United States v. Kenneth Earl Hooks ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11939
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH EARL HOOKS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Alabama
D.C. Docket Nos. 2:18-cr-00249-LSC-JHE-1,
2:19-cr-00136-LSC-JHE-1
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2 Opinion of the Court 22-11939
____________________
____________________
No. 22-11942
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH EARL HOOKS,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Northern District of Alabama
D.C. Docket Nos. 2:19-cr-00136-LSC-JHE-1,
2:18-cr-00249-LSC-1
____________________
Before ROSENBAUM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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22-11939 Opinion of the Court 3
Following a remand for resentencing, Kenneth Hooks
appeals his total sentence of life imprisonment, imposed after he
pleaded guilty in two cases pursuant to two written plea
agreements, to four counts of production of child pornography,
one count of coercion and enticement of a minor to engage in
sexual activity, and one count of transportation of a minor for
sexual purposes. Hooks argues that (1) the district court
procedurally erred by misconstruing our mandate on remand;
(2) the district court procedurally erred by failing to adequately
explain the basis for its sentence and failing to consider his
arguments in mitigation; and (3) the sentence imposed was
substantively unreasonable. 1 The government, in turn, argues that
the district court complied with our mandate on remand, and that
Hooks’s remaining arguments are waived by the sentence-appeal
waiver in his plea agreements. In response, Hooks argues that the
appeal waivers are not enforceable because the district court failed
to adequately explain the waiver to him during the plea colloquy
and he did not understand the implications of the waiver. We
conclude that the district court complied with our mandate and
that that the sentence-appeal waivers are valid and enforceable and
bar Hooks’s sentencing-related challenges. Moreover,
notwithstanding the waiver, his claims fail on the merits.
Accordingly, we affirm.
I. Background
1Hooks also argues that his case should be reassigned to a different judge on
remand.
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During a forensic search of a computer obtained from
Hooks’s residence pursuant to a search warrant issued as part of an
investigation into an unrelated incident that occurred in California
involving Hooks’s girlfriend Sarah Morris, law enforcement
discovered numerous still images and a ten-minute video depicting
child pornography. Some of the images portrayed a sleeping
female prepubescent minor approximately 4 or 5 years old with her
pajama bottoms pulled back to expose her genitals, and another
image depicted the sleeping prepubescent female minor’s hand
touching Hooks’s penis. 2 Other still images depicted Hooks sitting
in a chair nude, touching the genitals and buttocks of a nude
prepubescent male approximately 5 or 6 years old—later
determined to be one of Morris’s sons. The ten-minute video
depicted Hooks sexually assaulting, both vaginally and orally, a
teenage female minor. Authorities later determined the teenage
female was one of Hooks’s daughters, and Hooks and Morris had
moved the teenager from Mississippi to Alabama to live with them
at the time of the video. During the video, the teenage female is
depicted crying, screaming “no,” attempting to resist, and is
physically restrained by Hooks. Law enforcement determined that
the images and video in question were produced in Alabama and
the minor victims resided in Alabama.
Based on the images involving the prepubescent male
minor, Hooks and Morris were each indicted in the Northern
2 In total, 59 images of this female minor in various stages of undress were
discovered on the computer.
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22-11939 Opinion of the Court 5
District of Alabama on one count of production of child
pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), and 2,
and one count of coercion and enticement of a minor to engage in
sexual activity, in violation of 18 U.S.C. § 2422(b) (“Case #1”).
Hooks was also charged by Information in the Middle
District of Alabama with three counts of production of child
pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), and one
count of transporting a minor for the purpose of engaging in sexual
activity, in violation of 18 U.S.C. § 2423(a) (“Case #2”), based on
the images involving the prepubescent female minor and the video
of the sexual assault on the teenage female minor.
