USCA11 Case: 20-12122 Date Filed: 10/15/2021 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12122
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANE GILLIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:15-cr-00226-CEM-GJK-1
____________________
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2 Opinion of the Court 20-12122
Before BRANCH, and BLACK, Circuit Judges. ∗
PER CURIAM:
Dane Gillis appeals his 365-month total sentence for enticing
a minor to engage in sexual conduct and making threatening
communications. Gillis was previously convicted and sentenced
by the district court to a total of 365 months’ imprisonment, but,
following an appeal, we reversed one of his convictions which
necessitated a resentencing. See United States v. Gillis,
938 F.3d
1181, 1210 (11th Cir. 2019). On remand, the district court allowed
Gillis to submit additional materials, but it ultimately reimposed
the same total sentence. After review, we affirm Gillis’s sentence.
We review sentences imposed by the district courts for
reasonableness using a two-step process. United States v. Cubero,
754 F.3d 888, 892 (11th Cir. 2014). First, we determine “whether
the district court committed any significant procedural error, such
as miscalculating the advisory guidelines range, treating the
guidelines as mandatory, failing to consider the
18 U.S.C. § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.”
Id. The district
court’s explanation need not discuss each of the § 3553(a) factors
individually. United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir.
2009). Nor is a full, written opinion required at every sentencing,
but the district court “should set forth enough to satisfy the
∗ This opinion is being entered by a quorum pursuant to
28 U.S.C. § 46(d).
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20-12122 Opinion of the Court 3
appellate court that [it] has considered the parties’ arguments and
has a reasoned basis for” the sentencing decision. Rita v. United
States,
551 U.S. 338, 356 (2007).
Second, we determine “whether the sentence is
substantively unreasonable under the totality of the circumstances
and in light of the § 3553(a) factors.” Cubero, 754 F.3d at 892. The
substantive reasonableness of a sentence is reviewed deferentially,
only for abuse of discretion, and the burden is on the party
challenging the sentence to show that it is unreasonable. United
States v. Langston,
590 F.3d 1226, 1236 (11th Cir. 2009). “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 in considering the proper
factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010)
(en banc). “[A] district court commits a clear error of judgment
when it considers the proper factors but balances them
unreasonably, . . . arriving at a sentence that does not achieve the
purposes of sentencing as stated in § 3553(a).” Id. (internal
quotation marks omitted).
The district court must consider all the § 3553(a) factors 1
relevant to the case before it, but it is not required to give each
1 The district court must issue a sentence “sufficient, but not greater than
necessary” to comply with the purposes of
18 U.S.C. § 3553(a)(2).
18 U.S.C.
§ 3553(a). These purposes include the need for a sentence to reflect the
seriousness of the offense, promote respect for the law, provide just
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4 Opinion of the Court 20-12122
factor equal weight. United States v. Rosales-Bruno,
789 F.3d 1249,
1254 (11th Cir. 2015). Indeed, “the sentencing court is permitted
to attach great weight to one factor over others.”
Id. (internal
quotation marks omitted). But, while the weight given to each
factor is a matter left to the district court’s direction, “unjustified
reliance on any one . . . factor is a symptom of an unreasonable
sentence.” United States v. Crisp,
454 F.3d 1285, 1292 (11th Cir.
2006).
Gillis has not shown the district court made any “significant
procedural error.” See Cubero, 754 F.3d at 892. The Amended
Presentence Investigation Report (PSI) contained substantially the
same facts as the Original PSI, but recalculated the sentencing
guideline range, accounting for the reversal of one of Gillis’s
convictions. This recalculation resulted in a total offense level of
38—two levels lower than the original PSI—and a criminal history
category of I. The resulting guideline imprisonment range was 235
to 293 months. There were no objections to the factual findings or
the guideline calculations contained in the Amended PSI.
punishment for the offense, deter criminal conduct, and protect the public
from future criminal conduct. Id. § 3553(a)(2). Additional considerations
include the nature and circumstances of the offense, the history 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. Id.
§ 3553(a)(1), (3)-(7).
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20-12122 Opinion of the Court 5
At Gillis’s resentencing hearing, the judge adopted the
Amended PSI’s calculation of the sentencing guidelines. The judge
stated he had reviewed his notes from trial. He also reviewed the
sentencing statement he made at the initial sentencing hearing. In
addition, he read the transcript of the initial sentencing hearing.
The judge also received all the new evidence offered by
Gillis—including medical records, testimony, and a Federal Bureau
of Prisons risk assessment—regarding changes in Gillis’s
circumstances between the first and second sentencings. The court
expressly stated it would take the new evidence offered by Gillis
into consideration in determining his total sentence on remand.
