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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13115
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-00287-WS-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARNETT JAMES LLOYD, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(April 2, 2020)
Before WILSON, LAGOA and MARCUS, Circuit Judges.
PER CURIAM:
Garnett James Lloyd, Jr. appeals following his conviction and sentence for
one count of cyberstalking, in violation of 18 U.S.C. § 2261A(2)(B). His conviction
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arose out of internet communications he’d begun with someone he believed to be 15
years old, and whom he had threatened with emailing pictures of her to her parents
and people at her school to ruin her “good girl” image, unless she sent other
requested photos. On appeal, he argues that: (1) the district court erred in requiring
him to register as a sex offender pursuant to the Sex Offender Registration and
Notification Act (“SORNA”), 1 because his offense was not a sex offense that
required registration under SORNA, even though he recognizes that our en banc
opinion in United States v. Dodge,
597 F.3d 1347 (11th Cir. 2010), forecloses his
argument; (2) the district court imposed a procedurally unreasonable sentence
because his offense was one continuous offense and the district court improperly
added two points to his offense level for engaging in a pattern of activity involving
stalking, threatening, harassing, or assaulting the same victim, under U.S.S.G §
2A6.2(b)(1)(E); and (3) his 60‑month sentence is substantively unreasonable
because it is double the high end of the guideline sentencing range and the district
court failed to weigh certain factors. After thorough review, affirm.
“We review for abuse of discretion the imposition of a special condition of
supervised release.” United States v. Pilati,
627 F.3d 1360, 1365 (11th Cir. 2010).
We review de novo the trial court’s interpretation of a statute.
Id. We generally
review the sentence a district court imposes for “reasonableness,” which “merely
1
34 U.S.C. § 20901, et seq.
2
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asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d
1179, 1189 (11th Cir. 2008) (quotation omitted). “A district court abuses its
discretion if it applies the incorrect legal standard.” Dodge, 597 F.3d at 1350. When
a defendant challenges the application of an enhancement under the Sentencing
Guidelines, we review a district court’s factual findings for clear error and its
interpretation of the Sentencing Guidelines de novo. United States v. Perez,
366
F.3d 1178, 1181 (11th Cir. 2004). We will not find clear error unless our review of
the record leaves us with the definite and firm conviction that a mistake has been
committed. United States v. White,
335 F.3d 1314, 1319 (11th Cir. 2003). The
district court must interpret the Guidelines and calculate the sentence correctly; an
error in the district court’s calculation of the advisory Guidelines range warrants
vacating the sentence, unless the error is harmless. See United States v. Scott,
441
F.3d 1322, 1329-30 (11th Cir. 2006). A defendant’s argument for a specific sentence
will preserve a substantive unreasonableness claim on appeal. Holguin‑Hernandez
v. United States,
140 S. Ct. 762, 764 (2020).
Under our prior-panel-precedent rule, a panel of this Court is bound by a prior
panel’s decision until overruled by the Supreme Court or by this Court en banc.
United States v. Steele,
147 F.3d 1316, 1317-18 (11th Cir. 1998). There is no
exception to this rule based upon an overlooked reason or a perceived defect in the
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prior panel’s reasoning or analysis of the law in existence at the time. United States
v. Kaley,
579 F.3d 1246, 1255, 1259-60 (11th Cir. 2009).
First, we are unpersuaded by Lloyd’s claim that the district court erred in
requiring him to register as a sex offender under SORNA. Under federal law it is
unlawful for whoever with the intent to kill, injure, harass, or intimidate another
person, uses the mail, any interactive computer service or electronic communication
service or electronic communication system of interstate commerce, or any other
facility of interstate or foreign commerce to engage in a course of conduct that
causes, attempts to cause, or would be reasonably expected to cause substantial
emotional distress to a person by placing that person in reasonable fear of death of,
or serious bodily injury to that person. 18 U.S.C. § 2261A(2)(B).
The SORNA requires a “sex offender” to register and keep his registration
current in each jurisdiction where he lives, works, or studies.
34 U.S.C. § 20913(a).
“Sex offender” is defined under the Act as “an individual who was convicted of a
sex offense.”
Id. § 20911(1). Barring two exceptions that are not relevant to this
appeal, a “sex offense” is defined as follows:
(i) a criminal offense that has an element involving a sexual act or
sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section
1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110
(other than section 2257, 2257A, or 2258), or 117, of Title 18;
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(iv) a military offense specified by the Secretary of Defense under
section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses
(i) through (iv).