Hooks pleaded guilty to all six charges stemming from both
of his cases, pursuant to a written plea agreement in each case.3
The plea agreements reflected that each of the production of child
pornography counts (four counts in total) carried a statutory
minimum term of 15 years’ imprisonment and a statutory
maximum term of 30 years’ imprisonment. The plea agreements
also reflected that both the enticement of a minor count and the
transportation of a minor count carried a statutory minimum term
of ten years’ imprisonment and a statutory maximum term of life
imprisonment.
3Hooks consented to the transfer of Case #2 from the Middle District of
Alabama to the Northern District of Alabama.
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Both plea agreements contained identical sentence-appeal
waivers. The waivers stated as follows:
In consideration of the recommended disposition of
this case, I, Kenneth Earl Hooks, hereby waive and
give up my right to appeal my conviction and/or
sentence in this case, as well as any fines, restitution,
and forfeiture orders, the court might impose.
Further, I waive and give up the right to challenge my
conviction and/or sentence, any fines, restitution,
forfeiture orders imposed or the manner in which my
conviction and/or sentence, any fines, restitution,
and forfeiture orders were determined in any post-
conviction proceeding, including, but not limited to,
a motion brought under 28 U.S.C. § 2255, and any
argument that (1) the statute(s) to which I am
pleading guilty is or are unconstitutional or (2) the
admitted conduct does not fall within the scope of the
statute(s).
The defendant reserves the right to contest in an
appeal or post-conviction proceeding any or all of the
following:
(a) Any sentence imposed in excess of the
applicable statutory maximum sentence(s);
(b) Any sentence imposed in excess of the
guideline sentencing range determined by the
court at the time sentence is imposed; and
(c) Any claims of ineffective assistance of counsel.
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22-11939 Opinion of the Court 7
The defendant acknowledges that before giving up
these rights, the defendant discussed the Federal
Sentencing Guidelines and their application to the
defendant’s case with the defendant’s attorney, who
explained them to the defendant’s satisfaction. The
defendant further acknowledges and understands
that the government retains its right to appeal where
authorized by statute.
I, KENNETH EARL HOOKS, hereby place my
signature on the line directly below to signify that I
fully understand the foregoing paragraphs, and that I
am knowingly and voluntarily entering into this
waiver.
Hooks signed each page of the plea agreements, including the
pages containing the sentence-appeal waivers, and he signed the
paragraph in each agreement stating that he understood the appeal
waiver and was entering into it knowingly and voluntarily. Hooks
signed the plea agreement in Case #1 on January 25, 2019, and,
approximately a month later on February 26, 2019, he signed the
plea agreement in Case #2.
At the plea hearing in Case #1, Hooks confirmed that he had
not had any alcoholic beverages, drugs, or medications that would
interfere with his ability to understand the proceeding.4 He also
confirmed that he did not have any physical, mental, or emotional
impairments that would interfere with his ability to understand the
4 Hooks had an eighth-grade education.
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8 Opinion of the Court 22-11939
proceeding. The district court then asked Hooks whether it was
his initials and signature on the plea agreement, and Hooks
confirmed that it was and that he had read the document. He also
confirmed that his lawyer had reviewed the plea agreement with
him, and that he understood the information in the agreement.
The district court reviewed the charged offenses with Hooks and
the potential punishments, including that Hooks faced the
possibility of life imprisonment, and Hooks confirmed that he
understood.
With regard to the sentence-appeal waiver, Hooks
confirmed that it was his signature under the paragraph
acknowledging the waiver, and he agreed with the court’s
statement that by signing the waiver, he acknowledged that he was
“waiving or giving up [his] right to appeal or file a post-conviction
petition except under certain circumstances listed above [his]
signature.” Hooks confirmed that he was pleading guilty freely and
voluntarily because he was in fact guilty, and the district court
accepted his plea in Case #1.
Similarly, at the plea hearing in Case #2, Hooks confirmed
that he had initialed and signed the plea agreement, read it, and
discussed it with his counsel. He also confirmed that, although he
was now taking various prescription medications, he understood
the proceedings and he was not under the influence of anything
that would interfere with his ability to understand the proceedings.
