from the United States District Court for the Southern
District of Texas
SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge
Wayne Barton pleaded guilty, without a written agreement, to
a three-count indictment charging him with distributing,
receiving, and possessing child pornography. 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.
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."
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." 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
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.
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
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)-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.
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.
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.
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
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.
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 ...