                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-4104
                                     ____________

                            UNITED STATES OF AMERICA

                                            v.

                                    KELLY HARDY,

                                                      Appellant
                                     ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 09-cr-00151)
                      District Judge: Honorable Nora B. Fischer
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 8, 2011

       Before: HARDIMAN, BARRY, Circuit Judges and SLOMSKY *, District Judge

                               (Filed: December 8, 2011)
                                     ____________

                              OPINION OF THE COURT
                                   ____________




   *
      The Honorable Joel H. Slomsky, District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
HARDIMAN, Circuit Judge.

       Kelly Hardy appeals his judgment of sentence after he pleaded guilty to three child

pornography offenses. We will affirm.

                                              I

       Because we write for the parties, who are well acquainted with the case, we

recount only the essential facts and procedural history. On April 16, 2009, law

enforcement officers executed a search of Hardy’s home and seized numerous “pairs of

soiled young girls’ underwear” and a large amount of electronic equipment, “including 14

desktop computers, three laptop computers, 60 hard drives, over 4,000 compact discs and

digital versatile discs, and over 3,000 floppy discs, eight thumb drives, 36 zip discs, two

camcorders, one Palm Pilot, one digital camera, one 35-millimeter camera, two webcams,

one cellphone, and over 800 video tapes.” Forensic analysis of the computers revealed

thousands of images of child pornography, many of which Hardy had received and

exchanged electronically. The images depicted pre-pubescent children of various ages

engaged in sexual acts. Officers also accessed Hardy’s sexually explicit internet chats

with another man, with whom Hardy discussed “breaking into homes, raping children,

killing them, and making their parents watch.”

       During his interview, Hardy admitted to sending and receiving child pornography

through the internet. Hardy also disclosed that he had engaged in a sexual relationship

with a fifteen-year-old girl named Jessica when he was twenty-two or twenty-three. The

                                              2
two had numerous sexual encounters until Jessica turned eighteen. Hardy also admitted

to posing as a teenager during online chats with a minor in 2004 and then arranging to

meet her at a nearby store. Hardy stated that in 2007, he met a different minor at a county

fair after conversing with her online. He also admitted to surreptitiously photographing a

neighborhood child for sexual gratification.

       Hardy pleaded guilty to transportation of child pornography, in violation of 18

U.S.C. § 2252(a)(1) (Count One); receipt of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2) (Count Two); and possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B) (Count Three). During his sentencing hearing, Hardy called Dr. Jolie

Brams to testify about his psychological history and “deeply ingrained sexual urges.”

Because Hardy’s offense level was 42 and he had no criminal history points, his

applicable Guidelines range was 360 months to life. After rejecting his request for a

downward variance, the Court sentenced Hardy to 360 months in prison, consisting of

240 months for Count One and 120 months for Count Two, to run consecutively. 1

                                               II

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review

the procedural and substantive reasonableness of Hardy’s sentence for abuse of

discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir. 2010). A sentence is


       1
        Because Count Three merged with Count Two for sentencing purposes, no
separate penalty was imposed.

                                               3
procedurally reasonable if “the district court committed no significant procedural error,

such as 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.”

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (quoting Gall v. United States,

552 U.S. 38, 51 (2007)). We “conclude there has been an abuse of discretion . . . if the

district court’s [factual] findings are clearly erroneous,” but “do not defer to a district

court when the asserted procedural error is purely legal.” United States v. Wise, 515 F.3d

207, 217 (3d Cir. 2008). Where “the district court’s sentence is procedurally sound, we

will affirm it unless no reasonable sentencing court would have imposed the same

sentence on that particular defendant for the reasons the district court provided.” Tomko,

562 F.3d at 568.

       Hardy argues that the five-level enhancement he received under USSG

§ 2G2.2(b)(3)(B) was predicated on the erroneous factual finding that he distributed

pornographic images of children for a “thing of value,” namely, other such images.

Although Hardy contests the applicability of the five-level enhancement, he “does not

dispute that he distributed images of child pornography to a Mississippi man or that he

received images of child pornography.” Hardy contends, however, that his “distribution

was gratuitous” and claims that there was no evidence of a quid pro quo or intent to

receive other images in return. As the Guidelines clarify, distribution for purposes of

                                               4
USSG § 2G2.2(b)(3)(B) includes “bartering or other in-kind transaction, that is conducted

for a thing of value, but not for profit.” USSG § 2G2.2 cmt. n.1. The presentence

investigation report indicates that Hardy made such exchanges. Because the conclusion

that Hardy made in-kind exchanges of child pornography finds support in the record, we

see no clear error in the District Court’s application of the five-level enhancement. 2

       Hardy next argues that the District Court imposed a procedurally unreasonable

sentence because, acting without the benefit of United States v. Grober, 624 F.3d 592 (3d

Cir. 2010), it was not aware of its authority to grant variances on the basis of a policy

disagreement with the Guidelines. We disagree. The District Court “recognize[d its]

authority to vary based on policy disagreements with the sentencing guidelines” and

“decline[d] to do so in this case.” Our decision in Grober does not require district courts

to disagree with USSG § 2G2.2 as a matter of policy. Noting the nature of Hardy’s

offense and the amount of hardware and images involved, the District Court determined

that “the enhancements put into play by Congress . . . should [not] be overridden by [the]

Court in this case.” Because the Court treated the Guidelines as “merely advisory,” and

meaningfully considered the relevant sentencing factors, we cannot conclude that Hardy’s

sentence was procedurally unreasonable.


       2
         Hardy notes that, at the time of his plea, the parties anticipated an offense level of
37, which included a two- rather than five-level enhancement for distribution. The
District Court, however, was entitled to calculate otherwise and accepted the probation
officer’s recommendation of a five-level enhancement.

                                              5
       Finally, Hardy contends that his sentence was substantively unreasonable. This

argument is also unpersuasive. The District Court arrived at the term of 360 months

imprisonment after determining that Hardy’s “escalating violent desires and the various

past conduct and contact and attempts to initiate contact with minors” made recidivism “a

real risk.” The Court also noted that Dr. Brams “could not guarantee . . . that [Hardy]

would be treatable.” After a careful review of the record, it is impossible to conclude that

no reasonable sentencing court would have imposed the same sentence on Hardy for the

reasons provided by the District Court.

       For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




                                             6