Id. § 20911(5)(A)(i)-(v) (emphasis added). The term “specified offense against a
minor” means an offense against a minor that involves:
(A) An offense (unless committed by a parent or guardian) involving
kidnapping.
(B) An offense (unless committed by a parent or guardian) involving
false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of Title 18.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the
Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
Id. § 20911(7)(A)-(I). The SORNA defines a “criminal offense” as “a State, local,
tribal, foreign, or military offense . . . or other criminal offense.” Id. § 20911(6).
In Dodge, our en banc Court set out to determine whether the defendant was
a sex offender who was required to register as such for his conviction for knowingly
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attempting to transfer obscene material to a minor. 597 F.3d at 1349. In order to do
so, the Court had to determine whether the defendant’s conviction was a “sex
offense,” and more specifically, whether it was a sex offense that was defined as a
“criminal offense that is a specified offense against a minor,” pursuant to
34 U.S.C.
§ 20911(5)(A)(ii).
Id. at 1351.
Our Court, sitting en banc in Dodge, began by rejecting the defendant’s
narrow reading of the SORNA and concluded that “[n]othing in the plain language
of the statute suggests that other criminal offense’ of [§ 20911(6)] cannot encompass
federal offenses not specifically enumerated in [§ 20911(5)(A)(iii)].” Id. at 1352. It
added that “Congress did not intend [§ 20911(5)(A)(iii)] to constitute an exclusive
list of federal crimes requiring SORNA registration.” Id. As for whether the
defendant’s conviction was a “specified offense against a minor,” the Court reasoned
that the answer to this question depended on “whether SORNA requires a
‘categorical’ approach that restricts our analysis to the elements of the crime, or
whether SORNA permits examination of ‘the particular facts disclosed by the record
of conviction.’” Id. at 1353 (quotations omitted). The en banc Court relied on Ninth
Circuit reasoning to conclude that the definitions at § 20911(5)(A)(ii) and § 20911(7)
do not require the categorical approach, but, instead, “permits examination of the
defendant’s underlying conduct -- and not just the elements of the conviction statute
-- in determining what constitutes a ‘specified offense against a minor.’” Id. at 1353-
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55. Applying this approach, the en banc Court once again agreed with the Ninth
Circuit that § 20911(5)(A)(ii) included a catchall category -- “any conduct that by
its nature is a sex offense against a minor” -- and that, because the defendant’s
conduct paralleled an “undoubtedly registerable offense,” his offense fell within the
“specified offense against a minor” category. Id. at 1356.
Here, the district court did not abuse its discretion by requiring Lloyd to
register as a sex offender pursuant to SORNA. Lloyd’s argument hinges on his claim
that our en banc decision in Dodge was wrongly decided and that it overlooked
certain aspects of the relevant statute and relevant Attorney General guidelines when
determining to apply the conduct-based approach to the definitions of §
20911(5)(A)(ii) and § 20911(7). However, a panel of this Court is not at liberty to
disregard Dodge; our prior-panel-precedent rule requires us to abide by Dodge until
overruled by the Supreme Court or by this Court en banc. There is no exception to
this rule based upon an overlooked reason or a perceived defect in the prior
decision’s reasoning or analysis of the law in existence at the time. Accordingly, we
affirm as to this issue.
We also find no merit to Lloyd’s claim that the district court imposed an
unreasonable sentence. In reviewing sentences for reasonableness, we perform two
steps. Pugh,
515 F.3d at 1190. First, we “‘ensure that the district court committed
no significant procedural error, such as failing to calculate (or improperly
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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. (quoting Gall v. United States,
552
U.S. 38, 51 (2007)). 2 The district court need not explicitly say that it considered the
§ 3553(a) factors, as long as the court’s comments show it considered them when
imposing sentence. United States v. Dorman,
488 F.3d 936, 944 (11th Cir. 2007).
If we conclude that the district court did not procedurally err, we consider the
“substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard,” based on the “totality of the circumstances.” Pugh,
515 F.3d at 1190
(quotation omitted). We may vacate a sentence only if we are left with the definite
and firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors to arrive at an unreasonable sentence based on the
facts of the case. United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc). “[W]e will not second guess the weight (or lack thereof) that the [court]
accorded to a given [§ 3553(a)] factor ... as long as the sentence ultimately imposed
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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is reasonable in light of all the circumstances presented.” United States v. Snipes,
611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted).
