                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0575n.06

                                         No. 16-6388                               FILED
                                                                              Oct 10, 2017
                                                                         DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )      ON APPEAL FROM THE
v.                                                     )      UNITED STATES DISTRICT
                                                       )      COURT FOR THE MIDDLE
CHRISTOPHER N. BONICK,                                 )      DISTRICT OF TENNESSEE
                                                       )
       Defendant-Appellant.                            )                 OPINION
                                                       )
                                                       )



       BEFORE:        KEITH, MCKEAGUE, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Christopher Bonick was convicted by a jury of

attempting to entice a minor to engage in criminal sexual activity, in violation of 18 U.S.C.

§ 2422(b), and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and

2252A(b). He was sentenced to 240 months for Count One and 120 months for Count Two, to

run concurrently. He now raises an ineffective-assistance-of-counsel claim, and an as-applied

Fifth and Sixth Amendment challenge to his sentence. For the following reasons, we defer

review of the ineffectiveness claim and AFFIRM Bonick’s sentence.

                                  I.      BACKGROUND

       Between July 2010 and July 2011, Christopher Bonick communicated online with

“lilmaddygrl”—an undercover law enforcement officer pretending to be a 13-year-old girl.

Bonick was 25 when the chats began. These conversations turned sexual, and Bonick sent and
No. 16-6388, United States v. Bonick


requested explicit photos, and attempted to talk “lilmaddygrl” into meeting in real life for the

purpose of sex. In doing so, he claimed to have previously met and had sex with a 15-year-old

girl. The undercover officer on the other end of the chat used the site’s archive feature to record

all of their communications. After identifying Bonick, law enforcement officers obtained and

executed a search warrant of his home, seizing his phone and computers.

       During the search, Bonick spoke voluntarily with the officer, and admitted to engaging in

sexually explicit online conversations with the undercover officer and with other underage girls,

and to keeping pornographic photographs of minors—that he received during these chats, and in

“trades” with other men on the internet—on his computer. Bonick told the officer which

websites he used and provided his email accounts and passwords. He also admitted that a year

and a half earlier, he had sex with a 15-year-old girl he met on the internet. Bonick was

interviewed by law enforcement two additional times and continued to answer their questions

and provide information.

       Officers were able to confirm Bonick’s admissions through forensic analysis of his

computers and online accounts, finding a total of 77 images of child pornography and records of

his sexual chats with minors, including sending and receiving sexually explicit photos and

planning to meet in person for sex. In his interviews, Bonick told officers that he was trying his

best to be honest with them—in part because he hoped it would help him with his case—and that

he wanted to take responsibility for his actions and do the right thing. However, after his second

law enforcement interview, Bonick left the state. He was later arrested in Arkansas.

       Bonick was indicted on two counts: 1) attempting to entice a minor to engage in criminal

sexual activity, in violation of 18 U.S.C. § 2422(b); and 2) possession of child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B) and 2252A(b). His trial counsel and the Government



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No. 16-6388, United States v. Bonick


attempted to negotiate a plea, but were ultimately unable to come to an agreement, apparently

due to the Government’s insistence that Bonick admit to facts beyond those alleged in the

indictment. At trial, the Government introduced as evidence the chat logs from the undercover

officer, pornographic images found on Bonick’s computer, evidence of Bonick’s internet use and

online communications with other minors, and Bonick’s own admissions to the officer

interviewing him during the execution of the search warrant. Bonick presented no evidence, and

the jury returned a guilty verdict on both counts after deliberating for approximately 90 minutes.

           In preparing the Presentence Report, the probation officer calculated Bonick’s offense

level on Count One (attempted enticement of a minor) as 301 and his offense level on Count Two

(possession of child pornography) as 39.2 At the sentencing hearing the court largely adopted the

guideline calculations in the Presentence Report, with two exceptions.                              First, at the

Government’s urging and over Bonick’s objection, the court raised the total offense level on

Count One from 30 to 41 based on uncharged relevant conduct—specifically that Bonick met

and engaged in sex with a minor in Tennessee. Second, the court sustained Bonick’s objection to

the two-level prepubescent image enhancement, finding that it was too vague. Although the

court sustained these objections to the Presentence Report, Bonick’s range under the Guidelines

remained the same. The Government now points out that the district court appears to have

subtracted the two levels from the total offense level on Count One rather than Count Two,

ultimately benefiting Bonick. Since no objection was raised to this error at sentencing or by the

parties on appeal, we decline to address it.



