United States v. McCarty

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0394p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-3398
v.
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Defendant-Appellant. -
JOSHUA TROY MCCARTY,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 08-00409-001—David A. Katz, District Judge.
Argued: December 2, 2010
Decided and Filed: December 28, 2010
Before: KENNEDY, COLE, and ROGERS, Circuit Judges.

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COUNSEL
ARGUED: Elizabeth N. Gaba, Columbus, Ohio, for Appellant. Thomas O. Secor,
ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee.
ON BRIEF: Elizabeth N. Gaba, Columbus, Ohio, for Appellant. Thomas O. Secor,
ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee.
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OPINION
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COLE, Circuit Judge. Defendant-Appellant Joshua T. McCarty appeals his
conviction and within-Guidelines sentence of forty-six months’ imprisonment for
knowingly stealing two cultural heritage objects, in violation of 18 U.S.C. § 668(b).
Specifically, McCarty alleges six general errors: (1) the district court improperly
calculated the value of the stolen cultural heritage objects under U.S. Sentencing
Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 2B1.1(b)(1) (2008); (2) the district

1
No. 09-3398 United States v. McCarty Page 2

court improperly found that he stole the objects “for pecuniary gain” under U.S.S.G.
§ 2B1.5(b)(4) (2008); (3) the district court improperly determined that he “engaged in
a pattern of misconduct involving cultural heritage resources” under U.S.S.G.
§ 2B1.5(b)(5) (2008); (4) the district court violated his constitutional rights by
considering his uncharged and unconvicted conduct in determining his sentence; (5) the
district court did not adequately consider his mental health issues; and (6) he received
ineffective assistance of counsel before the district court.

For the reasons below, we AFFIRM McCarty’s sentence.

I.

McCarty is a thirty-four-year-old man who has a history of mental illness,
including hallucinations, paranoia, schizoaffective disorder (bipolar type), obsessive
compulsive disorder, post-traumatic stress disorder and borderline personality disorder.
McCarty was hospitalized in 2000 for psychiatric issues. He suffers also from ongoing
depression and drug abuse problems. McCarty has received intermittent treatment and
medication for these mental health issues, but stopped in approximately 2006.

McCarty has several prior state-court convictions, including for unauthorized use
of property, falsification, theft and various vehicular offenses. Additionally, McCarty
was convicted of theft of lost or mislaid property in 2007 for selling a historical map—an
1865 “Map of Oil Territory near Tidioute, Warren County”—that had been stolen along
with fifty to sixty other such maps (valued, in total, at approximately $20,000) from a
bookstore in Harrisburg, Pennsylvania. McCarty sold the stolen map to a bookstore in
Evanston, Illinois.

Also, McCarty was under investigation for a burglary at a bookstore in Chicago,
Illinois, from which a number of books were stolen. McCarty had lived in Chicago,
admitted to being in the Chicago area at the time, and knew the name of the robbed
bookstore without its prior disclosure to the public. About two weeks after the burglary,
McCarty’s girlfriend, Angela Bays, attempted to sell several books matching those taken
from the Chicago bookstore at a bookstore in Columbus, Ohio. McCarty resided in
No. 09-3398 United States v. McCarty Page 3

Columbus until his current arrest and prosecution. Police eventually recovered from
McCarty’s apartment several books matching the description of the books stolen in
Chicago.

McCarty was also suspected of stealing books from a bookstore burglarized in
Columbus, Ohio when police discovered a list of books in his apartment with cities,
prices and some dates, and the bookstore owner indicated that four of the twelve books
on McCarty’s list corresponded to books stolen from the owner’s Columbus shop,
including a “Dictionary of the English Language, Volumes I and II,” which sold for
$6,000 and was published in 1773.

On June 27, 2008, while Bays was with him, and while on probation for Ohio and
Illinois convictions, McCarty stole from the Rutherford B. Hayes Presidential Center
(“Hayes Center”), a museum in Fremont, Ohio, a book titled “Laws of the Territory of
the United States North West of the River Ohio,” also known as the “Freeman Code,”
and published in 1798. On August 25, 2008, McCarty and another individual stole from
the Hayes Center a book titled “Laws of the Territory of the United States North West
of the Ohio,” also known as the “Maxwell Code,” and published in 1796. McCarty
ultimately sold the Freeman Code for $35,000, and gave the Maxwell Code to the
mother of one of his children to keep for him. McCarty regularly buys and sells books,
particularly antique books, and at some point prior to his theft of the Maxwell Code,
McCarty discussed his purported ownership of the Maxwell Code and the possibility of
selling the Freeman Code with various historical book collectors and dealers.

