NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0276n.06
No. 08-1459
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. ADAM TROY WOODS, Def endant- Appellant.

______________________ _ _ _ _ _ _ _ _ _ _ _ _ _________ )

) ) ) ) ) ) ) ) ) ON AP P E AL FRO M T HE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OP INION

Before: M cK

EAGU E and WHITE , Circuit Judges; Z OUHARY, Distr ict Judge. *
HELE NE N. WHITE , Circuit Judge. Def endant- Appellant Adam Troy Woods (Woods)

was indicted on one co u n t o f d i stribution of child pornog raphy and aiding and abetting the distribution of child pornog raphy , in violation of 18 U.S.C. §§ 2252A(a )(2) , and 2(a) , and one count of possession of child pornog raphy , in violation of 18 U.S .C. §§ 2252A(a) (5)( B) . Woods entered into a plea ag ree ment with the Gover nment, ag ree ing to plea d g uilty to one count of possession of child pornog raphy (Count I I ) in exchang e for the dismiss al of the rema ining distribution count. The plea ag ree ment stipulated that Woods’s U.S. Sentencing Guidelines rang e was 108 to 120 months, and that if his sentenc e fell within this rang e he would waive any rig ht to appea l his conviction, but would reta in the rig ht to appea l the district court’s adver se deter mination of any disputed Guidelines

The Honora

ble J ack Z ouhary , United States District Court for the Norther n District of Ohio, * sitti ng by desig nation. 1issue that was ra ised at or befor e the sentenc ing hear ing. Woods cha lleng es the re asonable ness of

his 110-month sentenc e, principally arguing that the district court failed to consider disparities betwee n state and fede ral child-pornograp h y sentenc es. The Gover nment moves to dismiss the
appea l. We DENY the motion to dis miss, and AF F IRM

. I. On September 21, 2006, J oe Guer ra (Gue rra ), a d et ec t i ve with the El Paso, Texas, Police Depa rtment, Crimes Ag ainst Children Division, logg ed onto the I nterne t and Sharea za peer -to-pee r file-sha ring softwar e in the proce ss of conducting an investig ation into indivi duals possessing and distributing child pornog raphy

. Guer ra “conduc ted sear ches for imag es of child pornogr ap h y b y using the key

word ‘kdquality [,] ’ which i s p ar t o f file names of known child pornog raphic files trade d/shared on the network.” As a result of this sear ch, Guer ra found a number of files containing the term “ kdquality ” in their titles.
Guer ra connec ted t o an o ther computer and found approximately 250 files available for sharing

. He then downloaded two imag e files that depicted child pornog raphy and captur ed scre en

s hots of these share d and transfe rre d files. Using WHOI S, an online databa se containing rec o rd s revealing the owner s of cer tain I nterne t Protocol (I P) addre sses, Guer ra deter mined that t h e I P addre ss of this computer belong ed to USL EC Corp. Throug h a g rand- jury subpoena, Guer

ra lear ned that on the date a

nd time he downloaded the files descr ibed above, this I P a ddress was assig ned to
I nterne t Service Provider (I SP) United Onli ne, and the re levant customer was Ada m Woods . The

acc ount included a telephone number, and a databa se sear ch of this telephone number reve aled that it was assig ned to Adam T. Woods of B ay City , Michig an.

2On Fe bruar y 2, 2007, sever al FB I and U.S. Secre t Service ag ents, along with Ba y City police office rs, sear ched Woods’s re s i d en ce pursuant to a sear ch war rant. The sear ch uncover ed small
amounts of marijuana and marijuana residue, two computers (only one of which had internet acc ess), and sever al elec tronic information storag e device s. Child-pornog raphic imag es, including the two imag es previously obtained by Guer ra, wer e located on the hard drive of the computer that had

acc ess to the I nterne t. On Fe bruar y 15, 2007, a fore nsic examiner examined the hard drive and found
349 imag es of possible child pornog rap hy , th r e e im a g e s o f c h il d to r

tu r e /bonda g e, twenty -nine imag es of known c hild pornog raphy , and seve n movie files of suspec ted child pornog raphy

. Woods was indicted on April 18, 2007 and enter ed into a plea ag ree ment with the
Gover nment. On October 18, 2007, the district court found that Woods had tender ed a voluntary and intelligent plea to the court, and acc epted the plea ag ree ment. Woods was sentenc ed to 110 months’ imprisonment on Marc h 4, 2008 and timely appea led. O n Se p te mb e r 22, 2009, the Gover nment filed
a mot ion to dismiss Woods’s appeal b as ed o n his Rule 11 appea l waiver , which W oods opposed. The motion was re fer

red to this panel.
II.
A. As a threshold matter, the Gover n m en t argues that Woods’s appea l should be dismiss ed based on the appellate waiver in the plea agr ee m en t

