United States Court of Appeals
                     For the First Circuit


No. 19-1313

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         THOMAS GOODMAN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

                    Lynch, Selya, and Barron,
                         Circuit Judges.


     Benjamin Brooks, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
     Lauren S. Zurier, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney, was on brief, for
appellee.

                         August 18, 2020
            BARRON, Circuit Judge.    Thomas Goodman pleaded guilty in

the District of Rhode Island on October 11, 2018, to eight counts

of sexual exploitation of a minor in violation of 18 U.S.C.

§ 2251(a) and one count of possession of child pornography in

violation   of   18   U.S.C.   § 2252(a)(4)(B).    The   District      Court

accepted Goodman's guilty plea and sentenced him to 3,120 months'

imprisonment.      Goodman appeals two of his convictions and his

sentence.     We   affirm   his   convictions   and,   because   his    plea

agreement contained a valid and enforceable waiver of his right to

appeal, dismiss his challenges to his sentence.

                                    I.

            On May 17, 2018, Goodman was at work, at Electric Boat

in North Kingstown, Rhode Island, when his supervisor caught him

using his phone in violation of company rules and confiscated it.

The supervisor asked for the password to unlock the phone, at which

point Goodman gave him the information and then fainted.                 An

Electric Boat security officer proceeded to search the phone.           The

search revealed numerous images of nude children, including images

that appeared to be of Goodman's own daughters.

            The security officer quickly handed the phone over to

the North Kingstown police. Soon afterwards, Goodman was arrested.

Once in custody, he admitted to both possessing and distributing

child pornography.      He also admitted to repeatedly having sexual

contact, including intercourse, with one of his minor daughters


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over a period of years, to having sexual contact with another of

his minor daughters, and to repeatedly having sexual contact with

the minor daughter of his family friend.           A search of his home

revealed even more explicit depictions of young children:            7,800

images and 370 videos in total, including ones of his daughters

and the daughter of his family friend.

           The next day, on May 18, 2018, Goodman was alleged by

criminal complaint to have committed one count of production of

child pornography, in violation of 18 U.S.C. § 2251(a), and one

count of possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B).    Goodman entered into a plea agreement months

later, on October 4, 2018.         He consented in doing so to the

government's filing of an information that would charge him with

eight counts of sexual exploitation of a minor, in violation of 18

U.S.C. § 2251(a), and one count of possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B).         The government charged

Goodman with those crimes via information on that same day.              The

eight counts of sexual exploitation of a minor involved four

different minor victims.       Goodman also consented, as part of his

plea   agreement,   to   the   waiver   of   his   right   to   appeal   the

convictions and the sentence imposed by the District Court (so

long as the sentence was within or below the Guidelines sentencing

range).




                                  - 3 -
             On     October    11,   2018,   Goodman    was    arraigned     on   the

information, waived his right to an indictment, and pleaded guilty

to all charges.       The District Court sentenced Goodman on March 22,

2019,   to    360    months'    imprisonment    for     each    count   of   sexual

exploitation of a minor, to be served consecutively to one another,

and to 240 months' imprisonment for the single count of possession

of child pornography, to be served consecutively to the other

counts.      Goodman thus received a total sentence of 3,120 months'

imprisonment.

             Goodman filed this timely appeal.

                                         II.

             We begin with Goodman's challenge to two of his eight

convictions for sexual exploitation of a minor in violation of 18

U.S.C. § 2251(a).           In the counts underlying those convictions,

Goodman was alleged to have produced images or videos of an eleven-

year-old girl entering and exiting the shower.                    He argues that

these convictions cannot stand because the District Court erred in

accepting the plea, as there was an insufficient factual basis to

support the two convictions.            See Fed. R. Crim. P. 11(b)(3).

             The     plea   agreement    provides      that    "Defendant    hereby

waives Defendant's right to appeal the convictions and sentences

imposed by the Court, if the sentences imposed by the Court are

within or below the sentencing guideline range determined by the

Court."      But, insofar as the appeal waiver poses no bar to our


                                        - 4 -
consideration of this Rule 11 challenge to these convictions, see

United States v. Torres-Vázquez, 

, 44-45 (1st Cir. 2013)

("It is common ground that '[w]here, as here, an appeal challenges

the validity of the plea itself, a waiver-of-appeal provision lacks

force' with respect to that challenge." (alteration in original)

(quoting United States v. Ramos-Mejía, 

, 14 (1st Cir.

2013))), we find no merit to the Rule 11 challenge.

              Section 2251(a) provides for the punishment of "[a]ny

person who employs, uses, persuades, induces, entices, or coerces

any minor to engage in . . . any sexually explicit conduct for the

purpose of producing any visual depiction of such conduct."                  18

U.S.C. § 2251(a).         In turn, 18 U.S.C. § 2256(2)(A)(v) defines

"sexually explicit conduct" as, among other types of conduct,

"lascivious exhibition of the anus, genitals, or pubic area of any

person."