1
    Base offense level 28 plus a two-level enhancement for use of a computer.
2
  Base offense level 18 plus the following enhancements: plus two (images involved prepubescent minor(s)), plus
five (distribution without pecuniary gain), plus five (pattern of exploitation or sexual abuse of minor(s)), plus two
(use of a computer), plus two (greater than 10, but fewer than 150 images), plus five (pattern of activity involving
prohibited sexual conduct with minors).

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No. 16-6388, United States v. Bonick


       Bonick had no criminal record, placing him in a criminal history category of I. With a

total offense level of 39 and a criminal history category of I, Bonick’s Guidelines range was

262 to 327 months in prison. In imposing the sentence, the court considered Bonick’s military

service, lack of criminal history, and pretrial detention in a county jail the court described as “our

worst facility.” The court also described the offense conduct as “extremely serious abhorrent

conduct.” Ultimately, the court granted a small downward variance from what it described as the

“Draconian” child pornography guidelines, sentencing Bonick to 240 months in prison on Count

One and 120 months on Count Two, to run concurrently, followed by 30 years of supervision.

When the court asked if he had any not-previously-raised objections to the sentence, Bonick’s

counsel responded in the negative. The Government did not object to the slight downward

variance.

       Bonick now appeals to this court, arguing that his trial counsel provided ineffective

assistance and challenging the constitutionality of his sentence.

                                        II.     ANALYSIS

       Bonick presents two issues for appeal: 1) whether trial counsel rendered ineffective

assistance by failing to understand Bonick’s right to plead guilty to the indictment, without a plea

agreement, and as a result, failed to adequately inform Bonick of his options; and 2) whether

Bonick’s 240-month sentence violates his Fifth and Sixth Amendment rights because it would be

struck down as substantively unreasonable but for facts found by the district court by a

preponderance of the evidence at sentencing.

       A.      Ineffective-Assistance-of-Counsel Claim

       Bonick argues that his trial counsel provided ineffective assistance, thereby violating his

Sixth Amendment right to counsel. For this claim, a defendant must show both deficient

performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Bonick
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No. 16-6388, United States v. Bonick


argues that his trial counsel “fell below an objective standard of reasonableness” by failing to

appreciate and advise Bonick of his plea options, specifically his right to plead guilty to the

charges in the indictment without a plea agreement, Strickland, 466 U.S. at 688, and that

counsel’s deficient performance prejudiced him because there is a reasonable probability that

Bonick would have pled guilty without a plea agreement if he had been aware of this option, and

that his resulting sentence “would have been less severe” than the sentence that was imposed,

Lafler v. Cooper, 566 U.S. 156, 164 (2012). The Government does not meaningfully dispute the

merits of Bonick’s argument, but urges this court to decline to reach the ineffective-assistance-

of-counsel claim at this time because the record is inadequate to permit review on the merits.

       We generally review a claim of ineffective assistance in post-conviction proceedings,

rather than on direct appeal, because the record before the court on direct appeal “is usually

insufficient to permit an adequate review of such a claim.” United States v. Gardner, 417 F.3d

541, 545 (6th Cir. 2005). “This rule stems from the fact that a finding of prejudice is a

prerequisite to a claim for ineffective assistance of counsel and appellate courts are not equipped

to resolve factual issues.” United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997) (citation

omitted). We have therefore counseled that ineffectiveness claims “are more properly raised in a

postconviction proceeding brought pursuant to 28 U.S.C. § 2255.” Gardner, 417 F.3d at 545;

see also Massaro v. United States, 538 U.S. 500, 504–05 (2003) (noting that post-conviction

proceedings are “preferable to direct appeal for deciding claims of ineffective-assistance” in part

because “[t]he evidence introduced at trial . . . will be devoted to issues of guilt or innocence, and

the resulting record in many cases will not disclose the facts necessary to decide either prong of

the Strickland analysis.”).    We do, however, recognize an exception to this general rule,

permitting review “where the record is adequately developed to allow the court to assess the



