                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0234n.06

                                         No. 14-1653


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )                      FILED
                                                                         May 02, 2016
                                                       )
                                                                     DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
SEAN JASON BARRY,                                      )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF MICHIGAN
       Defendant-Appellant.                            )
                                                       )
                                                       )



BEFORE:       MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges.

       SUHRHEINRICH, Circuit Judge.

       Defendant-Appellant Sean Barry (“Barry”) pled guilty to one count of possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). As part of his sentence,

Barry was ordered to pay $50,540 in restitution to a former child depicted in three of the

pornographic images found in his possession. Barry appeals the restitution order on the ground

that his attorney provided ineffective assistance of counsel at the restitution hearing. For the

following reasons, we AFFIRM.

                                               I.

       Pursuant to a plea agreement with the government, Barry pled guilty to one count of

possession of child pornography. According to the indictment, the offense occurred on or about
No. 14-1653, United States v. Barry


July 1, 2013. As part of the plea agreement, Barry waived his right to appeal or collaterally

attack his sentence. Barry, however, retained the right to appeal a sentence that exceeds the

statutory maximum or is based upon an unconstitutional factor, such as race, religion, national

origin, or gender. The appeal waiver also preserved Barry’s right to challenge the validity of the

waiver in a collateral proceeding.

       Prior to sentencing, the government submitted a sentencing memorandum in support of a

restitution request by a victim known as “J_blonde.” J_blonde was depicted in three of the

images found in Barry’s child pornography collection. J_blonde’s restitution request includes a

psychology report and an economic evaluation. The psychology report concludes that J_blonde

suffers from post-traumatic stress disorder and depression. According to the report, the effects of

J_blonde’s childhood abuse are exacerbated by his knowledge that the abuse is “viewed by

myriad persons for their sexual gratification and excitement.” The economic report calculates

J_blonde’s damages as a result of the circulation of his images and organizes these damages into

three categories: loss of employment wages and benefits, cost of future therapy, and reduction in

the value of life. The report estimates the loss of employment wages and benefits at $286,249

(2010-2052); the cost of therapy at $89,295 (2013-2023); and the reduction in the value of life at

a range of $1,576,405 to $2,364,567 (2010-2063).

       J_blonde’s representative submitted a request for $1,576,405, at the low end of the

reduction in the value of life, and excluding the amounts estimated for loss of wages and the cost

of therapy. The government recommended that the district court award approximately $42,605

in restitution from Barry to J_blonde.      The government reached this number by dividing

J_blonde’s total requested damages by 37—the number of defendants, including Barry, that have

been convicted of possessing, receiving, or distributing J_blonde’s images. The government



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No. 14-1653, United States v. Barry


provided the court with a list of the restitution awards ordered from the other 36 defendants,

which showed that the previous awards ranged from $250 to $28,000. Barry also submitted a

sentencing memorandum, asking the court to decline to impose restitution, or, in the alternative,

to award substantially less than the $1,576,405 figure requested by J_blonde.

       The district court reserved decision on the restitution issue pending the Supreme Court’s

opinion in Paroline v. United States, 134 S. Ct. 1710 (2014), which was expected to address how

courts should calculate restitution awards in child pornography cases where a victim’s images

have been viewed by hundreds or thousands of anonymous possessors. Following issuance of

the Paroline opinion, both the government and Barry submitted supplemental briefing addressing

the outcome, rationale, and effect of that decision.

       Leading up to the restitution hearing, Barry was represented by Assistant Federal Public

Defender David Kaczor, who filed the briefs addressing restitution. Because Kaczor was ill on

the day of the hearing, Federal Public Defender Ray Kent represented Barry in Kaczor’s stead at

the restitution hearing.

       At the hearing, the government explained the court’s obligation to apportion J_blonde’s

losses according to Barry’s contribution to J_blonde’s harm. The government stated:

       [I]n this case, the restitution should be less than someone who may have produced
       or distributed the images, as here Mr. Barry only possessed them. Restitution for
       Mr. Barry should probably be less than someone who produced a great deal more
       images of J_blonde . . . Mr. Barry had three of them. Mr. Barry also did not seek
       to contact the victim. . . . So all of those weigh in favor of a lower apportionment
       amount for Mr. Barry.

       At the conclusion of the government’s argument, Barry’s attorney, Kent, argued for “a

minimal award,” emphasizing that Barry “possessed only three images” and that “it’s safe to

assume that thousands of people have viewed those images.” Kent concluded that “in addition to




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No. 14-1653, United States v. Barry


the other factors which [government counsel] lays out, a minimal award would be sufficient here

to meet the statutory purposes.”

