                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0276n.06

                                            No. 08-1459                                    FILED
                                                                                       Apr 28, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
       Plaintiff-Appellee,                                )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF MICHIGAN
               v.                                         )
                                                          )
ADAM TROY WOODS,                                          )
                                                          )
      Defendant-Appellant.                                )        OPINION
___________________________________________               )


Before: McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*

       HELENE N. WHITE, Circuit Judge. Defendant-Appellant Adam Troy Woods (Woods)

was indicted on one count of distribution of child pornography and aiding and abetting the

distribution of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2), and 2(a), and one count

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

into a plea agreement with the Government, agreeing to plead guilty to one count of possession of

child pornography (Count II) in exchange for the dismissal of the remaining distribution count. The

plea agreement stipulated that Woods’s U.S. Sentencing Guidelines range was 108 to 120 months,

and that if his sentence fell within this range he would waive any right to appeal his conviction, but

would retain the right to appeal the district court’s adverse determination of any disputed Guidelines


       *
         The Honorable Jack Zouhary, United States District Court for the Northern District of Ohio,
sitting by designation.

                                                  1
issue that was raised at or before the sentencing hearing. Woods challenges the reasonableness of

his 110-month sentence, principally arguing that the district court failed to consider disparities

between state and federal child-pornography sentences. The Government moves to dismiss the

appeal. We DENY the motion to dismiss, and AFFIRM.

                                                I.

        On September 21, 2006, Joe Guerra (Guerra), a detective with the El Paso, Texas, Police

Department, Crimes Against Children Division, logged onto the Internet and Shareaza peer-to-peer

file-sharing software in the process of conducting an investigation into individuals possessing and

distributing child pornography. Guerra “conducted searches for images of child pornography by

using the keyword ‘kdquality[,]’ which is part of file names of known child pornographic files

traded/shared on the network.” As a result of this search, Guerra found a number of files containing

the term “kdquality” in their titles.

        Guerra connected to another computer and found approximately 250 files available for

sharing. He then downloaded two image files that depicted child pornography and captured screen

shots of these shared and transferred files. Using WHOIS, an online database containing records

revealing the owners of certain Internet Protocol (IP) addresses, Guerra determined that the IP

address of this computer belonged to USLEC Corp. Through a grand-jury subpoena, Guerra learned

that on the date and time he downloaded the files described above, this IP address was assigned to

Internet Service Provider (ISP) United Online, and the relevant customer was Adam Woods. The

account included a telephone number, and a database search of this telephone number revealed that

it was assigned to Adam T. Woods of Bay City, Michigan.




                                                 2
       On February 2, 2007, several FBI and U.S. Secret Service agents, along with Bay City police

officers, searched Woods’s residence pursuant to a search warrant. The search uncovered small

amounts of marijuana and marijuana residue, two computers (only one of which had internet access),

and several electronic information storage devices. Child-pornographic images, including the two

images previously obtained by Guerra, were located on the hard drive of the computer that had

access to the Internet. On February 15, 2007, a forensic examiner examined the hard drive and found

349 images of possible child pornography, three images of child torture/bondage, twenty-nine images

of known child pornography, and seven movie files of suspected child pornography.

       Woods was indicted on April 18, 2007 and entered into a plea agreement with the

Government. On October 18, 2007, the district court found that Woods had tendered a voluntary and

intelligent plea to the court, and accepted the plea agreement. Woods was sentenced to 110 months’

imprisonment on March 4, 2008 and timely appealed. On September 22, 2009, the Government filed

a motion to dismiss Woods’s appeal based on his Rule 11 appeal waiver, which Woods opposed.

The motion was referred to this panel.

                                                 II.

                                                 A.

       As a threshold matter, the Government argues that Woods’s appeal should be dismissed

based on the appellate waiver in the plea agreement. We review de novo the question whether a

defendant waived his right to appeal his sentence in a valid plea agreement. United States v.

McGilvery, 403 F.3d 361, 362 (6th Cir. 2005). “[P]lea agreements are to be interpreted strictly, with

ambiguities construed against the government.” United States v. Caruthers, 458 F.3d 459, 470 (6th

Cir.), cert. denied, 549 U.S. 1088 (2006). “It is well settled that a defendant in a criminal case may


                                                  3
waive his right to appeal his sentence in a valid plea agreement.” United States v. Smith, 344 F.3d

479, 483 (6th Cir. 2003). When a defendant waives this right, this court “is bound by that agreement

and will not review the sentence except in limited circumstances.” Smith, 344 F.3d at 483 (citations

omitted). Woods does not dispute that he knowingly and voluntarily entered into a plea agreement

with the Government.