The district court reviewed the charged offenses with Hooks and
the potential punishments, including that Hooks faced the
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22-11939 Opinion of the Court 9
possibility of life imprisonment, and Hooks confirmed that he
understood. With regard to the sentence-appeal waiver, Hooks
confirmed that it was his signature under the paragraph
acknowledging the waiver, and he agreed with the court’s
statement that by signing the waiver, he had “waived or given up
[his] right to appeal or file a post-conviction petition except in the
limited circumstances [listed] above [his] signature.” Hooks
confirmed that he was pleading guilty freely and voluntarily
because he was in fact guilty, and the district court accepted his plea
in Case #2.
The district court set a combined sentencing hearing for
both of Hooks’s cases. Hooks’s applicable guidelines range was life
imprisonment. 5 In terms of Hooks’s background and personal
history, his presentence investigation report (“PSI”) indicated that
Hooks’s parents divorced when he was young and he was raised by
his father. He suffered both physical and sexual abuse by multiple
members of his family. Hooks’s stepfather confirmed that Hooks
was raped repeatedly and abused by multiple family members.
Additionally, the PSI indicated that Hooks suffered from post-
traumatic stress disorder, bipolar disorder, depression, and anxiety.
5Hooks filed a motion for a downward variance, requesting that the district
court impose concurrent terms of 60 years’ imprisonment in each case. Hooks
asserted that “[a]s a 36 year old man, who will be 87 if he lives to serve 85% of
a 720 month sentence, [such a sentence] is sufficient, but not greater than
necessary to accomplish the stated purposes of sentencing as set forth in 18
U.S.C. § 3553(a).”
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10 Opinion of the Court 22-11939
And at the time of his arrest, Hooks was using methamphetamine
daily.
At Hooks’s initial sentencing hearing, the district court
viewed the video depicting the child pornography and a selection
of still images presented by the government. Thereafter, the
defense called forensic psychologist Dr. Sarah Boyd to testify as to
her evaluation of Hooks. Dr. Boyd testified that Hooks was
anxious during the evaluation and he cried a lot. While Hooks did
not make any statements that directly minimized his conduct, he
indicated that Morris was the “driving force behind why the focus
would be on younger children, prepubescent children.” Hooks
expressed remorse and shame during the interview. Dr. Boyd
explained that, in her expert opinion, Hooks suffered from
(1) complex post-traumatic stress disorder (CPTSD)—otherwise
known as developmental trauma—(2) a substance abuse disorder,
with the primary substance being methamphetamine, and (3) also
possibly bipolar disorder. She confirmed that Hooks’s CPTSD and
his substance abuse disorder were likely strong contributing factors
to his offense conduct because individuals who have been
victimized themselves sometimes go on to victimize other
individuals in a similar manner and methamphetamine increases
impulsivity and sexual interest and impairs judgment. On cross-
examination, Dr. Boyd confirmed that she could not give an
opinion as to whether Hooks would have committed the offenses
but for his drug use and his traumatic childhood experiences. A
letter from one of Hooks’s children was also submitted on his
behalf.
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22-11939 Opinion of the Court 11
Hooks then made a brief statement to the court, apologizing
for his actions and asking for mercy. The grandmother of the
minor male victim made an oral statement to the court, asserting
that Hooks traumatized her grandson, not only by sexually abusing
him, but also by physically “whipping him with a switch,” “making
him stay outside,” and being “mean” to him. She explained the
male minor was in counseling and would “probably be in
counseling the rest of his life.” The teenage female minor depicted
in the video submitted a written victim impact statement, stating
that Hooks and Morris drugged her using a date rape drug and got
her to use methamphetamines, that Hooks repeatedly raped her,
and that he made her watch and participate in sexual encounters
with young boys.