See Pepper v. United States,
562 U.S. 476, 490-91 (2011) (explaining
the district court may consider post-conviction developments in
determining the appropriate sentence on resentencing). The
Government offered no new evidence but did ask that the victim
be allowed to make a statement. The victim spoke about her
gratefulness toward law enforcement for catching Gillis before he
could carry out his plan and asked the district court to “hold fast to
the original ruling.”
After hearing this testimony and the parties’ arguments, the
district judge read into the record the statement it gave at Gillis’s
initial sentencing hearing, stating he still thought it was applicable
at resentencing.
I’m not going to go over all the lurid details, as the
record is replete with examples of what you wrote,
said, and did. The jury rejected your theory of the
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6 Opinion of the Court 20-12122
case where you assert that the entirety of your
conduct was nothing more than role playing, void of
any real intent to engage in the conduct charged.
I think many of your supporters would be horrified at
the extent to which you exhibited a complete lack of
respect to your co-worker. That lack of respect is
appalling. The terminology you sent complete
strangers describing what you wanted to do to your
co-worker [shocks the conscience]. And I do recall
quite clearly your dehumanizing of your former co-
worker at trial by referring to her as a MILF in front
of the jury. I doubt you even noticed what you were
doing at the time.
While I am fully aware of your continued claim of
role playing, one, does one need to steal a security
code to post online pretending to be a co-worker in
order to role play; two, does someone need to post
actual photos of a co-worker online while soliciting
strangers to kidnap and rape the co-worker in order
to role play; three, does someone go to the effort of
scheduling a kidnapping and rape during the time
period when the co-worker’s husband would have
been out of town if they were just role playing; four,
does someone drive approximately one hour from
Leesburg to Orlando, Florida, under the premise of
engaging in sex with a child, if they are just role
playing; and five, does someone admit to the F.B.I.
that they masturbate at the thought of having sex
with an 11-year-old, if they are just role playing?
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I went on to say that I further reject the notion that
you never exposed your co-worker to actual danger.
That was your claim at sentencing and at trial. It took
only a minimal amount of effort, and by effort I mean
the zoom button on a computer, for the F.B.I. to
determine your co-worker’s actual identity. It was
right there in the photo.
Further, the implication that the impact on your co-
worker was limited because she was unaware of the
postings until a later date is without merit. She was
in no less danger, and the prospect of examining and
reexamining every past interaction with you, after
she finally learned what you had been doing right
under her nose would rattle any person to their core,
and that hasn’t changed considering the victim
M.O.’s presence here at trial. This is just awful.
This statement explains the significant weight the court gave
to the seriousness of Gillis’s conduct and its finding, based on the
conflicting evidence and arguments before it, that he posed a
significant risk of reoffending. The court then reimposed the same
365-month sentence, noting that it now followed an upward
variance. After a thorough review of the resentencing proceedings,
we are satisfied that the district court considered the parties’
arguments and had a reasoned basis for Gillis’s sentence. See Rita,
551 U.S. at 356. Gillis’s sentence is procedurally reasonable.
Nor has Gillis shown the district court abused its discretion
in reimposing the original 365-month total sentence, this time as
an upward variance. The district court gave great weight to two
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of the § 3553(a) factors—specifically, the need for the total sentence
to reflect the seriousness of the offense,
18 U.S.C. § 3553(a)(2)(A),
and to protect the public from further crimes of the defendant,
id.
§ 3553(a)(2)(C)—and Gillis has not shown that this weighing was
improper. Moreover, the fact that a lower guideline range applied
and new, mitigating evidence was presented did not necessarily
require the district court to impose a lower sentence. See Rosales-
Bruno, 789 F.3d at 1259 (stating that the applicable guideline range
is lower at resentencing than it was at the initial sentencing does
not obligate the district court to impose a lower sentence). So long
as the court considered the relevant factors anew, its determination
the original total sentence remained appropriate was reasonable.
See id.
Moreover, the district court’s 72-month upward variance in
this case—from 293 months to 365 months, or approximately
24.5%--was smaller in percentage terms than those which this
Court has described as “major,” requiring greater justification
under Gall v. United States,
552 U.S. 38, 47 (2007). See United
States v. Irey,
612 F.3d 1160, 1196 (11th Cir. 2010) (en banc). And
it is significantly less in absolute terms than upward variances that
this Court has affirmed as reasonable. See United States v.
Overstreet,
713 F.3d 627, 639-40 (11th Cir. 2013) (collecting cases).
The district court’s total sentence in this case—a minor upward
variance relative to the guideline range, based on the heavy weight
the court gave to the defendant’s conduct and risk of reoffending—
was not an abuse of discretion.
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20-12122 Opinion of the Court 9
In sum, we conclude Gillis’s 365-month total sentence was
both procedurally and substantively reasonable. Accordingly, we
affirm.
AFFIRMED.
