     Case: 16-41095        Document: 00514301139        Page: 1   Date Filed: 01/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals

                                        No. 16-41095
                                                                                Fifth Circuit

                                                                              FILED
                                                                        January 9, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                Plaintiff - Appellee

v.

RICHARD WAYNE BARTON,

                Defendant - Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas


Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Richard Wayne Barton pleaded guilty, without a written agreement, to
a three-count indictment charging him with distributing, receiving, and pos-
sessing child pornography. 1 The district court imposed a total sentence of 235
months in prison, 10 years of supervised release, and a $300 special assess-
ment. Barton now challenges his convictions, sentences, and counsel’s perfor-
mance. We affirm his convictions and sentences and deny his ineffectiveness
claim without prejudice to collateral review.




      1   See 18 U.S.C. §§ 2252A(a)(2)(B), (a)(5)(B).
    Case: 16-41095    Document: 00514301139     Page: 2   Date Filed: 01/09/2018



                                 No. 16-41095
                                       I.
      In September 2014, a Houston-based task force alerted federal authori-
ties to a child pornography website, “WeeLocked.” Authorities traced the pay-
ments for the website’s domain to Barton. The investigation also uncovered
Barton’s connection to another child pornography site, “FuzionCom.”
      Barton admitted operating both sites. From December 2, 2013 to August
27, 2014, he ran FuzionCom, paying $200 a month until the domain host took
control of the site and locked Barton out. He also ran WeeLocked, which in
Barton’s words was a “test site” for FuzionCom and turned into a “child por-
nography trading site.” 2 Barton defrayed the costs of running the websites by
accepting “donations” from over 130 users. Barton acknowledged that those
users—indeed, any visitor to his websites—could “log-in, create an[] ac-
count, . . . chat, e-mail, [and] trade videos and pictures.” In his words, Barton
repeatedly “upgrade[d]” and “re-created” WeeLocked. Each time he did so, he
downloaded and re-uploaded all of the site’s content, including child pornogra-
phy. Barton also downloaded some of the illicit images himself, saving them to
his external hard drive. On that drive were 200 gigabytes (and tens of thou-
sands) of child pornography images and videos. Some of the illicit images had
been on Barton’s external drive for years.
      After a grand jury indicted Barton for distributing, receiving, and pos-
sessing child pornography, he pleaded guilty to each charge without a written
agreement. At rearraignment, the government recounted its evidence against
Barton and asked the district court to elicit during allocution whether Barton
understood that, by uploading the images back to the internet, he distributed




      2 Though Barton bought the WeeLocked domain as an “add on” the same day he
bought FuzionCom, the record is unclear when this second website was shut down.
                                       2
     Case: 16-41095        Document: 00514301139          Page: 3     Date Filed: 01/09/2018



                                        No. 16-41095
child pornography. So the court asked, “Do you understand, sir, that you dis-
tributed child pornography?” “Yes, sir,” Barton answered. The district court
found the plea supported by an independent basis in fact containing each es-
sential element of the three charged offenses.
       A probation officer then prepared a presentence report (PSR), which re-
capped, among other things, Barton’s interview with investigators. According
to the PSR, Barton admitted knowing that people used his website to trade and
upload child pornography.
       Using the 2015 edition of the advisory Sentencing Guidelines, the PSR
estimated Barton’s total offense level at 39. This accounted for a base level of
22, see U.S.S.G. § 2G2.2(a)(2), six enhancements—including a five-level in-
crease under § 2G2.2(b)(3)(B) 3—worth 20 levels, and a three-level markdown
for acceptance of responsibility. Barton’s offense level of 39, coupled with his
category II criminal history, yielded a Guidelines range of 292 to 365 months
in prison.
       Barton objected to the five-level increase under the 2015 version of
§ 2G2.2(b)(3)(B). As he saw it, the enhancement applied only to those who dis-
tributed child pornography in exchange for more child pornography. Thus, Bar-
ton posited, because he did not engage in a quid pro quo, “actual” exchange but
rather “just ma[de] something available on a website,” the Guideline did not
apply.
       The district court disagreed, overruled all objections, and adopted the
entire PSR. But the court also stated that, in crafting an “appropriate sen-
tence,” it would consider a proposed Guidelines amendment—Amendment
801—poised to take effect the next November. See U.S.S.G. app. C, amend. 801