McCarty was subsequently arrested and then indicted in the U.S. District Court
for the Northern District of Ohio for two counts—one for each of the Freeman and
Maxwell Codes (collectively, “Codes”)—of knowingly stealing cultural heritage objects,
in violation of 18 U.S.C. § 668(b). McCarty eventually pled guilty, after a change-of-
plea hearing during which the court found him competent to plead. In response to the
Presentence Investigation Report (“PSR”), McCarty filed objections, but the government
did not. Throughout this period, Federal Bureau of Investigation Special Agent Charles
Holloway was investigating McCarty; the government disclosed—through Special Agent
No. 09-3398 United States v. McCarty Page 4

Holloway’s testimony—the results of this investigation at McCarty’s sentencing. In
particular, Special Agent Holloway testified, among other things, to McCarty’s prior
uncharged behavior related to cultural heritage objects, McCarty’s actions surrounding
the instant charged offenses, and the value of the Codes. Having found that McCarty’s
criminal background merited a criminal history category III classification, the district
court determined his offense level to be 21, after a three-level reduction for acceptance
of responsibility and application of the enhancements in U.S.S.G. §§ 2B1.1(b)(1)(F)
(2008) (adding ten levels), 2B1.5(b)(4) (2008) (adding two levels), and 2B1.5(b)(5)
(2008) (adding two levels). The district court then calculated McCarty’s Guidelines
range to be between forty-six and fifty-seven months, and sentenced him to forty-six
months’ imprisonment. McCarty timely appealed.

II.

We review the factual findings undergirding the district court’s application of the
Guidelines for clear error, but we apply the Guidelines to those facts de novo. United
States v. Gregory, 315 F.3d 637, 642 (6th Cir. 2003). “A [district court’s] finding is
clearly erroneous where, although there is evidence to support it, the reviewing court . . .
is left with the definite and firm conviction that a mistake has been committed.” United
States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010) (internal quotation marks and citation
omitted).

A defendant’s sentence must be both substantively and procedurally reasonable.
Gall v. United States, 552 U.S. 38, 46 (2007); see also United States v. Barahona-
Montenegro, 565 F.3d 980, 983 (6th Cir. 2009). “A sentence may be considered
substantively unreasonable when the district court selects a sentence arbitrarily, bases
the sentence on impermissible factors, fails to consider relevant sentencing factors, or
gives an unreasonable amount of weight to any pertinent factor.” United States v.
Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (citation omitted). In assessing the
procedural reasonableness of a defendant’s sentence, we “ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
No. 09-3398 United States v. McCarty Page 5

consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” United States v.
Martinez, 588 F.3d 301, 324 (6th Cir. 2009) (internal quotation marks and citation
omitted). At oral argument, the government abandoned seeking plain error review, so
we examine the reasonableness of McCarty’s sentence for abuse of discretion. See
Conatser, 514 F.3d at 520.

III.

A. Type and Nature of Evidence Considered at Sentencing

As an initial matter, McCarty objects to the district court’s consideration of
hearsay evidence and uncharged and unconvicted conduct in crafting his sentence,
specifically that adduced through the testimony of Special Agent Holloway. However,
the Guidelines explicitly contemplate such consideration. See, e.g., U.S.S.G. §§ 1B1.1
cmt. n.1(H) (2008), 2B1.5 cmt. n.6(A) (2008). Also, we have held that the rules of
evidence—including the general prohibition on hearsay—do not apply at sentencing, and
that a district court may properly consider a defendant’s uncharged and unconvicted
conduct in determining his or her sentence; due process requires simply that “some
evidentiary basis beyond mere allegation in an indictment be presented to support
consideration of such conduct as relevant to sentencing.” United States v. Silverman,
976 F.2d 1502, 1512 (6th Cir. 1992) (en banc) (quoting United States v. Herrera,
928 F.2d 769, 773 (6th Cir. 1991)); see also United States v. Al-Cholan, 610 F.3d 945,
955 (6th Cir. 2010).

