID # 109). By failing to file objections to the magistrate judge's report and recommendation, after being advised to do so, Waltman waived his right to appeal the finding of a sufficient factual basis to support his guilty plea to the attempted transportation charge. See Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981).

Even if Waltman did not waive his right to appeal, the district court had a factual basis to enter judgment on his guilty plea to the attempted transportation charge. Because Waltman did not raise any alleged Rule 11(b)(3) violation below, we review for plain error. See United States v. Mobley, 618 F.3d 539, 544 (6th Cir. 2010). "In reviewing whether a district court had a factual basis for a plea, . . . we may examine the entire record, including proceedings that occurred after the plea colloquy." Id. at 545 (internal quotation marks omitted).

"Pursuant to 18 U.S.C. § 2423(a), the government must prove that the defendant: (1) knowingly transported a minor across state lines, (2) with the intent to engage in sexual activity with the minor, and (3) that the minor was under eighteen at the time of the offense." United States v. Chambers, 441 F.3d 438, 450 (6th Cir. 2006). Section 2423(e) provides that "[w]hoever attempts or conspires to violate subsection (a), (b), (c), or (d) shall be punishable in the same manner as a completed violation of that subsection." 18 U.S.C. § 2423(e). "Criminal attempt requires that the defendant intended to commit the crime and that the defendant took a substantial step towards committing the crime, beyond mere preparation." United States v. Evans, 699 F.3d 858, 867 (6th Cir. 2012).

The parties stipulated to the following facts set forth in the "guilty plea" statement and read into the record during the plea hearing:

On June 15, 2010, Defendant communicated via email with an undercover ICE agent, located in the Northern District of Ohio. The ICE agent pretended to operate a website offering "international travel" from Cleveland, Ohio, to Canada for the purpose of engaging in sexually explicit conduct with minors. Defendant expressed an interest in utilizing the services of aforementioned website, and traveling from his home to engage in sexual conduct with a minor. Between June 15, 2010 and July 23, 2010, Defendant and the undercover ICE agent exchanged numerous emails negotiating the terms of Defendant's trip. Defendant indicated an inability to cross an international border. The undercover agent agreed to transport the child from Canada to Detroit, Michigan for the purpose of Defendant engaging in sexual conduct with the child. The undercover ICE agent provided Defendant with a catalog of fictitious children. Defendant selected a child purported to be an 8 year-old girl and indicated his desire to engage in illicit sexual conduct with the child, conduct for which he could have been charged with a criminal offense. Defendant agreed to pay to engage in sexual activity with the 8 year-old girl. On July 16, 2010, the undercover ICE agent received a $100.00 deposit via U.S. Mail, from Defendant. On July 25, 2010, Defendant traveled from his home in Nashport, Ohio to North Olmstead, Ohio, where he met an undercover ICE agent, who he thought was going to transport him to Detroit[, ] Michigan. Defendant provided the undercover agent with $1, 000.00 as the balance of his payment. Thereafter, defendant was arrested.

(R. 32, Guilty Plea, Page ID # 114–15; R. 30, Plea Tr., Page ID # 102–04).

Waltman contends that...

To continue reading

FREE SIGN UP