NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 10-2392
                       ____________

             UNITED STATES OF AMERICA

                             v.

           MICHAEL WESLEY WHITMER, II,
                    a/k/a MARK PRIL,
                   a/k/a MARK BALL,
             a/k/a SEBASTIAN RUETZEL,
                  a/k/a JOHN VESTAL,
                  a/k/a JAMES MEADS

                  Michael Wesley Whitmer, II,

                                  Appellant
                       ____________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
               (D.C. No. 2-07-cr-00464-001)
         District Judge: Honorable Anita B. Brody
                       ____________

      Submitted Pursuant to Third Circuit LAR 34.1(a)
                     October 2, 2012

Before: FUENTES, FISHER and GREENBERG, Circuit Judges.

                (Filed: November 27, 2012)
                       ____________

                OPINION OF THE COURT
                     ____________
FISHER, Circuit Judge.

       Michael Wesley Whitmer II appeals from a judgment of conviction and sentence

for possession of a counterfeit security, forging a passport, identity fraud, aggravated

identity theft, and destruction of physical evidence. He alleges that his guilty plea was

invalid, the government breached its plea agreement, his counsel provided ineffective

assistance, and his grand jury considered false information. Whitmer further contends

that the District Court failed to adequately address his request to proceed pro se, used an

incorrect calculation of the sentencing guidelines, impaired his right of allocution, and

added an impermissible special condition of supervised release relating to mental health

treatment. For the reasons stated below, we will affirm in part and remove the mental

health condition.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On January 22, 2007, Whitmer presented a counterfeit American Express

traveler’s cheque in order to purchase a $100 ticket at the Kimmel Center in Philadelphia.

Whitmer then attempted to have the ticket refunded for cash. At the time of the purchase,

Whitmer presented an altered British passport (which had been validly issued to another

person) under the name “Mark Prim.” Whitmer was arrested the next day in a hotel


                                              2
room, where police found a laptop, printer, and other materials used to reproduce the

same traveler’s cheque. After he was arrested, Whitmer was observed trying to alter his

fingerprints.

       Further investigation revealed that Whitmer had used the same traveler’s cheque

58 times before his arrest, using a number of different identities and names. He had also

stolen a number of credit cards.

       Whitmer was charged with possessing a counterfeit security in violation of 18

U.S.C. § 513 (count one), forgery of a passport in violation of 18 U.S.C. § 1543 (count

two), identity fraud in violation of 18 U.S.C. § 1028(a)(2) (count three), aggravated

identity theft in violation of 18 U.S.C. § 1028A (count four), and destruction of physical

evidence in violation of 18 U.S.C. § 1519 (count five). Although Whitmer was

represented by counsel at the beginning of the prosecution, he filed a number of pro se

pleadings, and his first assigned counsel eventually withdrew and was replaced.

       Whitmer entered a guilty plea to all charges on April 9, 2009, pursuant to a plea

agreement. The agreement included a provision barring Whitmer from appealing or

collaterally challenging his conviction or sentence under most circumstances. Whitmer

was placed under pre-trial supervision and released to the Fresh Start Recovery House in

Philadelphia. A few days before the sentencing hearing, Whitmer left the Recovery

House without authorization, and the District Court issued a bench warrant for his arrest.




                                             3
Police in Columbus, Ohio later arrested Whitmer and found stolen passports and other

documents on his person.

       Whitmer was returned to custody, and his counsel was allowed to withdraw. He

represented himself at his May 6, 2010 sentencing hearing. The parties agreed to

recommend a sentence at the low end of a stipulated guideline range of 28 to 34 months.

The Probation Office later determined that this stipulated range was incorrect, and

calculated a new range of 70 to 81 months. The District Court adopted the guideline

recommendations contained in the presentence report and imposed a sentence of 81

months of imprisonment: 57 months each for counts one, two, three and five, running

concurrently, and 24 months for count four, to be served consecutively. Whitmer appeals

from that decision.

                                            II.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We

have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                           III.