       3 At the time, this provision required a five-level increase if the child pornography
offense involved “[d]istribution for the receipt, or expectation of receipt, of a thing of value,
but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B) (2015).
                                               3
    Case: 16-41095    Document: 00514301139     Page: 4   Date Filed: 01/09/2018



                                 No. 16-41095
(Supp. Nov. 1, 2016). The amendment, the government represented, would de-
crease Barton’s offense level by two because § 2G2.2(b)(2)’s vulnerable victim
enhancement would no longer apply. This two-level reduction, the parties
agreed, would knock down the sentencing range to 235 to 293 months’ impris-
onment. Despite raising Amendment 801, the parties did not address its im-
pact on § 2G2.2(b)(3)(B)—the five-level “thing of value” enhancement.
      The district court repeated that it was “considering [the Guidelines]
range as it would be in November as part of [the court’s] consideration in this
case as to the appropriate sentence.” The court declined to “depart” from the
then-current Guidelines, but would consider the post-amendment Guidelines
in “considering a variance.” After evaluating the 18 U.S.C. § 3553(a) factors
and listening to Barton’s allocution, the district court again stated that it
would “vary from the applicable current Guideline[s] range in assessing a sen-
tence.”
      Then the court announced its judgment: 235 months on Count 1 (distri-
bution), 235 months on Count 2 (receipt), and 120 months on Count 3 (posses-
sion), all running concurrently. Barton received a ten-year term of supervised
release on each count (also to run concurrently) and a $100 special assessment
for each of the three convictions.
      Barton objected that the sentence put “too much weight [on] the Sentenc-
ing Guidelines [and] the harm resulting from the offense,” and too little weight
on “Barton’s personal characteristics.” The district court overruled that objec-
tion, noting that it “underst[oo]d those arguments,” and “[t]hat’s why [the court
was] sentencing Mr. Barton . . . even below the current Advisory Guidelines
and at the very bottom of the Advisory Guidelines that would be in effect in
November.”
      Barton raises several issues in this timely appeal. None is availing.


                                       4
    Case: 16-41095     Document: 00514301139     Page: 5   Date Filed: 01/09/2018



                                  No. 16-41095
                                       II.
      Barton first asserts that his distribution conviction under 18 U.S.C.
§ 2252A(a)(2)(B) is not tethered to sufficient facts. Because he raises this argu-
ment for the first time on appeal, however, he must demonstrate plain error—
a difficult task, requiring him to show a clear and obvious error affecting his
substantial rights. United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). And even if he clears those hurdles, we correct the error only if it “seri-
ously affects the fairness, integrity or public reputation of judicial proceed-
ings.” United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012)
(en banc) (alterations and quotation marks omitted).
      Federal Rule of Criminal Procedure 11(b)(3) requires courts to “make
certain that the factual conduct admitted by the defendant is sufficient as a
matter of law to establish a violation of the statute to which he entered his
plea.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (alterations
omitted). On plain error review, we take a wide look, examining “the entire
record for facts supporting [the] guilty plea,” including those in the plea collo-
quy, PSR, and sentencing hearing. Id. at 317. Reasonably drawn inferences
from those facts are also fair game. Id.
      Here, Barton does not dispute that he downloaded child pornography or
made such images available on child-pornography-trading websites. Rather,
he maintains that “there is no evidence” that any pornography he uploaded
was “completely transferred to or downloaded by another person.”
      Section 2252A(a)(2)(B) does not define “distribute.” But we have held
that “downloading images and videos containing child pornography from a
peer-to-peer computer network and storing them in a shared folder accessible
to other users on the network” could “amount[] to distribution.” United States
v. Richardson, 713 F.3d 232, 236 (5th Cir. 2013). Distribution convictions have


