United States v. Beck

Decision Date27 April 2020
Docket NumberNo. 17-4179,17-4179
Citation957 F.3d 440
Parties UNITED STATES of America, Plaintiff – Appellee, v. Brady Leon BECK, Defendant – Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Daniel Micah Blau, DANIEL M. BLAU, ATTORNEY AT LAW, PC, Raleigh, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before DIAZ, HARRIS, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the majority opinion, in which Judge Harris joined. Judge Harris wrote a concurring opinion. Judge Rushing wrote a dissenting opinion.

DIAZ, Circuit Judge:

Brady Leon Beck pleaded guilty to distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and to committing a felony offense involving a minor (specifically, producing child pornography, in violation of 18 U.S.C. § 2251 ) while being required to register as a sex offender, in violation of 18 U.S.C. § 2260A. The district court sentenced Beck to forty years’ imprisonment on the distribution count and ten years’ imprisonment on the § 2260A count, to be served consecutively.

Beck now appeals, arguing that his conviction and ten-year sentence under § 2260A1 are invalid because that statute doesn’t state an offense and thus can’t underlie a conviction. Because we reach the opposite conclusion, we affirm his conviction and sentence.

I.
A.

In March 2016, Beck was indicted on five counts related to the production and distribution of child pornography. Count One charged Beck with producing child pornography, in violation of 18 U.S.C. § 2251(a). Counts Two and Three charged Beck with distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Count Four charged Beck with possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). And Count Five charged Beck with violating 18 U.S.C. § 2260A by committing an enumerated felony offense involving a minor—namely, producing child pornography (the crime underlying Count One)—while being required to register as a sex offender.

Beck pleaded guilty to Counts Two and Five pursuant to a written plea agreement. As part of his guilty plea, Beck agreed to a written factual basis for the offenses. Therein, Beck admitted that in April 2004, he had been convicted in North Carolina for second-degree rape of a ten-year-old child. Because of that offense, Beck was required to register as a sex offender. Beck also admitted that, in June 2014, while still being required to register, he exploited a three-year-old child to produce child pornography, which he then distributed. Beck stipulated that he was subject to a statutory sentencing range of fifteen to forty years on Count Two and a mandatory ten-year sentence on Count Five, "consecutive to any other sentence." J.A. 236.

As part of his plea agreement, Beck waived his right to contest his conviction or sentence on appeal or collateral review, except for claims of ineffective assistance of counsel or prosecutorial misconduct. In exchange, the government dismissed the other three counts with which Beck had been charged. Among other things, the dismissals eliminated Beck’s exposure to fifteen-year mandatory minimum sentences under Counts Three and Four and to a potential mandatory life sentence under Count One.

During the Rule 11 plea colloquy, see Fed. R. Crim. P. 11, the court described both counts to which Beck was pleading guilty and the potential penalties. The court explained that Count Five charged Beck with committing a felony offense involving a minor while being required to register as a sex offender and that the penalty for that offense was ten years of imprisonment. Beck represented that he understood the charges, that the written factual basis for the plea was accurate, and that he was guilty. The court also ensured that Beck understood the appellate waiver in his plea agreement. Beck affirmed that he had reviewed the plea agreement with his attorney and that he understood its terms, including the waiver of his right to appeal. The district court accepted Beck’s plea, finding that it was knowing and voluntary. The court sentenced Beck to forty years’ imprisonment on Count Two, and ten years’ imprisonment on Count Five, to run consecutively. Beck appealed.

B.

On appeal, Beck argued for the first time that it was error for the plea agreement to require a consecutive ten-year sentence on Count Five and that his counsel had been ineffective for failing to identify this error. The government agreed that "the plea agreement erroneously specified that the district court was required by statute to impose consecutive sentences for the two offenses," and the parties moved jointly to remand the case so that the district court could address the error in the first instance. We granted the motion.

On remand, Beck expanded his argument to assert not only that his sentences were not required to be consecutive but also that the factual basis for his plea was insufficient to convict him on Count Five, the registered-sex-offender crime. Beck argued that the statute of conviction, 18 U.S.C. § 2260A, required an underlying conviction for one of the predicate felonies enumerated in the statute. The government responded that, because the convictions and plea agreement remained intact, Beck would need to withdraw his guilty plea in order to attack his conviction on Count Five. Beck then moved to withdraw his plea.

