United States v. Brad Richard McKleroy ( 2019 )


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  •            Case: 18-11390   Date Filed: 07/31/2019   Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-11390
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 6:17-cr-00144-LSC-SGC-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BRAD RICHARD MCKLEROY,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (July 31, 2019)
    Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 18-11390     Date Filed: 07/31/2019    Page: 2 of 7
    Brad Richard McKleroy appeals his total sentence of 121 months’
    imprisonment for possession of child pornography, in violation of 18 U.S.C.
    § 2252A(a)(5)(B) and (b)(2), and attempted transfer of obscene material to a
    minor, in violation of 18 U.S.C. § 1470. On appeal, he argues that the district
    court imposed a procedurally and substantively unreasonable total sentence
    because it treated the low-end of his guideline range as a mandatory floor, failed to
    consider mitigating factors and afford consideration to the 18 U.S.C. § 3553(a)
    factors, and failed to consider that U.S.S.G. § 2G2.2, the guideline underlying his
    child pornography offense, is not based on empirical data and does not properly
    reflect the statutory purposes of sentencing.
    We review the reasonableness of a sentence under a deferential
    abuse-of-discretion standard, evaluating both procedural and substantive
    reasonableness. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). Similarly, when a
    district court recognizes its authority to grant a variance, we review for abuse of
    discretion its decision not to grant a downward variance. United States v. Cubero,
    
    754 F.3d 888
    , 897 & n.8 (11th Cir. 2014). However, “if a defendant fails to
    clearly articulate a specific objection during sentencing, the objection is waived,”
    and we review for plain error. United States v. Zinn, 
    321 F.3d 1084
    , 1088 (11th
    Cir. 2003) (emphasis in original).
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    Under plain-error review, we may correct an error where (1) an error
    occurred; (2) the error was plain; and (3) the error affects substantial rights. United
    States v. Olano, 
    507 U.S. 725
    , 732 (1993). When these three factors are met, we
    may exercise our discretion and correct the error only if it “seriously affect[s] the
    fairness, integrity or public reputation of judicial proceedings.” 
    Id. (quotation marks
    omitted) (alteration in original). For an error to be plain, it must be
    “contrary to explicit statutory provisions or to on-point precedent in this Court or
    the Supreme Court.” United States v. Hoffman, 
    710 F.3d 1228
    , 1232 (11th Cir.
    2013) (per curiam) (quotation marks omitted).
    A sentence may be procedurally unreasonable if the sentencing court failed
    to properly calculate the guideline range, consider the 18 U.S.C. § 3553(a) factors,
    or adequately explain the chosen sentence. 
    Gall, 552 U.S. at 51
    . However, we do
    not require a district court to state on the record that it has explicitly considered
    each of the § 3553(a) factors and will consider it sufficient where the district court
    acknowledges that it considered the defendant’s arguments and the § 3553(a)
    factors. United States v. Dorman, 
    488 F.3d 936
    , 938 (11th Cir. 2007). In
    sentencing a defendant, the district court “should set forth enough to satisfy the
    appellate court that [it] has considered the parties’ arguments and has a reasoned
    basis for exercising [its] own legal decisionmaking authority.” Rita v. United
    States, 
    551 U.S. 338
    , 356 (2007).
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    After reviewing for procedural reasonableness, we consider the substantive
    reasonableness of a sentence. 
    Gall, 552 U.S. at 51
    . In reviewing a district court’s
    sentence for substantive reasonableness, we examine the totality of the
    circumstances to determine whether the statutory factors in § 3553(a) support the
    sentence in question. United States v. Gonzalez, 
    550 F.3d 1319
    , 1324 (11th Cir.
    2008) (per curiam). A sentence may be substantively unreasonable if a district
    court unjustifiably relied on any § 3553(a) factor, considered impermissible
    factors, or failed altogether to consider pertinent § 3553(a) factors. United States
    v. Sarras, 
    575 F.3d 1191
    , 1219 (11th Cir. 2009).
    The district court’s sentence must be “sufficient, but not greater than
    necessary, to comply with the purposes” listed in § 3553(a)(2), including the need
    for the sentence to reflect the seriousness of the offense and to promote respect for
    the law, the need for adequate deterrence, the need to protect the public, and the
    need to provide the defendant with educational or vocational training, medical
    care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The district court
    must also consider the nature and circumstances of the offense, the history and
    characteristics of the defendant, the kinds of sentences available, the guideline
    range, any 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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    The party who challenges the sentence bears the burden of showing that the
    sentence is unreasonable in light of the record and the § 3553(a) factors. United
    States v. Tome, 
    611 F.3d 1371
    , 1378 (11th Cir. 2010). The weight given to any
    specific § 3553(a) factor is committed to the sound discretion of the district court.
    United States v. Clay, 
    483 F.3d 739
    , 743 (11th Cir. 2007). As such, the district
    court need not specifically address every mitigating factor raised by the defendant
    in order for the sentence to be substantively reasonable. United States v. Snipes,
    