                                        5
    Case: 16-41095     Document: 00514301139     Page: 6   Date Filed: 01/09/2018



                                  No. 16-41095
passed muster in this circuit even without direct evidence that someone down-
loaded an image the defendant uploaded. See United States v. Russell, 668 F.
App’x 104, 105 (5th Cir.) (mem.), cert. denied, 137 S. Ct. 399 (2016); United
States v. Roetcisoender, 792 F.3d 547, 552 (5th Cir. 2015); United States v. Cer-
vantes-Perez, 592 F. App’x 316 (5th Cir. 2015) (mem.). This approach recog-
nizes that “[m]ore often than not the government lacks [direct] evidence [of
distribution] because child pornography is not something people tend to down-
load, possess, or distribute in the company of others.” United States v. Woerner,
709 F.3d 527, 537 (5th Cir. 2013).
      Were the government required to prove that users downloaded one of
Barton’s shared images, however, the evidence here permitted the district
court fairly to infer such events. Cf. Trejo, 610 F.3d at 317. Take, for instance,
Barton’s signed admission that he distributed child pornography by adminis-
tering a child pornography website. Or his similar oral confession in open
court. Or his confession that he knew that the websites’ users—some hundred-
plus persons who gave Barton “donations” to run the pornography-trading
sites—viewed, downloaded, and exchanged pornographic images that Barton
repeatedly uploaded.
      We see no error, let alone a plain one.
                                       III.
      Barton’s second argument fares no better. He asserts that his convictions
and sentences for receiving and possessing child pornography are multiplic-
itous. Barton did not object to the indictment below, so we review only the va-
lidity of his sentences, not his convictions. See United States v. Njoku, 737 F.3d
55, 67 (5th Cir. 2013); Fed. R. Crim. P. 12(b)(3)(B)(ii). We may examine Bar-
ton’s sentences for multiplicity—even if they run concurrently for identical pe-
riods—because the district court imposed a mandatory special assessment on


                                        6
     Case: 16-41095      Document: 00514301139         Page: 7    Date Filed: 01/09/2018



                                      No. 16-41095
each count. E.g., United States v. Marroquin, 885 F.2d 1240, 1245–46 (5th Cir.
1989).
       The Double Jeopardy Clause’s multiplicity doctrine “prohibits the Gov-
ernment from charging a single offense in several counts and is intended to
prevent multiple punishments for the same act.” United States v. Kimbrough,
69 F.3d 723, 729 (5th Cir. 1995). “Convictions are multiplicitous when the pros-
ecution charges a single offense in more than one count.” United States v. Bu-
chanan, 485 F.3d 274, 278 (5th Cir. 2007) (quotation marks omitted). One way
this happens is if “a defendant is charged with violating two different statutes,
one of which is arguably the lesser included offense of the other.” Woerner, 709
F.3d at 539. The relevant test here is “whether conviction under each statutory
provision requires proof of an additional fact which the other does not.” Bu-
chanan, 485 F.3d at 278 (quotation marks omitted); see also Blockburger v.
United States, 284 U.S. 299 (1932).
       Barton posits that (1) possessing is a lesser-included offense of receiving
child pornography because he could not “receive [it] without also possessing it,”
and (2) his punishments are multiplicitous because he received and possessed
the same images. But even if possession is a lesser-included offense, Barton’s
jeopardy claim founders because he pleaded guilty to both crimes. “[A] defend-
ant who pleads guilty to criminal charges may assert a claim of multiple pun-
ishments in violation of the Double Jeopardy Clause only if the violation is
apparent on the face of the indictment or record.” United States v. Davila, 53
F.3d 1280, 1995 WL 295851, at *4 (5th Cir. 1995) (quotation marks omitted) 4;
see also United States v. Broce, 488 U.S. 563, 569 (1989). That is a standard
Barton does not meet.



