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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13571
Non-Argument Calendar
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D.C. Docket No. 6:16-cr-00198-JA-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY THOMAS PHILLIPS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 12, 2018)
Before WILLIAM PRYOR, MARTIN, and GRANT, Circuit Judges.
PER CURIAM:
Roy Phillips appeals the 720-month sentence imposed by the district court
following his guilty plea and conviction for two counts of aiding and abetting the
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production of child pornography. 1 Phillips contends that the district court
committed procedural error by failing to address his argument at sentencing that he
would not derive any tangible benefit from pleading guilty unless the court
imposed a downward variance. Phillips also contends that his total sentence is
substantively unreasonable. We disagree and affirm.
I.
According to the plea agreement and the Presentence Investigation Report
(“PSI”), Phillips engaged in multiple online chat and Skype sessions with someone
using the account mariellaheartyou@yahoo.com (“mariellaheartyou”), who
identified herself as a 14-year-old girl living in the Philippines. During the chats,
Phillips wired money to mariellaheartyou to pay for live streaming video of
mariellaheartyou molesting little girls at his direction or having the girls engage in
sex acts with each other. The children involved in the charged offenses to which
Phillips pleaded guilty were reportedly between three and nine years old.
Transcripts of four such chats are contained in the factual basis for the plea
agreement. According to one of the transcripts, Phillips also wired $1250 to
mariellaheartyou for a collection of child pornography photographs and videos.
1
The government argues that Phillips’s appeal is barred by his sentence appeal waiver. Phillips
responds that the sentence appeal waiver is invalid because the district court misstated its terms
during the Rule 11 plea colloquy. Because Phillips’s challenges to his sentence fail on the
merits, we need not address his sentence appeal waiver. The government’s motion to dismiss the
appeal is therefore denied.
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Phillips said he was interested in travelling to the Philippines to have sex with
children under mariellaheartyou’s control—preferably between the ages of 4 and
12 years old—and offered to pay $1500 “per girl” for “4 days with each.”
Federal agents executed a search warrant for the contents of Phillips’s email
account and located scores of emails between Phillips and females in the
Philippines, including mariellaheartyou, in which Phillips offered to purchase, and
paid for, live transmissions of child pornography over a two-year period.
MoneyGram records showed that between August 2015 and June 2016, Phillips
wired $16,700 to accounts in the Philippines connected with mariellaheartyou.
Phillips entered a guilty plea to two counts of aiding and abetting the
production of child pornography in violation of
18 U.S.C. § 2251(a) and
18 U.S.C.
§ 2. At the sentencing hearing, the district court adopted the undisputed factual
statements and Guidelines calculations in the PSI. The application of the
Guidelines, including a three-level reduction for acceptance of responsibility,
resulted in an adjusted offense level of 44, which was reduced to 43 pursuant to
Chapter 5, part A, Commentary note 2. The Guidelines sentence for an offense
level of 43 and Phillips’s criminal history category (I) was life in prison, but
because the statutory maximum penalty for the offense was 30 years in prison for
each count, the Guidelines sentence was reduced to 60 years. See
18 U.S.C.
§ 2251(e).
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Defense counsel argued that the Guidelines sentence was unreasonable
because it amounted to a life sentence, which deprived Phillips of any benefit of
pleading guilty and accepting responsibility for his crimes, and because it was a
much longer sentence than in other child pornography cases where the offense
conduct was worse. He suggested a 20-year sentence.
After hearing the government’s response, the district court imposed the
Guidelines sentence of 720 months’ imprisonment (360 months for each count, to
run consecutively). The court stated that it had read Phillips’s sentencing
memorandum and considered the parties’ statements, letters from Phillips’s family,
and the statutory factors. The court acknowledged that Phillips’s counsel had
“raised some good points,” but stated that it would comment only on the sentence-
disparity issue. The court stated that the facts of Phillips’s case were not “remotely
similar” to those in the cases his attorney had cited, and that his conduct was
“beyond the norms of human decency.”
II.
A district court’s sentencing decisions generally are reviewed for procedural
and substantive reasonableness under an abuse-of-discretion standard. Gall v.
United States,
552 U.S. 38, 41, 51,
128 S. Ct. 586, 591, 597 (2007). Where the
defendant fails to object to the procedural reasonableness of his sentence in the
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district court, however, such claims will be reviewed only for plain error. United
States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014).
A.
