USCA4 Appeal: 21-4322 Doc: 61 Filed: 06/14/2023 Pg: 1 of 13

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4322

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRUCE RALPH STURTZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, Senior District Judge. (8:19-cr-00089-PWG-1)

Argued: January 27, 2023 Decided: June 14, 2023

Before NIEMEYER, KING, and DIAZ, Circuit Judges.

Dismissed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King and Judge Diaz joined.

ARGUED: Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Leah Blom Grossi, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Erek L. Barron, United States Attorney, Baltimore, Maryland, Joseph R. Baldwin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. USCA4 Appeal: 21-4322 Doc: 61 Filed: 06/14/2023 Pg: 2 of 13

NIEMEYER, Circuit Judge:

After Bruce Sturtz pleaded guilty pursuant to a plea agreement to possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), the district court

sentenced him to 120 months’ imprisonment, the bottom of the advisory guidelines range.

That range was determined, in part, by the district court’s conclusion that Sturtz was subject

to the mandatory minimum sentence of 120 months’ imprisonment that is required by

§ 2252A(b)(2) when a defendant has a prior conviction for a qualifying sex offense. See

18 U.S.C. § 2252A(b)(2); see also U.S.S.G. § 5G1.1(c)(2) (providing that a guidelines

sentence may not be “less than any statutorily required minimum sentence”). The district

court found that Sturtz’s prior conviction under Maryland law for a sexual offense in the

third degree, see

, qualified as a predicate for the

§ 2252A(b)(2) enhancement.

In his plea agreement, Sturtz reserved the right to challenge at the time of sentencing

whether his prior state-court conviction triggered the enhancement under § 2252A(b)(2).

But he waived the right to appeal his “conviction . . . on the ground that [his prior Maryland

conviction] does trigger [that] statutory mandatory minimum penalty.” Indeed, he waived

his right to appeal any issue relating to his conviction, as well as any issue relating to his

sentence, except for “the right to appeal any term of imprisonment to the extent that it

exceeds any sentence within the advisory guidelines range resulting from an offense level

of 30.”

In this appeal, Sturtz now seeks review of the district court’s ruling that his prior

Maryland conviction qualified as a predicate conviction under § 2252A(b)(2), which

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triggered the 120-month mandatory minimum sentence. The government, however,

contends that Sturtz waived his right to appeal that issue in his plea agreement and requests

that we dismiss his appeal.

We agree with the government that the issue Sturtz seeks to present on appeal is

covered by his appeal waiver, and accordingly we dismiss this appeal.

I

In October 2017, officers working with the Internet Crimes Against Children Task

Force executed a search warrant at Bruce Sturtz’s residence in Gaithersburg, Maryland,

and seized several electronic devices, which contained a total of at least 1,356 videos of

child pornography and 16 images of child pornography. Sturtz was thereafter charged with

one count of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and

one count of possessing child pornography, in violation of § 2252A(a)(5)(B) and (b)(2),

the latter of which provides a 120-month mandatory minimum sentence for possession of

child pornography if the defendant has a qualifying prior conviction. The indictment

alleged that Sturtz had such a qualifying prior conviction — namely, his 2000 conviction

for sexual offense in the third degree, in violation of Md. Code Ann. Art. 27, § 464B (1999)

(recodified in 2002 as

).

Sturtz thereafter agreed to plead guilty with a plea agreement to Count Two (the

possession count) in return for the government’s agreement to dismiss Count One (the

distribution count).

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In the plea agreement, Sturtz agreed to plead guilty to the charged offense and

acknowledged that the district court would determine his advisory sentencing range under

the Sentencing Guidelines. The agreement provided that the parties expected the relevant

Guidelines to apply in such a way that Sturtz’s total offense level would be 30. Although

the agreement contained no similar understanding with respect to Sturtz’s criminal history,

the parties do not dispute that it is Category II. The agreement recognized that the

government and Sturtz disagreed as to whether his prior Maryland conviction qualified as

a predicate for purposes of the § 2252A(b)(2) sentencing enhancement, and accordingly,

the agreement reserved to Sturtz “the right to argue at the time of sentencing that [his]

criminal history [did] not trigger [the] statutory mandatory minimum penalty of 10 years

under 18 U.S.C. § 2252A(b)(2) for the offense to which [he was] pleading guilty.”

(Emphasis added).