Here, Special Agent Holloway’s testimony contained an “evidentiary basis
beyond mere allegation in a complaint”: He provided a detailed explanation for the
foundation of his opinions and the findings of his extensive investigation, and the district
court determined that his testimony merited credence. We thus reject McCarty’s
argument that the district court improperly considered hearsay evidence or his uncharged
and unconvicted acts.
No. 09-3398 United States v. McCarty Page 6

B. The Codes’ Value

In determining McCarty’s Guidelines range, the district court applied a ten-level
offense enhancement, U.S.S.G. § 2B1.1(b)(1)(F) (2008), which applies when the stolen
property’s value exceeds $120,000 but is equal to or less than $200,000. McCarty
argues that the district court never determined that the Codes’ combined value exceeded
$120,000, and that, even if it did, the district court erred in doing so. Therefore, only an
eight-level enhancement would be proper. See U.S.S.G. § 2B1.1(b)(1)(E) (2008). The
government responds that the district court’s language, read in context, demonstrates that
the district court intended to apply U.S.S.G. § 2B1.1(b)(1)(F) (2008) and thus found the
Codes’ combined value to exceed $120,000; the government also notes that the record
independently supports application of the ten-level enhancement. The focus of the
parties’ dispute is therefore whether the Codes’ value merited an eight-level or ten-level
offense enhancement.

We have stated that “the district court is to determine the amount of loss [under
U.S.S.G. § 2B1.1(b)(1)] by a preponderance of the evidence, and the district court’s
findings are not to be overturned unless they are clearly erroneous.” United States v.
Triana, 468 F.3d 308, 321 (6th Cir. 2006) (citation omitted). However, we review the
district court’s “methodology for calculating loss”—to wit, “whether those facts as
determined by the district court warrant the application of a particular” offense-level
increase—de novo. Id. (internal quotation marks and citations omitted). In calculating
the amount of loss, “[t]he [district] court need only make a reasonable estimate of the
loss. The sentencing judge is in a unique position to assess the evidence and estimate
the loss based upon that evidence. For this reason, the [district] court’s loss
determination is entitled to appropriate deference.” U.S.S.G. § 2B1.1 cmt. n.3(C)
(2008). Specifically regarding valuation of “cultural heritage resource[s]” such as the
Codes, the commentary states: “In a case involving a cultural heritage resource, loss
attributable to that cultural heritage resource shall be determined [under] . . . Application
Note 2 of the Commentary to §2B1.5.” U.S.S.G. § 2B1.1 cmt. n.3(F)(vii) (2008). That
provision, meanwhile, merely restates the idea that the district court “need only make
No. 09-3398 United States v. McCarty Page 7

a reasonable estimate of the value of the cultural heritage resource based on available
information.” U.S.S.G. § 2B1.5 cmt. n.2(B) (2008). Moreover, the section states that
the object’s value is, in relevant part, the “commercial value” of the item, U.S.S.G.
§ 2B1.5 cmt. n.2(A)(ii) (2008), which it defines as “the fair market value of the cultural
heritage resource at the time of the offense,” U.S.S.G. § 2B1.5 cmt. n.2(C)(ii) (2008).

Here, the district court received numerous estimates from various sources on the
value of the Codes: Expert estimates of the market value of the Maxwell Code ranged
from $40,000 to “as much or more than” $112,500, with most at or above $100,000,
while expert estimates of the market value of the Freeman Code ranged from $30,000
to $45,000. Ultimately, the district court determined that the value of the Codes was “at
a minimum of 120,000,” but that there was “some significant evidence of value in excess
of 135,000, which is but frosting on the cake because it does not approach the top limit
. . . [of] 200,000.” (Sentencing Hr’g Tr., Dist. Ct. Docket No. 47, at 42.) Moreover,
later in its explicit findings of fact, the district court reiterated: “I find that the combined
value of the Maxwell Code and Freeman Code is at least $120,000, but not more than
$200,000, so that ten additional levels are added pursuant to Guideline Section
2B1.1B1F.” (Id. at 45 (emphasis added).)

