UNITED STATES COURT OF APPEALS January 23, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. No. 23-3029

JONATHAN KEARN,

Defendant - Appellee. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. Nos. 5:19-CV-04032-DDC & 5:13-CR-40057-DDC-1) _________________________________

James A. Brown, Assistant United States Attorney (Kate E. Brubacher, United States Attorney, with him on the briefs), United States Attorney’s Office, District of Kansas, Topeka, Kansas, for Plaintiff-Appellant.

Kayla Gassmann, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the brief), Kansas Federal Public Defender’s Office, Kansas City, Kansas, for Defendant-Appellee. _________________________________

Before TYMKOVICH, MURPHY, and CARSON, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge.

Jonathan Kearn was indicted on three child pornography offenses involving his

children. Even though Mr. Kearn faced an upper exposure of 30 years’ imprisonment

on the charges, the government offered a plea agreement for a 10-year sentence in Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 2

exchange for Mr. Kearn’s guilty plea to one of the counts. After a six-minute

conversation with his trial counsel discussing the plea agreement he chose to reject

the offer and proceed to trial. He was convicted on all three counts and sentenced to

24 years in prison. He exhausted his appeals in federal court.

Mr. Kearn then filed a pro se 28 U.S.C. § 2255 motion, arguing his trial

counsel was constitutionally ineffective during the plea-bargaining phase. The

district court appointed counsel and, after an evidentiary hearing, granted the motion,

finding (1) his trial counsel provided deficient advice about the proposed plea deal,

and (2) there was a reasonable probability that, but for counsel’s errors, he would

have pleaded guilty. The court ordered the government to reoffer the plea,

concluding no reasonable person would have rejected the offer knowing and

understanding its contours and the sizeable reduction in sentence exposure. It then

accepted Mr. Kearn’s guilty plea, vacated the prior judgment, and resentenced him to

10 years’ imprisonment.

We affirm. The district court correctly concluded that trial counsel’s brief

discussion with Mr. Kearn was inadequate to explain the complexities of the plea and

that counsel had supplied inaccurate and misleading information in that conversation.

Given the substantial difference in sentencing exposure—20 years—and the evidence

suggesting Mr. Kearn was amenable to pleading guilty had he been adequately

advised, the court reasonably found that Mr. Kearn would have accepted a properly

presented plea deal and avoided trial.

2 Appellate Case: 23-3029 Document: 010110988413 Date Filed: 01/23/2024 Page: 3

I. Background

A grand jury indicted Mr. Kearn in 2013 on three charges: (1) permitting his

minor children to engage in sexually explicit conduct for the purpose of producing a

visual depiction of such conduct, 18 U.S.C. § 2251(b); (2) distributing a visual depiction

of a minor engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(2); and

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