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No. 16-6388, United States v. Bonick


merits of the claim.” United States v. Watkins, 509 F.3d 277, 283 (6th Cir. 2007); see also

United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000); United States v. Shabazz, 263 F.3d 603,

612 (6th Cir. 2001).

        We have not recognized a bright line separating sufficiently and insufficiently developed

records, and we do not do so today. Determining whether a record is adequately developed

requires not simply a review of the record itself, but a review of the record in light of the nature

and scope of the ineffectiveness claim. When the claim is narrow, the record is more likely to be

sufficient.   In Watkins, this court agreed with both parties that the record was adequately

developed “[b]ased on the narrow focus” of the defendant’s claim that trial counsel was

ineffective in failing to argue that the district court misapplied a specific provision of the

Sentencing Guidelines. 509 F.3d at 283. Similarly, when the record is particularly robust—

especially regarding the facts at issue in the ineffectiveness claim—we are more likely to be able

to review the claim on the merits. See, e.g., Hall, 200 F.3d at 965 (“In this case, the district court

addressed the issue of dual representation several times, including at a hearing requested by the

prosecutor. Because we are addressing [the defendant’s] Sixth Amendment claim based on

ineffective assistance resulting from dual representation, the record is complete and allows us to

review this issue de novo.”).

        Of course, the nature of a narrow claim may still be such that it cannot be meaningfully

reviewed on the merits without additional factual development, and a record may be

insufficiently developed in a given case such that review of even a narrowly drawn claim is not

possible. In Gardner, this court declined to reach the merits of the defendant’s claim that trial

counsel had failed to ensure that he understood the nature and consequences of his guilty plea

because “the alleged ineffectiveness of [the defendant’s] counsel is not apparent. The record



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No. 16-6388, United States v. Bonick


contains no evidence regarding what advice, if any, his counsel provided . . . .” 417 F.3d at 545.

See also United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996) (“Even if we assume that

[the defendant’s] attorney was inadequate, we cannot determine from the evidence in the record

whether [the defendant] suffered any prejudice. . . . [W]e cannot decide, based on the current

record, whether the result of the sentencing proceeding would have been different if [the

defendant’s] counsel had raised the issues [the defendant] identifies here.”).

       Bonick’s ineffectiveness claim is limited to one alleged violation: trial counsel’s failure

to understand that Bonick could have pled guilty to the indictment without a plea agreement and

his resulting failure to communicate this option to Bonick. To review this claim for deficient

performance—the first of Strickland’s two prongs—we must be able to evaluate whether counsel

did, in fact, fail to appreciate, or, at a minimum, fail to inform his client of, this option. The

record indicates that trial counsel and the Government attempted to negotiate a plea, but

ultimately failed to come to an agreement. The Government apparently insisted that Bonick

admit to facts outside the scope of the instant charges, which his counsel advised would leave

him dangerously exposed to additional charges by the Government or prosecutors in other

jurisdictions. Bonick argues that his attorney had therefore concluded that a trial was inevitable

because he was unaware of Bonick’s third option—pleading guilty to the indictment without an

agreement. In support of this assertion, Bonick points to the defense sentencing memorandum,

in which trial counsel writes:      “When the Government requires a Defendant to ‘accept

responsibility’ for matters beyond the scope of the ‘offense’ charged then it compels a Defendant

to challenge the allegations to restrict the scope of the inquiry by the Government.” Bonick also

notes counsel’s conclusion that “because the Government refused to consider agreeing not to




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No. 16-6388, United States v. Bonick


pursue any further allegations and/or charges against the Defendant any agreement to resolve the

matter amicably was not possible and substantive discussions to that end were not an option.”

