United States v. David Vann ( 2018 )

Case: 17-40947 Document: 00514529708 Page: 1 Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40947 FILED
Summary Calendar June 26, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID LEE VANN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-901-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant David Lee Vann was indicted on one count of
attempted enticement and coercion of a minor and four counts of possession of
child pornography. Vann pleaded guilty to attempted enticement and coercion
of a minor in violation of 18 U.S.C. § 2422(b). In consideration of Vann’s guilty
plea, the Government agreed to move to dismiss the four remaining counts of
the indictment at sentencing. Vann was sentenced to 120 months of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40947 Document: 00514529708 Page: 2 Date Filed: 06/26/2018
No. 17-40947
imprisonment and 10 years of supervised release. On appeal, Vann argues
that the Government breached the plea agreement by failing to move to
dismiss the remaining counts. He also asserts that the written judgment
incorrectly identifies his offense of conviction as enticement and coercion of a
minor rather than attempted enticement of a minor.
“[A]n alleged breach of a plea agreement may be raised despite a waiver
provision.” United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).
Because Vann failed to object to the Government’s alleged breach in the district
court, our review is limited to plain error. See United States v. Hinojosa, 749
F.3d 407, 411, 413 (5th Cir. 2014). In resolving whether a breach occurred,
this court considers whether the Government’s conduct was “consistent with
the defendant’s reasonable understanding of the agreement.” Id. at 413
(internal quotation marks and citation omitted).
We need not resolve whether the alleged breach constitutes plain error
as neither party disputes that the written judgment should be corrected to
reflect the dismissal of the remaining counts. In addition, although the written
judgment identifies the offense of conviction as enticement and coercion of a
minor, the record reflects that Vann pleaded guilty to attempted enticement
and coercion of a minor. Accordingly, we REMAND to the district court for the
limited purpose of entering a corrected judgment reflecting the dismissal of the
remaining counts and the offense of conviction as attempted enticement and
coercion of a minor. See FED. R. CRIM. P. 36.
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