       Whitmer alleges numerous errors on appeal which, he submits, compel us to

reverse the conviction, remand for an evidentiary hearing, and allow for the withdrawal

of his previous guilty plea. We conclude, based on the analysis below, that the only relief

to which Whitmer is entitled is the removal of the mental health related special condition

of release.


                                            4
                                               A.

       Whitmer contends that his previous guilty plea is invalid because the government

did not state a sufficient factual basis to support his guilty plea on counts three, four, and

five. Ordinarily, we review the District Court’s finding of a factual basis for a plea for

abuse of discretion. United States v. Cefaratti, 

, 509 (3d Cir. 2000).

Because Whitmer raises this objection for the first time on appeal, 1 we review for plain

error. Puckett v. United States, 

, 134-35 (2009). Under this standard, we

have the discretion to provide a remedy only when the error: “(1) constitutes a

[d]eviation from a legal rule; (2) is clear or obvious, rather than subject to reasonable

dispute; (3) affect[s] the appellant's substantial rights; and (4) seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” United States v. Dahmen,

, 247-48 (3d Cir. 2012) (internal quotation marks and citations omitted).

       “Before entering judgment on a guilty plea, the court must determine that there is

a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). The court may make this

determination based on “whatever means is appropriate in a specific case,” including the



       1
         Whitmer maintains that he preserved these issues before the District Court in his
May 5, 2010 motion. That document states that parts of the presentence report are “false,
misleading, or unduly prejudicial.” To the extent the paragraphs Whitmer lists reference
the facts underlying counts three, four, and five, the motion remains insufficient to
preserve the issue for appeal. See United States v. Dupree, 

, 728 (3d Cir.
2010) (“A fleeting reference or vague allusion to an issue will not suffice to preserve it
for appeal[.]”).


                                               5
defendant’s admissions, the presentence report, and the government’s proffer of

evidence. 

.

       With regard to count three (identity fraud), Whitmer contends that the government

did not provide evidence to establish a “transfer” in violation of 18 U.S.C. § 1028(a)(2),

which criminalizes knowingly transferring a false identification document. Because the

prosecutor told the District Court that Whitmer had given the passport to a Kimmel

Center employee as part of a ticket purchase, the Rule 11(b)(3) standard is satisfied as to

this count.

       Whitmer also contends that there was there was no factual basis for his plea of

guilty to count four (aggravated identity theft), which requires that the defendant

knowingly used identification that actually belonged to another real person. Because the

prosecutor told the District Court the passport Whitmer had altered to include his picture

and alias actually belonged to a British citizen, this argument has no merit. The alteration

to include Whitmer’s photo, along with the other real, fraudulently obtained identifying

documents found on his person when he was apprehended in Columbus, provide

sufficient facts on which the District Court could rely.

       Finally, Whitmer argues that the District Court lacked a sufficient factual basis

regarding count five (destruction of physical evidence) because no facts were presented

to support a nexus between Whitmer’s attempt to destroy his own fingerprints and a




                                             6
federal matter. This argument fails because there is no “federal nexus requirement.” See

United States v. Moyer, 

, 209 (3d Cir. 2012).

       Whitmer correctly points out a discrepancy between the plea agreement and the

superseding indictment and presentencing report. The plea agreement (as well as the

government’s references to that agreement at hearings throughout the case) refers to

count five as destruction of physical evidence in a federal investigation. Supp. App. at

114. The presentence report, Supp. App. at 14 (adopted by the District Court without

change), adds the language “and aiding and abetting,” which was included in the

superseding indictment, Supp. App. at 39. This error, and the resulting lack of factual

support at sentencing for the aiding and abetting averment, did not ultimately impact

Whitmer’s substantial rights. In the presentence report, the Probation Office notes that

count five was calculated as a +2 level adjustment for obstruction of justice pursuant to

U.S.S.G. § 3C1.1. This is the same adjustment Whitmer would have received had the

aiding and abetting language not been included in the report’s initial description of count

five. No other reference to aiding and abetting was made throughout the sentencing

proceeding.

