United States v. Walter Hardin , 437 F. App'x 469 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0668n.06
FILED
No. 09-6056 Sep 13, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
WALTER EDWARD HARDIN,
Defendant - Appellant.
BEFORE: BOGGS and CLAY, Circuit Judges; TARNOW, District Judge.*
TARNOW, District Judge. Appellant pleaded guilty to using a facility and means of
interstate commerce to attempt to coerce and entice a minor to engage in sexual activity, in violation
of 18 U.S.C. § 2422(b), and to receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2)
& (b)(1). Appellant brings the instant appeal arguing that he received ineffective assistance of
counsel at the sentencing stage of this litigation. Because the record is not yet adequate for review
of this claim, we decline to review Appellant’s ineffective assistance claim at this time.
Appellant also appeals the 240-month (twenty-year) sentence that was imposed. He argues
that the sentence was procedurally and substantively unreasonable. Appellant argues that the district
court committed a procedural error by erroneously adding a five-level enhancement pursuant to
*
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.
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United States v. Hardin
USSG § 2G2.2(b)(3)(B) for an offense involving “distribution for the expectation of a receipt of
thing of value . . . .” Appellant also argues that the sentence was substantively unreasonable because
of the district court’s weighing of factors. Because the sentence was procedurally and substantively
reasonable, we AFFIRM the sentence imposed by the district court.
BACKGROUND
Around December 2007, the Kentucky State Police (KSP) began receiving information from
the United States Naval Criminal Investigative Service (NCIS) in Washington. KSP and NCIS
conducted two independent undercover investigations online, both of which led to Appellant, Walter
Hardin.
Hardin was arrested in October 2008 as a result of KSP’s investigation. The arrest led to the
federal charges on which Appellant was convicted. After the arrest, a search warrant was executed
at his business and home. Hardin worked as the Deputy Judge/Executive of Magoffin County,
Kentucky. His work computer revealed that he used the file-sharing program LimeWire to download
several hundred pictures of children engaged in sexual activity and fourteen videos of children
engaged in sexual activity. The computer also contained over twenty series of chats in which Hardin
solicited sexual contact with children.
On January 26, 2009, Hardin was brought before Senior United States District Judge Joseph
M. Hood for arraignment. He waived formal proceedings and entered pleas of not guilty to all six
counts. After moving to change his plea, Hardin was re-arraigned on March 25, 2009. In exchange
for Hardin’s pleas as to Counts 1, 2, and 5, the United States dismissed the remaining counts. A Plea
Agreement was entered into, approved by the court, and filed into the Record.
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After the Plea Agreement was approved, the Presentence Investigation Report (“PSIR”) was
submitted on July 16, 2009. It identified Hardin’s combined Adjusted Offense Level as 40. The
PSIR included a recommendation of a five-level increase for distribution because “the offense
involved distribution for the expectation of receipt of a thing of value.” See PSIR, at 7; see also
PSIR, at 14. Hardin’s guideline sentencing range in the PSIR was calculated as 210-262 months
(17.5 - 21.8 years).
On August 20, 2009, Hardin filed a Motion for Leave to File Objections to the PSIR, a
Sentencing Memorandum, and a Motion for Downward Departure. In the Motion for Leave, trial
counsel stated that he “believed that the objections, motions for guidelines departure and sentencing
memorandum” had been filed on July 17, 2009. R. 39, at 1. Attached to the Motion for Leave were
two proposed objections to the PSIR and the guideline calculations therein. A Sentencing
Memorandum was filed the same day as the Motion for Leave to File Objections.
On August 21, 2009, the United States filed a Response to Hardin’s Sentencing
Memorandum and his Motion for Downward Departure. The Response included hearsay statements
from Hardin’s ex-girlfriend. She stated that Hardin took numerous nude pictures of her during their
relationship, while she was sixteen years old. She stated that she broke off the relationship with
Hardin when he asked her if she would mind if he had sex with their children. The United States
contends that she was willing and able to testify at sentencing.