       The district court ordered Barry to pay $50,540 in restitution to J_blonde. The court

reached this amount by applying the formula approved in United States v. Gamble, 709 F.3d 541,

552-55 (6th Cir. 2013). That formula directs the court to determine the total amount of a

victim’s provable losses and then divide the total losses by the number of defendants convicted

of possessing the victim’s image. Id. at 554. The district court began with a figure of $1.5

million, noting that this number was rounded down from J_blonde’s request of $1,576,405 and

did not include lost wages or the costs of future counseling, both of which the court found

“highly likely to occur.” The court further acknowledged that J_blonde’s loss calculation dated

back to 2010 and concluded that Barry could not be liable for losses accruing prior to his offense

on July 1, 2013. The court then divided $1.5 million by the number of defendants, including

Barry, who were ordered to pay restitution to J_blonde, resulting in a figure of $40,540. While

recognizing that “this number is considerably higher than the average amount of restitution

ordered in the 36 earlier cases,” the district court found the resulting amount appropriate under

both Paroline and Gamble. Id. The court then added “$10,000 of punitive restitution” to the

award “pursuant to the Paroline case.” Id. Earlier in the hearing, the court had observed that

Paroline described restitution as serving “remedial or compensatory purposes, as well as

punitive purposes.” According to the district court, this additional $10,000 would “remind[] Mr.

Barry that his conduct produces concrete and devastating harms for real, identifiable victims.”

Barry’s attorney did not object to the restitution award.




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No. 14-1653, United States v. Barry


       Barry appeals the restitution award on the grounds that his attorney rendered ineffective

assistance of counsel at the restitution hearing. The district court had jurisdiction over this

matter under 18 U.S.C. § 3231. We have jurisdiction over this appeal under 28 U.S.C. § 1291.

                                               II.

       Barry argues that his counsel’s performance at the restitution hearing was constitutionally

defective because his attorney failed to object to and argue against the restitution award.

Specifically, Barry asserts that his attorney should have raised the following arguments in

opposition to the restitution award: (1) Barry could not be held responsible for damages that

occurred prior to his offense in July 2013, (2) Barry’s restitution award should not have been

substantially higher than the 36 previous defendants’ awards and should have been lower than

awards imposed on defendants who distributed J_blonde’s images, and (3) Barry should not have

been ordered to pay an additional $10,000 in “punitive restitution” because restitution is already

both remedial and punitive. Barry claims that these failures resulted in a higher award than the

district court would otherwise have ordered and prevented preservation of the arguments for

appeal on an error basis.

                                                     A.

       Before reaching Barry’s ineffective assistance of counsel claim, we must address the

government’s curious approach to Barry’s appeal waiver. On the one hand, the government

expressly declines to seek enforcement of Barry’s appeal waiver on his present ineffective

assistance claim, an appeal that would otherwise be barred by the terms of his plea agreement.

At the same time, the government argues that Barry was not prejudiced by his counsel’s failure

to preserve issues for appeal because the appeal waiver prevents him from appealing the

restitution award. Appellee Br. 18-19 & n.1.



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No. 14-1653, United States v. Barry


        Appeal waivers are not jurisdictional. United States v. Hampton, 732 F.3d 687, 690 (6th

Cir. 2013); United States v. Caruthers, 458 F.3d 459, 472 n.6 (6th Cir. 2006). Therefore, an

appeal waiver does not deprive us of jurisdiction to consider a challenge to a sentence on the

merits. See Jones v. United States, 689 F.3d 621, 624 n.1 (6th Cir. 2012). The government may

forfeit its right to assert an appeal waiver by failing to raise it in a timely fashion, United States

v. Ford, 761 F.3d 641, 661 n. 15 (6th Cir. 2014), or by explicitly declining to assert the waiver,

Jones, 689 F.3d at 624 n.1. The government may also partially invoke an appeal waiver. United

States v. Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015) (citing United States v. Story,

439 F.3d 226, 231 (5th Cir. 2006)).

        Although the government has not expressly said so, it appears to be partially invoking

Barry’s appeal waiver. While the government explicitly waived its right to enforce Barry’s

appeal waiver for his present appeal, it maintains that the appeal waiver eliminates any prejudice

to Barry from his counsel’s failure to preserve arguments challenging the restitution order for

purposes of appeal. Rather than enforce Barry’s appeal waiver in full and dismiss this claim, or

pretend as if no appeal waiver exists, we will treat Barry’s appeal waiver as having preserved the

right to appeal his sentence based on ineffective assistance of counsel.1 Therefore, despite the

government’s waiver of the appeal waiver on Barry’s present ineffective assistance claim,

Barry’s appeal waiver still effectively prevents him from challenging the restitution order on

other grounds before an appellate court (except in the narrow circumstances outlined in the plea

agreement).




        1
           For an example of an appeal waiver retaining the right to appeal based on ineffective assistance of
counsel, see United States v. Ferguson, 669 F.3d 756, 760 (6th Cir. 2012).