Phillips claims that the district court procedurally erred by failing to
specifically address his argument that a Guidelines sentence would leave him
without any tangible benefit from accepting responsibility and pleading guilty.
Phillips cites Rita v. United States, in which the U.S. Supreme Court stated that,
while a typical Guidelines sentence may not require much explanation from the
district court, when a party presents nonfrivolous arguments supporting a sentence
outside the Guidelines range, “the judge will normally go further and explain why
he has rejected those arguments.”
551 U.S. 338, 357,
127 S. Ct. 2456, 2468
(2007). But Rita does not require that the district court specifically address every
argument raised by the parties; to the contrary, in Rita the Court held that where
the record showed that the district court listened to the defendant’s arguments for a
downward departure, the court’s brief explanation that a sentence below the
Guidelines range was “inappropriate” and the Guidelines sentence that the court
imposed was “appropriate” was sufficient even though the court did not explicitly
state that it had heard and considered the defendant’s arguments.
Id.,
551 U.S. at
358–59.
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Here, the district court specifically stated that it had read Phillips’s
sentencing memorandum, which contained the same argument regarding Phillips’s
acceptance of responsibility that defense counsel presented at sentencing. And the
record makes clear that the district court listened to both parties’ arguments before
imposing sentence. The court complimented Phillips’s counsel on his
thoroughness and acknowledged his arguments by stating that he had “raised some
good points.” The court explained the reasons for its Guidelines sentence by
discussing the nature and severity of the offense and the need for general and
specific deterrence, and determined that the sentence imposed was “sufficient, but
not greater than necessary to comply with the statutory purposes of sentencing.”
For these reasons, in this “conceptually simple” case involving the
straightforward application of the Guidelines, the district court did not plainly err
by failing to state explicitly that it had considered Phillips’s arguments and found
them wanting. Rita,
551 U.S. at 359; see United States v. McGarity,
669 F.3d
1218, 1263 (11th Cir. 2012) (the district court’s acknowledgement that it had
considered the parties’ arguments and the
18 U.S.C. § 3553(a) factors is sufficient
explanation); Vandergrift, 754 F.3d at 1307 (to meet the plain-error standard, the
appellant must show “(1) that the district court erred; (2) that the error was ‘plain’;
and (3) that the error “affect[ed his] substantial rights.” (citation omitted)).
B.
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A sentence will be deemed substantively unreasonable only if this Court is
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (citation and
internal quotations omitted). “The party challenging a sentence has the burden of
showing that the sentence is unreasonable in light of the entire record, the
§ 3553(a) factors, and the substantial deference afforded sentencing courts.”
United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015). “A district
court abuses its discretion when it (1) fails to afford consideration to relevant
factors that were due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment” by balancing proper
factors in an unreasonable manner. Irey,
612 F.3d at 1189.
Phillips received a Guidelines sentence of 720 months’ imprisonment for
two counts of aiding and abetting the production of child pornography, based on
Phillips’s directing—and paying for—the videotaped sexual abuse of several
young children. Notably, offense level adjustments based on Phillips’s offense
conduct resulted in an initial Guidelines-calculated sentence of life in prison; the
Guidelines sentence was reduced to 720 months in light of the statutory maximum
sentence of 30 years for each count. And although this Court does not apply a
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presumption of reasonableness to a sentence falling within the advisory Guidelines
range, it ordinarily expects such a sentence to be reasonable. United States v.
Hunt,
526 F.3d 739, 746 (11th Cir. 2008).
We see no reason to depart from that conclusion here. The district court
stated that it had considered all of the statutory sentencing factors, and Phillips
does not contend that the court either failed to consider any factor that “was due
significant weight” or gave “significant weight to an improper or irrelevant factor.”
Irey,
612 F.3d at 1189. Nor can we say that the court committed “a clear error of
judgment” in balancing the § 3553(a) factors. Id. The court explained that
Phillips’s sentence was imposed in part to serve as general deterrence, and to deter
Phillips’s future conduct specifically, stating that “having read [Phillips’s]
conversations with the—his agent in the Philippines, I am concerned that he would
re-offend.” The court went on to explain that the sentence was necessary to reflect
the seriousness of the offense because Phillips’s conduct was “at the extreme” for
such offenses. Under these circumstances, Phillips’s Guidelines sentence is at least
“‘in the ballpark’ of permissible outcomes” and is not substantively unreasonable.
Irey,
612 F.3d at 1189 (citation and punctuation omitted).
AFFIRMED.
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