. We revie w de novo the question whether a defe ndant waived his rig ht to appea l his sentenc e in a valid plea ag ree ment. United States v. McG ilvery , 403 F.3d 361, 362 (6th Cir. 2005). “[P] lea ag ree ments are to be interpre ted strictly , with ambig uities construed ag ainst the g overnme nt.” United States v. Caruthers , 458 F.3d 459, 470 (6th Cir.), cert. denied , 549 U.S. 1088 (2006). “I t is well settled that a defe ndant in a criminal case may

3waive his rig ht to appea l his se ntence in a valid plea ag ree ment.” United States v. Smith , 344 F.3d

479, 483 (6th Cir. 2003). When a defe ndant waives this rig ht, this court “is bound by that ag ree ment and will not revie w the sentenc e except in limit ed circ umstances.” Smith , 344 F.3d at 483 (citations omitted). Woods does not dispute that he knowing ly and voluntarily enter ed into a plea ag ree ment with the Gover

nment. The plea ag ree ment i s l ess than clear. On t he one hand, the parties appear to be locked-in
to a Guidelines rang e of 108-120 months, with exceptions not rele vant here

. I n this reg ard, the plea
ag ree ment provides:
2. SENTE NCING

GU IDELINES B. Agree d Guidelin e Range There are no sentenc ing g uideline disputes. Ex cept as provided below, defe ndant’s g uideline rang e is 108 to 120 months, as set forth on the attache d workshee ts. I f the Court finds: a) that defe ndant’s criminal history cate g ory is highe r than ref lected on the attac hed wor

ksheets, or b) that the offe nse level should be higher beca use, afte r pleading g uilty , defe ndant made any false statement to o r w it h h e ld information from his probation office r; other wi s e d emonstrated a lack of acc eptanc e of responsibility for his off ense( s); or obstructe d justice or committed any

crime, and if any such finding results in a g uideline rang e highe r than 108 to 120 months, the hig her guideline ra

ng e bec omes the ag ree d rang e. Howe ver, if the Court finds that defe ndant i s a ca re er offe nder, an arme d car eer criminal, or a repe at and dang erous sex off

ender as def

ined under the sentenc ing g uidelines or other fede ral law, and that finding is no t al ready ref lected in the attache d workshee ts, this para g raph doe s not authorize a c orre sponding inc rea se in the ag ree d rang e. Neither party may take a position conce rning the applicable g uidelines that is differ ent t h an any position of that party as ref lected in the attache d workshee ts, except as nece ssary to the Court’s deter m i n at i on reg arding subsections a) and b), above.

43. SENTE NCE

A. Im prisonme nt Pursuant to Fe dera l Rule of Cri m i n al Procedur e 11(c) (1)( C) the sentenc e of imprisonment in this case shal l n o t b e l es s than 108 months and shall not exceed the top of the sente ncing g uidelines rang e as de termined by Parag raph 2B

. On the other

hand, the plea

ag ree ment also provides:
7. RIG HT TO AP P EAL I f the sentenc e imposed falls within the g uideline rang e rec ommended by defe ndant in Parag raph 2B, above, defe ndant waives any rig ht to appe al h i s conviction. Def endant reta ins his rig ht to direc tly appea l the Court’s adver se det e r mi n a ti o n of any disputed g uideline issue that was raised at or befor e t h e s entencing hear ing. The g overnme nt ag ree s not to appea l any sentenc e within the g uidelin e ra n ge it has rec ommended in Parag raph 2B, but reta ins the rig ht to appea l any deter mination by the Court to apply a lower rang e or to impose a sentenc e below the g uideline rang e that is unreasona

ble. Thus, the plea ag ree ment is somewhat ambig uous reg arding the scope of Woods’s appellate rig hts. Parag raphs 2 a

nd 3 appea

r to prec lude any challeng e to the agr eed- upon Guidelines ra ng e, while para g raph 7 seems to contemplate that Woods is fre e to raise Guidelines issues at sentenc ing.
At Woods’s sentenc ing hear ing, Woods’s attorney asked the district court to take into consideration the disparities betwee n state and fede ral child-pornog raphy sentenc es. I t is unclea r whether this was 2