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No. 14-1653, United States v. Barry


                                                      B.

       Barry’s ineffective assistance claim can be divided into four discrete challenges to his

attorney’s performance at the restitution hearing: (1) the failure to argue that three years of

J_blonde’s calculated loss could not be attributed to Barry because they occurred before Barry’s

offense; (2) the failure to raise the issue of comparative fault—that is, to argue that Barry’s

restitution award should not be higher than previous defendants’ awards and should be lower

than defendants who distributed or possessed a greater number of J_blonde’s images; (3) the

failure to argue that the additional $10,000 for punitive restitution was improper; and (4) the

failure to preserve these arguments for appeal on an error basis.

       To demonstrate that his counsel’s performance was constitutionally deficient, Barry must

show both that: (1) counsel’s representation fell below an objective standard of reasonableness,

and (2) counsel’s errors had an actual, adverse effect on the defense. Strickland v. Washington,

466 U.S. 668, 688, 693 (1984). In analyzing the first prong, the “court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. As for the prejudice prong, Barry must show a “reasonable probability”

that, had counsel performed adequately, a different outcome would have resulted. Id. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

A court may decide an ineffective assistance claim solely on the ground of lack of sufficient

prejudice without examining whether counsel’s performance was deficient. Id. at 697.

       Generally, a defendant may not raise ineffective assistance of counsel claims for the first

time on direct appeal. United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005). The

rationale is that “there has not been an opportunity to develop and include in the record evidence

bearing on the merits of the allegations.” Id. (quoting United States v. Wunder, 919 F.2d 34, 37



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No. 14-1653, United States v. Barry


(6th Cir. 1990)). Instead of entertaining these claims on direct appeal, “our court has routinely

concluded that such claims are best brought by a defendant in a post-conviction proceeding

under 28 U.S.C. § 2255.” United States v. Brown, 332 F.3d 363, 369 (6th Cir. 2003) (quoting

United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997)). That being said, there is an

exception to the general rule against direct review where “the record is adequate to assess the

merits of the defendant’s allegations.” United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990).

This exception often applies where the record shows that counsel’s allegedly unreasonable acts

or omissions caused no prejudice to the defendant’s case. See, e.g., United States v. Soto,

794 F.3d 635, 646-47 (6th Cir. 2015) (rejecting an ineffective assistance claim on direct appeal

because damaging evidence that the attorney failed to move to suppress would have been

admitted over counsel’s objection); United States v. Abdullah, 162 F.3d 897, 905 (6th Cir. 1998)

(rejecting an ineffective assistance claim on direct appeal where the attorney failed to file an

adequate notice of alibi, but the district court allowed the presentation of defendant’s alibi

witnesses without restriction).

       We find the record sufficiently developed to address most, but not all, of Barry’s

challenges to his attorney’s performance. Three of Barry’s challenges clearly lack merit because

the attorney’s allegedly unreasonable actions did not cause Barry prejudice.         The record,

however, is inadequate to assess the charge that counsel’s failure to object to the additional

$10,000 in punitive restitution fell below an objective standard of reasonableness and resulted in

a higher restitution award than the district court would otherwise have ordered. This challenge

cannot be resolved solely on prejudice grounds. Unlike the other arguments Barry contends his

attorney should have raised at the restitution hearing, the additional $10,000 in punitive

restitution was not an issue anticipated by the parties in their briefs or in oral argument.



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No. 14-1653, United States v. Barry


Moreover, awarding an additional, arbitrary amount in “punitive restitution” unlinked to the

defendant’s relative causal role in the victim’s losses is not clearly authorized by Paroline.

Rather, Paroline instructs district courts to “order restitution in an amount that comports with the

defendant’s relative role in the causal process that underlies the victim’s general losses,” without

differentiating between restitution’s compensatory and punitive goals. 134 S. Ct. at 1727. In

this case, it appears the district court awarded an extra $10,000 without connecting it to the

defendant’s “causal significance” in producing that $10,000 loss. Id. at 1728. Thus, based on

the limited record on appeal, there appears to be a reasonable likelihood that bringing this issue

to the district court’s attention would have changed the outcome.