The district court’s precise language does not definitively establish that it found
the Codes to be worth greater than $120,000. However, reading the district court’s
finding in light of its observation regarding “some significant evidence of value in
excess of 135,000” and its belief that U.S.S.G. § 2B1.1(b)(1)(F) (2008) applied, suggests
that the district court intended to find the Codes worth greater than $120,000. The
evidence adduced regarding the Codes’ value further supports this conclusion: The
district court’s determination indicates that it decided to credit the PSR’s
analysis—based on victim impact testimony from the Hayes Center’s director—as well
as Special Agent Holloway’s testimony regarding his conversations with various experts,
not the statements from McCarty’s expert—a Dayton, Ohio book dealer—that would
have placed the combined value at or below $120,000.
No. 09-3398 United States v. McCarty Page 8

We thus conclude that the district court properly applied the ten-level
enhancement of U.S.S.G. § 2B1.1(b)(1)(F) (2008).

C. “For Pecuniary Gain”

McCarty argues that the district court improperly applied U.S.S.G. § 2B1.5(b)(4)
(2008), which increased his offense by two levels. McCarty claimed below, and
continues to claim here: “I had never heard of this book before and in the heat of the
moment, I had a lapse of judgment and put the book in my shirt. A moment later, I left
the library and drove home.” (PSR ¶ 29.) The government responds that the district
court properly applied the enhancement given the evidence in the record.

Section 2B1.5(b)(4) (2008) of the Guidelines increases a defendant’s offense
level by two points if “the offense was committed for pecuniary gain or otherwise
involved a commercial purpose.” The commentary defines “for pecuniary gain” as “for
receipt of, or in anticipation of receipt of, anything of value, whether monetary or in
goods or services.” U.S.S.G. § 2B1.5 cmt. n.5(A) (2008).

Only one federal court has discussed this provision: United States v. Amlee, 308
F. App’x 862 (5th Cir. 2009). In Amlee, the Fifth Circuit found the enhancement
applicable because there was evidence that the defendant’s intention in stealing various
antique items was possibly to sell them at some point in the future. Id. at 864. The Fifth
Circuit thus focused on the defendant’s intent during commission of the crime. Id. We
agree with the Fifth Circuit, and the plain text of the provision, that the enhancement’s
language appears to focus on the defendant’s intention at the time of the theft.

Here, the district court concluded that U.S.S.G. § 2B1.5(b)(4) (2008) applied
“since Mr. McCarty sold the Freeman Code for 35,000.” (Sentencing Hr’g Tr., Dist. Ct.
Docket No. 47, at 45-46.) Additionally, the district court stated that, though it was
unsure of whether McCarty’s “disorders have an impact upon his ability to recognize the
seriousness of what he was about to do before he did it, . . . [s]uffice it to say that . . . he
had the prerequisite intent to do the act of theft and subsequent act of sale of rare books.”
(Id. at 54.) While the ultimate sale may itself speak to McCarty’s intention at the time
No. 09-3398 United States v. McCarty Page 9

of the theft, it does not inherently do so and arguably does not by itself constitute
evidence adequate to justify application of U.S.S.G. § 2B1.5(b)(4) (2008). In this case,
however, the district court also received evidence from Special Agent Holloway that
McCarty regularly bought and sold books, including antique books, and that McCarty
had discussed his purported ownership of the Maxwell Code and the possible sale of the
Freeman Code even before stealing at least the Maxwell Code. These two facts, coupled
with the ultimate sale, supported the district court’s conclusion that “pecuniary gain”
motivated McCarty’s thefts, so the district court thus properly applied this enhancement.

D. “A Pattern of Misconduct Involving Cultural Heritage Resources”

McCarty further argues that the district court improperly found that he “engaged
in a pattern of misconduct involving cultural heritage resources” and consequently
wrongly increased his offense by two levels. See U.S.S.G. § 2B1.5(b)(5) (2008).

1. Timing

As a preliminary matter, McCarty objects to the government’s failure to object
to the PSR, which did not discuss this enhancement, and the fact that the government
first revealed that it was seeking application of this enhancement at sentencing.

In the similar circumstances of United States v. Smith, we addressed a situation
in which the defendant alleged prejudice from the government’s failure to argue for
application of a particular PSR provision (or object to the PSR) prior to sentencing.
429 F.3d 620, 629-30 (6th Cir. 2005). We held that, notwithstanding any error regarding
advance notice prior to the sentencing, the “Defendant received the appropriate remedy
for any shortcoming on the part of the Government here: The sentencing was continued
and the Defendant had extra time to prepare for the hearing.” Id.

