USCA11 Case: 21-14307 Document: 35-1 Date Filed: 05/31/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14307
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED LEE WHITE, III,
a.k.a. Trey White,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00153-PGB-EJK-1
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2 Opinion of the Court 21-14307
____________________
Before ROSENBAUM, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
Fred Lee White III appeals his 156-month sentence for two
counts of receipt of child pornography, a 41-month upward vari-
ance from the guideline range, as substantively unreasonable. He
argues that the guideline range properly accounted for his crimi-
nal history, the offense characteristics, his cooperation, and his
personal history. He argues in disregarding the guideline range,
the District Court improperly focused on his criminal history and
did not provide a sufficiently compelling justification for the up-
ward variance. For the reasons that follow, we affirm.
I.
White was indicted on seven counts of receiving material
containing child pornography in violation of 18 U.S.C.
§§ 2252A(a)(2) and (b)(1) and one count of possessing material
containing child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2).
In a plea agreement, White pled guilty to Counts Four and
Six of receiving material containing child pornography. The
agreement recognized that each of the two counts carries a min-
imum term of imprisonment of five years and a maximum term
of imprisonment of twenty years. Each count also carries a max-
imum fine of $250,000, a term of supervised release between five
years and life, a special assessment of $100, and possible restitu-
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21-14307 Opinion of the Court 3
tion. The plea agreement also called for the dismissal of the re-
maining counts in the indictment. The Court accepted White’s
plea agreement at a Change of Plea Hearing.
Before White’s sentencing hearing, a probation officer pre-
pared a presentence investigation report (“PSR”). The PSR con-
tained the following information about White’s criminal history.
In April 2004, White was arrested for Resisting Arrest
Without Violence after becoming verbally abusive and kicking
Nassau County Sheriff’s deputies when they conducted a traffic
stop on White’s vehicle. He was sentenced to 12 months’ proba-
tion in Florida state court, but probation was terminated in No-
vember of the same year.
In August 2005, White was arrested for Driving Under Sus-
pension. He was fined in South Carolina state court.
In November 2005, White was arrested for Disturbing
School after he “loitered around the premises of [an elementary
school,] drove around the parking lot[,] and when approached by
a teacher[,] drove away in excessive speeds while school children
were present.” After pleading guilty in South Carolina state
court, he was sentenced to ten days in jail or a $150 fine.
In March 2006, White was arrested for Indecent Exposure
after he exposed his penis to a ten-year-old girl. He pled guilty in
South Carolina state court and was sentenced to 3 years of proba-
tion and sex offender counseling.
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4 Opinion of the Court 21-14307
In January 2013, White was arrested for Fleeing or At-
tempting to Elude a Police Officer when he refused to stop for an
attempted vehicle stop and fled in excess of 20 miles per hour
above the posted speed limit. He was sentenced in Georgia state
court to a fine and five years of probation, which was terminated
in 2021.
In November 2015, while still on probation, White was ar-
rested for Battery. Three victims—two adult women and the son
of one of the women—attempted to get White away from the
vehicle belonging to one of the victims. White choked both
women, threatened to kill one of them, and ultimately picked one
of the victims off the ground by the neck and slammed her on the
ground before all three victims were able to flee to the mother
victim’s apartment. White tried to enter the apartment, banging
on a window and the door, and was uncooperative when police
ultimately arrived. White pled nolo contendere in Florida state
court, was adjudicated guilty, and, in June 2016, was sentenced to
twelve months’ probation and ten days on a work farm. This
probation was terminated early in September of the next year.
On February 20, 2020, and after receiving a tip that an IP
address associated with White was used to download an image of
child pornography, agents with the Brevard County Sheriff’s Of-
fice met with White. He denied downloading any child pornog-
raphy.
In May 2020—while still on probation—White was arrested
for Lewd or Lascivious Exhibition after being caught masturbat-
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21-14307 Opinion of the Court 5
ing outside of his camper and in full view of a 10-year-old girl who
was standing right outside her yard. Pleading nolo contendere in
Florida state court, White was sentenced on March 5, 2021, to 42
months in Florida Department of Corrections with 305 days cred-
it for time served.
Two days after his arrest, a neighbor, while looking for
keys, spotted a tablet on the ground next to White’s truck. The
tablet being unlocked, the neighbor looked through the photo
gallery and saw multiple images of what appeared to be child
pornography. The neighbor then gave the tablet to the mother of
the 10-year-old neighbor, who turned it in to the police. These
images formed the basis for the sentence currently before us.
The PSR calculated a total offense level of 26 and a criminal
history category of IV, resulting in a guideline imprisonment
range of 92 to 115 months. The District Court sentenced White
to 156 months imprisonment for each of the two counts to run
concurrently with each other, but consecutively to the state term
of imprisonment he is currently serving pursuant to his Florida
state conviction. The Court also sentenced White to fifteen years
of supervised release to commence after his term of imprison-
ment.