       For these reasons, we conclude that the District Court did not commit plain error

when it found that Whitmer had entered a valid guilty plea supported by sufficient facts.




                                             7
                                              B.

       In his second claim, Whitmer argues for the first time on appeal 2 that the

government breached the plea agreement, and as such he should be able to withdraw the

agreement. We disagree.

       “[W]hen a defendant waits until his appeal to allege a violation of his plea

agreement, our authority to remedy the alleged error is strictly circumscribed.” 

(internal quotation marks and citations omitted). We review such

claims for plain error, and have the discretion to provide a remedy only when the error:

“(1) constitutes a [d]eviation from a legal rule; (2) is clear or obvious, rather than subject

to reasonable dispute; (3) affect[s] the appellant's substantial rights; and (4) seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” 

and citations omitted). “The defendant whose plea agreement has been

broken by the Government will not always be able to show prejudice, either because he

obtained the benefits contemplated by the deal anyway . . . or because he likely would not

have obtained those benefits in any event.” 

.

       Here, Whitmer alleges that the government violated its agreement in four ways:

impermissibly suggesting in its sentencing memorandum that the guideline range

       2
         Whitmer maintains that he preserved these issues for appeal by telling the
District Court that he did not get “the benefit of the bargain,” that he “would be appealing
this case,” and that he planned to file “a rule 35 motion.” These statements are
insufficient because none of these statements “unequivocally put [Whitmer’s] position
before the trial court at a point and in a manner that permits the court to consider its
merits.” Shell Petroleum, Inc. v. United States, 

, 218 (3d Cir. 1999).

                                              8
suggested by the Probation Office (which was higher than the stipulated range in the

agreement) would be appropriate, opposing credit for acceptance of responsibility, failing

to correct factual inaccuracies in the presentence report, and moving to enforce the

appellate waiver. While the government concedes the sentencing memorandum made

statements inconsistent with the plea agreement, we are persuaded that the memorandum

did not prejudice Whitmer. The District Court made clear at the sentencing hearing that

it understood that the parties had agreed to a lower stipulation, that the government could

not argue in favor of another range at the hearing, and that the sentencing court was not

bound by those stipulations. Furthermore, Whitmer concedes that the District Court

based its decision on the revised guideline calculation from the Probation Office, which

accounted for Whitmer’s misconduct since the time of the original report – a change that

underscores the fact that the government’s memorandum was not likely the reason he did

not receive the sentence outlined in the plea agreement. See Appellant Rep. Br. at 24.

       As for the other breaches Whitmer alleges, the record of the sentencing hearing

makes clear that the District Court heard and, where appropriate, made the factual

changes Whitmer requested. The government’s decision to invoke the appellate waiver

here does not violate the plea agreement. Because the plea agreement specifically limited

the parties’ stipulation that Whitmer qualified for the downward adjustment for

acceptance of responsibility with the language “as of the date of the agreement,” the

government was free to argue that Whitmer’s later actions were inconsistent with such an


                                             9
adjustment. See Supp. App. at 116. For these reasons, we conclude that Whitmer has not

established a breach of the plea bargain meriting relief.

                                              C.

       In his third claim, Whitmer argues that his counsel was ineffective. We conclude

that this claim is not properly considered as part of this direct appeal.

       Claims of ineffective assistance of counsel are generally reserved for collateral

proceedings, which are better equipped to develop the record needed to evaluate these

claims. United States v. Thornton, 

, 271-72 (3d Cir. 2003). Without this

record, “[t]he appellate court may have no way of knowing whether a seemingly unusual

or misguided action by counsel had a sound strategic motive or was taken because the

counsel's alternatives were even worse.” 

Massaro v. United States, 

, 504-05 (2003)). The exception established by United States v. Headley, 

(3d Cir. 1991), which allows consideration of ineffective assistance claims on

direct appeal, requires that the record be fully developed.

