NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0332n.06

No. 14-1458

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY VICTOR MARCHIONE,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF MICHIGAN

Before: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.

*

LUDINGTON, District Judge. Jeffrey Marchione pleaded guilty to two counts of 

distribution of child pornography and one count of possession of child pornography after federal 

agents discovered more than 40,000 images and 1,600 videos depicting child pornography on his 

computer. The district court sentenced Marchione to 360 months’ imprisonment, followed by 

lifetime supervised release. Marchione appeals his sentence, arguing that (1) the district court 

was obligated to conduct an evidentiary hearing at his sentencing to address a sentencing 

guideline issue; (2) he received ineffective assistance from counsel in accepting the plea 

agreement; and (3) his sentence is substantively unreasonable. For the reasons below, we 

AFFIRM.

 

* The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of 

Michigan, sitting by designation.
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I.

On January 5, 2012, an undercover agent in Illinois logged on to a peer-to-peer file 

sharing program and observed that an individual with the username “Jminstlmo” was also logged 

on. The agent browsed through one of Jminstlmo’s shared folders and discovered that it 

contained images depicting child pornography. After downloading 119 images and 7 video files 

from the shared folder, the undercover agent captured Jminstlmo’s internet protocol (“IP”)

address. PSR ¶ 16.

Another undercover agent in New York also accessed child pornography in Jmintslmo’s 

shared folder and downloaded 72 images of child pornography. The agent then began chatting 

with Jminstlmo, who expressed an interest in boys between the ages of 11 and 14. Jminstlmo 

boasted that he had sexual contact with boys between the ages of 12 and 17. He also hinted that 

he had had sexual contact with the 12-year-old friend of one of his children, and that he was 

nervous that the boy might tell someone about it. PSR ¶ 19–20.

The next day, on January 6, 2012, an administrative subpoena was served on the internet 

provider requesting subscriber information for the IP address. The subpoena results revealed that 

the IP address was assigned to the account of Jeffrey Marchione of Alto, Michigan. PSR ¶ 17.

About seven months later, on August 3, 2012, agents executed a search warrant at 

Marchione’s home. Agents seized two laptop computers and two external hard drives. During 

the search, Marchione confessed to viewing, downloading, and trading images of child 

pornography on the internet. PSR ¶ 22. He explained that his goal was to amass a large 

collection of child pornography because other users were more likely to trade child pornography 

with him if he had a larger collection. PSR ¶ 23.
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On August 8, 2012, agents conducted a forensic exam of the computers and hard drives 

seized during the search of Marchione’s home. The exam revealed thousands of images and 

videos depicting child pornography. The agent also recovered numerous chat sessions in which 

Marchione admitted sexual contact with minors between the ages of 12 and 17. In the chat 

sessions, Marchione had provided explanations on how to make contact with young boys by 

working with kids and building relationships and referred to strategies described in the 150-page 

“Handbook 4 Child Lovers” found in his shared folder. PSR ¶ 25.

A.

On June 4, 2013, the Government filed an indictment charging Marchione with two 

counts of distribution of child pornography and one count of possession of child pornography. 

The Government alleged that Marchione possessed more than 40,000 images and 1,600 videos of 

child pornography. On July 11, 2013, the Government filed a superseding indictment that added 

a charge of advertising material involving the sexual exploitation of children as Count 1.

On November 26, 2013, Marchione entered into an amended plea agreement.1 In 

exchange for pleading guilty to Counts 2, 3, and 4 in the superseding indictment, as well as 

pleading guilty to the pending criminal sexual conduct charge in state court, the Government 

agreed (1) to dismiss Count 1; (2) not to oppose the imposition of the federal sentence concurrent 

to a state-court sentence; (3) not to prosecute Marchione for further violations of 18 U.S.C. 

§§ 2251(d) or 2252A that occurred between January 5, 2012, and August 3, 2012; and (4) not to 

oppose a reduction of his offense level for acceptance of responsibility.

 

1

The parties had entered into the original plea agreement the day before, on November 25, 2013. 

The amended plea agreement contains only one change; in the “Waiver of Appeal and Collateral 

Attack” section, the amended plea agreement preserves Marchione’s right to appeal any 

objections to the amount of restitution.
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B.

Prior to sentencing, the Probation Officer prepared a Presentence Investigation Report 

(“PSR”). The PSR revealed that Marchione was 48 years old and had a master’s degree in 

counseling. PSR ¶ 86, 90. Prior to his arrest, Marchione installed and repaired software in 

radiology departments. PSR ¶ 111. In addition, Marchione volunteered as a youth counselor 

and with Big Brothers Big Sisters. PSR ¶ 35. Marchione was a foster and adoptive parent, as 

well as a host for foreign exchange students. PSR ¶ 95.

