                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
No. 09-6056
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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United States v. Hardin

       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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United States v. Hardin

“[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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United States v. Hardin

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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United States v. Hardin

       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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United States v. Hardin

        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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No. 09-6056
United States v. Hardin

       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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No. 09-6056
United States v. Hardin

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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United States v. Hardin

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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No. 09-6056
United States v. Hardin

        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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No. 09-6056
United States v. Hardin

       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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United States v. Hardin

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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