USCA11 Case: 22-12460 Document: 32-1 Date Filed: 06/13/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12460
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD ALAN HARDIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cr-00093-MMH-JBT-1
____________________
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2 Opinion of the Court 22-12460
Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
Appellant Edward Hardin pled guilty to one count of at-
tempted production of child pornography, in violation of
18 U.S.C.
§ 2251(a) and (e), and one count of possession of child pornogra-
phy, in violation of
18 U.S.C. § 2252(a)(4)(B) and (b)(2). For these
crimes, the district court imposed a total sentence of 480 months’
imprisonment, which was the statutory maximum sentence the
court could impose for these charges. On appeal, Hardin challenges
the procedural and substantive reasonableness of his sentence and
also argues that it violated the Eighth Amendment’s prohibition on
cruel and unusual punishment.1
We begin with Hardin’s challenge to the reasonableness of
his sentence. Hardin argues that his sentence was procedurally and
substantively unreasonable because the district court “misapplied
the Sentencing Guidelines,” “relied on fatally flawed guidelines,”
failed to properly consider the sentencing factors set forth at
18 U.S.C. § 3553(a), 2 failed to provide “a sufficient explanation” for
1 Because we write only for the parties, who are already familiar with the facts
and proceedings in the case, we include only what is necessary to explain our
decision.
2 Under § 3553(a), the district court is required to impose a sentence “suffi-
cient, but not greater than necessary, to comply with the purposes” of the stat-
ute.
18 U.S.C. § 3553(a). These purposes include the need to: reflect the seri-
ousness of the offense; promote respect for the law; provide just punishment;
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22-12460 Opinion of the Court 3
its decision, and imposed an “excessive term of incarceration.” Ap-
pellant’s Br. at 18.
We dismiss this portion of the appeal because in the plea
agreement Hardin knowingly and voluntarily waived his right to
challenge on appeal the procedural and substantive reasonableness
of his sentence. He was charged not only with the crimes to which
he pled guilty, but also with two counts of enticing a minor to en-
gage in a commercial sexual act, in violation of
18 U.S.C.
§ 1591(a)(1) and (b)(1); two counts of using a computer and cell
phone to entice a minor to engage in sexual activity, in violation of
18 U.S.C. § 2422(b); two counts of using a computer and cell phone
to entice a minor to produce child pornography, in violation of
18 U.S.C. §§ 2422(b) and 2427; and one count of enticing a minor
to engage in sexually explicit conduct for the purpose of producing
child pornography, in violation of
18 U.S.C. § 2251(a) and (e). For
these charges, Hardin faced a potential maximum sentence of life
imprisonment. In the plea agreement, he agreed to plead guilty to
only two of the charges—attempting to produce child pornogra-
phy and possessing child pornography—in exchange for dismissal
deter criminal conduct; protect the public from the defendant’s future criminal
conduct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment.
Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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4 Opinion of the Court 22-12460
of the remaining seven charges. Hardin’s statutory maximum sen-
tence was therefore reduced to 40 years’ imprisonment. As a part
of the plea agreement, Hardin agreed to “waive[] the right to ap-
peal [his] sentence on any ground,” except to raise a challenge that
“the sentence exceed[ed] the . . . applicable guidelines range as de-
termined by the Court,” “the sentence exceed[ed] the statutory
maximum penalty,” or “the sentence violate[d] the Eighth Amend-
ment to the Constitution.” Doc. 89 at 14 (emphasis omitted). 3
A defendant’s waiver of the right to appeal his sentence is
enforceable so long as the waiver was “knowing and voluntary.”
United States v. Bushert,
997 F.2d 1343, 1350–51 (11th Cir. 1993). The
record reflects that Hardin knowingly and voluntarily waived his
right to challenge the procedural and substantive reasonableness of
his sentence on appeal; thus, we dismiss this portion of his appeal.
We now turn to Hardin’s Eighth Amendment challenge. In
the plea agreement, Hardin retained the right to raise this issue on
appeal. But because he did not raise it in the district court, we re-
view for plain error only. See United States v. Raad,
406 F.3d 1322,
1323 (11th Cir. 2005). “Plain error occurs where (1) there is an er-
ror; (2) that is plain or obvious; (3) affecting the defendant’s sub-
stantial rights in that it was prejudicial and not harmless; and
(4) that seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.”
Id. (internal quotation marks omitted).
When the “explicit language of a statute or rule does not
3 “Doc.” numbers refer to the district court’s docket entries.
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22-12460 Opinion of the Court 5
specifically resolve an issue, there can be no plain error where there
is no precedent from the Supreme Court or this Court directly re-
solving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th
Cir. 2003).
The Eighth Amendment prohibits imposing “cruel and un-
usual punishments.” U.S. Const. amend. VIII. “The amendment
contains a narrow proportionality principle that applies to noncap-
ital sentences.” United States v. Johnson,
451 F.3d 1239, 1242 (11th
Cir. 2006) (internal quotation marks omitted). “In general, a sen-
tence within the limits imposed by statute is neither excessive nor
cruel and unusual under the Eighth Amendment.”
Id. at 1243 (in-
ternal quotation marks omitted). “This is so because we accord
substantial deference to Congress, as it possesses broad authority
to determine the types and limits of punishments for crimes.”
Raad,
406 F.3d at 1323 (internal quotation marks omitted). The Su-
preme Court has explained that “outside the context of capital pun-
ishment, successful challenges to the proportionality of particular
sentences will be exceedingly rare.” Solem v. Helm,
463 U.S. 277,
289–90 (1983) (alterations adopted) (emphasis omitted) (internal
quotation marks omitted).
In evaluating an Eighth Amendment challenge to a noncap-
ital sentence, “a reviewing court must make a threshold determi-
nation that the sentence imposed is grossly disproportionate to the
offense committed.” United States v. Reynolds,
215 F.3d 1210, 1214
(11th Cir. 2000). If the court finds that the sentence is grossly dis-
proportionate, “the court must then consider the sentences
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6 Opinion of the Court 22-12460
imposed on others convicted in the same jurisdiction and the sen-
tences imposed for commission of the same crime in other juris-
dictions.”
Id.
Hardin has not shown that the district court plainly erred in
imposing a 480-month sentence. Although this sentence is long, it
did not exceed the statutory maximum. See Johnson,
451 F.3d at
1243–44 (holding that a sentence equal to the statutory maximum
did not violate the Eighth Amendment). And Hardin has cited no
precedent from the Supreme Court or this Court holding that a
sentence like this one, which was within the statutory limits, vio-
lated the Eighth Amendment. We thus conclude there was no plain
error.
DISMISSED in part, AFFIRMED in part.