The sentencing hearing was held on August 24, 2009. At the hearing, Hardin’s counsel
withdrew the Motion for Leave to File Objections and the Motion for Downward Departure.
Counsel withdrew the Motion for Leave to File Objections despite the district court judge stating that
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“[he] was going to grant it anyway, but [counsel] want[s] to withdraw it.” R. 59, Sentencing Tr., at
3. The court adopted the guideline calculations contained in the PSIR. Hardin’s counsel did not
object to the calculations. Hardin was sentenced to 240 months (twenty years) of imprisonment on
both counts, with the sentences to run concurrently. He was also sentenced to a lifetime of
supervised release.
I. Appellant’s Ineffective-Assistance Claim Is Not Ready for Review
Ineffective-assistance-of-counsel claims are generally raised in post-conviction proceedings
under 28 U.S.C. § 2255. See United States v. Angel, 355 F.3d 462, 469 (6th Cir.), cert. denied, 543
U.S. 867 (2004); see also United States v. Pruitt, 156 F.3d 638, 646 (6th Cir. 1998) (stating that such
claims are best brought under § 2255). In most cases it is preferable to bring a claim of ineffective
assistance under § 2255 to allow the district court to develop an adequate record on the issue. Pruitt,
156 F.3d at 646 (citing United States v. Daniel, 965 F.2d 540, 543 (6th Cir. 1992)).
Ineffective-assistance claims are not, however, solely reserved for collateral review. United States
v. Massaro, 538 U.S. 500, 1696 (2003) (“We do not hold that ineffective-assistance claims must be
reserved for collateral review.”). Where the existing record is adequate to assess properly the merits
of an ineffective-assistance claim, it may be raised on direct appeal. Pruitt, 156 F.3d at 646 (citing
United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995), cert. denied, 516 U.S. 1136 (1996)).
Appellant’s ineffective-assistance claim is not ready for review on direct appeal. Appellant
argues that the record is adequate for review because it shows that trial counsel was tardy in filing
objections to the PSIR; trial counsel did not file objections to the PSIR; trial counsel missed the
discrepancies in the guideline calculations; trial counsel withdrew the Motion for Leave to File
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Objections and the Motion for Downward Departure; trial counsel did not object to the court’s
reliance on Hardin’s ex-girlfriend’s hearsay statements to the police; and trial counsel did not argue
for a lower guideline calculation at the sentencing hearing.
Appellant has not shown, however, that these facts are sufficient for review of his claim. As
the Government argues, there is a possible strategic reason that trial counsel might have agreed to
the guideline calculations in the PSIR. Avoiding an additional five-level enhancement pursuant to
Guidelines Section 2G2.2(b)(5)—engaging in a “pattern of activity involving the sexual abuse or
exploitation of a minor”—could have been the sole factor in trial counsel’s actions or inactions in
question. Appellant knew the United States intended to introduce his ex-girlfriend’s statements since
at least March 25, 2009, as reflected by the transcript of his rearraignment.
Because resolution of both of these arguments requires information not presently contained
in the record, it cannot be said that there is an “adequate record to assess the merits of [Appellant’s]
allegations.” United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990); cf. Angel, 355 F.3d at 469(finding an adequate record where the facts underlying the claims were undisputed and were
contained entirely within the record). “The appellate court [has] no way of knowing whether a
seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because
the counsel’s alternatives were even worse.” Massaro, 538 U.S. at 505 (internal citation omitted);
see also Pruitt, 156 F.3d at 646 (finding an inadequate record where the claim requires an assessment
of allegations and evidence outside of the record). To develop an adequate factual record,
Appellant’s ineffective-assistance-of-counsel claim should be first raised in the district court.
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II. The Sentence Imposed Was Reasonable
Hardin appeals his within guideline, 240-month (twenty-year), sentence arguing that it was
procedurally and substantively unreasonable. We disagree, for the reasons stated below.