    611 F.3d 855
    , 873 (11th Cir. 2010). We will not remand for resentencing unless
    left with a definite and firm conviction that the district court committed a clear
    error of judgment in weighing the § 3553(a) factors by imposing a sentence outside
    of the range of reasonable sentences based upon the facts of the case. United
    States v. Croteau, 
    819 F.3d 1293
    , 1309 (11th Cir. 2016). That we may reasonably
    conclude a different sentence is appropriate is insufficient for reversal. 
    Gall, 552 U.S. at 51
    .
    For child pornography offenses, the Sentencing Guidelines provide that
    some of the specific offense characteristics include: (1) increasing by 2 levels
    where “the material involved a prepubescent minor or a minor who had not
    attained the age of 12 years,” (2) increasing by 2 levels where the offense involved
    some level of distribution not otherwise described in that subsection, (3) increasing
    by 4 levels where “the offense involved material that portrays sadistic or
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    masochistic conduct or other depictions of violence,” (4) increasing by 2 levels
    where “the offense involved the use of a computer or an interactive computer
    service for the possession, transmission, receipt, or distribution of the material, or
    for accessing with intent to view the material,” and (5) increasing by 5 levels
    where the offense involved 600 or more images. U.S.S.G. § 2G2.2(b)(2),
    (b)(3)(F), (b)(4), (b)(6), (b)(7)(D).
    We have previously indicated that the 2013 Sentencing Commission report,
    centering around § 2G2.2, “does not invalidate § 2G2.2” and that a district court’s
    use of the guideline does not render a defendant’s sentence substantively
    unreasonable. 
    Cubero, 754 F.3d at 899-900
    . In Cubero, we affirmed a 151-month
    sentence as substantively reasonable where the defendant possessed hundreds of
    images and more than 12 videos of child pornography. 
    Id. at 898-901;
    see also
    United States v. Carpenter, 
    803 F.3d 1224
    , 1235 (11th Cir. 2015).
    As an initial matter, because McKleroy did not object to the district court’s
    imposition of the sentence based on the guideline range below, his arguments
    related to that issue must be reviewed for plain error. The district court stated that
    it based the total sentence on the § 3553(a) factors. Contrary to McKleroy’s
    argument, the district court did not treat the low-end of his guideline range as a
    mandatory floor because the court considered his arguments regarding a downward
    variance and determined that neither a variance nor a low-end guideline sentence
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    was appropriate in this case. Accordingly, the district court did not plainly err by
    imposing a guideline sentence.
    Although McKleroy argues that the Sentencing Commission’s stance on
    § 2G2.2 is evidence of its unreasonableness, we have held that § 2G2.2 is valid and
    a district court’s use of the guideline does not render a defendant’s sentence
    substantively unreasonable. 
    Cubero, 754 F.3d at 899-900
    . Further, the district
    court utilized its discretion in emphasizing its concern with the nature of the
    offense and McKleroy’s characteristics, including his “unusual” desire to engage in
    a relationship with a minor based on his communications with an officer he
    thought was a 14-year-old girl and his very active solicitation of child
    pornography. The court also stated that it considered “nature and circumstances
    of your offense and your history and characteristics and your conduct;” the court is
    not required to list each of the § 3553 factors or specifically address every
    mitigating factor raised by the defendant. 
    Snipes, 611 F.3d at 873
    . The total
    sentence imposed was commensurate with the facts of this case, and thus,
    McKleroy’s sentence is procedurally and substantively reasonable. Accordingly,
    we affirm.
    AFFIRMED.
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