The PSR assigned Marchione a base offense level of 22. PSR ¶ 60. The PSR then added 

several enhancements based on the specific offense characteristics for an adjusted offense level 

of 45.2 PSR ¶ 61–66. Marchione was then awarded a three-point reduction for acceptance of 

responsibility for a total offense level of 42.3 PSR ¶72–73. That total offense level, together 

with Marchione’s Criminal History Category I, resulted in a Guidelines range of 360 months to 

life.4 PSR ¶ 120.

Marchione objected to the 5-point enhancement for a pattern of abuse pursuant to 

U.S.S.G. § 2G2.2(b)(5). Specifically, Marchione claimed that “there is insufficient evidence to 

establish the defendant engaged in a ‘pattern’ of sexual abuse that includes two or more separate 

instances of sexual abuse or sexual exploitation of a minor.” PSR, PageID 238. Marchione 

 

2 Marchione received the following enhancements: +2 because the pornographic material 

involved prepubescent minors; +5 because he distributed child pornography with the expectation 

of receiving a thing of value; +4 because the material portrays sadistic and masochistic conduct; 

+5 because Marchione engaged in a pattern of sexual abuse and sexual exploitation of minors; 

+2 because the offense involved the distribution of child pornography via computer; and +5 

because the offense involved possession of over 40,000 images. 

3 Without the three-point reduction for acceptance of responsibility, Marchione’s total offense 

level of 45 would have resulted in a Guidelines range of life in prison.

4

The PSR recognized that the maximum statutorily authorized sentence is 600 months.
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reiterated this objection in a sentencing memorandum and at his sentencing. Sentencing Mem., 

PageID 360; Sentencing Tr., PageID 614.

On April 3, 2014, the district court conducted a sentencing hearing. Neither the 

Government nor Marchione called any witnesses. Relying on the information in the PSR, the 

district court sentenced Marchione to 360 months’ imprisonment, followed by lifetime 

supervised release. Moreover, the district court directed Marchione to pay a $300.00 assessment, 

a $5,000.00 fine, and $500.00 in restitution. Marchione timely appealed the judgment.

II.

On appeal, Marchione raises three challenges to his sentence: (1) the district court erred 

when it failed to conduct an evidentiary hearing at sentencing; (2) he received ineffective 

assistance from counsel when he was allowed to enter into a plea agreement that provided no 

benefit to him; and (3) his sentence is substantively unreasonable. As an initial matter, the court 

must determine whether Marchione waived any of these challenges. Although Marchione 

waived some of his appellate rights in his plea agreement, the waiver specifically excepted any 

objections he made at sentencing and any arguments that his plea was invalid. Am. Plea 

Agreement, PageID 155–56. Therefore, as detailed below, Marchione’s appellate waiver 

precludes only his third challenge.

A.

Marchione first challenges the district court’s failure to conduct an evidentiary hearing 

before giving him a 5-point enhancement under U.S.S.G. § 2G2.2(b)(5). Marchione claims that, 

because he objected that the evidence was insufficient to support the enhancement, the district 

court was obligated to entertain testimony from the alleged victims.
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Section 2G2.2(b)(5) provides: “If the defendant engaged in a pattern of activity involving 

the sexual abuse or exploitation of a minor, increase by 5 levels.” U.S.S.G. § 2G2.2(b)(5). The 

application notes explain that a “pattern of activity” is present when a defendant commits at least 

two separate instances of “sexual abuse or exploitation.” U.S.S.G. § 2G2.2(b)(5) Commentary. 

These other incidents need not have occurred during the course of the charged offense, involved 

the same minor, or even resulted in a conviction. Id.

1.

According to the PSR, Marchione was given the 5-point enhancement because “[a] 

preponderance of the evidence supports the fact the defendant engaged in a pattern of sexual 

abuse and exploitation of minor children . . . .” PSR ¶ 64. The PSR identified three victims who 

claimed that Marchione had sexually abused them. 

The first incident related to Marchione’s guilty plea for criminal sexual conduct in the 3rd 

Degree (Person 13 through 15) in state court. The factual basis for that plea involved a minor, 

D.M., who had met Marchione at the Family Outreach Center where Marchione was a counselor. 

D.M. reported that, while staying overnight at Marchione’s home, Marchione had sexually 

assaulted him:

When [D.M] went into the room he was confronted by Mr. Marchione. D.M. 

stated Mr. Marchione pushed him onto the bed, unzipped his pants, and then 

performed oral sex on him. D.M. stated he pleaded with Mr. Marchione to stop, 

but the defendant continued.

PSR ¶ 37. Based on this conduct, Marchione pleaded guilty to criminal sexual conduct in the 

state court. The conviction itself establishes one instance of sexual abuse of a minor. 
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The second victim, R.M.5—Marchione’s adopted son—told the probation officer that 

Marchione conditioned his adoption on R.M.’s agreement to have sex with him. R.M. further 

stated that “he had difficulty dealing with the sexual abuse . . . .” PSR ¶ 30–31. 

