Case: 12-16321    Date Filed: 09/24/2014   Page: 1 of 9


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16321
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:11-cr-00058-EAK-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

WESLEY WILLIAM BRANDT, JR.,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 24, 2014)

Before WILLIAM PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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        Wesley Brandt, Jr. appeals his convictions for three counts of producing

child pornography, along with his total 1,080-month sentence following his guilty

plea. After review of the record and the parties’ briefs, we affirm.

                                          I

        Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

        Mr. Brandt was indicted on 13 counts stemming from, among other things,

his production, receipt, and possession of child pornography. Pursuant to a plea

agreement, Mr. Brandt pled guilty to three counts of producing child pornography

in violation of 18 U.S.C. § 2251(a) and (e). Under the agreement, he waived his

right to raise an ineffective assistance of counsel claim, or to appeal his sentences

except on the grounds that they violated his Eighth Amendment rights or exceeded

his advisory guidelines range or maximum statutory penalties. In exchange, the

government pledged, among other things, "to make known to the [district court]

and other relevant authorities the nature and extent of defendant's cooperation and

any other mitigating circumstances.” The government nevertheless reserved the

right to make any recommendations it deemed appropriate to the disposition of the

case.

        At the plea colloquy, the magistrate judge summarized the pertinent portions

of the plea agreement, and Mr. Brandt acknowledged that he understood those


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provisions. The magistrate judge issued a report recommending that Mr. Brandt’s

guilty plea be accepted; Mr. Brandt filed no timely objection, and the district court

accepted his guilty plea.

      According to the pre-sentence investigation report, Mr. Brandt used the

Internet to coerce three minor females - ranging from six to thirteen years of age -

to photograph themselves in a sexually explicit manner and then send him the

photographs. The report also took into account Mr. Brandt’s actions with respect

to four additional minor victims, including alleged sexual exploitation, and

ultimately arrived at a total offense level of 43 and a criminal history category of I,

yielding an advisory guidelines range of life imprisonment. Because the maximum

statutory penalty for each count was 30 years’ imprisonment, however, the PSI set

Mr. Brandt’s advisory guidelines range at 1,080 months (or 90 years).              See

U.S.S.G. § 561.2 (d).

      At sentencing, Mr. Brandt sought a downward variance to 240 months’

imprisonment. The government in turn requested that, consistent with his advisory

guidelines range, Mr. Brandt be sentenced to 1,080 months’ imprisonment.

Characterizing Mr. Brandt’s crimes as “absolutely horrible,” and concluding that

he should “never, never, never be put in a position again to do this,” the district

court agreed with the government’s position and sentenced Mr. Brandt to three

consecutive 30-year terms of imprisonment. Mr. Brandt now appeals.


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                                                  II

       On appeal, Mr. Brandt challenges the voluntariness of his plea, alleging

violations of Federal Rule of Criminal Procedure 11 based on the magistrate

judge’s failure to inform him of his right to conflict-free counsel or inquire into his

defense counsel’s alleged conflict of interest.1 He also argues that the government

breached the plea agreement by recommending that the maximum sentences be

imposed, and contends that his 1,080-month sentences violated the Eighth

Amendment’s prohibition against cruel and unusual punishment. 2

                                                  A

       Mr. Brandt first contends that his guilty plea was not knowing or voluntary

because the magistrate judge did not inform him of his right to conflict-free

counsel in connection with his waiver of the right to pursue an ineffective

assistance of counsel claim. As a threshold matter, because Mr. Brandt failed to

object to the magistrate judge’s report and recommendation that his guilty plea be

accepted, his claim is not reviewable on appeal. See Fed. R. Crim. P. 59(b)(2);

United States v. Garcia-Sandobal, 

, 1282-83 (11th Cir. 2013).

       1
         To the extent that Mr. Brandt also asserts an independent claim for a violation of the
Sixth Amendment based on ineffective assistance of counsel, the record is not sufficient to
address the claim on direct appeal. United States v. Franklin, 

, 8 (11th Cir. 2012).
       2
          Mr. Brandt’s plea agreement included a sentence appeal waiver. As this waiver was
made knowingly and voluntarily, Mr. Brandt cannot appeal his sentence on reasonableness
grounds. See United States v. Johnson, 

, 1066 (11th Cir. 2008). Thus, his claim
that his sentences are substantively unreasonable because the district court failed to consider
certain 18 U.S.C. § 3553(a) factors is not reviewable on appeal.
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      Even if it were reviewable, Mr. Brandt’s argument would fail on the merits.

Because he did not raise this claim in the district court, we review only for plain

error. See United States v. Monroe, 

, 1354 (11th Cir. 2003). To

prevail under this standard, Mr. Brandt must show (1) an error, (2) that was plain,

(3) that affected his substantial rights, and (4) seriously affected the fairness of the

judicial proceedings. See 

An error is not plain unless a decision from

the Supreme Court or this court directly resolves the issue. See United States v.

Moriarty, 

, 1019 (11th Cir. 2005) (per curiam).