Defense counsel here initially objected to the government’s presentation of
previously undisclosed evidence at sentencing: “I would raise an objection about that
because we are -- today’s the date of sentencing. I have not received any documentation
or anything with a valuation written out such as ours was, and I did disclose this to the
prosecution.” (Sentencing Hr’g Tr., Dist. Ct. Docket No. 47, at 6-7.) The district court,
No. 09-3398 United States v. McCarty Page 10

however, replied: “I will let the government present its evidence. You will have an
opportunity for cross examination, and if you believe that it is important for you to have
additional time, we’ll discuss it.” (Id. at 7.) The district court thus effectively offered
defense counsel the “appropriate remedy” that we discussed in Smith: more time to
prepare adequately for sentencing after hearing the government’s new arguments.
Nonetheless, defense counsel proceeded with the sentencing and never again raised the
issue of her preparedness or requested more time. McCarty’s objection to the timing of
the government’s argument is thus not well taken.

2. Merits

The “pattern of misconduct” enhancement requires the government to show “two
or more separate instances of offense conduct involving a cultural heritage resource that
did not occur during the course of the offense.” U.S.S.G. § 2B1.5 cmt. n.6(A) (2008).
In relevant part, the government must therefore present, and the district court must
credit, evidence detailing (1) two or more (2) instances of offense conduct (3) involving
a cultural heritage resource. Id.

In this case, the district court received evidence regarding three possible
instances of “offense conduct” unrelated to the instant charges: (1) a theft of fifty to sixty
“historical” maps from a bookstore in Harrisburg, Pennsylvania (“Harrisburg theft”);
(2) a theft of various books from a bookstore in Columbus, Ohio (“Columbus theft”);
and (3) a theft of various books from a bookstore in Chicago, Illinois (“Chicago theft”).
Discussing the applicability of this enhancement, the district court stated: “I must admit
that at least two of the three [instances], and it takes two, are very convincing. The same
young woman who was with him in Fremont at the Hayes Center ends up selling
materials stolen in Chicago within two weeks. That’s more than coincidental.”
(Sentencing Hr’g Tr., Dist. Ct. Docket No. 47, at 47.) The district court then concluded
that the enhancement applied.

Examination of the evidence demonstrates that the district court had no factual
basis for applying the enhancement, specifically because there is no evidence in the
record establishing that two of the three “instances of offense conduct”—including the
No. 09-3398 United States v. McCarty Page 11

one explicitly referenced by the district court—actually involved “cultural heritage
resource[s].” The commentary defines “cultural heritage resource” as, in relevant part,
“[a]n object of cultural heritage, as defined in 18 U.S.C. § 668(a)(2).” U.S.S.G. § 2B1.5
cmt. n.1(F) (2008). That statutory section, meanwhile, defines an “object of cultural
heritage” as, in relevant part, “an object that is . . . [(1)] over 100 years old and [(2)]
worth in excess of $5,000.” 18 U.S.C. § 668(a)(2)(A). This definition stands in contrast
to the short-hand used by the government and district court in finding this enhancement
applied—namely, “ancient books.” (Sentencing Hr’g Tr., Dist. Ct. Docket No. 47, at
47.)

Here, the Chicago theft is the one on which the district court focused—the
district court did not specify which of the other two thefts it found credible—in applying
the U.S.S.G. § 2B1.5(b)(5) (2008) enhancement. Special Agent Holloway provided the
only evidence regarding that theft, but noticeably absent from his description of the theft
is an identification of the age of the books taken or the value thereof—and the district
court did not make any findings regarding either element before applying the
enhancement. The Chicago theft thus could not constitute one of the two required acts
of misconduct for an enhancement under U.S.S.G. § 2B1.5(b)(5) (2008).

Similarly, the Harrisburg theft does not constitute an “instance of offense
conduct” that involves a “cultural heritage resource.” While the PSR indicated that the
fifty or sixty maps were worth $20,000 in total, only the age of a single map—the 1865
“Map of Oil Territory near Tidioute, Warren County”—existed in the record. The record
thus contains no single object satisfying the two requirements of an “object of cultural
heritage”: The 1865 map is old enough, but its isolated value is unknown; meanwhile,
the group of maps—if they may even be considered a single “object” for purposes of the
statute—satisfy the value requirement, but there is no indication of their age (besides that
of the lone 1865 map). See 18 U.S.C. § 668(a)(2)(A).