Third, one of Marchione’s previous next-door neighbors, J.M., stated that he had been in 

a sexual relationship with Marchione from ages 13 to 16. PSR ¶ 44. J.M. reported that he had 

had sex with Marchione on several occasions. PSR ¶ 45. J.M. explained that, although he had 

had a sexual relationship with Marchione, he did not believe he was a victim because he was a 

willing participant. PSR ¶ 44.

After receiving the PSR, Marchione’s counsel filed objections to the PSR, which 

included the argument that “there is insufficient evidence to establish the defendant engaged in a 

‘pattern’ of sexual abuse that includes two or more separate instances of sexual abuse or sexual 

exploitation of a minor.” PSR, PageID 238. 

2.

At sentencing, Marchione’s counsel reiterated his objections to the pattern-of-sexualabuse enhancement. The court began by noting that Marchione had a conviction for criminal 

sexual conduct in state court. 

The district court also examined the statement of J.M., who had claimed to have been in a 

sexual relationship with Marchione for three years. The district court credited J.M.’s statement

because J.M., by his own words, did not think of himself as a victim:

That’s a person who as [the Government] indicates has no axe to grind with Mr. 

Marchione. In fact idolized him I think the words were. Continues to view him as 

a good person. Thought that he was not really victimized even though he 

describes what all of us would describe as the victim of criminal conduct, namely, 

 

5 Although the PSR and the sentencing transcript use the victim’s name, this court will refer to 

him by his initials. 
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sex between an adult male and a minor child. And that is really, I think, hard to 

overlook and hard to undercut and certainly would establish by a preponderance 

of the evidence in my mind that those events occurred.

Id., PageID 620. 

But even beyond that, the district court noted that the “context” of the case “lends 

significant credibility” to D.M.’s and J.M.’s statements. Id. The district court noted that 

Marchione placed himself in areas with access to young males. The district court also noted the 

similarities between D.M.’s statement and the instructional Handbook 4 Child Lovers, found on 

Marchione’s computer, which describes how to have sex with children and avoid detection. 

Moreover, Marchione’s own statements in chat rooms—in which he claimed to have had sex 

with several minors, including one as young as 12—lent additional credibility to D.M.’s and 

J.M.’s statements. Accordingly, the district court properly concluded that D.M.’s and J.M.’s 

statements established by a preponderance of the evidence a basis for the pattern-of-abuse 

enhancement. 6 Sentencing Tr., Page ID 623. 

3.

On appeal, Marchione challenges the pattern enhancement, contending that the district 

court erred in relying solely on the factual allegation in the PSR. Marchione argues that “[t]his 

Court should hold that under the circumstances present in the instant case, the Government does 

not satisfy its evidentiary burden by relying on the PSR to establish disputed facts.” Appellant 

Br. 6. 

Pursuant to Federal Rule of Criminal Procedure 32, the sentencing court “must—for any 

disputed portion of the presentence report or other controverted matter—rule on the dispute or 

 

6 Because D.M.’s and J.M.’s statements were each sufficient to support the pattern-of-abuse 

enhancement, the district court did not believe it was necessary to credit R.M.’s statement. 

Sentencing Tr., PageID 620. 
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determine that a ruling is unnecessary either because the matter will not affect sentencing, or 

because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). In 

particular, Rule 32 “‘prohibits a court faced with a dispute over sentencing factors from adopting 

the factual findings of the [PSR] without making factual determinations of its own.’” United 

States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003) (quoting United States v. Parrott, 148 F.3d 

629, 633 (6th Cir. 1998)).

At sentencing, Marchione disputed the victims’ statements that provided the factual 

predicate for the pattern-of-abuse enhancement. He did not present contradictory evidence; 

instead, he challenged the reliability of those statements. 

Generally, “[w]hen a defendant fails to produce any evidence to contradict the facts set 

forth in the PSR, a district court is entitled to rely on those facts when sentencing the defendant.” 

United States v. Geerken, 506 F.3d 461, 467 (6th Cir. 2007) (citing United States v. Duckro, 

466 F.3d 438, 449 (6th Cir. 2006)). At the same time, however, this court has held that evidence 

relied on by a sentencing court must have at least a minimum indication of reliability. United 

States v. Reid, 357 F.3d 574, 582 (6th Cir. 2004).

