United States v. Edward Alan Hardin

USCA11 Case: 22-12460    Document: 32-1     Date Filed: 06/13/2023   Page: 1 of 6




                                                  [DO NOT PUBLISH]
                                   In the
                United States Court of Appeals
                        For the Eleventh Circuit

                          ____________________

                                No. 22-12460
                          Non-Argument Calendar
                          ____________________

       UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,
       versus
       EDWARD ALAN HARDIN,


                                                  Defendant-Appellant.


                          ____________________

                 Appeal from the United States District Court
                      for the Middle District of Florida
                 D.C. Docket No. 3:20-cr-00093-MMH-JBT-1
                          ____________________
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       2                          Opinion of the Court                      22-12460


       Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.
       PER CURIAM:
              Appellant Edward Hardin pled guilty to one count of at-
       tempted production of child pornography, in violation of 18 U.S.C.
       § 2251(a) and (e), and one count of possession of child pornogra-
       phy, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). For these
       crimes, the district court imposed a total sentence of 480 months’
       imprisonment, which was the statutory maximum sentence the
       court could impose for these charges. On appeal, Hardin challenges
       the procedural and substantive reasonableness of his sentence and
       also argues that it violated the Eighth Amendment’s prohibition on
       cruel and unusual punishment.1
              We begin with Hardin’s challenge to the reasonableness of
       his sentence. Hardin argues that his sentence was procedurally and
       substantively unreasonable because the district court “misapplied
       the Sentencing Guidelines,” “relied on fatally flawed guidelines,”
       failed to properly consider the sentencing factors set forth at
       18 U.S.C. § 3553(a), 2 failed to provide “a sufficient explanation” for


       1 Because we write only for the parties, who are already familiar with the facts
       and proceedings in the case, we include only what is necessary to explain our
       decision.
       2 Under § 3553(a), the district court is required to impose a sentence “suffi-
       cient, but not greater than necessary, to comply with the purposes” of the stat-
       ute. 18 U.S.C. § 3553(a). These purposes include the need to: reflect the seri-
       ousness of the offense; promote respect for the law; provide just punishment;
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       22-12460                   Opinion of the Court                               3

       its decision, and imposed an “excessive term of incarceration.” Ap-
       pellant’s Br. at 18.
               We dismiss this portion of the appeal because in the plea
       agreement Hardin knowingly and voluntarily waived his right to
       challenge on appeal the procedural and substantive reasonableness
       of his sentence. He was charged not only with the crimes to which
       he pled guilty, but also with two counts of enticing a minor to en-
       gage in a commercial sexual act, in violation of 18 U.S.C.
       § 1591(a)(1) and (b)(1); two counts of using a computer and cell
       phone to entice a minor to engage in sexual activity, in violation of
       18 U.S.C. § 2422(b); two counts of using a computer and cell phone
       to entice a minor to produce child pornography, in violation of
       18 U.S.C. §§ 2422(b) and 2427; and one count of enticing a minor
       to engage in sexually explicit conduct for the purpose of producing
       child pornography, in violation of 18 U.S.C. § 2251(a) and (e). For
       these charges, Hardin faced a potential maximum sentence of life
       imprisonment. In the plea agreement, he agreed to plead guilty to
       only two of the charges—attempting to produce child pornogra-
       phy and possessing child pornography—in exchange for dismissal


       deter criminal conduct; protect the public from the defendant’s future criminal
       conduct; and effectively provide the defendant with educational or vocational
       training, medical care, or other correctional treatment. Id. § 3553(a)(2). The
       court must also consider the nature and circumstances of the offense, the his-
       tory and characteristics of the defendant, the kinds of sentences available, the
       applicable guidelines range, the pertinent policy statements of the Sentencing
       Commission, the need to avoid unwarranted sentencing disparities, and the
       need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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       4                          Opinion of the Court                  22-12460