Therefore, notwithstanding the fact that the Columbus theft would be adequate
to constitute a prior instance of offense conduct involving “an object of cultural
heritage”—because a list obtained from McCarty’s apartment included a book from 1773
No. 09-3398 United States v. McCarty Page 12

purportedly stolen from the Columbus bookstore and worth $6,000—the record contains
no other “instance[] of offense conduct” adequate to ground a finding that McCarty
“engaged in a pattern of misconduct involving cultural heritage resources.” See U.S.S.G.
§ 2B1.5(b)(5) (2008). The district court thus erroneously applied the “pattern of
misconduct” enhancement and therefore improperly calculated McCarty’s Guidelines
range.

Consequently, “‘we are required to remand for resentencing unless we are certain
that any such error was harmless.’” United States v. Jeross, 521 F.3d 562, 569 (6th Cir.
2008) (quoting United States v. Vicol, 514 F.3d 559, 561 (6th Cir. 2008)). “A sentencing
error is harmless if we are certain that the error did not affect the district court’s selection
of the sentence imposed.” Id. (internal quotation marks and citation omitted).

Here, immediately prior to pronouncing McCarty’s forty-six month sentence, the
district court explained:

I must say that while I believe that the two level enhancement that I have
included [under § 2B1.5(b)(5)] was appropriate, I have also concluded
that the number of months, whether it’s a 19 level or 21 level [offense],
that I intended to sentence this man at would remain constant, and you
will hear that now.

(Sentencing Hr’g Tr., Dist. Ct. Docket No. 47, at 54-55.) Through this statement, the
district court indicated that its sentence would have been the same irrespective of the
improper application of U.S.S.G. § 2B1.5(b)(5) (2008), and its error was thus harmless.
See Jeross, 521 F.3d at 569. This is especially so because McCarty’s forty-six month
sentence fell within the Guidelines range regardless of whether the district court
sentenced McCarty at an offense level of nineteen or twenty-one. See U.S.S.G. ch. 5,
pt. A (2008) (showing a range of 37-46 months for criminal history category III, offense
level 19, and a range of 46-57 months for criminal history category III, offense level 21).

We thus conclude that though the district court’s application of U.S.S.G.
§ 2B1.5(b)(5) (2008) was erroneous, it constituted harmless error and resentencing is
unnecessary.
No. 09-3398 United States v. McCarty Page 13

E. McCarty’s Mental Health

McCarty next argues that the district court did not give adequate weight to his
mental health problems in imposing a forty-six month sentence, and contends that his
mental issues merited a lesser sentence.1 The government responds that the district court
understood its discretion to vary or depart downwards, and adequately addressed
McCarty’s mental health issues.

“The district court’s decision to deny a Guideline-based departure . . . is not
reviewable by this Court so long as the district court was aware of and understood its
discretion to make such a Guideline-based departure,” United States v. McBride, 434
F.3d 470, 476 (6th Cir. 2006) (citation omitted), and nothing in the record suggests that
the district court did not understand its ability to vary or depart downwards based on
McCarty’s mental health. However, we still review the reasonableness of a sentencing
determination based on “the [18 U.S.C.] section 3553(a) factors in their totality.” Id. at
476-77.

The district court’s discussion demonstrates that it adequately considered and
weighed McCarty’s mental health in crafting his sentence. Specifically, the district court
acknowledged that it “need[ed] to be sensitive to the significant and detailed mental
history of this defendant as outlined in the [PSR] and [defense counsel]’s memorandum.”
(Sentencing Hr’g Tr., Dist. Ct. Docket No. 47, at 53-54.) The district court then detailed
McCarty’s mental health issues, and concluded that “[a]ll of these things militate in
favor of two things, and two things only in my mind”: (1) “that I request the Bureau of
Prisons to take account of these issues and institutionalize him where he can get help in
dealing with th[ese] disorders”; and (2) that, while the district court was uncertain
regarding whether “th[ese] disorders ha[d] an impact upon his ability to recognize the