The district court cogently explained the reasoning for its finding that D.M.’s and J.M.’s 

statements had sufficient indicia of reliability. Now, on appeal, Marchione asserts that the 

district court should have conducted an evidentiary hearing, even though he does not proffer any 

evidence that would undermine those statements. But an evidentiary hearing is only necessary if 

a defendant carries his initial burden of production: “If a defendant meets this initial burden of 

production, ‘the government must then convince the court that the PSR’s facts are actually 

true.’” United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013) (quoting Lang, 333 F.3d at 
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681). The defendant, however, “‘gets no free ride: he must produce more than a bare denial, or 

the judge may rely entirely on the PSR.’” Id. (quoting Lang, 333 F.3d at 681).

Marchione did not proffer any evidence that D.M.’s or J.M.’s statements were fabricated; 

nor did Marchione even deny that those statements were true. Instead, he attempted to impugn 

the credibility of the statements. Accordingly, Marchione did not carry his burden of production, 

and the district court did not err in relying solely on the PSR.

B.

Marchione next claims that he received ineffective assistance of counsel when he was 

permitted to enter into a plea agreement that offered him no benefit. He claims that any benefit 

he allegedly received, such as a three-point reduction for acceptance of responsibility and the 

dismissal of Count 1 of the Superseding Indictment, was illusory because he was effectively 

sentenced to a life-term. 

Generally, claims of ineffective assistance of counsel are addressed via collateral attack 

rather than direct appeal. United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (citing 

Massaro v. United States, 538 U.S. 500, 504 (2003)). The presumption against resolving an 

ineffective-assistance claim on direct appeal “‘stems from the fact that a finding of prejudice is a 

prerequisite to a claim for ineffective assistance of counsel, and appellate courts are not equipped 

to resolve factual issues.’” United States v. Brown, 332 F.3d 363, 368–69 (6th Cir. 2003)

(quoting United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997)). The Sixth Circuit 

considers ineffective-assistance claims on direct appeal only if the record is sufficiently 

developed to permit review of the claims. United States v. Jones, 489 F.3d 243, 255 (6th Cir. 

2007) (citing United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004)). 
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Here, the record is insufficiently developed to support Marchione’s claim of ineffective 

assistance of counsel. There is no affidavit or testimony from Marchione’s trial counsel 

explaining the defense strategy, nor is there information regarding the discussions Marchione 

had with trial counsel. All that is apparent from the record is that Marchione entered into a plea 

agreement in exchange for (1) dismissal of Count 1, Advertising Material Involving the Sexual 

Exploitation of Children, (2) a promise from the Government that it would not object to a federal 

sentence that ran concurrent with the state sentence, (3) a promise that the Government would 

not object to a reduction in the offense level for acceptance of responsibility; and (4) a promise 

not to prosecute Marchione for any additional violations of 18 U.S.C. §§ 2251(d) and 2252A that 

occurred between January and August of 2012. Given the limited record on direct appeal, this 

court has “no way of knowing whether a seemingly unusual or misguided action by counsel had 

a sound strategic motive or was taken because the counsel’s alternatives were even worse.” 

Massaro, 538 U.S. at 505. Nor can this court determine whether any error was prejudicial to 

Marchione. Therefore, this is not one of the “rare cases where the error is apparent from the 

existing record,” United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006), which would 

allow this court to fully address Marchione’s claim. Accordingly, Marchione’s ineffective 

assistance-of-counsel claim is more appropriately raised in post-conviction proceedings because 

the district court will be able to develop a record specific to the adequacy of the representation. 

United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (explaining that an appellate court 

“may choose to hear the issue on direct appeal if we find that the parties have adequately 

developed the record”).
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C.

Lastly, Marchione contends that the trial court imposed a substantively unreasonable 

sentence. But Marchione waived his right to challenge the substantive reasonableness of his 

sentence in his amended plea agreement. In the amended plea agreement, Marchione 

“knowingly waive[d] the right to appeal the sentence,” except that he retained the right to appeal 

the sentence on three grounds: (1) the sentence “exceeds the combined statutory maximum of the 

counts of conviction”; (2) the sentence was “based upon an unconstitutional factor such as race, 

religion, national origin or gender”; and (3) he may appeal “those objections preserved at 

sentencing that the Court incorrectly determined the final Guideline range, or the amount of 

restitution if any.” Am. Plea Agreement, PageID 155–56.

“Criminal defendants may waive their right to appeal as part of a plea agreement so long 

as the waiver is made knowingly and voluntarily.” United States v. Swanberg, 370 F.3d 622, 

625 (6th Cir. 2004) (citing United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001)). 

Marchione does not claim that his plea agreement was unknowing or involuntary, and nothing in 

the record suggests the plea agreement is unenforceable. Moreover, not one of the exceptions to 

his appellate waiver applies to his substantive unreasonableness argument. Marchione’s

challenge to the substantive reasonableness of his sentence is foreclosed by his appellate waiver, 

and therefore it is unavailing. 

III.

Accordingly, Marchione’s sentence is affirmed.