              Goodman contends that the facts before the District

Court   did    not    suffice   to   show    that   he   recorded   "lascivious

exhibition" rather than "mere nudity."              Because Goodman failed to

make this challenge below, we review only for plain error.                  See

.             We find none.

              At the change-of-plea hearing, Goodman admitted to the

District Court that, for these counts, he had "engaged in sexually

explicit conduct" as the government alleged.              Consistent with that

admission,      the   record    shows   that     the     videos   that   Goodman


                                      - 5 -
surreptitiously    produced     "depict      [an    eleven-year-old       girl's]

genitals as she[] [was] undressing and entering and exiting the

shower"   and   Goodman    setting     up   and    then   hiding   the    camera.

Accordingly, the District Court did not plainly err in concluding

that the factual foundation for Goodman's plea to these two counts

sufficed to give it "a reasoned basis to believe that the defendant

actually committed the crime to which he is admitting guilt."

United States v. Matos-Quiñones, 

, 21 (1st Cir. 2006);

see also United States v. Holmes, 

, 1252 (11th Cir.

2016) (finding that the defendant's placement of a video camera in

the bathroom, his focus on video recording her genitals, and his

editing of the videos were sufficient to create a lascivious

exhibition and collecting similar cases).

                                     III.

              We next take up Goodman's challenges to the procedural

and substantive reasonableness of his sentence under the United

States    Sentencing      Guidelines    ("Guidelines")       and     18    U.S.C.

§ 3553(a), which sets forth factors for courts to consider in

sentencing.     We conclude, however, that the appeal waiver in his

plea agreement bars our consideration of the substance of these

challenges.

           In arguing that the waiver is no bar, Goodman appeals to

basic principles of contract law.           A plea agreement is, after all,

"a   contract     under    which     both     parties     give     and    receive


                                     - 6 -
consideration."1       United States v. Rivera-Cruz, 

, 408

(1st Cir. 2017) (quoting United States v. Conway, 

, 17

(1st Cir. 1996)).

             Goodman first argues in this regard that the appeal

waiver is not enforceable because he received no consideration for

entering into the plea agreement.            But, that is not so.

             In exchange for Goodman's agreement to plead guilty, the

government    agreed    as   part    of   the   plea    deal    to   recommend   an

additional one-level reduction in Goodman's total offense level

for "assist[ing] authorities in the investigation or prosecution

of his own misconduct by timely notifying authorities of his

intention to enter a plea of guilty," which was only available to

Goodman "upon motion of the government."                  U.S.S.G. § 3E1.1(b).

Goodman   contends       that   the       promised      recommendation      cannot

constitute    consideration     to    make      the    plea    agreement   binding

because the one-level reduction did not reduce his total offense

level to below forty-three -- the highest listed offense level

under the Guidelines -- and thus did not reduce his Guidelines


     1 The government argues that we should consider Goodman's
consideration argument under the three-prong framework that this
Court set forth in United States v. Teeter, 

(1st Cir.
2001).    But, the Teeter framework does not apply to this
consideration-based challenge to the enforceability of the
agreement that contains the waiver. See United States v. Rivera-
Cruz, 

, 408 (1st Cir. 2017) (applying contract law
principles in considering a defendant's argument that a plea
agreement including an appeal waiver is invalid for lack of
consideration).


                                      - 7 -
sentencing range to less than a life sentence, which is the maximum

allowable penalty for his convictions.               See U.S.S.G. ch. 5, pt. A

(sentencing table).      But, under our precedent, the government's

promise   to    recommend       the   one-level        reduction        constituted

consideration for his promise to plead guilty because it gave

Goodman a "chance at less" before the District Court, as the

recommendation would inform the District Court that it had before

it a defendant who, in the government's eyes, had assisted the

government by promptly notifying it of his intention to plead

guilty.   

(quoting 

) (finding that the government's agreement to the additional

one-level reduction was sufficient consideration).

           Goodman separately argues that the appeal waiver is no

bar   because   a   condition    of   the     plea   agreement     is    that   "the

sentence[] . . . [be] within or below the sentencing guideline

range determined by the Court" and, in his view, the District

Court's sentence exceeded that range. See United States v. Acosta-

Roman, 

, 3-4 (1st Cir. 2008) (discussing whether "the

waiver of appeal provision is enforceable under the circumstances

of this case").2      He thus appears to be contending that the plea




      2The government contends that we should review this challenge
under the framework set forth in United States v. Teeter, 

(1st Cir. 2001). Under our precedent, however, we do not apply
that framework to a challenge to the enforceability of an appeal
waiver on the ground that the plea agreement is not enforceable


                                      - 8 -
agreement -- and thus the appeal waiver in it -- is not enforceable

because a condition precedent of the contract was not met.               See

United States v. Vélez-Luciano, 

, 558 (1st Cir. 2016).

