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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12460 Non-Argument Calendar ____________________ UNITED STATES OF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 ____________________ USCA11 Case: 22-12460 Document: 32-1 Date Filed: 06/13/2023 Page: 2 of 6

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

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; USCA11 Case: 22-12460 Document: 32-1 Date Filed: 06/13/2023 Page: 3 of 6

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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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

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

DISMISSED in part, AFFIRMED in part.