United States v. Sean Barry ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0234n.06
No. 14-1653
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
May 02, 2016
)
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
SEAN JASON BARRY, ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendant-Appellant. )
)
)
BEFORE: MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges.
SUHRHEINRICH, Circuit Judge.
Defendant-Appellant Sean Barry (“Barry”) pled guilty to one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). As part of his sentence,
Barry was ordered to pay $50,540 in restitution to a former child depicted in three of the
pornographic images found in his possession. Barry appeals the restitution order on the ground
that his attorney provided ineffective assistance of counsel at the restitution hearing. For the
following reasons, we AFFIRM.
I.
Pursuant to a plea agreement with the government, Barry pled guilty to one count of
possession of child pornography. According to the indictment, the offense occurred on or about
No. 14-1653, United States v. Barry
July 1, 2013. As part of the plea agreement, Barry waived his right to appeal or collaterally
attack his sentence. Barry, however, retained the right to appeal a sentence that exceeds the
statutory maximum or is based upon an unconstitutional factor, such as race, religion, national
origin, or gender. The appeal waiver also preserved Barry’s right to challenge the validity of the
waiver in a collateral proceeding.
Prior to sentencing, the government submitted a sentencing memorandum in support of a
restitution request by a victim known as “J_blonde.” J_blonde was depicted in three of the
images found in Barry’s child pornography collection. J_blonde’s restitution request includes a
psychology report and an economic evaluation. The psychology report concludes that J_blonde
suffers from post-traumatic stress disorder and depression. According to the report, the effects of
J_blonde’s childhood abuse are exacerbated by his knowledge that the abuse is “viewed by
myriad persons for their sexual gratification and excitement.” The economic report calculates
J_blonde’s damages as a result of the circulation of his images and organizes these damages into
three categories: loss of employment wages and benefits, cost of future therapy, and reduction in
the value of life. The report estimates the loss of employment wages and benefits at $286,249
(2010-2052); the cost of therapy at $89,295 (2013-2023); and the reduction in the value of life at
a range of $1,576,405 to $2,364,567 (2010-2063).
J_blonde’s representative submitted a request for $1,576,405, at the low end of the
reduction in the value of life, and excluding the amounts estimated for loss of wages and the cost
of therapy. The government recommended that the district court award approximately $42,605
in restitution from Barry to J_blonde. The government reached this number by dividing
J_blonde’s total requested damages by 37—the number of defendants, including Barry, that have
been convicted of possessing, receiving, or distributing J_blonde’s images. The government
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No. 14-1653, United States v. Barry
provided the court with a list of the restitution awards ordered from the other 36 defendants,
which showed that the previous awards ranged from $250 to $28,000. Barry also submitted a
sentencing memorandum, asking the court to decline to impose restitution, or, in the alternative,
to award substantially less than the $1,576,405 figure requested by J_blonde.
The district court reserved decision on the restitution issue pending the Supreme Court’s
opinion in Paroline v. United States, 134 S. Ct. 1710 (2014), which was expected to address how
courts should calculate restitution awards in child pornography cases where a victim’s images
have been viewed by hundreds or thousands of anonymous possessors. Following issuance of
the Paroline opinion, both the government and Barry submitted supplemental briefing addressing
the outcome, rationale, and effect of that decision.
Leading up to the restitution hearing, Barry was represented by Assistant Federal Public
Defender David Kaczor, who filed the briefs addressing restitution. Because Kaczor was ill on
the day of the hearing, Federal Public Defender Ray Kent represented Barry in Kaczor’s stead at
the restitution hearing.
At the hearing, the government explained the court’s obligation to apportion J_blonde’s
losses according to Barry’s contribution to J_blonde’s harm. The government stated:
[I]n this case, the restitution should be less than someone who may have produced
or distributed the images, as here Mr. Barry only possessed them. Restitution for
Mr. Barry should probably be less than someone who produced a great deal more
images of J_blonde . . . Mr. Barry had three of them. Mr. Barry also did not seek
to contact the victim. . . . So all of those weigh in favor of a lower apportionment
amount for Mr. Barry.
At the conclusion of the government’s argument, Barry’s attorney, Kent, argued for “a
minimal award,” emphasizing that Barry “possessed only three images” and that “it’s safe to
assume that thousands of people have viewed those images.” Kent concluded that “in addition to
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No. 14-1653, United States v. Barry
the other factors which [government counsel] lays out, a minimal award would be sufficient here
to meet the statutory purposes.”