       We review these statements in the context presented—counsel’s response to the

Government’s claim that Bonick was uncooperative and failed to accept responsibility—that he

“failed to take responsibility for his criminal activity, and [has] shown no remorse.” Counsel’s

statements appear to be an attempt to explain, for sentencing purposes, his client’s decision to go

to trial. Though they lend some support to Bonick’s claim, they do not do so with sufficient

clarity to enable us to determine, based solely on the record before us, whether Bonick’s attorney

did in fact fail to appreciate that his client could plead guilty to the charges in the indictment

absent an agreement with the Government.

       The Government, moreover, asserts that there is “significant, documented communication

between the parties that is not in the record at this time” and that “the parties . . . spent a

significant amount of time in plea negotiations that included the option of the defendant

receiving the mandatory minimum sentence with no further prosecution in the Middle District of

Tennessee.” The existence of documented communications of this sort would not necessarily

undermine Bonick’s claim that trial counsel failed to appreciate his ability to plead without an

agreement, but suggests that deferring this determination to post-conviction proceedings would

be preferable as it would enable both parties to present additional evidence supporting or

disproving counsel’s deficient performance and any resulting prejudice.

       Furthermore, to evaluate Strickland’s prejudice prong, we need to assess whether there is

a reasonable likelihood that Bonick would have elected to plead guilty without a plea agreement

had he known about this option, and whether there is a reasonable probability that, had he done

so, he would have received a “less severe” sentence. Lafler, 566 U.S. at 164. Even assuming



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No. 16-6388, United States v. Bonick


there is a reasonable probability that Bonick’s sentence would have been less severe had he pled

guilty, the record is insufficiently developed to allow us to determine whether Bonick knew

about his option to plead without an agreement and whether there is a reasonable probability that

he would have pursued it if he had known.

        In short, the record does “not disclose the facts necessary to decide either prong of the

Strickland analysis.”        Massaro, 538 U.S. at 505.               We therefore defer review of the

ineffectiveness claim to post-conviction proceedings.

        B.       As-Applied Fifth and Sixth Amendment Challenge to Sentence

        Bonick also raises an as-applied constitutional challenge to his sentence, arguing that,

because his 240-month sentence would be unreasonable but for facts found by the district court

under a preponderance of the evidence standard at sentencing, his Fifth Amendment Due Process

and Sixth Amendment jury trial rights have been violated.

                 1.       Standard of Review

        We review preserved constitutional challenges to criminal sentences de novo, see United

States v. Beverly, 369 F.3d 516, 536 (6th Cir. 2004), however, when the challenge is raised for

the first time on appeal, we generally review it under the plain-error standard, see, e.g., United

States v. Yancy, 725 F.3d 596, 600 (6th Cir. 2013). Upon review of the record, we find that

Bonick failed to preserve his as-applied Fifth and Sixth Amendment challenge.3 We therefore

review the claims under the plain-error standard.

        To demonstrate plain error, Bonick must show: “(1) error (2) that ‘was obvious or clear,’

(3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or


3
  It is true that Bonick raised objections in his sentencing memorandum and at the sentencing hearing; however, his
objections challenge the sufficiency of the evidence proffered by the Government and do not raise challenges to
either the preponderance of the evidence standard, or the fact that the findings supporting the enhancements are
made by a court instead of a jury.

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No. 16-6388, United States v. Bonick


public reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th

Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

Because any error that Bonick can show is not “obvious or clear” under the law, we need not

address the question of whether the court erred in the first place. See id. at 387.

               2.      As-Applied Sixth Amendment Claim

       Bonick argues that his sentence violates his Sixth Amendment right to trial by jury

because it would be struck down as substantively unreasonable but for court-found facts. The

Sixth Amendment prohibits the use of judicial fact-finding to increase a defendant’s statutory

maximum or mandatory minimum sentence. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

(“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.”); Alleyne v. United States,

133 S. Ct. 2151, 2155 (2013) (“Mandatory minimum sentences increase the penalty for a crime.

It follows, then, that any fact that increases the mandatory minimum is an ‘element’ that must be

submitted to the jury.”). Judicial fact-finding that increases a mandatory guideline sentence is

also unconstitutional. See United States v. Booker, 543 U.S. 220, 243–45 (2005); United States

v. White, 551 F.3d 381, 384 (6th Cir. 2008) (en banc) (“Had the district court in this case relied

on acquitted conduct in determining the range under a mandatory guidelines regime, that

sentence would have violated the Sixth Amendment as interpreted in Booker.”).

