United States v. Barton

• Citation: 879 F.3d 595
• Decision Date: 09 January 2018
• Docket Number: No. 16-41095,16-41095
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Richard Wayne BARTON, Defendant–Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

879 F.3d 595

UNITED STATES of America, Plaintiff–Appellee

v.Richard Wayne BARTON, Defendant–Appellant

No. 16-41095

United States Court of Appeals, Fifth Circuit.

FILED January 9, 2018

Eileen K. Wilson, Carmen Castillo Mitchell, Sherri Lynn Zack, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Brittany Carroll Lacayo, Houston, TX, for Defendant–Appellant.

Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Richard Wayne Barton pleaded guilty, without a written agreement, to a three-count indictment charging him with distributing, receiving, and possessing child pornography.¹ The district court imposed a total sentence of 235 months in prison, 10 years of supervised release, and a $300 special assessment. Barton now challenges his convictions, sentences, and counsel’s performance. We affirm his convictions and sentences and deny his ineffectiveness claim without prejudice to collateral review.

I.

In September 2014, a Houston-based task force alerted federal authorities to a child pornography website, "WeeLocked." Authorities traced the payments for the website’s domain to Barton. The investigation also uncovered Barton’s connection to another child pornography site, "FuzionCom."

Barton admitted operating both sites. From December 2, 2013 to August 27, 2014, he ran FuzionCom, paying $200 a month until the domain host took control of the site and locked Barton out. He also ran WeeLocked, which in Barton’s words was a "test site" for FuzionCom and turned into a "child pornography trading site."² Barton defrayed the costs of running the websites by accepting "donations" from over 130 users. Barton acknowledged that those users—indeed, any visitor to his websites—could "log-in, create an[ ] account, ... chat, e-mail, [and] trade videos and pictures." In his words, Barton repeatedly "upgrade[d]" and "re-created" WeeLocked. Each time he did so, he downloaded and re-uploaded all of the site’s content, including child pornography. Barton also downloaded some of the illicit images himself, saving them to his external hard drive. On that drive were 200 gigabytes (and tens of thousands) of child pornography images and videos. Some of the illicit images had been on Barton’s external drive for years.

After a grand jury indicted Barton for distributing, receiving, and possessing child pornography, he pleaded guilty to each charge without a written agreement. At rearraignment, the government recounted its evidence against Barton and asked the district court to elicit during allocution whether Barton understood that, by uploading the images back to the internet, he distributed child pornography. So the court asked, "Do you understand, sir, that you distributed child pornography?" "Yes, sir," Barton answered. The district court found the plea supported by an independent basis in fact containing each essential element of the three charged offenses.

A probation officer then prepared a presentence report (PSR), which recapped, among other things, Barton’s interview with investigators. According to the PSR, Barton admitted knowing that people used his website to trade and upload child pornography.

Using the 2015 edition of the advisory Sentencing Guidelines, the PSR estimated Barton’s total offense level at 39. This accounted for a base level of 22, see U.S.S.G. § 2G2.2(a)(2), six enhancements—including a five-level increase under § 2G2.2(b)(3)(B)³ —worth 20 levels, and a three-level markdown for acceptance of responsibility. Barton’s offense level of 39, coupled with his category II criminal history, yielded a Guidelines range of 292 to 365 months in prison.

Barton objected to the five-level increase under the 2015 version of § 2G2.2(b)(3)(B). As he saw it, the enhancement applied only to those who distributed child pornography in exchange for more child pornography. Thus, Barton posited, because he did not engage in a quid pro quo, "actual" exchange but rather "just ma[de] something available on a website," the Guideline did not apply.

The district court disagreed, overruled all objections, and adopted the entire PSR. But the court also stated that, in crafting an "appropriate sentence," it would consider a proposed Guidelines amendment—Amendment 801—poised to take effect the next November. See U.S.S.G. app. C, amend. 801 (Supp. Nov. 1, 2016). The amendment, the government represented, would decrease Barton’s offense level by two because § 2G2.2(b)(2) ’s vulnerable victim enhancement would no longer apply. This two-level reduction, the parties agreed, would knock down the sentencing range to 235 to 293 months' imprisonment. Despite raising Amendment 801, the parties did not address its impact on § 2G2.2(b)(3)(B) —the five-level "thing of value" enhancement.