The plea agreement also contained an appeal waiver, under which Sturtz waived his

rights to appeal both his conviction and his sentence, with one narrow exception. The

appeal waiver provided that Sturtz waived “all right . . . to appeal [his] conviction on any

ground whatsoever,” including “on the ground that [his] criminal history does trigger a

statutory mandatory minimum penalty under 18 U.S.C. § 2252A(b)(2) for the offense to

which [he] [was] pleading guilty.” It also provided that Sturtz and the government waived

“all rights . . . to appeal whatever sentence is imposed . . . for any reason (including the

establishment of the advisory sentencing guidelines range . . . ), except as follows:

[Sturtz] reserves the right to appeal any term of imprisonment to the extent that it exceeds any sentence within the advisory guidelines range resulting from an offense level of 30; and

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[The government] reserves the right to appeal any term of imprisonment to the extent that it is below any sentence within the advisory guidelines range resulting from an offense level of 30.

At the plea hearing, the district court reviewed with Sturtz the important terms of

his plea agreement, including that Sturtz had reserved the right to argue at sentencing that

his prior Maryland conviction did not trigger the mandatory minimum 120-month sentence

for Count Two. The court advised Sturtz that it would resolve that dispute at the time of

sentencing. The court also reviewed with Sturtz the scope of his appeal waiver, stating, “If

I sentence you to a sentence that’s higher than an offense level 30, then you would be able

to appeal. If I sentence you to an offense level below a 30, the government could appeal.

Otherwise, you have given up, as part of this agreement, your right to appeal.” Sturtz stated

that he understood the plea agreement, and after the court determined that Sturtz was

entering his plea knowingly, intelligently, and voluntarily, it accepted his guilty plea.

In preparation for sentencing, the probation officer prepared a presentence report,

which determined, consistent with the parties’ expectations, that Sturtz had a total offense

level of 30. It also determined that Sturtz had a Criminal History Category II based on his

prior Maryland conviction for “sex offense third degree.” In addition, the report concluded

that Sturtz’s prior Maryland conviction triggered the 120-month mandatory minimum

sentence, as provided in § 2252A(b)(2). Accordingly, the report concluded that the

advisory guidelines range was 120 to 135 months’ imprisonment, applying U.S.S.G.

§ 5G1.1(c)(2), which provides that any guidelines sentence cannot be less than the statutory

mandatory minimum sentence.

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Sturtz objected to the presentence report, arguing, as relevant here, that his prior

Maryland conviction did not qualify as a predicate conviction for the sentencing

enhancement under § 2252A(b)(2) and that therefore he was not subject to the 120-month

mandatory minimum sentence. Without that enhancement, his advisory sentencing

guidelines range would have been 108 to 135 months’ imprisonment.

At the sentencing hearing, the district court began by recognizing that the

“overarching issue” for sentencing was “whether the 10-year mandatory minimum

applies.” After hearing arguments on that issue, the court found that Sturtz’s prior

Maryland conviction did qualify and that therefore the mandatory minimum in

§ 2252A(b)(2) applied, resulting in an advisory guidelines sentencing range of 120 to 135

months’ imprisonment. The court then sentenced Sturtz at the bottom of the guidelines

range, to 120 months’ imprisonment, but it indicated that it would have imposed a

substantially shorter sentence “if the mandatory minimum were not applicable.”

From the district court’s judgment, Sturtz filed this appeal, seeking only to challenge

the district court’s ruling that his prior Maryland conviction qualified to trigger the

mandatory minimum sentence of 120 months’ imprisonment under § 2252A(b)(2).

II

Based on Sturtz’s plea agreement and his waiver of the right to appeal as contained

in that agreement, the government argues that his appeal must be dismissed. Accordingly,

we first examine the plea agreement and, in particular, the scope of Sturtz’s waiver of his

right to appeal.

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In his plea agreement, Sturtz pleaded guilty to Count Two of the indictment, which

charged him with possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). With respect to subsection (b)(2), the indictment alleged that

Sturtz had a prior conviction for sexual offense in the third degree under Maryland law and

that such offense qualified as a crime “relating to . . . sexual abuse,” 18 U.S.C.