We review “all sentences—whether inside, just outside, or significantly outside the
Guidelines range—under a deferential abuse-of-discretion standard.” United States v. Bolds, 511
F.3d 568, 578 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). “This review
has two components: procedural and substantive.” United States v. Wilkins, No. 09-1890, 2011 WL
1042242, at *3 (6th Cir. Mar. 23, 2011) (citing Bolds, 511 F.3d at 578).
A. Procedural Reasonableness
In reviewing an appeal for procedural reasonableness, the standard of review is dependent
upon whether appellant preserved sentencing challenges. See United States v. Bailey, 488 F.3d 363,
367 (6th Cir. 2007). “Where the district court asks at sentencing whether there are any objections
to the sentence and the appellant raises none, [the sentence is reviewed] only for plain error.” Id.(citing United States v. Clark, 49 F.3d 568, 570 (6th Cir. 2006)). Here, Hardin was asked by the
district court whether there were any objections to the sentence. The answer was no. Therefore, the
sentence will be reviewed only for plain error. See Bailey, 488 F.3d at 357.
[A] district court commit[s] . . . procedural error [by] failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.
United States v. Vowell, 516 F.3d 503, 509-10 (6th Cir. 2008) (quoting Gall, 552 U.S. at 51)).
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This court can correct an error not raised at the trial court if there is 1) an error; 2) that is
plain, 3) that affects substantial rights, and 4) the error seriously affects “the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997);
United States v. Brock, 501 F.3d 762, 773 (6th Cir. 2007).
Appellant argues that the district court committed a procedural error by erroneously adding
a five-level enhancement pursuant to Guidelines § 2G2.2(b)(3)(B) for an offense involving
“distribution for the expectation of a receipt of thing of value . . . .” The district court in this case,
stated that:
There is a five-level increase because the offense involved distribution for the
expectation of a receipt of a thing of value, i.e. other images of child pornography via
the defendant’s Lime[W]ire file-sharing account.
R. 59, Sentencing Tr., at 4.
We agree with Appellant that the five-level enhancement does not automatically apply simply
because Appellant used a file-sharing program. See United States v. Geiner, 498 F.3d 1104, 1111
(10th Cir. 2007) (holding that the five-level enhancement does not automatically apply to every
defendant who uses file-sharing programs). The enhancement does, however, apply in this situation.
Whether a defendant distributes files in a manner that merits the five-level enhancement is to be
decided on a case-by-case basis by the sentencing court. Id.We hold that the district court’s sentence was not procedurally unreasonable by applying the
five-point enhancement in this case. The district court, at the sentencing hearing, stated that the
“expectation of a receipt of a thing of value” was other images of child pornography through
LimeWire.
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LimeWire was a free, peer-to-peer file sharing website.1 LimeWire,
http://www.limewire.com, (last visited August 6, 2011). Appellant downloaded and distributed files
on LimeWire. Hardin had not disabled the default file-sharing feature on the site. Appellant’s
computer contained over fourteen videos and several hundred photographs of minors engaged in
sexual activities. Appellant’s sophisticated and extensive use of LimeWire was sufficient, in this
case, to support the district court’s imposition of the five-level enhancement in question. The
sentence imposed was not procedurally unreasonable.
B. Substantive Reasonableness
Appellant’s final argument is that the district court’s sentence was substantively
unreasonable. The substantive reasonableness of a sentence is reviewed “under a deferential abuse-
of-discretion standard.” Bolds, 511 F.3d at 578. There is a presumption of reasonableness for
within-guidelines sentences. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
The court will consider “the totality of the circumstances” when reviewing a sentence for substantive
reasonableness. United States v. Vowell, 516 F.3d 503, 510-11 (6th Cir. 2008). A sentence is
substantively unreasonable if the district court “selects a sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount
of weight to any pertinent factor.” United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009)
(internal citation and quotation omitted). There is no requirement that the defendant object to the
1
The LimeWire website has since been shut down pursuant to a court order.
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substantive reasonableness of a sentence in order to preserve the issue on appeal. United States v.
Herrera-Zuniga, 571 F.3d 568, at 578 (6th Cir. 2009) (internal citation omitted).