The district court ordered Barry to pay $50,540 in restitution to J_blonde. The court
reached this amount by applying the formula approved in United States v. Gamble, 709 F.3d 541,
552-55 (6th Cir. 2013). That formula directs the court to determine the total amount of a
victim’s provable losses and then divide the total losses by the number of defendants convicted
of possessing the victim’s image. Id. at 554. The district court began with a figure of $1.5
million, noting that this number was rounded down from J_blonde’s request of $1,576,405 and
did not include lost wages or the costs of future counseling, both of which the court found
“highly likely to occur.” The court further acknowledged that J_blonde’s loss calculation dated
back to 2010 and concluded that Barry could not be liable for losses accruing prior to his offense
on July 1, 2013. The court then divided $1.5 million by the number of defendants, including
Barry, who were ordered to pay restitution to J_blonde, resulting in a figure of $40,540. While
recognizing that “this number is considerably higher than the average amount of restitution
ordered in the 36 earlier cases,” the district court found the resulting amount appropriate under
both Paroline and Gamble. Id. The court then added “$10,000 of punitive restitution” to the
award “pursuant to the Paroline case.” Id. Earlier in the hearing, the court had observed that
Paroline described restitution as serving “remedial or compensatory purposes, as well as
punitive purposes.” According to the district court, this additional $10,000 would “remind[] Mr.
Barry that his conduct produces concrete and devastating harms for real, identifiable victims.”
Barry’s attorney did not object to the restitution award.
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No. 14-1653, United States v. Barry
Barry appeals the restitution award on the grounds that his attorney rendered ineffective
assistance of counsel at the restitution hearing. The district court had jurisdiction over this
matter under 18 U.S.C. § 3231. We have jurisdiction over this appeal under 28 U.S.C. § 1291.
II.
Barry argues that his counsel’s performance at the restitution hearing was constitutionally
defective because his attorney failed to object to and argue against the restitution award.
Specifically, Barry asserts that his attorney should have raised the following arguments in
opposition to the restitution award: (1) Barry could not be held responsible for damages that
occurred prior to his offense in July 2013, (2) Barry’s restitution award should not have been
substantially higher than the 36 previous defendants’ awards and should have been lower than
awards imposed on defendants who distributed J_blonde’s images, and (3) Barry should not have
been ordered to pay an additional $10,000 in “punitive restitution” because restitution is already
both remedial and punitive. Barry claims that these failures resulted in a higher award than the
district court would otherwise have ordered and prevented preservation of the arguments for
appeal on an error basis.
A.
Before reaching Barry’s ineffective assistance of counsel claim, we must address the
government’s curious approach to Barry’s appeal waiver. On the one hand, the government
expressly declines to seek enforcement of Barry’s appeal waiver on his present ineffective
assistance claim, an appeal that would otherwise be barred by the terms of his plea agreement.
At the same time, the government argues that Barry was not prejudiced by his counsel’s failure
to preserve issues for appeal because the appeal waiver prevents him from appealing the
restitution award. Appellee Br. 18-19 & n.1.
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No. 14-1653, United States v. Barry
Appeal waivers are not jurisdictional. United States v. Hampton, 732 F.3d 687, 690 (6th
Cir. 2013); United States v. Caruthers, 458 F.3d 459, 472 n.6 (6th Cir. 2006). Therefore, an
appeal waiver does not deprive us of jurisdiction to consider a challenge to a sentence on the
merits. See Jones v. United States, 689 F.3d 621, 624 n.1 (6th Cir. 2012). The government may
forfeit its right to assert an appeal waiver by failing to raise it in a timely fashion, United States
v. Ford, 761 F.3d 641, 661 n. 15 (6th Cir. 2014), or by explicitly declining to assert the waiver,
Jones, 689 F.3d at 624 n.1. The government may also partially invoke an appeal waiver. United
States v. Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015) (citing United States v. Story,
439 F.3d 226, 231 (5th Cir. 2006)).
Although the government has not expressly said so, it appears to be partially invoking
Barry’s appeal waiver. While the government explicitly waived its right to enforce Barry’s
appeal waiver for his present appeal, it maintains that the appeal waiver eliminates any prejudice
to Barry from his counsel’s failure to preserve arguments challenging the restitution order for
purposes of appeal. Rather than enforce Barry’s appeal waiver in full and dismiss this claim, or
pretend as if no appeal waiver exists, we will treat Barry’s appeal waiver as having preserved the
right to appeal his sentence based on ineffective assistance of counsel.1 Therefore, despite the
government’s waiver of the appeal waiver on Barry’s present ineffective assistance claim,
Barry’s appeal waiver still effectively prevents him from challenging the restitution order on
other grounds before an appellate court (except in the narrow circumstances outlined in the plea
agreement).
1
For an example of an appeal waiver retaining the right to appeal based on ineffective assistance of
counsel, see United States v. Ferguson, 669 F.3d 756, 760 (6th Cir. 2012).