§ 2252A(b)(2), which, if established, would increase the penalty under Count Two from

no minimum and a maximum of 240 months’ imprisonment to a minimum of 120 months’

imprisonment and a maximum of 240 months. These allegations of the indictment are

specifically described in the plea agreement, and in signing the agreement, Sturtz

“reserve[d] the right to argue at the time of sentencing” that his prior Maryland conviction

did not qualify as a predicate conviction triggering a mandatory minimum “for the offense

to which [he] [was] pleading guilty.” (Emphasis added). But he also agreed that if the

court ruled against him on that issue, he could not appeal the ruling:

[Sturtz] knowingly waives all right . . . to appeal [his] conviction . . . on the ground that [his] criminal history does trigger a statutory mandatory minimum penalty under 18 U.S.C. § 2252A(b)(2) for the offense to which [he] is pleading guilty.

Even though the enhancement only affected sentencing, the plea agreement clumsily

treated it as a “ground” of “conviction,” presumably because it was charged in the

indictment. In this respect, the agreement stated that the enhancement was a penalty “for

the offense to which [Sturtz] [was] pleading guilty . . . that could affect [his] ultimate

sentence in this case.” But regardless of whether the enhancement was a sentencing matter

or a ground of conviction, the agreement unequivocally provided that Sturtz waived the

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right to appeal the district court’s ruling that his prior Maryland conviction “trigger[ed] a

statutory mandatory minimum penalty under 18 U.S.C. § 2252A(b)(2) for the offense to

which [he] [was] pleading guilty.” (Emphasis added).

Moreover, in the plea agreement, Sturtz also waived “all rights . . . to appeal

whatever sentence is imposed . . . for any reason (including the establishment of the

advisory sentencing guidelines range . . .), except . . . [he] reserve[d] the right to appeal

any term of imprisonment to the extent that it exceed[ed] any sentence within the advisory

guidelines range resulting from an offense level of 30.” (Emphasis added). And any

finding that Sturtz’s prior Maryland conviction supported the enhancement would be part

of the court’s determination of the applicable advisory sentencing guidelines range. See

U.S.S.G. § 5G1.1(c)(2).

As authorized by the plea agreement, Sturtz made his argument at sentencing that

his prior Maryland conviction did not qualify under § 2252A(b)(2) so as to enhance his

sentence to a 120-month minimum. The district court, however, ruled against Sturtz on

that issue and then proceeded to calculate the applicable sentencing guidelines range. The

components for that calculation were (1) an offense level of 30 (as provided in the

presentence report and agreed to by Sturtz); (2) Criminal History Category II (as provided

in the presentence report and which Sturtz does not dispute); and (3) the qualification of

his prior Maryland conviction as a predicate for the enhancement under § 2252A(b)(2)

(which the court found over Sturtz’s objection). Given these three components, the district

court concluded, in conformance with the Sentencing Guidelines, that Sturtz’s advisory

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sentencing range was 120 to 135 months’ imprisonment. Selecting the sentence at the

bottom of that range, the court sentenced Sturtz to a term of 120 months’ imprisonment.

Thus, at this point in the process, Sturtz had acknowledged that it was for the district

court to determine his advisory sentencing guidelines range and that a ruling on whether

his prior Maryland conviction was a qualifying § 2252A(b)(2) conviction would be made

at the sentencing hearing and would determine whether the 120-month minimum sentence

would become the floor of his sentencing guidelines range. While he had reserved the right

to argue at sentencing that the prior Maryland conviction did not qualify, he also had

waived his right “to appeal [his] conviction . . . on the ground that [his] criminal history

does trigger a statutory mandatory minimum penalty under 18 U.S.C. § 2252A(b)(2).” And

were that not sufficiently clear, he had also waived his right “to appeal . . . the

establishment of the advisory sentencing guidelines range,” which the district court had

determined was the range of 120 to 135 months’ imprisonment. Thus, he had expressly

waived the right to appeal both the district court’s specific ruling on the qualification of his

prior Maryland conviction and its determination of his sentencing guidelines range. He

had reserved only “the right to appeal any term of imprisonment to the extent that it

exceed[ed] any sentence within the advisory guidelines range resulting from an offense

level of 30.”

Yet, despite those unambiguous waivers, Sturtz filed this appeal, challenging the

court’s ruling that his prior Maryland conviction qualified to enhance his sentence. He

framed the issue in his brief on appeal as follows:

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Whether Maryland “third-degree sexual offense” categorically “relat[es] to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” thereby triggering the ten-year mandatory minimum in 18 U.S.C. § 2252A(b)(2).

But clearly he waived this issue.