At sentenc ing, Woods’s attorney addre ssed some issues he felt wer e not a dequate ly taken 2 into considera

tion in t h e p re s en tence repor t (to which he raised no objections). After discussing Woods’s chara cter istics, counsel said: Finally , y our Honor, I ’l l co n fess to y ou I ’ve been in front of y ou a lot more in the state court than I have in the fede ral sy stem, and Mr. Woods was orig inally char g ed in the state sy stem. W e went throug h a prelim which started the whole proce ss befor e we ended up in Fe dera l Court, and I just think it’s worth noting, at least for the rec ord, y ou know, in the state sy stem Mr. Woods, if he would have pled g uilty as char g ed to all of these char g es, he fac es [si c] a g uideline rang e of zero to six or zero to 11 months, depending on how ambitious [si c] we score it. I only say that beca use the fe dera l sy stem and the state sy stem have e x treme dispar ities.
I can’ t help but at least mention may be neither sy stem has it perf ectly rig ht. May

be the state sy stem is too lenient on the Adam Woods [si c] of society

. May be the 5an arg ument in favor of a varia nce or depar

ture, or simply a reque st to sentenc e Woods at the bottom of the Guidelines rang e. I n any event, the Gover nment did not objec t to the arg ument, and mer ely asked that the district court sentenc e Woods within the Guidelines rang e. The district court did not specific ally addre ss the disparity argument. I f construed as a reque st to depar t or vary , the argument 3

was reje cted. I f construed as a reque st to sentenc e at the bottom of the Guidelines ra ng e, it was eff ectively acc epted. Given the plea ag ree ment’s lack of clar ity reg arding the scope of the appellate

fede ral sy stem is too hard. Idon’t know. And I ’m not a leg islator and I ’m not one that g ets to make those decisions. But I can’ t help but think that, y ou know, probably it’s somewhere in the middle. The court cer

tainly is very awa

re that, y ou know, his sentenc ing for this crime in the state sy stem, just rea ding y esterda y ’s paper shows me, this cri m e as punished by J udg e Bor char d in Sag inaw is distinctly differ ent than what we’re s t an d i n g here fac ing.
I just, y our Honor, I ’m asking y ou to take those things into consideration. I ’m asking y ou to take into considera

tion ever y thing that Mr. Woods has done and has continued to do, knowing tha t he was g oing to sta nd in f ront of y ou with a g uideline rang e of 108 to [120]

. Your Honor, I ask y ou to cer tainly use y our discretion and sentenc e Mr. Woods as y ou fee l fair. After the par ties prese nted their a

rg uments, the district court stated: 3
As both defe nse co u n s el and the defe ndant have acknow ledg ed, and I think the g overnme nt has pointed out, while we don’t know the names of the victims, we know there are victims. As Ms. Abrams pointed out, they ’ve been able to identify a number of the folks that wer e included in the extraordinary number of imag es that had been trade d in this circumstance that wer e ava ilable on the g entleman’ s computer. We have, indepe ndent of the guidelines, g iven ca ref ul considera tion to eac h of the fac tors that we are to g ive consideration to under Title 18 United States Code Section 3553 A. The court here by commits the defe ndant to the custody of the United States Bur eau of Prisons for a te rm of 110 months.

6waiver , we will addre ss Woods’s argument on the merits. See United States v. Jones , 569 F.3d 569,

572-73 (6th Cir. 2009) (dec lining to hold that the defe ndant waived his rig ht to appea l his sentenc e when the appellate waiver in the plea ag ree ment was ambig uous due to a discrepa ncy reg arding the meaning of “g uideline rang e”) ; United States v. Smith , 344 F.3d 479, 483 (6th Cir. 2003) (holding that the defe ndant did not waive his rig ht to appea l when the plea ag ree ment was “ambiguous as to the amount and manne r of de termining restitution”).
B. Woods argues t hat t he dis trict court “place d improper emphasis on the Guidelines scoring in the instant ca s e an d failed to proper ly analy ze all of the rele vant fac tors that would support a downwar d depar

ture.

. . . ” Fur

ther, he contends that “trial counsel did not provide a sentenc ing memorandum whic h would have elucidate d these considerations for the Court, a nd only argued in passing the disparity betwee n the state court and fe d er al trea tment of child pornog raphy with no ref ere nce whatsoeve r to the trial cour t’s sister court’ s decision in United States v. Boyde n [ ] .