The district court held several hearings on remand. Ultimately, the court denied Beck’s motion to withdraw his plea and concluded that Beck’s conviction was valid, that it was required to sentence Beck to ten years’ imprisonment on Count Five, and that it had discretion to make that sentence consecutive or concurrent to Beck’s sentence for Count Two. After hearing argument and evidence, the court again sentenced Beck to forty years’ imprisonment on Count Two, and ten years’ imprisonment on Count Five, to run consecutively.

Beck again appealed his sentence but didn’t challenge the district court’s denial of his motion to withdraw his plea. The Government moved to dismiss based on the appeal waiver in Beck’s plea agreement. Beck responded that the waiver was unenforceable with respect to his claim that he had been illegally sentenced and didn’t encompass his new claim of ineffective assistance of counsel.2 We summarily denied the motion, but the Government reiterated its argument for dismissal in its merits brief.

II.

On appeal, Beck further expands the argument he made in the district court. According to Beck, his conviction and sentence under Count Five are invalid because § 2260A doesn’t state an offense and thus can’t support any conviction. Instead, he posits, § 2260A is a sentence enhancement for defendants convicted of one of its enumerated predicate felonies.

As a threshold matter, the government asserts that Beck’s plea agreement bars this appeal because it contains a waiver of Beck’s right to appeal his conviction or sentence. When the government seeks to enforce an appeal waiver and has not breached the plea agreement, we will enforce the waiver if it is valid and if the issue being appealed falls within its scope. See United States v. Manigan , 592 F.3d 621, 627 (4th Cir. 2010).

We agree with Beck that his appeal falls outside the scope of his waiver. If he is correct that § 2260A can’t support a conviction, it would be beyond any court’s authority to convict a defendant under that statute, and thus to impose a sentence for such a conviction. In this way, his argument mirrors those alleging that a statute doesn’t authorize a court to order restitution or sex-offender registration in any case. Those arguments survive appeal waivers. See United States v. Sims , 410 F. App'x 666, 669–70 (4th Cir. 2011) (unpublished) (sex-offender registration); United States v. Broughton-Jones , 71 F.3d 1143, 1146–47 (4th Cir. 1995) (restitution); see also United States v. Thornsbury , 670 F.3d 532, 539 (4th Cir. 2012) (stating that we don’t enforce appeal waivers where "the sentence is alleged to have been beyond the authority of the district court to impose").

The cases cited by the government and the dissent are distinguishable because the defendants there were asserting that their conduct fell outside the scope of an otherwise valid statute of conviction. See United States v. Flowers , 736 F. App'x 352, 355 (4th Cir. 2018) (unpublished) (per curiam) (defendant challenged the definition of an "official act" necessary to prove Hobbs Act extortion); United States v. Willis , 992 F.2d 489, 490–91 (4th Cir. 1993) (defendant posited that an inoperable firearm didn’t count as a "firearm" under 18 U.S.C. § 924(c)(1) ). We respectfully disagree with our colleague that the offense-versus-enhancement question is a red herring. Simply put, Beck is arguing that no court in any case may do what the district court did here: convict a defendant under § 2260A. That amounts to a claim that the "district court exceeded its authority." Thornsbury , 670 F.3d at 539.

We thus decline to dismiss this appeal.

III.

We turn now to the merits of Beck’s argument that § 2260A can’t support a conviction. Our review is de novo when addressing matters of statutory interpretation. See United States v. Segers , 271 F.3d 181, 183 (4th Cir. 2001).

A.

Beck’s argument relies on the distinction between statutory provisions that create offenses and ones that create sentence enhancements. He asserts that offenses underlie convictions, while enhancements increase the statutory penalties for a defendant who has been convicted of an offense. Almendarez-Torres v. United States , 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ; see Alleyne v. United States , 570 U.S. 99, 100–101, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (referring to enhancements as "sentencing factors").

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    ...we will enforce the waiver if it is valid and if the issue being appealed falls within" the scope of the waiver. United States v. Beck , 957 F.3d 440, 445 (4th Cir. 2020). A "valid" appeal waiver is one entered by the defendant knowingly and intelligently, a determination that we make by co......
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