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No. 14-1653, United States v. Barry
B.
Barry’s ineffective assistance claim can be divided into four discrete challenges to his
attorney’s performance at the restitution hearing: (1) the failure to argue that three years of
J_blonde’s calculated loss could not be attributed to Barry because they occurred before Barry’s
offense; (2) the failure to raise the issue of comparative fault—that is, to argue that Barry’s
restitution award should not be higher than previous defendants’ awards and should be lower
than defendants who distributed or possessed a greater number of J_blonde’s images; (3) the
failure to argue that the additional $10,000 for punitive restitution was improper; and (4) the
failure to preserve these arguments for appeal on an error basis.
To demonstrate that his counsel’s performance was constitutionally deficient, Barry must
show both that: (1) counsel’s representation fell below an objective standard of reasonableness,
and (2) counsel’s errors had an actual, adverse effect on the defense. Strickland v. Washington,
466 U.S. 668, 688, 693 (1984). In analyzing the first prong, the “court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. As for the prejudice prong, Barry must show a “reasonable probability”
that, had counsel performed adequately, a different outcome would have resulted. Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
A court may decide an ineffective assistance claim solely on the ground of lack of sufficient
prejudice without examining whether counsel’s performance was deficient. Id. at 697.
Generally, a defendant may not raise ineffective assistance of counsel claims for the first
time on direct appeal. United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005). The
rationale is that “there has not been an opportunity to develop and include in the record evidence
bearing on the merits of the allegations.” Id. (quoting United States v. Wunder, 919 F.2d 34, 37
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No. 14-1653, United States v. Barry
(6th Cir. 1990)). Instead of entertaining these claims on direct appeal, “our court has routinely
concluded that such claims are best brought by a defendant in a post-conviction proceeding
under 28 U.S.C. § 2255.” United States v. Brown, 332 F.3d 363, 369 (6th Cir. 2003) (quoting
United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997)). That being said, there is an
exception to the general rule against direct review where “the record is adequate to assess the
merits of the defendant’s allegations.” United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990).
This exception often applies where the record shows that counsel’s allegedly unreasonable acts
or omissions caused no prejudice to the defendant’s case. See, e.g., United States v. Soto,
794 F.3d 635, 646-47 (6th Cir. 2015) (rejecting an ineffective assistance claim on direct appeal
because damaging evidence that the attorney failed to move to suppress would have been
admitted over counsel’s objection); United States v. Abdullah, 162 F.3d 897, 905 (6th Cir. 1998)
(rejecting an ineffective assistance claim on direct appeal where the attorney failed to file an
adequate notice of alibi, but the district court allowed the presentation of defendant’s alibi
witnesses without restriction).
We find the record sufficiently developed to address most, but not all, of Barry’s
challenges to his attorney’s performance. Three of Barry’s challenges clearly lack merit because
the attorney’s allegedly unreasonable actions did not cause Barry prejudice. The record,
however, is inadequate to assess the charge that counsel’s failure to object to the additional
$10,000 in punitive restitution fell below an objective standard of reasonableness and resulted in
a higher restitution award than the district court would otherwise have ordered. This challenge
cannot be resolved solely on prejudice grounds. Unlike the other arguments Barry contends his
attorney should have raised at the restitution hearing, the additional $10,000 in punitive
restitution was not an issue anticipated by the parties in their briefs or in oral argument.
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No. 14-1653, United States v. Barry
Moreover, awarding an additional, arbitrary amount in “punitive restitution” unlinked to the
defendant’s relative causal role in the victim’s losses is not clearly authorized by Paroline.
Rather, Paroline instructs district courts to “order restitution in an amount that comports with the
defendant’s relative role in the causal process that underlies the victim’s general losses,” without
differentiating between restitution’s compensatory and punitive goals. 134 S. Ct. at 1727. In
this case, it appears the district court awarded an extra $10,000 without connecting it to the
defendant’s “causal significance” in producing that $10,000 loss. Id. at 1728. Thus, based on
the limited record on appeal, there appears to be a reasonable likelihood that bringing this issue
to the district court’s attention would have changed the outcome.