At the sentencing hearing, the Court acknowledged the
18
U.S.C. § 3553(a) sentencing factors. In deciding to sentence
White above the guideline range, the Court discussed how the
Brevard County Sheriff’s Office interviewed White three months
before his tablet was found, and that he denied being involved in
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6 Opinion of the Court 21-14307
the use of child pornography. The Court also discussed how
young the children in the videos found on White’s computer
were, and the pattern formed by White’s criminal record, specifi-
cally including the facts that led to his battery conviction. The
Court considered that White had been placed on probation four
times over a period of 17 years—at times for other sexual conduct
involving minors—and that he continued to exhibit “a very high
level [of] disrespect for authority, violence towards women, abuse
of children, and a lack of being amenable to probation or other
corrective care.” Finally, the Court discussed White’s privileged
upbringing and that it did not doubt White was compassionate
and caring to his family, but that did not necessarily mean he was
not a danger to society at large.
II.
We review a sentence under the abuse of discretion stand-
ard. Gall v. United States,
552 U.S. 38, 51,
128 S. Ct. 586,
597 (2007). We decide whether a sentence is substantively unrea-
sonable by considering the totality of the circumstances of the
case and the purposes of a sentence as expressed in the
18 U.S.C.
§ 3553(a) factors. United States v. Trailer,
827 F.3d 933, 936 (11th
Cir. 2016) (per curiam). We recognize that a sentence must be
sufficient, but not greater than necessary, to satisfy the factors
listed in § 3553(a)(2): the need of the sentence to reflect the seri-
ousness of the offense and to provide punishment, general deter-
rence, and specific deterrence—in other words, protecting the
public from the defendant’s future conduct. See
18 U.S.C.
§ 3553(a)(2)(A)–(C). In arriving at a sentence, the court need not
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21-14307 Opinion of the Court 7
discuss each of the § 3553(a) factors, but the record must reflect
that it did consider them. United States v. Ghertler,
605 F.3d 1256,
1262 (11th Cir. 2010). The weight the court gives a § 3553(a) fac-
tor is a matter committed to its sound discretion. United States v.
Williams,
526 F.3d 1312, 1322 (11th Cir. 2008) (per curiam). A sen-
tence is substantively unreasonable if we are left with the “defi-
nite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors.” United States
v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quoting
United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008)).
If a district court determines that a sentence outside the
guideline range is appropriate, “it must consider the extent of the
deviation and ensure that the justification is sufficiently compel-
ling to support the degree of the variance.” United States v. Over-
street,
713 F.3d 627, 636 (11th Cir. 2013) (quotation marks omit-
ted) (quoting Williams 526 at 1322). The district court’s imposi-
tion of a sentence well below the statutory maximum penalty is
an indicator of reasonableness. United States v. Croteau,
819 F.3d
1293, 1310 (11th Cir. 2016). The district court may also “consider
facts that were taken into account when formulating the guideline
range for the sake of a variance.” United States v. Dougherty,
754
F.3d 1353, 1362 (11th Cir. 2014).
We have stated that child sex crimes are among the worst
criminal offenses and have upheld lengthy sentences in these cas-
es as substantively reasonable. United States v. Sarras,
575 F.3d
1191, 1220–21 (11th Cir. 2009); see also United States v. Turner, 626
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8 Opinion of the Court 21-
14307
F.3d 566, 574 (11th Cir. 2010) (upholding a 90-month upward var-
iance for possession of child pornography because possessing
child pornography contributes to the victimization of children
and Turner posed a risk to the public).
Here, the District Court did not abuse its discretion in vary-
ing White’s term of imprisonment above the guideline range.
First, White faced a maximum term of imprisonment of forty
years, which points to the reasonableness of a 156-month sen-
tence.
Further, the Court explained at the sentencing hearing that
the criminal history category of IV provided by the PSR does not
“adequately reflect[] how serious [White’s] conduct is and what
danger [he] present[s] to society” and that “it doesn’t address the
pattern of behavior . . . that’s accelerated over time.” See United
States v. Rosales-Bruno,
789 F.3d 1249, 1264 (11th Cir. 2015) (noting
that even though properly calculated guideline ranges incorporate
a defendant’s criminal history, a district court may properly find
that the guideline range does not account for the nature of the
prior offenses or the continuous pattern of criminal behavior).
This was not an abuse of discretion. White’s criminal history in-
dicates that he has not confined his interest in children to the vir-
tual realm. He has been convicted of disturbing school for loiter-
ing around an elementary school—where he further endangered
children by fleeing at high rates of speed—and has twice been
convicted for exposing his genitalia to 10-year-old girls, and those
incidents were 14 years apart. White has also faced probation
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21-14307 Opinion of the Court 9
multiple times, as well as court-mandated sex offender counsel-
ing, and yet the pattern has continued. For these reasons, we
cannot say that the District Court abused its discretion in deter-
mining that an upward variance was justified.
AFFIRMED.