Before pronouncing Hooks’s sentences, the district court
stated as follows:
You know, there is not a lot of difference between a
life sentence and 720 months. There is a little bit of
difference. But it seems like the majority of the brief,
the motion, maybe I just read too much into it, was
that 720 month sentence, you would be very elderly
and have a chance to get out of prison. Well, the
prison has opportunities for individuals to get out
when their health deteriorates and such. But I don’t
think that a sentence that is under the guideline range
is appropriate in this case.
The guideline range is life. The conduct in this case
was horrendous. It’s always very difficult to see
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12 Opinion of the Court 22-11939
conduct where an individual takes and abuses a child
in that kind of manner. It’s hard to see it, and I
couldn’t imagine experiencing it on the child’s side.
The factors that I am charged with the responsibility
of enforcing are those in the sentencing statutes. And
I believe that when you consider the nature and
circumstances of the offense and your history and
characteristics, as well as the need to protect the
public from crimes that you might commit again,
well, it calls out for a guideline sentence, which is life.
The district court then imposed the statutory maximum of a life
sentence as to each of the enticement of a minor and transportation
of a minor counts, and a 30-year sentence as to each of the
production of child pornography counts, all terms to run
consecutively. Hooks’s counsel objected to the sentences as “being
exceptionally unreasonable,” and the district court noted in
response that “this is a guideline sentence.” The district court also
noted in its statement of reasons that it imposed a sentence within
the guideline range.
Hooks appealed the sentence to this Court, arguing, in
relative part, that the district court failed to adequately explain the
reasons for the sentence imposed. 6 United States v. Hooks, 829 F.
App’x 948, 948 (11th Cir. 2020) (Hooks I). On appeal, we concluded
6 In Hooks’s initial appeal, because the district court ordered the sentences to
run consecutively, the government noted that “the total sentence arguably
was imposed in excess of the guideline sentencing range,” which was one of
the exceptions to the sentence-appeal waivers. Therefore, the government
stated that it would not seek to enforce the appeal waivers.
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22-11939 Opinion of the Court 13
that “there [was] tension between” the district court’s statements
that it imposed a guideline sentence and the total sentence
imposed—two consecutive life sentences plus 120 years’
imprisonment—“which we [could not] reconcile based on the
record before us.” Id. at 949. Accordingly, we vacated Hooks’s
sentences and remanded the case for resentencing. Id. We noted
that, on remand, “[r]egardless of the sentence imposed, the district
court must clarify if it is imposing a guidelines sentence or a
variance. If it imposes a variance, the district court must state its
reasons for imposing such sentence on the record in order to
facilitate meaningful appellate review.” Id. at 949 n.1.
On remand, Hooks filed an updated sentencing
memorandum and a motion for downward variance. Hooks again
requested a total sentence of 60 years (720-months), arguing that it
was the “only reasonable sentence in this case.” Hooks argued that
the sentence would maintain parity between himself, Morris,7 and
7 Morris pleaded guilty to five counts related to the child pornography, and
her guidelines range was also life. At her sentencing, the government filed a
motion for downward departure based on her substantial assistance, pursuant
to U.S.S.G. § 5K1.1, recommending concurrent sentences of 197 months’
imprisonment in both cases. After hearing testimony from a law enforcement
officer regarding Morris’s cooperation and thorough efforts to aid the
prosecution in apprehending and prosecuting Hooks and entertaining
arguments of counsel and a statement by Morris, the district court granted the
motion and imposed the government’s recommended sentence to be followed
by a lifetime of supervised release. The district court noted that but for her
substantial assistance, Morris “would have received a life sentence . . . because
the conduct is horrendous.”
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14 Opinion of the Court 22-11939
other similarly situated defendants, and was supported by the
relevant § 3553(a) factors. Hooks also attached a number of
documents to his motion, including a follow-up psychological
assessment by Dr. Boyd.
The government requested that Hooks “spend the rest of his
life in prison” so that he would never be “free to prey on children
again.” It noted that the court could either impose a guidelines
sentence of life, with all sentences running concurrently, or impose
the same sentences that it did before, but that such a sentence
would constitute an upward variance.
