No. 23-2134 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Jonathan Stacy Berrier

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the Eastern District of Arkansas - Central ____________

Submitted: January 8, 2024 Filed: August 6, 2024 ____________ Before LOKEN, ARNOLD, and KELLY, Circuit Judges. ____________ LOKEN, Circuit Judge.

Jonathan Stacy Berrier appeals the sentence the district court1 reimposed after we remanded for resentencing. We remanded because the court had imposed a substantial upward variance without resolving disputed critical fact allegations in the

1 The Honorable Brian S. Miller, United States District Judge for the Eastern District of Arkansas. revised Presentence Investigation Report (“PSR”) that the government relied on in urging a variance. United States v. Berrier, 28 F.4th 883, 887-88 (8th Cir. 2022) (Berrier I). Additional background facts are found in Berrier I. We affirm.

I.

A June 2018 indictment charged North Carolina resident Berrier with enticing a minor living in Arkansas to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and with traveling in interstate commerce to engage in illicit sexual conduct with a minor in violation of § 2423(b). After the government produced incriminating communications between Berrier and the thirteen-year-old victim (“T.H.”), Berrier pleaded guilty to the enticing charge in September 2020. The government and Berrier signed a written Plea Agreement which included sentencing stipulations -- that the base offense level is 28, that Berrier should receive two 2-level increases because the offense involved use of a computer and commission of a sex act and a two-level reduction for acceptance of responsibility, and “that the Court is not bound by these stipulations.” The government “reserve[d] the right to bring any and all facts which it believes are appropriate to the attention of the Court.” Berrier confirmed that “[n]o other promises or inducements” had been made to him, and “no one ha[d] threatened or forced [him] in any way to enter into [the Plea Agreement].”

At the change-of-plea hearing, Berrier admitted he had sex one time with T.H., he was pleading guilty voluntarily, and he was satisfied with counsel’s representation. After the government summarized the facts it would introduce into evidence if the parties proceeded to trial, the court asked Berrier if the government’s fact statement was correct. Berrier said it was not -- he and the victim had sex one time and “[t]here was no more sexual contact.” “I want to plead guilty to what I did. I don’t want to plead guilty to what I didn’t do.” The court then asked Berrier:

-2- THE COURT: Having discussed all of your rights with you, do you still want to enter a plea of guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Have any threats or promises been made to you to get you to plead guilty?

THE DEFENDANT: No.

THE COURT: Okay. Are you pleading guilty voluntarily?

THE DEFENDANT: Yes. The court accepted Berrier’s plea to the enticing charge (Count 1) and dismissed the interstate travel charge (Count 2).

Two months later, the Probation Office published Berrier’s PSR, which recommended a five-level increase under USSG § 4B1.5(b)(1) based on T.H.’s statements in a July 2017 interview with FBI agent