United States v. Walter Hardin

437 F. App'x 469
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 13, 2011
Docket09-6056
StatusUnpublished
Cited by7 cases

This text of 437 F. App'x 469 (United States v. Walter Hardin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Walter Hardin, 437 F. App'x 469 (6th Cir. 2011).

Opinions

[471]*471TARNOW, District Judge.

Appellant pleaded guilty to using a facility and means of interstate commerce to attempt to coerce and entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and to receiving child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) & (b)(1). Appellant brings the instant appeal arguing that he received ineffective assistance of counsel at the sentencing stage of this litigation. Because the record is not yet adequate for review of this claim, we decline to review Appellant’s ineffective assistance claim at this time.

Appellant also appeals the 240-month (twenty-year) sentence that was imposed. He argues that the sentence was procedurally and substantively unreasonable. Appellant argues that the district court committed a procedural error by erroneously adding a five-level enhancement pursuant to USSG § 2G2.2(b)(3)(B) for an offense involving “distribution for the expectation of a receipt of thing of value.... ” Appellant also argues that the sentence was substantively unreasonable because of the district court’s weighing of factors. Because the sentence was procedurally and substantively reasonable, we AFFIRM the sentence imposed by the district court.

BACKGROUND

Around December 2007, the Kentucky State Police (KSP) began receiving information from the United States Naval Criminal Investigative Service (NCIS) in Washington. KSP and NCIS conducted two independent undercover investigations online, both of which led to Appellant, Walter Hardin.

Hardin was arrested in October 2008 as a result of KSP’s investigation. The arrest led to the federal charges on which Appellant was convicted. After the arrest, a search warrant was executed at his business and home. Hardin worked as the Deputy Judge/Executive of Magoffin County, Kentucky. His work computer revealed that he used the file-sharing program LimeWire to download several hundred pictures of children engaged in sexual activity and fourteen videos of children engaged in sexual activity. The computer also contained over twenty series of chats in which Hardin solicited sexual contact with children.

On January 26, 2009, Hardin was brought before Senior United States District Judge Joseph M. Hood for arraignment. He waived formal proceedings and entered pleas of not guilty to all six counts. After moving to change his plea, Hardin was re-arraigned on March 25, 2009. In exchange for Hardin’s pleas as to Counts 1, 2, and 5, the United States dismissed the remaining counts. A Plea Agreement was entered into, approved by the court, and filed into the Record.

After the Plea Agreement was approved, the Presentence Investigation Report (“PSIR”) was submitted on July 16, 2009. It identified Hardin’s combined Adjusted Offense Level as 40. The PSIR included a recommendation of a five-level increase for distribution because “the offense involved distribution for the expectation of receipt of a thing of value.” See PSIR, at 7; see also PSIR, at 14. Hardin’s guideline sentencing range in the PSIR was calculated as 210-262 months-(17.5-21.8 years).

On August 20, 2009, Hardin filed a Motion for Leave to File Objections to the PSIR, a Sentencing Memorandum, and a Motion for Downward Departure. In the Motion for Leave, trial counsel stated that he “believed that the objections, motions for guidelines departure and sentencing memorandum” had been filed on July 17, 2009. R. 39, at 1. Attached to the Motion for Leave were two proposed objections to [472]*472the PSIR and the guideline calculations therein. A Sentencing Memorandum was filed the same day as the Motion for Leave to File Objections.

On August 21, 2009, the United States filed a Response to Hardin’s Sentencing Memorandum and his Motion for Downward Departure. The Response included hearsay statements from Hardin’s ex-girlfriend. She stated that Hardin took numerous nude pictures of her during their relationship, while she was sixteen years old. She stated that she broke off the relationship with Hardin when he asked her if she would mind if he had sex with their children. The United States contends that she was willing and able to testify at sentencing.

The sentencing hearing was held on August 24, 2009. At the hearing, Hardin’s counsel withdrew the Motion for Leave to File Objections and the Motion for Downward Departure. Counsel withdrew the Motion for Leave to File Objections despite the district court judge stating that “[he] was going to grant it anyway, but [counsel] want[s] to withdraw it.” R. 59, Sentencing Tr., at 3. The court adopted the guideline calculations contained in the PSIR. Hardin’s counsel did not object to the calculations. Hardin was sentenced to 240 months (twenty years) of imprisonment on both counts, with the sentences to run concurrently. He was also sentenced to a lifetime of supervised release.

I. Appellant’s Ineffective-Assistance Claim Is Not Ready for Review

Ineffective-assistance-of-counsel claims are generally raised in post-conviction proceedings under 28 U.S.C. § 2255. See United States v. Angel, 355 F.3d 462, 469 (6th Cir.), cert. denied, 543 U.S. 867, 125 S.Ct. 211, 160 L.Ed.2d 113 (2004); see also United States v. Pruitt, 156 F.3d 638, 646 (6th Cir.1998) (stating that such claims are best brought under § 2255). In most cases it is preferable to bring a claim of ineffective assistance under § 2255 to allow the district court to develop an adequate record on the issue. Pruitt, 156 F.3d at 646 (citing United States v. Daniel, 956 F.2d 540, 543 (6th Cir.1992)). Ineffective-assistance claims are not, however, solely reserved for collateral review. Massaro v. United States, 538 U.S. 500, 508, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“We do not hold that ineffective-assistance claims must be reserved for collateral review.”). Where the existing record is adequate to assess properly the merits of an ineffective-assistance claim, it may be raised on direct appeal. Pruitt, 156 F.3d at 646 (citing United States v. Pierce, 62 F.3d 818, 833 (6th Cir.1995), cert. denied, 516 U.S. 1136, 116 S.Ct. 965, 133 L.Ed.2d 886 (1996)).

Appellant’s ineffective-assistance claim is not ready for review on direct appeal.

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