At the start of the resentencing hearing, the district court
stated that “the Eleventh Circuit remanded with directions that I
either sentence the defendant concurrently for the two life
sentences and 120 month sentence, or that if I run them
consecutive[,] I further explain my decision. So, that’s what we are
here for.” The following colloquy then occurred:
[Hooks’s counsel]: And your Honor, if I could
disagree slightly with the court’s interpretation of the
mandate. Our position at this resentencing is that it’s
a complete resentencing. We understand that the
court’s not going to hear evidence that we could have
presented at the original sentencing hearing, but the
court can consider evidence of [Hooks’s]
rehabilitation over the past two years. And the court
is not limited to the two options of either consecutive
life sentences—
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22-11939 Opinion of the Court 15
[District Court]: I was expressing what I thought the
Eleventh Circuit, but I certainly understand what you
are saying. It is a resentencing. . . .[ 8] I assume what
you are referring to is I could vary down below the
guideline range.
[Hooks’s Counsel]: Correct, Your Honor.
[District Court]: I will listen to anything you have to
present. Do not go over evidence that we had before.
I remember the case.
Hooks’s counsel then called Dr. Boyd as a witness, stating that Dr.
Boyd was going to supplement the testimony that she provided at
the initial sentencing hearing.
Dr. Boyd explained that, at the time of her initial evaluation,
Hooks had been using large amounts of methamphetamine for
years, and there was a possibility that he might also have “a
diagnosis of something like a schizophrenia spectrum disorder or
bipolar disorder co-occurring with the methamphetamine
substance abuse disorder.” However, now that Hooks had been in
jail for some time and no longer had access to methamphetamine,
it had
become clear that he does, in fact, have a co-
occurring, separate disorder. It has—with mood
8 During this colloquy, the district court confirmed that neither Hooks nor the
government had any objection to the PSI as originally calculated, adopted the
PSI in full, and determined that the guideline range was life imprisonment.
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16 Opinion of the Court 22-11939
features, as well as psychosis type features. It does
appear to have a fusion of sorts with his trauma
related symptoms in that a lot of his mood and
anxiety and psychosis type symptoms are associated
with preoccupations about victimization, about
people posing threats perhaps to him or threatening
him in the facility, and being very hyper vigilant about
that.
So he does—at this point I think we can say with
significantly more confidence that there is a separate
disorder in him; that the mental health symptoms
that he was experiencing are not solely attributable to
methamphetamine intoxication or
methamphetamine effects that tend to be more
persistent even after someone stops taking the drug.
She then opined that Hooks’s bipolar disorder could have
contributed to the underlying offenses because people with bipolar
experience manic episodes, which can manifest in impulsivity, self-
destructive behavior, and “an increase for many people in risky
sexual behavior and libido.” She further opined that “the trauma
history in his life contributed not only to the development of
bipolar disorder but how it actually manifest[ed] in him in terms of
including risky sexual behavior, and . . . the kind of fusion between
trauma related symptoms and mood symptoms.” In her opinion,
Hooks’s methamphetamine use was “partly a consequence of the
mental disorder,” and the methamphetamine use increased
Hooks’s chances of experiencing “mood episode[s].” Thus, both
his methamphetamine use and his bipolar disorder were “relevant
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22-11939 Opinion of the Court 17
factors in terms of understanding what happened with respect to
the offense conduct.” She noted that Hooks had been responding
well to psychiatric medications in jail and was actively engaged in,
and enthusiastic about, his participation in psychotherapy,
counseling, and a drug education program. She then detailed
additional treatments that she thought Hooks would benefit
from—many of which she explained were not available in
institutional settings.
Hooks then made a brief statement to the court, apologizing
to the court and his victims “for all of the harm and terrible things”
he did, and stating that he “accept[ed] the responsibility and
consequences of [his] actions.” He explained that“[i]t was never
[his] intention[] to harm anyone” and that he had “been battling . . .
both physical and mental abuse.” He begged the court for
forgiveness and mercy and to not sentence him to life.