       4 Davila, a 1995 case, binds us even though it issued as an unpublished decision. See
5th Cir. R. 47.5.3.
                                             7
    Case: 16-41095     Document: 00514301139      Page: 8    Date Filed: 01/09/2018



                                  No. 16-41095
      Though he may be right that some of the materials he received and pos-
sessed were indeed the exact same files, a complete overlap is not facially ap-
parent from either the indictment or record. See Davila, 1995 WL 295851, at
*4. The former charged disparate time periods, and the latter confirms that
Barton received and possessed myriad different images from running two dis-
tinct child pornography websites.
      We find no multiplicity problem.
                                        IV.
      Nor did the district court reversibly err in calculating Barton’s Guide-
lines range. The district court, Barton urges, procedurally erred by disregard-
ing a pending Guidelines amendment and applying a five-level enhancement
under the 2015 version of § 2G2.2(b)(3)(B). Barton preserved this challenge
insofar as he argued below that the Guideline did not apply to mere file shar-
ing. Our review, then, is for abuse of discretion. United States v. Scott, 821 F.3d
562, 567 (5th Cir. 2016). We “review the district court’s interpretation of the
Guidelines de novo, and its factual findings for clear error.” Id. To be sure,
miscalculating the Guidelines range is a “significant procedural error,” but “not
every procedural error will require outright reversal”—it is harmless if it “did
not affect the district court’s selection of the sentence imposed.” United States
v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009) (quotation marks
omitted).
      Barton does not assert that the district court misinterpreted the 2015
Guidelines under our precedent. The applicable version of § 2G2.2(b)(3)(B)
called for the five-level increase if the child-pornography offense involved
“[d]istribution for the receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B) (2015). And in United States
v. Groce we read that Guideline to include a defendant’s knowing uploading of
pornography to file sharing programs. 784 F.3d 291, 294–95 (5th Cir. 2015).
                                         8
     Case: 16-41095        Document: 00514301139          Page: 9     Date Filed: 01/09/2018



                                        No. 16-41095
Barton instead contends that the district court’s decision flouts Amendment
801—a supposedly “clarifying” amendment to § 2G2.2(b)(3)(B) and its commen-
tary—that took effect three months after his sentencing. 5 We are unpersuaded
because a district court should apply the Guidelines in effect at sentencing, see
18 U.S.C. § 3553(a)(4)(A)(ii), unless doing so “results in a harsher penalty than
would application of the Guidelines in effect when the offense was committed,”
United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007).
       Barton did not contend in his opening brief that Amendment 801 is ret-
roactive, nor did he address any factors relevant to the retroactivity inquiry. 6
(Neither did he file a reply brief.) He therefore waived any such argument.
See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010). 7
       Barton’s sentences were procedurally reasonable.
                                               V.
       The same is true for the sentences’ substance. Barton argues that the
district court imposed a substantively unreasonable sentence by varying below


       5  Amendment 801 explains that the five-level enhancement should apply where “the
defendant agreed to an exchange with another person under which the defendant knowingly
distributed to that other person for the specific purpose of obtaining something of valuable
consideration from that other person.” U.S.S.G. app. C, amend. 801, at 145 (emphases added).
The commentary also disapproves of our Groce decision. See id.
        6 On appeal, a defendant may urge us to “consider amendments to the Guidelines that

were not effective at the time of the commission of the offense or at the time of sentencing if
they are intended only to clarify, rather than effect substantive changes.” United States v.
Sanchez-Villarreal, 857 F.3d 714, 719 (5th Cir. 2017) (quotation marks omitted). A retroac-
tive amendment is “not controlling”; it is instead “evidence of the Sentencing Commission’s
intent behind the Guideline at issue.” Id. at 719–20 (alterations and quotation marks omit-
ted). Determining whether a Guidelines amendment is clarifying (retroactive) or substantive
(not retroactive) implicates several, non-determinative factors—none of which Barton
briefed. See, e.g., id.; United States v. Huff, 370 F.3d 454, 465–67 (5th Cir. 2004).
        7 The circuit courts that have addressed Amendment 801’s retroactivity have arrived

at different answers. Compare United States v. Roberty, 689 F. App’x 492, 493 (9th Cir. 2017)
(holding, in view of the government’s concession, that Amendment 801 is retroactive), with
United States v. Aman, 697 F. App’x 939, 940 (10th Cir. 2017) (stating that Amendment 801
is not retroactive). See also United States v. Hansen, 859 F.3d 576, 578 (8th Cir. 2017) (listing
arguments on both sides but resolving the predicate sentencing challenge on harmlessness
grounds).
                                               9
    Case: 16-41095       Document: 00514301139        Page: 10     Date Filed: 01/09/2018