      Mr. Brandt has not made a showing of plain error. He relies heavily on

Cuyler v. Sullivan, 

, 349-50 (1980), for the proposition that “a

defendant who shows that a conflict of interest actually affected the adequacy of

his representation need not demonstrate prejudice in order to obtain relief.” We

have limited the applicability of Cuyler’s so-called presumed prejudice rule,

however, to conflicts of interest arising from concurrent representation of multiple

defendants. See Downs v. Sec’y, Fla. Dep’t of Corrections, 

, 265

(11th Cir. 2013). Because that scenario is not before us here, Mr. Brandt cannot

avail himself of a presumption of prejudice. Moreover, we have previously upheld

plea agreements that include waivers of defendants’ right to raise ineffective

assistance of counsel at sentencing. See Williams v. United States, 

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1340, 1342 (11th Cir. 2005). Because Mr. Brandt has not shown plain error, we

reject his challenge to the knowing and voluntary nature of his guilty plea. 3

                                                     B

       Mr. Brandt also contends for the first time on appeal that the government

breached the plea agreement when it recommended that he receive the maximum

penalty at sentencing and - in so doing - undercut his request for a downward

variance. We disagree.

       We generally review de novo the question of whether the government

breached a plea agreement. See United States v. Copeland, 

, 1104

(11th Cir. 2004). Where a defendant fails to object to an alleged breach before the

district court, however, such a claim is reviewed only for plain error. See United

States v. De La Garza, 

, 1269 (11th Cir. 2008). In analyzing a claim

that the government breached a plea agreement, we must determine the scope of

the government’s promises. See 

. When considering

the meaning of any disputed terms in an agreement, we apply an objective standard

to determine whether the government’s actions were inconsistent with what the

defendant reasonably understood when he pled guilty. See 

Brandt’s reliance on Florida Bar Ethics Opinion AO 12-1, which states that “a
criminal defense lawyer has a personal conflict of interest when advising a client regarding
waiving the right to later collateral proceedings regarding ineffective assistance of counsel,” does
not change this result. Florida Bar ethics opinions do not abrogate our binding precedent and are
merely advisory.
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      The government did not breach the plea agreement by recommending that

the district court impose the maximum allowable sentences. The government

complied with the terms of the agreement by informing the district court of Mr.

Brandt’s cooperation and acceptance of responsibility, and Mr. Brandt identifies no

mitigating factors that the government neglected to bring to the district court’s

attention.   The agreement did not require the government to recommend a

particular sentence or to stand silent on the issue of sentencing; rather, it reserved

the government’s right to recommend any disposition it deemed appropriate within

Mr. Brandt’s advisory guidelines range. Mr. Brandt has failed to establish that the

government’s actions amounted to a breach of the plea agreement. Accordingly,

there was no error, plain or otherwise.

                                              C

      Mr. Brandt likewise maintains that the 1,080-month prison sentences that the

district court imposed amount to cruel and unusual punishment in violation of his

Eighth Amendment rights. We are not persuaded.

      We typically review Eighth Amendment challenges de novo. See United

States v. Flanders, 

, 1342 (11th Cir. 2014). Because Mr. Brandt did

not object to his sentences on this ground in the district court, however, we review

for plain error. See 

an Eighth Amendment challenge in a non-

capital case, a defendant must make a threshold showing that the sentence imposed


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is grossly disproportionate to the offense committed. See United States v. Johnson,

, 1243 (11th Cir. 2006). In general, a defendant whose sentence falls

within the limits imposed by statute cannot make the threshold showing of gross

disproportionality. See 

defendant establishes that the sentence is grossly

disproportionate, we compare the defendant’s sentence to the sentences imposed

on others convicted of similar offenses. See 

“never found a term of

imprisonment to violate the Eighth Amendment, and outside the special category

of juvenile offenders the Supreme Court has found only one to do so.” United

States v. Farley, 

, 1343 (11th Cir. 2010).

      Mr. Brandt has failed to make a threshold showing that his sentences are

grossly disproportionate to his crimes.      The sentences fall within the limits

imposed by statute, suggesting that they did not run afoul of the Eighth

Amendment. See 

(“In general, a sentence within the

limits imposed by statute is neither excessive nor cruel and unusual under the

Eighth Amendment.”) (citation and quotation marks omitted).              Although Mr.

Brandt points out that he had no physical contact with his victims, this fact cannot

serve to minimize - much less neutralize - the devastating psychological impact

that his offenses left in their wake, as exemplified by the poignant statements of

one of his teenage victims and the victims’ families at sentencing. See 

(“[T]he sexual abuse of children, and the use of the Internet to


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facilitate that abuse, are serious problems affecting the health and welfare of the

nation.”).   Accordingly,   the    district       court’s   sentences   are    not   grossly

disproportionate to Mr. Brandt’s offenses, and no plain error has been shown.

                                          III

      The district court’s convictions and sentences are affirmed.

      AFFIRMED.




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