The district court may base its findings of fact on, among other things, undisputed
statements in the PSI or evidence presented at the sentencing hearing. United States
v. Smith,
480 F.3d 1277, 1281 (11th Cir. 2007). However, a court may abuse its
discretion if it (1) fails to consider relevant factors that are due significant weight,
(2) gives an improper or irrelevant factor significant weight, or (3) commits a clear
error of judgment by balancing a proper factor unreasonably. Irey,
612 F.3d at 1189.
Where the district court has chosen to vary upward, we must consider the
extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance.
Id. at 1196. The district court can rely on factors
already considered in calculating the guideline range when imposing a variance. See
United States v. Amedeo,
487 F.3d 823, 833-34 (11th Cir. 2007). We may not
presume that a sentence outside the guideline range is unreasonable and must give
due deference to the district court that the § 3553(a) factors, on a whole, justify the
extent of the variance. United States v. Rosales‑Bruno,
789 F.3d 1249, 1254-55
(11th Cir. 2015). The party challenging the sentence bears the burden to show it is
unreasonable. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
The guidelines provide that a two-level increase to an offense level calculation
for a stalking offense is warranted when the offense involved “a pattern of activity
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involving stalking, threatening, harassing, or assaulting the same victim.” U.S.S.G.
§ 2A6.2(b)(1)(E). The commentary to the Guidelines provides that:
Pattern of activity involving stalking, threatening, harassing, or
assaulting the same victim means any combination of two or more
separate instances of stalking, threatening, harassing, or assaulting the
same victim whether or not such conduct resulted in a conviction. For
example, a single instance of stalking accompanied by a separate
instance of threatening, harassing, or assault the same victim constitutes
a pattern of activity for purposes of this guideline.
U.S.S.G. § 2A6.2, cmt. (n. (1)). Moreover,
[i]n determining whether subsection (b)(1)(E) applies, the court shall
consider, under the totality of the circumstances, any conduct that
occurred prior to or during the offense; however, conduct that occurred
prior to the offense must be substantially and directly connected to the
offense. For example, if a defendant engaged in several acts of stalking
the same victim over a period of years (including acts that occurred
prior to the offense), then for purposes of determining whether
subsection (b)(1)(E) applies, the court shall look to the totality of the
circumstances, considering only those prior acts of stalking the victim
that have a substantial and direct connection to the offense.
Id. § 2A6.2, cmt. (n. (3)). The guidelines also provide that, if an enhancement under
§ 2A6.2(b)(1) “does not adequately reflect the extent or seriousness of the conduct
involved, an upward departure may be warranted.” Id. § 2A6.2, cmt. (n. (5)).
As for procedural unreasonableness, the court did not clearly err in finding
that Lloyd had engaged in a pattern of activity involving stalking, threatening,
harassing, or assaulting the same victim, and thus, warranted adding two points to
his offense level under § 2A6.2(b)(1)(E). As the record reflects, on two separate
occasions, Lloyd threatened to ruin his victim’s “good girl reputation” by sharing
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photos that he had received with her friends and parents, unless he received topless
pictures of the victim. Threats like these are sufficient to warrant the application of
§ 2A6.2(b)(1)(E). But even if the district court erred in applying § 2A6.2(b)(1)(E),
any error was harmless. As the court explained, the guideline sentencing range --
even with the application of § 2A6.2(b)(1)(E) -- did not adequately reflect Lloyd’s
criminal history and Lloyd’s offense, which the court concluded was more than mere
cyberstalking. Thus, the district court made clear that the above‑guideline statutory
maximum sentence it imposed was based on the sentencing factors, not the
guidelines, that Lloyd had committed a serious offense that did not fully capture his
conduct, and that the guidelines did not fully account for his criminal conduct. On
this record, even if the district court somehow erred in applying § 2A6.2(b)(1)(E),
any error was harmless.
Nor has Lloyd shown that his sentence is substantively unreasonable. In
concluding that a 60-month statutory-maximum sentence was fair and reasonable
and sufficient but not more than necessary to satisfy the sentencing objectives, the
district court specifically weighed the fact that Lloyd had a family and was able to
produce income and support himself in a productive way. Nonetheless, the court
determined that these factors were outweighed by others in the record. These
included Lloyd’s prior convictions, which were not accounted for by the guidelines
and included a misdemeanor sexual battery charge, a sexual battery charge, and
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breaking and entering into a sorority house. They also included the severity of the
instant offense -- which the district court determined rose to the level of “a sexual
and predatory nature that [was] both dangerous and concerning” -- as well as the
impact his offense had on the victims. The district court’s weighing of all of these
factors was well within its discretion. Accordingly, we affirm.
AFFIRMED.
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