Hooks’s counsel argued for a 60-year sentence, emphasizing
that such a sentence was appropriate in light of the 16-year
sentence Hooks’s codefendant, Morris, received for similar
conduct. The district court pointed out that Morris cooperated and
that she also stated that Hooks had provided her drugs, raped her,
and forced her to do some of the things that she did related to the
child pornography. Hooks’s counsel stated that those were self-
serving statements that she made only after she was arrested and
after initially lying to police about her involvement. Hooks’s
counsel also argued that the court should consider the fact that
Hooks pleaded guilty and saved the government and the victims
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18 Opinion of the Court 22-11939
from a jury trial and accepted responsibility for his actions.
Hooks’s counsel further emphasized that the court should consider
Hooks’s “extreme history of trauma” and mental health and
substance abuse because “a life without parole sentence doesn’t
give any weight to the fact that there were reasons why he ended
up he way he did.” Finally, Hooks’s counsel noted that Hooks was
“treatable,” citing Dr. Boyd’s testimony and reports.
The government stated that, although it was a good thing
that Hooks was no longer using drugs and was getting treatment
in prison, “he still need[ed] to be accountable for his egregious
crimes against three innocent children who trusted him.”
Accordingly, the government requested concurrent sentences of
life in Case #1 and 60 years in Case #2.
The district court then sentenced Hooks to concurrent
terms of life for each count in Case #1 and concurrent terms of life
in Case #2 as to Counts 1, 2 and 3, and 120 months’ as to Count 4,
with all the sentences running concurrently with each other. It
noted that it was inclined to vary upward as it did before based on
Hooks’s conduct, but in light of government’s position, it would
impose a guideline sentence. It stated that it had considered the
§ 3553(a) factors, including “the conduct of this defendant and the
need to protect society from his offenses, the nature and
circumstances of the offense, and his history and characteristics.”
Hooks’s counsel objected to the sentence, arguing that the
sentence was substantively unreasonable and that the district court
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22-11939 Opinion of the Court 19
failed to adequately explain the reasons for the sentence imposed
and why it rejected Hooks’s arguments in mitigation.
In response, the district court stated that the sentence was
based on Hooks’s conduct and the “way he manipulated . . . the
victims in this case,” including his own daughter. The court also
noted the method in which Hooks orchestrated Morris’s
participation in the criminal conduct. The court noted that it did
not accept Dr. Boyd’s opinion as to Hooks’s low risk of reoffending.
And, in any event, Dr. Boyd’s testimony was not “sufficient to
counter the need to protect society from [Hooks’s] offenses and
conduct, the need to punish him for his criminal conduct, [and]
[Hooks’s] absolute ability to manipulate people.” The court then
explained that Hooks could appeal the sentence, but that he may
have waived his right to appeal if there was a sentence-appeal
waiver in his plea agreement, and if he believed the waiver was
unenforceable he should make that argument on appeal. Hooks
timely appealed.
II. Discussion
A. The district court complied with this Court’s mandate
Hooks argues that the district court procedurally erred
when it misconstrued our mandate on remand “to require a life
sentence[] be re-imposed and treating the Guidelines sentencing
range as a mandatory floor.” He maintains that the district court’s
statements at the start of the resentencing hearing demonstrate
that it thought that it was precluded from varying downward from
the guidelines.
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We review de novo the district court’s interpretation and
application of our mandate in Hooks I. United States v. Amedeo, 487
F.3d 823, 829 (11th Cir. 2007). “[A] district court when acting under
an appellate court’s mandate, cannot vary it, or examine it for any
other purpose than execution; or give any other or further relief[.]”
United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996)
(quotations omitted).
Hooks’s claim is belied by the record. The record confirms
that the district court did not treat the guidelines as a “mandatory
floor,” nor did it believe it was required to impose a life sentence.