The district court repeated that it was "considering [the Guidelines] range as it would be in November as part of [the court’s] consideration in this case as to the appropriate sentence." The court declined to "depart" from the then-current Guidelines, but would consider the post-amendment Guidelines in "considering a variance." After evaluating the 18 U.S.C. § 3553(a) factors and listening to Barton’s allocution, the district court again stated that it would "vary from the applicable current Guideline[s] range in assessing a sentence."

Then the court announced its judgment: 235 months on Count 1 (distribution), 235 months on Count 2 (receipt), and 120 months on Count 3 (possession), all running concurrently. Barton received a ten-year term of supervised release on each count (also to run concurrently) and a $100 special assessment for each of the three convictions.

Barton objected that the sentence put "too much weight [on] the Sentencing Guidelines [and] the harm resulting from the offense," and too little weight on "Barton’s personal characteristics." The district court overruled that objection, noting that it "underst[oo]d those arguments," and "[t]hat’s why [the court was] sentencing Mr. Barton ... even below the current Advisory Guidelines and at the very bottom of the Advisory Guidelines that would be in effect in November."

Barton raises several issues in this timely appeal. None is availing.

II.

Barton first asserts that his distribution conviction under 18 U.S.C. § 2252A(a)(2)(B) is not tethered to sufficient facts. Because he raises this argument for the first time on appeal, however, he must demonstrate plain error—a difficult task, requiring him to show a clear and obvious error affecting his substantial rights. United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012). And even if he clears those hurdles, we correct the error only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Escalante-Reyes , 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alterations and quotation marks omitted).

Federal Rule of Criminal Procedure 11(b)(3) requires courts to "make certain that the factual conduct admitted by the defendant is sufficient as a matter of law to establish a violation of the statute to which he entered his plea." United States v. Trejo , 610 F.3d 308, 313 (5th Cir. 2010) (alterations omitted). On plain error review, we take a wide look, examining "the entire record for facts supporting [the] guilty plea," including those in the plea colloquy, PSR, and sentencing hearing. Id. at 317. Reasonably drawn inferences from those facts are also fair game. Id.

Here, Barton does not dispute that he downloaded child pornography or made such images available on child-pornography-trading websites. Rather, he maintains that "there is no evidence" that any pornography he uploaded was "completely transferred to or downloaded by another person."

Section 2252A(a)(2)(B) does not define "distribute." But we have held that "downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network" could "amount[ ] to distribution." United States v. Richardson , 713 F.3d 232, 236 (5th Cir. 2013). Distribution convictions have passed muster in this circuit even without direct evidence that someone downloaded an image the defendant uploaded. See United States v. Russell , 668 Fed.Appx. 104, 105 (5th Cir.) (mem.), cert. denied , ––– U.S. ––––, 137 S.Ct. 399, 196 L.Ed.2d 312 (2016) ; United States v. Roetcisoender , 792 F.3d 547, 552 (5th Cir. 2015) ; United States v. Cervantes-Perez , 592 Fed.Appx. 316 (5th Cir. 2015) (mem.). This approach recognizes that "[m]ore often than not the government lacks [direct] evidence [of distribution] because child pornography is not something people tend to download, possess, or distribute in the company of others." United States v. Woerner , 709 F.3d 527, 537 (5th Cir. 2013).

Were the government required to prove that users downloaded one of Barton’s shared images, however, the evidence here permitted the district court fairly to infer such events. Cf. Trejo , 610 F.3d at 317. Take, for instance, Barton’s signed admission that he distributed child pornography by administering a child pornography website. Or his similar oral confession in open court. Or his confession that he knew that the websites' users—some hundred-plus persons who gave Barton "donations" to run the pornography-trading sites—viewed, downloaded, and exchanged pornographic images that Barton repeatedly uploaded.

We see no error, let alone a plain one.

III.

Barton’s second argument fares no better. He asserts that his convictions and sentences for receiving and possessing child pornography are multiplicitous. Barton did not object to the indictment below, so we review only the validity of his sentences, not his convictions. See United States v. Njoku , 737 F.3d 55, 67 (5th Cir. 2013) ; Fed. R. Crim. P. 12(b)(3)(B)(ii). We may examine Barton’s sentences for multiplicity—even if they run concurrently for identical periods—because the...