                                      No. 16-41095
the applicable Guidelines range. He concedes, however, that this is an untested
argument raised only on appeal. So we must look for plain error. See United
States v. Cancino-Trinidad, 710 F.3d 601, 605 (5th Cir. 2013). 8 We see none.
       Barton’s basic point is that the district court should have given him an
even greater downward variance than the one he received. He first notes that
the parties (mistakenly) believed that the post-amendment Guidelines would
have put Barton’s range at 235 to 293 months. Then he underscores the district
court’s intent to “sentenc[e] Mr. Barton below . . . the current Advisory Guide-
lines and at the very bottom of the Advisory Guidelines that would be in effect”
after Amendment 801. The error, in Barton’s view, is that the correct range
after applying the amendment should have been 135 to 168 months. Thus, he
argues, his sentence is substantively unreasonable because he got more than
135 months in prison.
       On our facts, it follows that because the district court did not err proce-
durally, it did not err substantively—especially on plain-error review of a var-
iant sentence. The district court considered the pending amendment as part of
a “variance,” not a “departure,” from the Guidelines. Those semantics matter:
a “departure” refers only to sentences imposed under the advisory Guidelines
framework, whereas a “variance” rests outside the Guidelines apparatus and
stems instead from 18 U.S.C. § 3553(a)’s sentencing factors. See Gomez v. U.S.
Parole Comm’n, 829 F.3d 398, 402 (5th Cir.), cert. denied, 137 S. Ct. 528 (2016).
By varying instead of departing, the district court confirmed its understanding
that the then-applicable Guidelines—that is, the 2015 Guideline without
Amendment 801—yielded a range of 292 to 365 months in prison.




       8Barton’s counsel objected at sentencing that the court put “too much weight [on] the
Sentencing Guidelines [and] the harm resulting from the offense,” and too little weight on
“Barton’s personal characteristics.” He does not advance those objections here.
                                            10
    Case: 16-41095    Document: 00514301139        Page: 11   Date Filed: 01/09/2018



                                  No. 16-41095
      That is important because we presume that within-Guidelines sentences
are substantively reasonable. See United States v. Rodriguez-De la Fuente, 842
F.3d 371, 374 (5th Cir. 2016). This presumption would have attached to a sen-
tence between 292 to 365 months. But the court imposed less time—a below-
Guidelines term of 235 months. Below-Guidelines sentences like this one are
presumed substantively reasonable, as well. See United States v. Murray, 648
F.3d 251, 257–58 (5th Cir. 2011) (citing United States v. Goodman, 307 F. App’x
811, 812 (5th Cir. 2009)). And in asserting that this downward variance was
substantively unreasonable, Barton does not address the factors germane to
defeating the presumption. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009) (noting that the presumption of reasonableness “is rebutted only
upon a showing that the sentence does not account for a factor that should
receive significant weight, . . . gives significant weight to an irrelevant or im-
proper factor, or . . . represents a clear error of judgment in balancing sentenc-
ing factors”).
      We therefore find no reversible error.
                                       VI.
      The last issue Barton asks us to consider is whether his sentencing coun-
sel provided ineffective assistance. This is a matter we need not reach here.
Sixth Amendment ineffectiveness claims “should not be litigated on direct ap-
peal, unless they were previously presented to the trial court” or the record is
adequate for the appellate court “fairly [to] evaluate the merits” of that claim.
United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (quoting United States
v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007)). Those are rare cases. Barton’s is
not among them. We therefore deny his Sixth Amendment claim without prej-
udice to collateral review. Cf. id. (taking the same approach).
                                  *     *      *
      AFFIRMED.
                                       11