       But as our caselaw makes clear, the use of judicial fact-finding in the post-Booker

advisory guideline sentencing scheme is not prohibited by the Sixth Amendment, assuming the

resulting sentence does not exceed the statutory maximum. White, 551 F.3d at 384 (“In the post-

Booker world, the relevant statutory ceiling is no longer the Guidelines range but the maximum

penalty authorized by the United States Code.”). The fact that the Sixth Amendment does not

prevent a sentencing court from making factual findings or relying on those findings to impose a
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No. 16-6388, United States v. Bonick


sentence below the statutory maximum does not necessarily dictate that such a practice will

always result in a constitutional sentence.               “[T]here will inevitably be some constitutional

violations under a system of substantive reasonableness review, because there will be some

sentences that will be upheld as reasonable only because of the existence of judge-found facts.”

Rita v. United States, 551 U.S. 338, 374 (2007) (Scalia, J., concurring). The Supreme Court has

“not rule[d] out as-applied Sixth Amendment challenges to sentences that would not have been

upheld as reasonable on the facts encompassed by the jury verdict or guilty plea,” id. at 375, so

“[t]he door therefore remains open for a defendant to demonstrate that his sentence, whether

inside or outside the advisory Guidelines range, would not have been upheld but for the existence

of a fact found by the sentencing judge and not by the jury,” Gall v. United States, 552 U.S. 38,

60 (2007) (Scalia, J., concurring); see also United States v. Conatser, 514 F.3d 508, 530–31 (6th

Cir. 2008) (Moore, J., concurring).4

         Despite the language in Justice Scalia’s concurrences, neither a majority of the Supreme

Court nor a majority of this court has recognized an as-applied Sixth Amendment challenge.

Therefore, even if we were to find an error, it could not be said to be “obvious or clear,” Vonner,

516 F.3d at 386, and Bonick’s claim must fail.

                  3.       As-Applied Fifth Amendment Claim

         Bonick similarly argues that his sentence violates his Fifth Amendment Due Process

rights because it would be substantively unreasonable but for facts determined using a

preponderance of the evidence standard and without traditional trial procedures. This court has

4
  This court concluded in White that “[s]o long as the defendant receives a sentence at or below the statutory ceiling
set by the jury’s verdict, the district court does not abridge the defendant’s right to a jury trial by looking to other
facts . . . when selecting a sentence within that statutory range.” 551 F.3d at 385. Despite White’s strong language,
it did not squarely address the as-applied challenge advanced by Bonick. See White, 551 F.3d at 386–87 (Merritt, J.,
dissenting) (“[T]he reasonableness—and thus legality—of [the defendant’s] sentence depends entirely on the
presence of facts that were found by a judge, not a jury, in contravention of the Sixth Amendment. . . . My
colleagues [in the majority] do not discuss any of these issues in their opinion . . . .”). But because any error would
not be plain, we need not resolve this issue.

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No. 16-6388, United States v. Bonick


held that judicial fact-finding in sentencing proceedings using a preponderance of the evidence

standard does not violate Fifth Amendment Due Process rights, see United States v. Gates,

461 F.3d 703, 707–08 (6th Cir. 2006); United States v. Mayberry, 540 F.3d 506, 516–17 (6th Cir.

2008), but we have not directly considered the as-applied challenge advanced here. Much like

his Sixth Amendment claim, Bonick’s Fifth Amendment challenge fails because, under our

caselaw, any error could not possibly be plain.

                                    III.    CONCLUSION

       For the reasons explained above, we defer review of Bonick’s ineffective-assistance-of-

counsel claim and AFFIRM his sentence.




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