. . .” 4
The Gove rnment cla ims that W oods’s sentenc e is both substantively and proce durally rea sonable.
We revie w sentenc es for rea sonablene ss. United States v. Holcomb , 625 F.3d 287, 291 (6th Cir. 2010); see also Gall v. United States , 552 U.S. 38, 46 (2007). Reasonable ness is deter mined “using the abuse- of-discr etion standard of revie w.” United States v. W ebb , 616 F.3d 605, 609 (6th

Woods rel i es s i gn ificantly on this decision. Howeve r, it is an unpublished case from the 4 United States District Court f or the Easter

n District of Michig an and the defe ndant involved in the case had a signific antly lower applicable Guidelines rang e than Woods, as well as a plea ag ree ment that appar ently did not re q uire the district court to sentenc e the defe ndant within this rang e. See United States v. Boyde n , No. 06-20243, 2007 WL 1725402, at *3 (E.D. Mich. J une 14, 2007). As a re sult, Boyde n is not particularly enlig htening

. 7Cir. 2010) (citations omitted). “Review for rea sonablene ss has both proce dural and substantive

components.” Id. (citation omitted). When revie wing a sentenc e for proce dural rea sonablene ss, we look at three fac tors: whether the district c ourt “(1) proper ly calc ulated the a

pplicable a dvisory

Guidelines ra

ng e; (2) considere d the ot her § 3553(a) fac tors as well as t he parties’ arg uments fo r a sentence outside the Guidelines
rang e; and (3) adequate ly articula ted i ts rea soning for i mposing the particu l ar s en tence chosen. .

. .” United States v. Bolds , 511 F.3d 568, 581 (6th Cir. 2007). T o d et ermine if the district court
proper ly calc ulated the a

pplicable Guide lines rang e, we revie w the dis trict court’s findings of f act under the clea

r-e rror standard and i ts leg al conc lusions reg arding application of the Guidelines de

novo
. Id. at 579. “Althoug h the district court need not expli citly ref ere nce eac h of the § 3553(a) fac tors, there must be sufficient evidenc e in the record t o aff irmatively demonstrate that the court
gav e ea ch of them consideration.” United States v. Battaglia , 624 F.3d 348, 351 (6th Cir. 2 0 1 0 ) (citation omitted).
A sentenc ing explanation is adequate if it allows for meaning ful appellate revie w, Gall , 552
U.S. at 50, which is acc omplished by setting forth enoug h of a statement of rea sons to sati s fy t he appellate court that the sentenc ing court had considere d the parties’ arguments and had a rea soned b as i s for choosing the sentenc e imposed, Rita v. United States , 551 U.S. 338, 356 (2007). T h e “sente ncing [court] is not require d to expli citly addre ss ever y mitigating argument that a defe ndant makes, particula

rly when those arguments are raised only in passing .” United States v. Madden , 515 F.3d 601, 611 (6th Cir. 2008). I ndeed, the Supreme Court has made clea r that “[t] he appropr iateness of brevity or leng th, concise ness or detail, when to write, what to say , depends upon circ umstances” that are left “to the judg e’s own pr ofessional judg ment.” Rita , 551 U.S. at 356.

8Sentencing arguments raised f or the fir st tim e on appea l are revie wed for pl ain-e rror if the district court aske d “the pa rties whether they ha[d] any objections to the sentenc e just pronounce d that ha[d] not previously been raised.” United States v. Bostic , 371 F.3d 865, 872 (6th Cir. 2004).
But this rule does not apply to an argument that a sentenc e is substantively unrea sonable unless the
arg ument is one “for leniency that the defe ndant d[i d] not prese nt to the trial court.” United States v. Brooks , 628 F.3d 791, 796 ( 6th Cir. 2011) (citations omitted).
“A proper ly calc ulated advisory g uidelines rang e repr esents a starting point for substantiverea sonablene ss revie w beca use it is one of the § 3553(a) fac tors and beca use the g uidelines purport
to take into consideration most, if not all, of the other § 3553(a) fac tors.” United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008) (c i t at i o n s o m i tted). A sentenc e may be deeme d substantively

unrea so n ab l e “when the district court selec t[ ed] a sentenc e arbitra rily , base[d] the sentenc e on impermissible fac tors, fail[ed] to consider rele vant sentenc ing fac to rs , o r g [ave] an unrea sonable
amount of weight to any pertinent factor.” W ebb , 616 F.3d at 610 (citation and int erna l quotation marks omitted). Woods first argues that the district court failed “to provide enoug h information for a revie wing court to deter

mine what analy si s we nt into the proportionality of a sentenc e that is approximate l y 3 3 00 times the sentenc e for the even more eg reg ious conduct in Boyde n .” After pronouncing the sentenc e in this case , the district court asked the p ar t i es whether they had “any objection[s] or questions about t h e t er m s of the sentenc e.” Woods’s counsel replied, “No, y our Honor.” Due to the failure t o object after the imposit ion of hi s sentenc e, and p u rsuant to the pl ea
ag ree ment, Woods has waived the rig ht to challeng e the adequa cy of the district court’s sentenc ing explanation. See U

nited States v. Tice , 366 F. App’ x 569, 571 (6th Cir. 2010).