       The plea agreement is less than clear. On the one hand, the parties appear to be locked-in

to a Guidelines range of 108-120 months, with exceptions not relevant here. In this regard, the plea

agreement provides:

       2. SENTENCING GUIDELINES
       B. Agreed Guideline Range
       There are no sentencing guideline disputes. Except as provided below, defendant’s
       guideline range is 108 to 120 months, as set forth on the attached worksheets. If the
       Court finds:

               a) that defendant’s criminal history category is higher than reflected
               on the attached worksheets, or
               b) that the offense level should be higher because, after pleading
               guilty, defendant made any false statement to or withheld information
               from his probation officer; otherwise demonstrated a lack of
               acceptance of responsibility for his offense(s); or obstructed justice
               or committed any crime,

       and if any such finding results in a guideline range higher than 108 to 120 months,
       the higher guideline range becomes the agreed range. However, if the Court finds
       that defendant is a career offender, an armed career criminal, or a repeat and
       dangerous sex offender as defined under the sentencing guidelines or other federal
       law, and that finding is not already reflected in the attached worksheets, this
       paragraph does not authorize a corresponding increase in the agreed range.

       Neither party may take a position concerning the applicable guidelines that is
       different than any position of that party as reflected in the attached worksheets,
       except as necessary to the Court’s determination regarding subsections a) and b),
       above.




                                                 4
       3. SENTENCE
       A. Imprisonment
       Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) the sentence of
       imprisonment in this case shall not be less than 108 months and shall not exceed
       the top of the sentencing guidelines range as determined by Paragraph 2B.

On the other hand, the plea agreement also provides:

       7. RIGHT TO APPEAL
       If the sentence imposed falls within the guideline range recommended by defendant
       in Paragraph 2B, above, defendant waives any right to appeal his conviction.
       Defendant retains his right to directly appeal the Court’s adverse determination of any
       disputed guideline issue that was raised at or before the sentencing hearing. The
       government agrees not to appeal any sentence within the guideline range it has
       recommended in Paragraph 2B, but retains the right to appeal any determination by
       the Court to apply a lower range or to impose a sentence below the guideline range
       that is unreasonable.

       Thus, the plea agreement is somewhat ambiguous regarding the scope of Woods’s appellate

rights. Paragraphs 2 and 3 appear to preclude any challenge to the agreed-upon Guidelines range,

while paragraph 7 seems to contemplate that Woods is free to raise Guidelines issues at sentencing.

At Woods’s sentencing hearing, Woods’s attorney asked the district court to take into consideration

the disparities between state and federal child-pornography sentences.2 It is unclear whether this was


       2
         At sentencing, Woods’s attorney addressed some issues he felt were not adequately taken
into consideration in the presentence report (to which he raised no objections). After discussing
Woods’s characteristics, counsel said:

       Finally, your Honor, I’ll confess to you I’ve been in front of you a lot more in the
       state court than I have in the federal system, and Mr. Woods was originally charged
       in the state system. We went through a prelim which started the whole process
       before we ended up in Federal Court, and I just think it’s worth noting, at least for the
       record, you know, in the state system Mr. Woods, if he would have pled guilty as
       charged to all of these charges, he faces [sic] a guideline range of zero to six or zero
       to 11 months, depending on how ambitious [sic] we score it. I only say that because
       the federal system and the state system have extreme disparities.

       I can’t help but at least mention maybe neither system has it perfectly right. Maybe
       the state system is too lenient on the Adam Woods [sic] of society. Maybe the

                                                  5
an argument in favor of a variance or departure, or simply a request to sentence Woods at the bottom

of the Guidelines range. In any event, the Government did not object to the argument, and merely

asked that the district court sentence Woods within the Guidelines range. The district court did not

specifically address the disparity argument.3 If construed as a request to depart or vary, the argument

was rejected. If construed as a request to sentence at the bottom of the Guidelines range, it was

effectively accepted. Given the plea agreement’s lack of clarity regarding the scope of the appellate



       federal system is too hard. I don’t know. And I’m not a legislator and I’m not one
       that gets to make those decisions. But I can’t help but think that, you know, probably
       it’s somewhere in the middle.

       The court certainly is very aware that, you know, his sentencing for this crime in the
       state system, just reading yesterday’s paper shows me, this crime as punished by
       Judge Borchard in Saginaw is distinctly different than what we’re standing here
       facing.

