United States v. Kriss – CourtListener.com

Case: 23-40706           Document: 56-1         Page: 1      Date Filed: 09/24/2024




          United States Court of Appeals
               for the Fifth Circuit
                                  ____________                    United States Court of Appeals
                                                                           Fifth Circuit


                                   No. 23-40706
                                                                         FILED
                                                                 September 24, 2024
                                 Summary Calendar
                                 ____________                       Lyle W. Cayce
                                                                         Clerk
United States of America,

                                                                   Plaintiff—Appellee,

                                         versus

Sean Michael Kriss,

                                           Defendant—Appellant.
                  ______________________________

                  Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 3:21-CR-4-1
                  ______________________________

Before Smith, Stewart, and Duncan, Circuit Judges.
Per Curiam: *
      Sean Michael Kriss pleaded guilty to sexual exploitation of children
and possession of child pornography. He was sentenced to a total term of
480 months of imprisonment and 10 years of supervised release. On appeal,
Kriss argues the Government breached the plea agreement.



      _____________________
      *
          This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40706        Document: 56-1        Page: 2    Date Filed: 09/24/2024




                                  No. 23-40706


       In the plea agreement, the Government agreed to move under
U.S.S.G. § 3E1.1(b) for a one-level reduction if the district court determined
that Kriss qualified for the two-level reduction under § 3E1.1(a) and the
offense level prior to operation of § 3E1.1(a) was 16 or greater. Kriss argues
that the Government breached the agreement when it (1) emphasized that he
filed a motion to withdraw his guilty plea 18 months after he pleaded guilty,
(2) claimed that he was making a “big deal” about his autism diagnosis, and
(3) stated that he needed to be held accountable because it was hard to deter
someone like him who did not believe that he had a problem.
       We review for plain error review because Kriss did not raise this claim
before the district court. He must show an error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135-36 (2009). If he makes this showing, we will exercise our discretion to
correct the error only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citation omitted). While the burden is on the defendant to demonstrate
by a preponderance of the evidence that the Government breached a plea
agreement, the terms of the agreement are strictly construed against the
Government as the drafter. United States v. Casillas, 853 F.3d 215, 217 (5th
Cir. 2017). “A breach occurs if the Government’s conduct was inconsistent
with a reasonable understanding of its obligations.” Id.
       Kriss’s argument is unavailing because the Government complied
with its obligations under the plea agreement. See id. at 218. The plea
agreement did not prohibit the Government’s arguments that the two-level
reduction under § 3E1.1(a) was not warranted and that the sentencing factors
outlined in 18 U.S.C. § 3553(a) supported the statutory maximum sentence.
See United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014).




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Case: 23-40706     Document: 56-1       Page: 3   Date Filed: 09/24/2024




                             No. 23-40706


      Because Kriss has not demonstrated that the Government breached
the plea agreement, the appeal waiver contained in that agreement is
enforceable and bars the current appeal. The appeal is DISMISSED.




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