       of the remaining seven charges. Hardin’s statutory maximum sen-
       tence was therefore reduced to 40 years’ imprisonment. As a part
       of the plea agreement, Hardin agreed to “waive[] the right to ap-
       peal [his] sentence on any ground,” except to raise a challenge that
       “the sentence exceed[ed] the . . . applicable guidelines range as de-
       termined by the Court,” “the sentence exceed[ed] the statutory
       maximum penalty,” or “the sentence violate[d] the Eighth Amend-
       ment to the Constitution.” Doc. 89 at 14 (emphasis omitted). 3
              A defendant’s waiver of the right to appeal his sentence is
       enforceable so long as the waiver was “knowing and voluntary.”
       United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993). The
       record reflects that Hardin knowingly and voluntarily waived his
       right to challenge the procedural and substantive reasonableness of
       his sentence on appeal; thus, we dismiss this portion of his appeal.
               We now turn to Hardin’s Eighth Amendment challenge. In
       the plea agreement, Hardin retained the right to raise this issue on
       appeal. But because he did not raise it in the district court, we re-
       view for plain error only. See United States v. Raad, 406 F.3d 1322,
       1323 (11th Cir. 2005). “Plain error occurs where (1) there is an er-
       ror; (2) that is plain or obvious; (3) affecting the defendant’s sub-
       stantial rights in that it was prejudicial and not harmless; and
       (4) that seriously affects the fairness, integrity, or public reputation
       of the judicial proceedings.” Id. (internal quotation marks omitted).
       When the “explicit language of a statute or rule does not


       3 “Doc.” numbers refer to the district court’s docket entries.
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       22-12460               Opinion of the Court                         5

       specifically resolve an issue, there can be no plain error where there
       is no precedent from the Supreme Court or this Court directly re-
       solving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
       Cir. 2003).
              The Eighth Amendment prohibits imposing “cruel and un-
       usual punishments.” U.S. Const. amend. VIII. “The amendment
       contains a narrow proportionality principle that applies to noncap-
       ital sentences.” United States v. Johnson, 451 F.3d 1239, 1242 (11th
       Cir. 2006) (internal quotation marks omitted). “In general, a sen-
       tence within the limits imposed by statute is neither excessive nor
       cruel and unusual under the Eighth Amendment.” Id. at 1243 (in-
       ternal quotation marks omitted). “This is so because we accord
       substantial deference to Congress, as it possesses broad authority
       to determine the types and limits of punishments for crimes.”
       Raad, 406 F.3d at 1323 (internal quotation marks omitted). The Su-
       preme Court has explained that “outside the context of capital pun-
       ishment, successful challenges to the proportionality of particular
       sentences will be exceedingly rare.” Solem v. Helm, 463 U.S. 277,
       289–90 (1983) (alterations adopted) (emphasis omitted) (internal
       quotation marks omitted).
               In evaluating an Eighth Amendment challenge to a noncap-
       ital sentence, “a reviewing court must make a threshold determi-
       nation that the sentence imposed is grossly disproportionate to the
       offense committed.” United States v. Reynolds, 215 F.3d 1210, 1214
       (11th Cir. 2000). If the court finds that the sentence is grossly dis-
       proportionate, “the court must then consider the sentences
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       6                      Opinion of the Court               22-12460

       imposed on others convicted in the same jurisdiction and the sen-
       tences imposed for commission of the same crime in other juris-
       dictions.” Id.
              Hardin has not shown that the district court plainly erred in
       imposing a 480-month sentence. Although this sentence is long, it
       did not exceed the statutory maximum. See Johnson, 451 F.3d at
       1243–44 (holding that a sentence equal to the statutory maximum
       did not violate the Eighth Amendment). And Hardin has cited no
       precedent from the Supreme Court or this Court holding that a
       sentence like this one, which was within the statutory limits, vio-
       lated the Eighth Amendment. We thus conclude there was no plain
       error.
             DISMISSED in part, AFFIRMED in part.