       I just, your Honor, I’m asking you to take those things into consideration. I’m asking
       you to take into consideration everything that Mr. Woods has done and has continued
       to do, knowing that he was going to stand in front of you with a guideline range of
       108 to [120]. Your Honor, I ask you to certainly use your discretion and sentence Mr.
       Woods as you feel fair.
       3
           After the parties presented their arguments, the district court stated:

       As both defense counsel and the defendant have acknowledged, and I think the
       government has pointed out, while we don’t know the names of the victims, we know
       there are victims. As Ms. Abrams pointed out, they’ve been able to identify a number
       of the folks that were included in the extraordinary number of images that had been
       traded in this circumstance that were available on the gentleman’s computer.

       We have, independent of the guidelines, given careful consideration to each of the
       factors that we are to give consideration to under Title 18 United States Code Section
       3553 A.

       The court hereby commits the defendant to the custody of the United States Bureau
       of Prisons for a term of 110 months.


                                                     6
waiver, we will address Woods’s argument on the merits. See United States v. Jones, 569 F.3d 569,

572-73 (6th Cir. 2009) (declining to hold that the defendant waived his right to appeal his sentence

when the appellate waiver in the plea agreement was ambiguous due to a discrepancy regarding the

meaning of “guideline range”); United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003) (holding

that the defendant did not waive his right to appeal when the plea agreement was “ambiguous as to

the amount and manner of determining restitution”).

                                                  B.

        Woods argues that the district court “placed improper emphasis on the Guidelines scoring

in the instant case and failed to properly analyze all of the relevant factors that would support a

downward departure. . . .” Further, he contends that “trial counsel did not provide a sentencing

memorandum which would have elucidated these considerations for the Court, and only argued in

passing the disparity between the state court and federal treatment of child pornography with no

reference whatsoever to the trial court’s sister court’s decision in United States v. Boyden[4] . . . .”

The Government claims that Woods’s sentence is both substantively and procedurally reasonable.

        We review sentences for reasonableness. United States v. Holcomb, 625 F.3d 287, 291 (6th

Cir. 2010); see also Gall v. United States, 552 U.S. 38, 46 (2007). Reasonableness is determined

“using the abuse-of-discretion standard of review.” United States v. Webb, 616 F.3d 605, 609 (6th




       4
          Woods relies significantly on this decision. However, it is an unpublished case from the
United States District Court for the Eastern District of Michigan and the defendant involved in the
case had a significantly lower applicable Guidelines range than Woods, as well as a plea agreement
that apparently did not require the district court to sentence the defendant within this range. See
United States v. Boyden, No. 06-20243, 2007 WL 1725402, at *3 (E.D. Mich. June 14, 2007). As
a result, Boyden is not particularly enlightening.

                                                   7
Cir. 2010) (citations omitted). “Review for reasonableness has both procedural and substantive

components.” Id. (citation omitted).

       When reviewing a sentence for procedural reasonableness, we look at three factors: whether

the district court “(1) properly calculated the applicable advisory Guidelines range; (2) considered

the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines

range; and (3) adequately articulated its reasoning for imposing the particular sentence chosen. . .

.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). To determine if the district court

properly calculated the applicable Guidelines range, we review the district court’s findings of fact

under the clear-error standard and its legal conclusions regarding application of the Guidelines de

novo. Id. at 579. “Although the district court need not explicitly reference each of the § 3553(a)

factors, there must be sufficient evidence in the record to affirmatively demonstrate that the court

gave each of them consideration.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010)

(citation omitted).

       A sentencing explanation is adequate if it allows for meaningful appellate review, Gall, 552

U.S. at 50, which is accomplished by setting forth enough of a statement of reasons to satisfy the

appellate court that the sentencing court had considered the parties’ arguments and had a reasoned

basis for choosing the sentence imposed, Rita v. United States, 551 U.S. 338, 356 (2007). The

“sentencing [court] is not required to explicitly address every mitigating argument that a defendant

makes, particularly when those arguments are raised only in passing.” United States v. Madden, 515

F.3d 601, 611 (6th Cir. 2008). Indeed, the Supreme Court has made clear that “[t]he appropriateness

of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances”

that are left “to the judge’s own professional judgment.” Rita, 551 U.S. at 356.


                                                 8
        Sentencing arguments raised for the first time on appeal are reviewed for plain-error if the

district court asked “the parties whether they ha[d] any objections to the sentence just pronounced

that ha[d] not previously been raised.” United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004).

But this rule does not apply to an argument that a sentence is substantively unreasonable unless the

argument is one “for leniency that the defendant d[id] not present to the trial court.” United States

v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011) (citations omitted).