1
Additionally, McCarty implies that the district court should not have accepted his guilty plea due
to questions about his mental health, but the district court adequately assuaged its concerns about
McCarty’s competence to plead by discussing the issue with McCarty and defense counsel, the latter of
whom explicitly stated that “he and I have talked pretty extensively,” and “I don’t think there’s a
competency issue.” (Plea Hr’g Tr., Dist. Ct. Docket No. 44, at 6-7). We review competency
determinations for clear error, Harries v. Bell, 417 F.3d 631, 635 (6th Cir. 2005), and McCarty has not
shown, nor does the record independently reveal, that the district court committed clear error in
determining that McCarty was competent to plead guilty.
No. 09-3398 United States v. McCarty Page 14

seriousness of what he was about to do before he did it, . . . [McCarty] had the
prerequisite intent to do the act of theft and subsequent act of sale of rare books.” (Id.
at 54.) We require no more than such consideration to establish the reasonableness of
a defendant’s sentence. See, e.g., United States v. Moon, 513 F.3d 527, 539 (6th Cir.
2008) (“While the district court need not engage in a ritualistic incantation of the [18
U.S.C.] § 3553(a) factors, its opinion should be sufficiently detailed to reflect the
considerations listed in § 3553(a) and to allow for meaningful appellate review.”
(internal quotation marks and citations omitted)); see also United States v. Kirchhof, 505
F.3d 409, 416-17 (6th Cir. 2007) (affirming a district court’s decision to decline to vary
or depart downwards based on a defendant’s psychological issues given adequate
consideration and reasoning).

F. Ineffective Assistance of Counsel

Lastly, McCarty claims his trial counsel was ineffective for failing to: (1) request
a continuance to be able to address the pattern-of-conduct enhancement that the
government sought for the first time at the sentencing hearing; (2) instruct McCarty to
obtain a plea deal in exchange for his cooperation with the government in his
prosecution; and (3) investigate possible defenses or alternatives given McCarty’s
mental health history before instructing McCarty to plead guilty.

We have noted that “[a] guilty plea can be involuntary as a result of the
ineffective assistance of counsel.” United States v. Gardner, 417 F.3d 541, 545 (6th Cir.
2005) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). However, “ordinarily we will
not review a claim of ineffective assistance of counsel on direct appeal because the
record is usually insufficient to permit adequate review of such a claim. These claims
are [thus] more properly raised in a postconviction proceeding brought pursuant to
28 U.S.C. § 2255.” Id. (internal citations omitted); see also United States v. Long,
190 F.3d 471, 478 (6th Cir. 1999) (“We generally will not review an ineffective
assistance of counsel claim on direct appeal, as such claims are more appropriately
raised in a post-conviction motion under 42 U.S.C. § 2255 when an adequate record may
be developed on the issue.”). In Gardner, therefore, we found the defendant’s claim
No. 09-3398 United States v. McCarty Page 15

unripe on direct review because “the alleged ineffectiveness of [the defendant]’s counsel
[was] not apparent. The record contain[ed] no evidence regarding what advice, if any,
his counsel provided with regard to the potential drug-quantity enhancement.” 417 F.3d
at 545. We reasoned that it would be better to allow a district court first to develop the
evidentiary record on § 2255 review before examining the merits of the defendant’s
ineffective assistance claims. Id.; see also United States v. Lopez-Medina, 461 F.3d 724,
737 (6th Cir. 2006) (finding an ineffective assistance of counsel claim unripe on direct
review because “the alleged ineffectiveness of [the defendant]’s trial counsel [was] not
apparent from the record,” such as “why, for example, defense counsel chose not to file
any additional motions beyond his initial motion,” so we could not “determine whether
his actions reflected a reasoned trial strategy”).

Likewise, here the record does not explain why defense counsel did not ask for
a continuance or what her strategy entailed regarding McCarty’s mental history or guilty
plea. The record on these claims is underdeveloped, and McCarty’s appellate brief
consists largely of unsubstantiated allegations without affidavits from defense counsel
or himself to buttress his arguments. Such circumstances present precisely the type of
situation discussed in Gardner and Lopez-Medina, and we therefore find McCarty’s
ineffective assistance claims unripe.

IV.

For the reasons explained above, we AFFIRM McCarty’s sentence.