But while the record may allow for a showing of prejudice, it is not sufficiently
developed to resolve whether Barry’s counsel’s performance fell within “the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. The record does not contain
any information explaining counsel’s decision not to object to the additional $10,000 in
restitution. Cf. United States v. Woodruff, 735 F.3d 445, 452 (6th Cir. 2013) (declining to
address an ineffective assistance of counsel claim on direct appeal because “there is no affidavit
or testimony from [defendant’s] trial counsel explaining his decision not to raise an objection”);
United States v. Sanders, 404 F.3d 980, 986 (6th Cir. 2005) (declining to address an ineffective
assistance claim on direct appeal because “the present record contains no evidence whatsoever
concerning [defendant’s] trial counsel’s reasons for not calling an expert witness”). Because we
are unable to determine from the record whether counsel’s silence was based on reasonable
professional judgment, we decline to address this portion of Barry’s ineffective assistance claim.2
2
Ordinarily, Barry could pursue this claim by way of a collateral proceeding under 28 U.S.C. § 2255. But
it appears that Barry’s appeal waiver precludes collateral challenges to his sentence unless the challenge goes to the
validity of the waiver itself. Of course, the government may choose to waive the appeal waiver’s bar to a collateral
proceeding as it has done with Barry’s direct appeal here.
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No. 14-1653, United States v. Barry
We now address the challenges capable of being resolved on the present record. Two of
the arguments that Barry claims his attorney should have raised and would likely have persuaded
the district court to order a lower amount—the lack of causation for the three years of losses
preceding Barry’s offense, and comparative fault—were, in fact, presented to the court by
counsel for both the government and the defense. Both parties developed these points in the
written briefs.3 Moreover, both parties repeated the arguments regarding comparative fault at the
restitution hearing. Furthermore, the district court expressly acknowledged both the causation
and comparative fault arguments in calculating restitution. The district court recognized that
“[t]he [date of the] offense of conviction here is July 1st, 2013. . . . Accordingly, Barry can’t be
held liable for J_blonde’s loses [sic] prior to that date.” Although the court did not expressly
exclude the three years of loss preceding Barry’s 2013 offense, which amounted to $114,403, the
court noted that the $1.5 million figure was already rounded down from J_blonde’s request and
did not include the sizable amounts that had been initially included for lost wages and therapy.
After announcing the $40,540 figure, the district court also recognized that “this number is
considerably higher than the average amount of restitution ordered in the 36 earlier cases.” 4 The
court found, however, that “given the guidance in Paroline, which I think firmly establishes the
Gamble case as good law for purposes of evaluating restitution to victims, . . . that figure is an
3
See Govt’s Sentencing Mem., R.29 at 10 (informing the court of the option to reduce the restitution
amount to account for losses that preceded Barry’s offense); Def.’s Sentencing Mem., R. 30 at 8 (arguing that Barry
cannot be responsible for losses occurring before his offense); Def.’s Supplemental Mem., R. 38 at 6-7 (same);
Govt’s Sentencing Mem., R. 29 at 14 (addressing factors that lessened Barry’s degree of comparative fault); Def.’s
Sentencing Mem., R. 30 at 5, 8 (emphasizing that Barry possessed only three of J_blonde’s images and did not
distribute them); Govt’s Supplemental Br., R. 37 at 4-5 (outlining factors for analyzing comparative fault); Def.’s
Supplemental Mem. R. 38 at 5 (same).
4
Barry suggests that his attorney should have presented more information about the previous 36 defendants
ordered to pay restitution to J_blonde—specifically, their offenses of conviction. Then, Barry argues, the court
could have more precisely compared Barry’s conduct of possessing three images to the other defendants’ conduct.
As the government points out, however, most of these defendants were convicted of more than one offense, making
it impossible to determine whether they paid restitution for possessing or distributing images of J_blonde.
Moreover, the offense of conviction does not indicate how many of J_blonde’s images were possessed or
distributed.
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No. 14-1653, United States v. Barry
appropriate figure to order for compensatory restitution.” Id. Therefore, the arguments Barry
faults his attorney for failing to raise at the restitution hearing were advanced by both parties and
duly considered by the district court in formulating restitution. Repeating these arguments would
have been cumulative of the positions already asserted by both parties and would have rehashed
issues already addressed in the district court’s order. There is not a reasonable probability that
repeating these arguments would have changed the restitution award. As a result, Barry cannot
establish the prejudice required for his ineffective assistance claims based on counsel’s supposed
failure to make these causation and comparative fault arguments.
As for the failure to make arguments for purposes of preserving them for appeal, this
failure did not prejudice Barry because he had already signed an appeal waiver. We noted above
that Barry’s appeal waiver remains effective despite the government’s limited waiver of Barry’s
appeal in this case. As a result, Barry was not prejudiced by his attorney’s failure to preserve
objections to the restitution order for appellate review. Even if Barry’s counsel had made such
objections, the appeal waiver would bar an appellate court from reviewing the restitution order
on the grounds that Barry advances here. Thus, Barry cannot establish ineffective assistance
based on his attorney’s failure to preserve arguments for appeal.
III.
For these reasons, we do not address Barry’s ineffective assistance of counsel claim as it
relates to counsel’s failure to oppose the additional $10,000 in “punitive restitution,” and we
AFFIRM the district court’s restitution order in all other respects.
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