        “A properly calculated advisory guidelines range represents a starting point for substantive-

reasonableness review because it is one of the § 3553(a) factors and because the guidelines purport

to take into consideration most, if not all, of the other § 3553(a) factors.” United States v. Conatser,

514 F.3d 508, 520 (6th Cir. 2008) (citations omitted). A sentence may be deemed substantively

unreasonable “when the district court select[ed] a sentence arbitrarily, base[d] the sentence on

impermissible factors, fail[ed] to consider relevant sentencing factors, or g[ave] an unreasonable

amount of weight to any pertinent factor.” Webb, 616 F.3d at 610 (citation and internal quotation

marks omitted).

        Woods first argues that the district court failed “to provide enough information for a

reviewing court to determine what analysis went into the proportionality of a sentence that is

approximately 3300 times the sentence for the even more egregious conduct in Boyden.” After

pronouncing the sentence in this case, the district court asked the parties whether they had “any

objection[s] or questions about the terms of the sentence.” Woods’s counsel replied, “No, your

Honor.” Due to the failure to object after the imposition of his sentence, and pursuant to the plea

agreement, Woods has waived the right to challenge the adequacy of the district court’s sentencing

explanation. See United States v. Tice, 366 F. App’x 569, 571 (6th Cir. 2010).


                                                   9
       Woods next argues that the nature of the crime prevented him from receiving a one-point

reduction for acceptance of responsibility, that sentences for child pornography are disproportionate

to sentences for actual criminal sexual conduct, and that the district court did not adequately assess

Woods’s potential for recidivism. Because none of these issues were raised at sentencing, their

consideration on appeal is foreclosed by the plea agreement. Relatedly, Woods claims that his trial

counsel “failed to produce a sentencing memorandum,” and therefore Woods “should be accorded

a new sentencing hearing to present . . . testimony regarding his threat level to society and the effect

of long-term imprisonment compared to intensive treatment.” However, this claim is premised on

alleged ineffective assistance of counsel and thus should be pursued in a post-conviction proceeding

under 28 U.S.C. § 2255.5 See United States v. Gonzales, 501 F.3d 630, 644 (6th Cir. 2007).

       Finally, Woods argues that the district court’s sentence was unreasonable because it failed

to consider existing disparities between state and federal child-pornography sentences. Due to his

failure to object following the imposition of his sentence, and pursuant to the terms of the plea

agreement, Woods has waived the right to challenge the district court’s failure to specifically address

this argument. However, Woods’s request that the district court consider existing disparities

between state and federal child-pornography sentences appears to be an argument for leniency that

was presented to the district court, and therefore we examine the district court’s failure to consider

this claim under the abuse-of-discretion standard. Brooks, 628 F.3d at 796.




       5
         Woods also contends that he should be “resentenced with a proper sentencing memorandum
based on [the] consideration” of the extent of Woods’s familial support. As noted above, this
argument should not be considered on direct review. Moreover, Woods’s trial counsel did state at
sentencing that Woods’s family was supportive of him. The district court was not obliged to address
this statement particularly where, as here, it was made in passing. Madden, 515 F.3d at 611.

                                                  10
       The agreed-upon Guidelines range for Woods’s sentence was 108 to 120 months. Woods

was sentenced to 110 months, which is well within (and on the low end) of the applicable Guidelines

range. As a result, Woods’s sentence is presumptively reasonable. See United States v. Vonner, 516

F.3d 382, 389 (6th Cir. 2008) (en banc). The district court did not select the sentence arbitrarily, as

it specifically based the sentence on the number of victims in the case, the number of child-

pornographic photographs in Woods’s possession, and the § 3553(a) factors. Further, we have

specifically held that district courts cannot consider disparities between state and federal sentences.

United States v. Malone, 503 F.3d 481, 486 (6th Cir. 2007).

       On this record, we cannot say “that the district court’s [108]-month sentence – a sentence in

the bottom half of the [G]uidelines range – was unreasonably long. The district court . . . had an

opportunity to hear from the defendant firsthand. It then ‘considered the . . . factors listed in 18

[U.S.C. § ] 3553(a).’ The record and the context of the sentencing hearing offer ample reasons for

concluding that [Woods’s] case was a ‘typical’ one and therefore deserving of a within-guidelines

sentence,” Vonner, 516 F.3d at 390 (citations omitted), and that the number of child-pornographic

images on Woods’s computer and the duration of his criminal conduct “outweighed his arguments

in favor of leniency,” id. Because Woods’s sentence was procedurally and substantively reasonable,

we AFFIRM.




                                                  11