9W o o ds next arg ues that the nature of the crime preve nted him from rec eiving a o n e- p o i n t reduc tion for acc eptanc e of responsibility , that sentenc es for child pornog raphy are disproportionate
to sentenc es for actua l criminal sexual conduct, and that the district court did not adequately assess Woods’s potential for rec idivism

. Be cause none of these issues wer e raised at sent en ci n g, their consideration on appea l is fore closed by the plea ag ree ment. Relatedly , Woods claims that his trial counsel “fa iled to produce a sentenc ing memorandum,” and there fore Woods “should be acc orded

a new sentenc ing hear ing to prese nt

. . . testimony reg arding his threa t level to society and the eff ect of long- term imprisonment compar ed to intensive trea tment.” Howeve r, this claim is premised on alleg ed ineffe ctive assistance of counsel and thus should be pursued in a post-conviction proce eding under 28 U .S.C. § 2255. See U nited States v. Gonzales , 501 F.3d 630, 644 ( 6th Cir. 2007). 5 Finally , Woods arg ues that the district cour t’s sentenc e was unrea sonable be cause it failed
to c onsider existi ng disparities betwee n state and fede ral child-pornog raphy sentenc es. Due to his failure to object following the imposit ion of his sent ence , and pursuant to the terms of the plea
ag ree ment, Woods has waived the rig ht to challeng e the district court’s failure to specific ally addre ss this arg ument. Howeve r, Woods’s reque st that the district court consider exis ting disp ar i t i es betwee n state and fede ral child-pornog raphy sentenc es appea rs to be an arg

ument for leniency that

was prese nted to the district court, and there fore we examine the district court’s failure to consider this claim under the a

buse-of -discre tion standard. Brooks , 628 F.3d at 796.

Woods also contends that he should be “re sentenc ed with a proper sentenc ing memorandum 5 based on [t he] considera tion” of the extent of Woods’s familial support. As noted ab o v e, t h is arg ument should not be considere d on direc t r eview. Moreove r, Woods’s trial counsel did sta te at sentenc ing that Woods’s family was supportive of him. The district court was not oblige d to addre ss this statement particular ly wher e, as he re, it wa s made in passing

. Madden , 515 F.3d a t 611. 10The ag ree d-upon Guidelines rang e for Woods’s senten ce was 108 to 120 months. Woods

was sentenc ed to 110 months, which is well within (and on the low end) of the applicable Guidelines
rang e. As a result, Woods’s sentenc e is presumptively rea sonable. See United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008) (en banc)

. The district court did not selec t the sentenc e arbitra rily , as it speci fi ca l l y b ased the sentenc e on the number of victims in the case , the number of childpornog raphic photogr aphs in Woods’s possession, and the § 3553(a) fac tors. Fur ther, we have specific ally held that district courts cannot consider disparities betwee n state and fede ral sentenc es. United States v. Malone , 503 F.3d 481, 486 ( 6th Cir. 2007).
On this rec ord, we cannot say “that the district court’s [108] -month sentenc e – a sentenc e in the bottom half of the [G] uidelines rang e – was unreas o n ab l y l o n g. The district court

. . . had an opportunity to hear fr o m t h e d ef en d ant firsthand. I t then ‘consider ed the

. . . fac tors listed in 18 [U.S .C. § ] 3553(a) .’ The rec ord and the context of the sentenc ing hear ing offe r ample rea sons for concluding that [W oods’s] case wa s a ‘ty pical’ one and there fore deser ving of a within-g uidelines
sentenc e,” Vonner , 516 F.3d at 390 (citations omitted), and that the number of child-pornog raphic imag es on Woods’s computer and the duration of his criminal conduct “outweig hed his arguments in favor of leniency ,” id

. Be cause Woods’s sentenc e was proce durally and substantively rea sonable,

we AF F IRM.

11