Affirmation of Factual Basis in Federal Pleas & Definition of Lascivious Exhibition under 18 U.S.C. § 2251

Introduction

In United States v. Mark Van Epern, __4th Cir.__ No. 21-4408 (June 5, 2025), the Fourth Circuit Court of Appeals addressed two pivotal questions in the context of a child sexual‐abuse‐materials prosecution: first, whether a plea agreement that incorporates a Presentence Investigation Report (PSR) proffer can satisfy Rule 11(b)(3)’s factual‐basis requirement; and second, whether an appeal waiver in such a plea agreement bars appellate review of a sentence’s substantive reasonableness.

Background & Key Parties:

• Plaintiff–Appellee: United States of America
• Defendant–Appellant: Mark Van Epern
• District Court: Western District of North Carolina (Judge Kenneth D. Bell)
• Court of Appeals: Fourth Circuit (Judges Thacker, Quattlebaum & Rushing)
• Offense Charged: Production of child sexual abuse material, 18 U.S.C. §§ 2251(a), (e)
• Key Issue 1: Sufficiency of stipulated factual proffer via PSR
• Key Issue 2: Enforceability of appeal waiver as to substantive‐reasonableness challenge

Summary of the Judgment

The Fourth Circuit affirmed the district court’s acceptance of the guilty plea and its upward‐variant sentence. The court held, first, that a Rule 11(b)(3) factual basis requirement is satisfied when the defendant affirmatively stipulates to the offense conduct set forth in the PSR at sentencing. Second, because Van Epern had knowingly and voluntarily waived his right to appeal “any aspect” of his conviction and sentence, his challenge to the sentence’s substantive reasonableness was foreclosed absent a showing that enforcing the waiver would produce a miscarriage of justice. No such extraordinary showing was made.

Analysis

1. Precedents Cited

The court’s reasoning leaned heavily on established Fourth Circuit precedents regarding factual bases for pleas and definitions of “lascivious exhibition.” Key cases include:

• United States v. Carr, 271 F.3d 172 (4th Cir. 2001) – Clarified that a district court need not evaluate evidence as though deciding a trial; it need only be satisfied that the admitted conduct constitutes an offense under the charged statute.
• United States v. Miller, 75 F.4th 215, 225 (4th Cir. 2023) – Reinforced that the Rule 11(b)(3) inquiry is limited to the legal question whether the stipulated facts fall within the statute’s scope.
• United States v. Courtade, 929 F.3d 186 (4th Cir. 2019) – Held that a video obtained through deception to film a minor’s genitals “objectively depict[s] a ‘lascivious exhibition.’”
• United States v. Deritis, No. 23-4150, 2025 WL 1386211 (4th Cir. May 14, 2025) – Confirmed that hidden-camera recordings of a naked minor’s genitals, captured by manipulative means, clearly satisfy the “lascivious exhibition” requirement.
• United States v. Smith, ___ F.4th ___, 2025 WL 1096245 (4th Cir. Apr. 14, 2025) – Detailed the narrow circumstances under which a valid appeal waiver will not be enforced (i.e., miscarriage-of-justice exception).

2. Legal Reasoning

Rule 11(b)(3) Factual Basis: Under Rule 11(b)(3), a district court must “determine that there is a factual basis for the plea.” The Fourth Circuit’s line of cases confirms that this determination is satisfied if the admitted conduct, however summarized or stipulated, “is in fact an offense under the statutory provision.” Miller, 75 F.4th at 225. Here, Van Epern’s plea agreement expressly “stipulate[d] that there is a factual basis” and relied on the PSR’s detailed account of his hidden-camera recordings and cropping of images to focus on the minor’s genitals.

Lascivious Exhibition: 18 U.S.C. § 2256(2)(A) defines “sexually explicit conduct” to include “actual or simulated . . . lascivious exhibition of the anus, genitals, or pubic area of any person.” The Fourth Circuit has repeatedly held that an adult’s manipulative efforts—such as concealing a camera—to film a minor’s nudity present no close question of law: they are plainly “lascivious.” Deritis, 2025 WL 1386211, at *6. Van Epern’s admitted conduct thus easily falls within the statute.

Enforceability of Appeal Waivers: The court applied a de novo standard to the plea-waiver challenge and concluded that Van Epern’s broad waiver of “all rights to contest the conviction and sentence in any appeal” was both knowing and voluntary. Consistent with Fourth Circuit precedent, that waiver precludes review of the sentence’s substantive reasonableness unless enforcing it would result in a “miscarriage of justice”—a highly constrained exception not met here.

3. Impact

This decision reinforces two important principles in federal criminal procedure:

1. District courts may rely on a sentencing‐stage stipulation to the PSR to satisfy Rule 11(b)(3), avoiding the need for a separate factual colloquy under certain circumstances.
2. Hidden‐camera recordings of a minor’s genitals obtained by deceit are categorically “lascivious exhibitions” under § 2251, clarifying a recurring fact pattern in child‐exploitation prosecutions.

It also underscores the strength of appeal waivers: defendants who knowingly agree to waive appellate rights generally cannot resurrect challenges to their sentences under the guise of “miscarriage of justice,” absent extraordinary circumstances.

Complex Concepts Simplified

• Factual Basis (Rule 11(b)(3)): The court need only find that the defendant’s admission covers conduct that the law punishes—not that a jury would certainly convict.
• Lascivious Exhibition: A legal term for images focusing on the sexual parts of a minor, especially when the images are intended to arouse or exploit. Secret recordings of a child’s nudity fall squarely in this category.
• Presentence Investigation Report (PSR): A detailed report prepared by probation officers describing a defendant’s background and offense conduct, which courts use to calculate guideline ranges and frame sentencing decisions.
• Appeal Waiver: A contractual provision in a plea agreement where the defendant gives up the right to appeal certain claims. Courts generally uphold these waivers unless enforcing them would lead to an obvious injustice.

Conclusion

United States v. Van Epern cements the rule that plea agreements tied to a PSR stipulation can satisfy the formal factual‐basis requirement, streamlining the Rule 11 process. It also clarifies that hidden‐camera recordings of a minor’s private areas are unmistakably “lascivious exhibitions.” Finally, the decision affirms the robustness of appellate‐waiver doctrines: defendants who voluntarily forgo appellate review cannot evade those waivers by recycling standard sentencing‐reasonableness arguments. Together, these holdings sharpen the tools courts and practitioners use to navigate plea‐agreement drafting, factual‐basis inquiries, and the boundaries of appellate review in federal child‐exploitation cases.