Here, the district court imposed a 240-month sentence. It was within the 210-262 month
calculated range, but above the 210-month sentence that was recommended by the PSIR. The district
court provided ample reasons why the 240-month (twenty-year) sentence was appropriately imposed
by choosing a sentence that in its view was adequate, but not excessive in accordance with the
§ 3553(a) factors. The district court explained at the hearing that the sentence was based on 1)
Appellant abusing his position of trust by using the work computer to commit the illegal acts; 2)
bringing shame on the community; 3) the facts in the United States’ Sentencing Memorandum,
which included the statements by his ex-girlfriend; 4) his interest in having sex with children; 5) his
extensive illicit drug use; and 6) the need to protect the public. The district court also addressed his
need for medical treatment. Appellant’s argument that the district court did not weigh the factors
appropriately is defeated by the record. The sentence imposed was not substantively unreasonable.
CONCLUSION
For the reasons stated above, we decline to review Appellant’s ineffective assistance of
counsel claim on direct appeal and AFFIRM the sentence imposed by the district court.
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CLAY, Circuit Judge, concurring in part and concurring in the judgment. While I
concur in the majority’s analysis and conclusions regarding Hardin’s claims of ineffective assistance
of counsel and the procedural unreasonableness of his sentence, I write separately because my
analysis differs from the majority’s with respect to the issue of whether the district court abused its
discretion in imposing a sentence that is substantively unreasonable.
The majority makes two critical mistakes in its analysis. First, it mischaracterizes Hardin’s
substantive unreasonableness argument. While Hardin generally argues that the district court
improperly weighed certain factors in imposing sentence, Hardin specifically argues that the district
court: 1) “failed to consider the need to provide [Hardin] with needed medical [mental health] care”;
2) “gave an unreasonable amount of weight . . . [to] the fact that Hardin was entrusted with a position
of trust as the deputy judge executive in Magoffin County, Kentucky;” 3) unreasonably considered
the government’s contention that Hardin “had allegedly indicated to his girlfriend that he ‘wanted
to have sex with his own children;’” and 4) failed to give proper weight to “the fact that [Hardin] had
a severe drug dependency.” (Def.’s Br. at 35.) The majority does not address any of these
arguments.
Second, and more importantly, the majority’s opinion mischaracterizes the analysis
undertaken by the district court in crafting an appropriate sentence for Hardin. The majority states
that the district court relied upon six factors in reaching its sentencing determination, including
Hardin “abusing his position of trust by using the work computer to commit the illegal acts;” Hardin
“bringing shame on the community;” and Hardin’s “extensive illicit drug use.” (Maj. Op. at 9-10.)
Two things are clear from the record: though the district court mentioned these facts, it did not rely
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on them in imposing sentence; and a sentencing court’s reliance on such factors would be clearly
impermissible.
It is well-settled that a district court’s “consider[ation of] a factor that has no relation to the
§ 3553(a) factors” may constitute substantive unreasonableness. United States v. Recla, 560 F.3d
539, 544-45 (6th Cir. 2009). The three factors listed above, most notably the factor implicating
community shame, each fall outside of the gamut of acceptable sentencing considerations under §
3553(a).
A sentencing court is required, under 18 U.S.C. § 3553(a), to impose a sentence “sufficient,
but not greater than necessary,”
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2).
In this case, the district court made the following relevant statements at sentencing:
In this case, in particular, it’s difficult because you were entrusted with a position by
the Magoffin County government, a position of responsibility [and y]ou used that
position and the computer provided for you in committing the acts that you did, acts
that are repugnant.
....
The facts as I think set out in the government’s sentencing memorandum . . . [r]eflect
an individual who spiraled out of control, someone who . . . indicated to his girlfriend
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that if they had children, he wanted to have sex with his own children. That’s—you
know, that’s hard to stomach.
. . . [T]he presentence report and the plea agreement reflect an interest in having sex
with or paying for sex with children as young as four years old. That’s repugnant.
