UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4221

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUSTIN COLE MILAM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:17-cr-00265-FL-1)

Submitted: December 31, 2018 Decided: January 4, 2019

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Seth Morgan Wood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Justin Cole Milam pled guilty, pursuant to a written plea agreement, to

manufacturing child pornography, in violation of

(a), (e) (2012). He

received a 312-month sentence. On appeal, Milam argues that (1) the facts provided by

the Government are insufficient to establish his guilt; (2) the Government obtained

evidence against him absent a warrant, in violation of the Fourth Amendment; (3) he

received ineffective assistance of counsel; (4) the sentence imposed was procedurally and

substantively unreasonable; and (5) Milam’s confession was obtained in violation of his

Fifth Amendment rights. The Government has moved to dismiss the appeal as barred by

Milam’s waiver of the right to appeal included in the plea agreement.

Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11

hearing, we conclude that Milam knowingly and voluntarily waived his right to appeal.

Accordingly, we grant in part the Government’s motion to dismiss and dismiss the appeal

as to all but two issues that fall within the scope of the waiver. We deny the

Government’s motion with regard to Milam’s claims that there is an insufficient factual

basis to support the plea and that counsel rendered ineffective assistance, as those claims

fall outside the bounds of the appeal waiver. United States v. McCoy,

(4th Cir. 2018), cert. denied, __ S. Ct. __, No. 18-6304,

(U.S.

Nov. 13, 2018).

As to Milam’s first claim, because he did not object to the factual basis below, his

claim is reviewed only for plain error. United States v. Stitz,

(4th Cir.

2017), cert. denied,

(2018). “Plain error requires the existence of (1) an

2 error, (2) that is plain, (3) that affects the defendant’s substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

(internal quotation marks omitted).

An individual is guilty of violating

(a) if he “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.” § 2251(a).

Furthermore, “a defendant must engage in the sexual activity with the specific intent to

produce a visual depiction; it is not sufficient simply to prove that the defendant

purposefully took a picture.” United States v. Palomino-Coronado,

(4th Cir. 2015). The facts provided in the plea agreement and the Government’s factual

basis set forth at the guilty plea hearing provide a sufficient basis to support Milam’s

guilty plea.

Finally, we decline to review the claim of ineffective assistance of counsel on

direct appeal, as the record does not conclusively demonstrate ineffective assistance. See

United States v. Faulls,

(4th Cir. 2016) (providing standard).

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART, DISMISSED IN PART

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