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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13966
Non-Argument Calendar
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D.C. Docket No. 9:18-cr-80025-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD ROWLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 11, 2019)
Before WILSON, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
Donald Rowley appeals his 168-month total-sentence, imposed at the high
end of the guideline range, after pleading guilty to receipt of child pornography, in
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violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child
pornography involving a prepubescent minor, in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2). On appeal, he argues that his sentence is procedurally
unreasonable because the district court failed to adequately explain it and it was
greater than necessary to comply with the statutory purposes of sentencing.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States,
552 U.S. 38, 41 (2007). We use a two-
step process to review a sentence’s reasonableness.
Id. at 51. First, we must
confirm that the district court committed no significant procedural error.
Id. A
sentence is procedurally erroneous if a district court commits an error “such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the Guidelines
range.”
Id. Next, we consider the substantive reasonableness of the sentence.
Id.
The district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, and deter criminal conduct. 18 U.S.C. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the history
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and characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission,
and the need to avoid unwarranted sentencing disparities among defendants with
similar records found guilty of similar conduct.
Id. § 3553(a)(1), (3)-(6).
Although the district court must consider the § 3553(a) factors, it need not
analyze each of the factors individually for the sentence to be procedurally
reasonable; rather, the district court may acknowledge that it has considered the
defendant’s arguments and the § 3553(a) factors. United States v. Sarras,
575 F.3d
1191, 1219 (11th Cir. 2009).
Here, Rowley’s sentence is procedurally reasonable. Rowley does not
challenge the district court’s calculation of his guideline range or the substantive
reasonableness of his sentence. The district court did not treat the guidelines as
mandatory. Instead, it listened to the parties’ arguments and Rowley's statement,
and it considered the motion for downward variance and the § 3553(a) factors.
The court explicitly stated that it had considered Rowley’s arguments and the
§ 3553(a) factors.
Sarras, 575 F.3d at 1219.
Further, the record reflects that it considered the arguments and the §
3553(a) factors and adequately explained Rowley’s sentence. See
Gall, 552 U.S.
at 51. Specifically, when denying the motion for variance and fashioning the
sentence, the district court considered the need to avoid unwarranted sentencing
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disparities among defendants with similar records, and it determined that Rowley’s
case differed from other cases because Rowley had prior incidences involving
sexual abuse of children. 18 U.S.C. § 3553(a)(6). In considering Rowley’s
history and circumstances, the district court listened to Rowley’s statement that he
had served his country and was honorably discharged from the military and that he
served his community through volunteer work. 18 U.S.C. § 3553(a)(1). It also
acknowledged that Rowley had admitted his criminal past and that he had
expressed a desire to seek help. 18 U.S.C. § 3553(a)(1).
Nevertheless, the district court determined that it needed to consider all of
Rowley’s conduct—including his history of sexual abuse of children that spanned
30 years and involved the more distant sexual abuse of his daughter and
stepdaughters and the more recent abuse of his step-granddaughter—in order to
fully contemplate several of the § 3553(a) factors, including the need for just
punishment, and the need to respect the law, to deter Rowley and other offenders,
and to protect the public. 18 U.S.C. § 3553(a)(2). Finally, after listening to the
government explain that Rowley’s conduct in the instant case involved possessing
more than 450 videos of child pornography, including a video of the rape of a five-
year-old child, the district court noted that Rowley’s convictions were for very
serious offenses. 18 U.S.C. § 3553(a)(2). Based on these considerations, the court
concluded that a sentence at the high end of the guideline range would satisfy the §
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3553(a) factors and would be sufficient, but not greater than necessary to
accomplish the purpose of § 3553(a). Accordingly, the district court did not abuse
its discretion by imposing the guideline range total-sentence of 168 months’
imprisonment.
AFFIRMED.
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