Sturtz nonetheless contends on appeal that the district court erred in finding that the

mandatory minimum sentence applied and argues therefore that his advisory sentencing

range should have been 108 to 135 months’ imprisonment. And from that conclusion, he

then argues that his 120-month sentence exceeds numerous sentences in the 108 to 135

month range — i.e., those sentences from 108 to 119 months’ imprisonment — and that

therefore his sentence can be reviewed on appeal based on the exception allowing him to

appeal a sentence that “exceeds any sentence within the advisory guidelines range.” Thus,

his argument is grounded on the premise that the district court erred in determining that the

mandatory minimum sentence applied, which led to a further error in the court’s calculation

of his advisory guidelines range. Yet, he has waived the right to appeal those issues. Thus,

he is left with the court-established guidelines range of 120 to 135 months’ imprisonment

and the fact that his 120-month sentence does not exceed any sentence within that range.

The exception to his appeal waiver is therefore inapplicable, even under his own

interpretation of the exception’s language.

In the same vein, Sturtz also argues on appeal that he reserved the right to appeal

any sentence exceeding the bottom of the correctly calculated guidelines range and that

the district court did not correctly calculate his guidelines range because it treated his prior

Maryland conviction as a predicate for the § 2252A(b)(2) enhancement. To insert this

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“correctly calculated” requirement into his agreement, he relies on decisions such as United

States v. Bowden,

(4th Cir. 1992). But Bowden provides him with little

help. There, the defendant “waive[d] any appeal . . . if the sentence imposed . . . [was]

within the guidelines promulgated by the United States Sentencing Commission.”

n.1. We concluded that this waiver did not reach whether the district court’s

determination of the advisory guidelines range was itself correct and therefore held that the

defendant’s challenge to that determination could be reviewed on appeal. See

But here,

Sturtz’s appeal waiver explicitly included the district court’s determination of the advisory

guidelines range. In short, the scopes of the waivers in the two cases are materially

distinguishable.

Sturtz also contends that the government, in opposing his motion for release pending

appeal, waived its argument that “the advisory guidelines range resulting from an offense

level of 30” was 120 to 135 months’ imprisonment by describing that range in its

opposition as 108 to 135 months’ imprisonment. This reasoning, however, provides Sturtz

with virtually no support. In arguing that Sturtz should not be released pending appeal, the

government addressed the issues as if the mandatory minimum sentence were not triggered,

giving Sturtz full credit for his argument, and noted that his sentence still fell in the middle

of the 108- to 135-month guidelines range and therefore was not appealable. This was not

a waiver of any kind but an argument. But more importantly, it was for the district court,

not the government, to determine the advisory guidelines range, and the court determined

that range to be 120 to 135 months’ imprisonment. Sturtz unequivocally waived his right

to appeal that determination.

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Finally, to make all of his arguments, Sturtz reads the exception to his waiver as

authorizing an appeal of any sentence above the single lowest sentence within the

guidelines range because such sentences “exceed[] any sentence” in the range. But when

we focus on the waiver exception’s language, we find that Sturtz’s interpretation would

render the waiver almost meaningless. The limitation of the waiver “to the extent that [his

sentence] exceeds any sentence within the advisory guidelines range” surely means all

sentences or every sentence within the range. If it means just the single lowest sentence

within the range, then the waiver would become illusory; Sturtz would be waiving only the

right to appeal the sentence at the lowest end of the range, as well as sentences below that

range. Likewise, in the corresponding governmental waiver, this interpretation would

mean that the government would be waiving only the right to appeal the single sentence at

the highest end of the range, as well as sentences above that range. As a matter of common

sense and as the district court explained to Sturtz at the plea hearing, the plea agreement

provided for the waiver by Sturtz and the government of the right to appeal any sentence

that lay “within the advisory guidelines range resulting from an offense level of 30,” as that

range was determined by the district court.

The indictment’s allegation that a 120-month minimum sentence applied because of

Sturtz’s prior Maryland conviction and the limitations that Sturtz’s plea agreement placed

on his right to challenge that allegation, as well as Sturtz’s broad waiver of his right to

appeal any determination that the district court made on that issue, preclude the present

appeal. And this is confirmed by Sturtz’s express waiver of the district court’s

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determination of the applicable sentencing guidelines range. Accordingly, we conclude

that his appeal must be dismissed.

IT IS SO ORDERED.

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