       The Headley exception does not apply here. While Whitmer points to numerous

ways in which he believes his appointed counsel was deficient, and identifies where in

the record he believes those deficiencies occurred, App. Rep. Br. at 29-30, nothing in the

record provides the factual basis needed for the court to decide whether counsel

employed a reasonable strategy. We therefore deny Whitmer’s claim without prejudice

to its reassertion under 28 U.S.C. § 2255.


                                              10
                                             D.

       Next, Whitmer claims that false information was presented to the grand jury,

depriving the District Court of jurisdiction to hear this case. We do not agree, because

any objection to an infirmity in the grand jury proceedings was waived. Appeals

regarding the pre-plea proceedings – including constitutional issues – are waived when a

party enters into a counseled, intelligent, and voluntary plea agreement. E.g., Tollett v.

Henderson, 

, 267 (1973) (“When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is charged, he

may not thereafter raise independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea.”). For this reason, we need not

evaluate the merits of Whitmer’s claim regarding false information presented to the grand

jury. By entering into a guilty plea, Whitmer waived his right to raise objections to

pretrial proceedings. This issue was therefore waived.

                                             E.

       Whitmer alleges additional errors around his requests to proceed pro se, the

calculation of the sentencing guidelines, and his right of allocution. Because we find that

a valid appellate waiver precludes these appeals, we do not reach the merits of these

arguments.

       An appellate wavier will not be enforced where the government has breached the

plea agreement. United States v. Wilson, 

, 458 (3d Cir. 2005). Because we


                                             11
conclude that the government has not breached its agreement, we begin by considering de

novo the enforceability of the waiver, including “(1) whether the waiver of the right to

appeal [Whitmer’s] sentence was knowing and voluntary; (2) whether one of the specific

exceptions set forth in the agreement prevents the enforcement of the waiver; i.e., what is

the scope of the waiver and does it bar appellate review of the issue pressed by the

defendant; and (3) whether enforcing the waiver would work a miscarriage of justice.”

United States v. Goodson, 

, 536 (3d Cir. 2008) (citing United States v.

Jackson, 

, 243-44 (3d Cir. 2008) (quotation marks omitted)).

       Here, the District Court properly assured through its questioning that Whitmer’s

acceptance of the plea agreement was knowing and voluntary. Whitmer’s counsel at the

time of the plea further underscored this conclusion by stating “[Whitmer] understands

the waiver of rights, and he’s agreed to waive his rights, and that’s why he had in fact

executed the waiver of rights.” Supp. App. at 126. At the District Court’s request,

Whitmer verbally affirmed his counsel’s statement. Furthermore, none of the exceptions

detailed in the agreement (i.e., claims on appeal that the sentence exceeds the statutory

maximum, represents an upward departure from the guidelines, or imposes an

unreasonable sentence above the guideline range as determined by the sentencing court)

cover the errors Whitmer alleges. Finally, we find nothing in the record suggesting that

enforcing the waiver would work a miscarriage of justice – a standard that requires more

than mere meritorious claims. For these reasons, we conclude that Whitmer has waived


                                            12
his right to appeal alleged errors related to his requests to proceed pro se, the calculation

of the sentencing guidelines, and his allocution.

                                              H.

       Finally, Whitmer claims that the District Court erred in adding a special provision

to the terms of his release that gave the Probation Office discretion to require him to

participate in a mental health program. The government has elected not to assert the

appellate waiver as to this issue, and we conclude the condition will be removed.

       “[W]hile probation officers may have discretion to decide the details of a

defendant's mental health treatment, they may not be given the authority to decide

whether or not such treatment will be required.” United States v. Pruden, 

,

243 (3d Cir. 2005). Here, although evidence from Whitmer’s psychological evaluation

might have supported an order of mental health treatment, the District Court instead

stated “if the Probation Department finds its appropriate – then I will allow it. . . . The

Probation Department will have to decide that.” This statement, coupled with the fact

that the District Court did not refer to or rely on the psychologist’s report, leads us to

conclude that this special condition of supervised release constituted an impermissible

delegation of judicial authority to the Probation Department. We will therefore order this

condition removed.




                                              13
                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court in part

and will order the special condition of supervised release relating to mental health

treatment removed.




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