Then there is the drug abuse that was going on while you were employed at the
Magoffin County Fiscal Court, cocaine, crack cocaine, LSD, methamphetamine,
heroin, marijuana, Hydrocodone, Oxycodone, Oxycontin.
The only good thing that I can see about this whole deal is that you are young.
With proper treatment, you may be able to enjoy a productive life.
But . . . the court has an obligation not only to you but to the community as a whole
to make sure that you get certain amounts of treatment.
The sentence I impose, given the length of time that you engaged in the conduct that
you did, the quality and nature of the images found on your computer, the use of your
employment to engage in the conduct, the details of your conduct as set forth in the
attached exhibit, the sexually explicit photos of the 16-year-old female found on your
computer and your ongoing desire you have expressed about wanting to have sex
with children warrants a sentence of quite severe to protect the public.
(Sent. Tr. at 8-10.)
Contrary to the majority’s determination, there is no indication in the record that the district
court gave any weight to the fact that Hardin was employed by the county or to the statement
reportedly made by Hardin’s ex-girlfriend regarding their hypothetical children. On the contrary,
it appears that the district court invoked both as examples of how Hardin was “spiral[ing] out of
control”—so much so that he would risk accessing child pornography from his government office,
would abuse various and serious drugs while working in “a position of responsibility,” and would
raise what were clearly deeply inappropriate questions with a person with whom he was in a
relationship.
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The district court concluded its recitation of Hardin’s “spiraling” behavior with its hope that
“[w]ith proper treatment, [he] may be able to enjoy a productive life.” (Id. at 9.) The district court
proceeded immediately thereafter to state: “But . . . the court has an obligation not only to you but
to the community as a whole to make sure that you get certain amounts of treatment.” (Id.) Reading
the sentencing transcript as a whole, it is clear that the district court intended to contrast Hardin’s
spiraling and other serious behavioral troubles, for which it expressed some compassion (and
revulsion), with its duty to impose a sentence in accordance with the mandates of 18 U.S.C. §
3553(a).
The district court continued by weighing the proper § 3553(a) factors, most notably the need
for deterrence and the serious nature of the offense. In imposing the sentence, the district court
specifically outlined the factors that it was weighing under § 3553(a)—
[T]he length of time that [Hardin] engaged in the conduct that you did, the quality
and nature of the images found on [Hardin’s] computer, the use of [Hardin’s]
employment to engage in the conduct, the details of [Hardin’s] conduct as set forth
in the attached exhibit, the sexually explicit photos of the 16-year-old female found
on [Hardin’s] computer and [Hardin’s] ongoing desire . . . to have sex with children
...
(Id. at 10.) While the district court emphasized its considerations of the nature of the offense and
the probability of recidivism more than other § 3553(a) factors, there is no indication that it
committed any error in doing so. See United States v. Brown, 579 F.3d 672, 687 (6th Cir. 2009)
(“[W]hile the court downplayed the characteristics of Defendant and emphasized factors such as the
nature of the offense, the likelihood of recidivism, and the need for protection of the public, the
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weight the court assigned to each § 3553(a) factor was not unreasonable. It was within the court’s
discretion to emphasize the need to protect young children.”).
There is also no question that the district court took into account, and explained at length,
its consideration of Hardin’s mental health history and his drug dependancy in crafting an
appropriate sentence. In addition to articulating its consideration of these factors, the district court
also ordered that Hardin receive both substance abuse treatment, (Sent. Tr. at 11), and “sex health
disorder” treatment. (Id. at 13.)
Finally, having considered all relevant factors, the district court determined that a sentence
in the middle of the recommended Guidelines range would be appropriate in Hardin’s case. That
the district court imposed a within-Guidelines sentence reflects a “double determination”—“both
the sentencing judge and the Sentencing Commission . . . have reached the same conclusion as to
the proper sentence in the particular case.” Rita v. United States, 551 U.S. 338, 347 (2007).
For these reasons, the district court did not abuse its discretion in imposing Hardin’s
sentence.
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