         But while the record may allow for a showing of prejudice, it is not sufficiently

developed to resolve whether Barry’s counsel’s performance fell within “the wide range of

professionally competent assistance.” Strickland, 466 U.S. at 690. The record does not contain

any information explaining counsel’s decision not to object to the additional $10,000 in

restitution. Cf. United States v. Woodruff, 735 F.3d 445, 452 (6th Cir. 2013) (declining to

address an ineffective assistance of counsel claim on direct appeal because “there is no affidavit

or testimony from [defendant’s] trial counsel explaining his decision not to raise an objection”);

United States v. Sanders, 404 F.3d 980, 986 (6th Cir. 2005) (declining to address an ineffective

assistance claim on direct appeal because “the present record contains no evidence whatsoever

concerning [defendant’s] trial counsel’s reasons for not calling an expert witness”). Because we

are unable to determine from the record whether counsel’s silence was based on reasonable

professional judgment, we decline to address this portion of Barry’s ineffective assistance claim.2


         2
           Ordinarily, Barry could pursue this claim by way of a collateral proceeding under 28 U.S.C. § 2255. But
it appears that Barry’s appeal waiver precludes collateral challenges to his sentence unless the challenge goes to the
validity of the waiver itself. Of course, the government may choose to waive the appeal waiver’s bar to a collateral
proceeding as it has done with Barry’s direct appeal here.

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No. 14-1653, United States v. Barry


        We now address the challenges capable of being resolved on the present record. Two of

the arguments that Barry claims his attorney should have raised and would likely have persuaded

the district court to order a lower amount—the lack of causation for the three years of losses

preceding Barry’s offense, and comparative fault—were, in fact, presented to the court by

counsel for both the government and the defense. Both parties developed these points in the

written briefs.3 Moreover, both parties repeated the arguments regarding comparative fault at the

restitution hearing. Furthermore, the district court expressly acknowledged both the causation

and comparative fault arguments in calculating restitution. The district court recognized that

“[t]he [date of the] offense of conviction here is July 1st, 2013. . . . Accordingly, Barry can’t be

held liable for J_blonde’s loses [sic] prior to that date.” Although the court did not expressly

exclude the three years of loss preceding Barry’s 2013 offense, which amounted to $114,403, the

court noted that the $1.5 million figure was already rounded down from J_blonde’s request and

did not include the sizable amounts that had been initially included for lost wages and therapy.

After announcing the $40,540 figure, the district court also recognized that “this number is

considerably higher than the average amount of restitution ordered in the 36 earlier cases.” 4 The

court found, however, that “given the guidance in Paroline, which I think firmly establishes the

Gamble case as good law for purposes of evaluating restitution to victims, . . . that figure is an

        3
            See Govt’s Sentencing Mem., R.29 at 10 (informing the court of the option to reduce the restitution
amount to account for losses that preceded Barry’s offense); Def.’s Sentencing Mem., R. 30 at 8 (arguing that Barry
cannot be responsible for losses occurring before his offense); Def.’s Supplemental Mem., R. 38 at 6-7 (same);
Govt’s Sentencing Mem., R. 29 at 14 (addressing factors that lessened Barry’s degree of comparative fault); Def.’s
Sentencing Mem., R. 30 at 5, 8 (emphasizing that Barry possessed only three of J_blonde’s images and did not
distribute them); Govt’s Supplemental Br., R. 37 at 4-5 (outlining factors for analyzing comparative fault); Def.’s
Supplemental Mem. R. 38 at 5 (same).
        4
           Barry suggests that his attorney should have presented more information about the previous 36 defendants
ordered to pay restitution to J_blonde—specifically, their offenses of conviction. Then, Barry argues, the court
could have more precisely compared Barry’s conduct of possessing three images to the other defendants’ conduct.
As the government points out, however, most of these defendants were convicted of more than one offense, making
it impossible to determine whether they paid restitution for possessing or distributing images of J_blonde.
Moreover, the offense of conviction does not indicate how many of J_blonde’s images were possessed or
distributed.

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No. 14-1653, United States v. Barry


appropriate figure to order for compensatory restitution.” Id. Therefore, the arguments Barry

faults his attorney for failing to raise at the restitution hearing were advanced by both parties and

duly considered by the district court in formulating restitution. Repeating these arguments would

have been cumulative of the positions already asserted by both parties and would have rehashed

issues already addressed in the district court’s order. There is not a reasonable probability that

repeating these arguments would have changed the restitution award. As a result, Barry cannot

establish the prejudice required for his ineffective assistance claims based on counsel’s supposed

failure to make these causation and comparative fault arguments.

       As for the failure to make arguments for purposes of preserving them for appeal, this

failure did not prejudice Barry because he had already signed an appeal waiver. We noted above

that Barry’s appeal waiver remains effective despite the government’s limited waiver of Barry’s

appeal in this case. As a result, Barry was not prejudiced by his attorney’s failure to preserve

objections to the restitution order for appellate review. Even if Barry’s counsel had made such

objections, the appeal waiver would bar an appellate court from reviewing the restitution order

on the grounds that Barry advances here. Thus, Barry cannot establish ineffective assistance

based on his attorney’s failure to preserve arguments for appeal.

                                                III.

       For these reasons, we do not address Barry’s ineffective assistance of counsel claim as it

relates to counsel’s failure to oppose the additional $10,000 in “punitive restitution,” and we

AFFIRM the district court’s restitution order in all other respects.




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