United States v. Richard Barton
879 F.3d 595
| 5th Cir. | 2018Background
- Barton operated two child-pornography websites (FuzionCom and WeeLocked), accepted donations from users, uploaded and re-uploaded child pornography, and stored ~200 GB of illicit material on an external drive.
- A federal grand jury indicted Barton on three counts: distribution, receipt, and possession of child pornography. He pleaded guilty to all counts without a written plea agreement.
- At plea and in the PSR Barton admitted he distributed (by administering/uploading to the sites), knew users downloaded/exchanged material, and personally downloaded images.
- The PSR (2015 Guidelines) calculated an offense level of 39 (including a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B)), yielding a Guidelines range of 292–365 months; with a projected Amendment 801 reduction the parties estimated a 235–293 range.
- The district court varied below the pre-amendment Guidelines and sentenced Barton to concurrent terms of 235 months (Counts 1 & 2) and 120 months (Count 3), 10 years supervised release, and $300 total special assessment.
- On appeal Barton challenged sufficiency for distribution, multiplicity of receipt/possession counts, Guidelines calculation (application of the five-level enhancement and consideration of Amendment 801), substantive reasonableness of the sentence, and effectiveness of sentencing counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of facts for distribution conviction (18 U.S.C. § 2252A(a)(2)(B)) | Barton: No evidence any file he uploaded was actually downloaded by another person, so distribution not proven. | Government: Admissions (signed/oral), site operation, known user activity, and reasonable inferences establish distribution. | Affirmed. Entire record supports plea; distribution may be inferred from shared-folder/site uploads. |
| Multiplicity of receipt and possession convictions (Double Jeopardy) | Barton: Receiving and possessing the same images is multiplicative; possession is lesser-included of receipt. | Government: No facially apparent multiplicity on indictment/record; distinct timeframes and multiple images across two sites; guilty pleas bar this claim absent facial defect. | Affirmed. No apparent multiplicity on the record; guilty plea forecloses relief on direct appeal. |
| Guidelines enhancement under §2G2.2(b)(3)(B) and Amendment 801 | Barton: The five-level “thing of value” enhancement does not apply to mere file-sharing; Amendment 801 clarified/restricted the enhancement and should apply. | Government: 2015 Guidelines and Circuit precedent (Groce) support applying the enhancement to uploads; district court properly used Guidelines effective at sentencing. | Affirmed. District court properly applied 2015 Guideline; Barton waived retroactivity argument for Amendment 801. |
| Substantive reasonableness of sentence (downward variance magnitude) | Barton: District court intended a greater downward variance (claimed post-amendment range would be 135–168 months), so 235 months was substantively unreasonable. | Government: Court considered amendment as basis for variance but sentenced under then-applicable Guidelines; below-Guidelines 235-month term is presumptively reasonable. | Affirmed. No plain error; sentence was within district court’s reasonable balancing of §3553(a) factors. |
Key Cases Cited
- Trejo v. United States, 610 F.3d 308 (5th Cir.) (on review of sufficiency of factual basis for plea)
- Richardson v. United States, 713 F.3d 232 (5th Cir.) (downloading to a shared folder can constitute distribution)
- Woerner v. United States, 709 F.3d 527 (5th Cir.) (recognizing difficulty of obtaining direct proof of distribution in child-pornography cases)
- Groce v. United States, 784 F.3d 291 (5th Cir.) (interpreting §2G2.2(b)(3)(B) to apply to uploads to file-sharing programs)
- Blockburger v. United States, 284 U.S. 299 (test for multiplicity/double jeopardy)
- Broce v. United States, 488 U.S. 563 (guilty plea limits certain collateral claims on direct appeal)
- Isgar v. United States, 739 F.3d 829 (6th Amendment ineffectiveness claims typically raised collateral, not on direct appeal)