            We may assume -- as the government does -- that Goodman

means to support this contention with arguments that he raises in

other portions of his briefing, even though these arguments do not

address the appeal waiver as such.      Thus, we take him to be arguing

that the 3,120-month sentence that he received is greater than a

life sentence; that it therefore falls outside the Guidelines

sentencing range, which establishes the maximum sentence as a

prison term of life; and thus, that the sentence he received is

greater than the plea agreement contemplated.

            Goodman identifies no case law, however, to support the

argument that, for purposes of the Guidelines, a sentence of longer

than the known natural lifespan is greater than a sentence of life.

In fact, in United States v. Saccoccia, 

(1st Cir.

1995),     we   found   that   a   sentence   of   660   years     --   7,920

months -- imposed pursuant to U.S.S.G. § 5G1.2(d) was "neither

more nor less than the functional equivalent of life without

parole."

& n.28.

            Goodman appears to argue that his sentence exceeds the

length contemplated by the plea agreement because it violates


because a condition precedent to it was not met.                 See Acosta-

.


                                    - 9 -
U.S.S.G. § 5G1.2(d),3 which requires a court to impose consecutive

sentences when "the highest statutory maximum is less than the

total punishment, . . . but only to the extent necessary to produce

a combined sentence equal to the total punishment."    But, Goodman

points to no case law to support the contention that his sentence

does not comport with this Guideline because it is greater than

"necessary" to produce a life sentence.     Furthermore, as we have

just noted, Saccoccia makes clear that a sentence many times longer

than the length of a natural life may comply with that Guideline.

n.28.

            There is one other possible route by which Goodman could

overcome his appeal waiver with respect to his challenges to his

sentence.    He could make the showings required under the framework

for assessing the enforceability of an appeal waiver that this

Court set forth in United States v. Teeter, 

(1st Cir.

2001).   Under that framework, appeal waivers in enforceable plea

agreements are "'presumptively valid,' so long as (1) the agreement

clearly delineates the waiver's scope; (2) the district court

specifically inquired about the waiver at the plea hearing; and



     3 Section 5G1.2(d) provides: " If the sentence imposed on the
count carrying the highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more of the other
counts shall run consecutively, but only to the extent necessary
to produce a combined sentence equal to the total punishment. In
all other respects, sentences on all counts shall run concurrently,
except to the extent otherwise required by law."


                               - 10 -
(3)   denial   of   the   right    to    appeal      would      not   constitute    a

miscarriage of justice."      United States v. Betancourt-Pérez, 

, 22 (1st Cir. 2016) (quoting 

).

            Goodman does not address Teeter in his briefing to us,

however.    He instead appears to assume that the appeal waiver is

not enforceable because the plea agreement is not for the reasons

just addressed.     Thus, he frames his arguments as challenges under

the familiar plain error and abuse of discretion standards.

            Nonetheless,    even    if       we   were     to     treat    Goodman's

challenges to his sentence as contentions that he can satisfy

Teeter's miscarriage of justice prong -- as we see no basis for

concluding that any other prong is conceivably at issue -- they

would fail.    That prong is "sparingly applied," 

(citing United States v. Miliano, 

, 608

(1st Cir. 2007)), and is reserved "only for egregious cases,"

United States v. Villodas-Rosario, 

, 18 (1st Cir. 2018)

(quoting Sotirion v. United States, 

, 36 (1st Cir.

2010)).

            Goodman's challenges to the District Court imposition of

more than a life sentence and to the consideration of the 18 U.S.C.

§ 3553(a)    sentencing    factors,     as    well    as     to   the     substantive

reasonableness of his sentence, are the very "garden-variety"

claims of error that cannot satisfy the miscarriage of justice

prong.     

.               Goodman's contention


                                    - 11 -
that the record is devoid of facts to support the District Court's

application of a two-level increase to his total offense level

based on the conclusion that he distributed the images of child

pornography that he had produced is arguably more serious, given

the apparent import the District Court gave to that finding in

sentencing him as severely as it did.            But, the un-objected-to

presentence   report   prepared    by    the   United   States   Office   of

Probation and Pretrial Services recommended, for each of the eight

counts of sexual exploitation of a minor, the two-level enhancement

"because the defendant knowingly engaged in the distribution of

[the] images" -- images that he pleaded guilty to producing -- that

supported each count.   See United States v. Miranda-Díaz, 

, 40-41 (1st Cir. 2019); see also Fed. R. Crim. P. 32(i)(3)(A).

Thus, there was no "miscarriage of justice" in the District Court

making the finding that it did in the absence of any objection

from Goodman.

                                   IV.

          Accordingly, the appeal is dismissed in part and the

judgment of the District Court is affirmed.




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