The record also demonstrates that the district court was well aware
that it could vary upward or downward from the guidelines range,
and the district court heard extensive argument from Hooks as to
why a downward variance of 60 years’ imprisonment from the
guidelines range of life was appropriate. However, the district
court did not find Hooks’s arguments persuasive and it denied his
motion for a downward variance, and it explained why it sentenced
him to a guidelines sentence of life. Accordingly, he is not entitled
to relief on this claim.
B. Hooks’s challenges to his sentence are barred by the sentence-
appeal waivers in his plea agreements
Hooks argues that his total life sentence is procedurally
unreasonable because the district court failed to adequately explain
the basis for the sentence, failed to consider his arguments in
mitigation, and failed to consider the § 3553(a) factors. Relatedly,
he argues that his sentence is substantively unreasonable because
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there is a disparity between his sentence and the sentence Morris
received as well as other individuals who have committed the same
child pornography offenses, and that the § 3553(a) factors
supported his requested sentence of 60 years’ imprisonment. In
response, the government argues that Hooks’s sentencing-related
claims are barred by the sentence-appeal waivers in his plea
agreements. Hooks, in turn, argues the sentence-appeal waivers
are unenforceable because the district court did not thoroughly
explain or discuss the appeal waiver at either plea hearing and,
based on the court’s questioning, Hooks did not understand
whether he was waiving his right to appeal his sentence as opposed
to just his conviction.
“We review the validity of a sentence appeal waiver de
novo.” United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).
We enforce appeal waivers that are made knowingly and
voluntarily. See United States v. Bascomb, 451 F.3d 1292, 1294 (11th
Cir. 2006); United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir.
1993). To demonstrate that a waiver was made knowingly and
voluntarily, the government must show that either (1) the district
court specifically questioned the defendant about the waiver
during the plea colloquy; or (2) the record makes clear that the
defendant otherwise understood the full significance of the waiver.
Bushert, 997 F.2d at 1351.
Hooks’s argument that the sentence-appeal waivers are
unenforceable because they were not explained to him adequately
and he did not understand he was waiving his right to appeal his
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22 Opinion of the Court 22-11939
sentence is refuted by the record. The appeal waivers in each plea
agreement were identical and stated unequivocally that, by
entering the plea agreement, Hooks waived his “right to appeal
[his] conviction and/or sentence in this case.” Each appeal waiver
then set forth the exceptions to the waiver, explaining that Hooks
could appeal if his sentence exceeded the statutory maximum or
exceeded the guidelines range, and that he could pursue
ineffective-assistance-of- counsel claims. Hooks initialed each page
of each of the plea agreements, including the appeal waiver, and he
signed the statement proclaiming that that he “fully under[stood]”
the waiver and that he “knowingly and voluntarily enter[ed] into
[the] waiver.” Then, during both plea colloquies, he confirmed
that he read the plea agreement, that his counsel also read the
agreement to him, and that he understood it. Additionally, the
district court questioned Hooks about the appeal-waiver
paragraph, and he confirmed that, by signing the waiver, he waived
his right to appeal. Thus, the record conclusively refutes Hooks’s
contention that he did not understand or knowingly and
voluntarily enter the appeal waiver. 9
Consequently, the record establishes that Hooks’s sentence-
appeal waivers were knowingly and voluntarily made and are
enforceable. Bushert, 997 F.2d at 1351; see also United States v.
9We also note that Hooks signed his plea agreements approximately a month
apart and he had the benefit of two different change-of-plea hearings, and at
no time did he indicate that he had a question about or otherwise did not
understand the sentence-appeal waiver.
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Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001) (enforcing an appeal
waiver where “the waiver provision was referenced during [the
defendant’s] Rule 11 plea colloquy and [the defendant] agreed that
she understood the provision and that she entered into it freely and
voluntarily”). Hooks’s claims that his guideline sentence is
procedurally and substantively unreasonable fall squarely within
the scope of the appeal waiver. Accordingly, Hooks’s claims are
barred by the appeal waiver.
C. Alternatively, Hooks’s claims fail on the merits
Even assuming, arguendo, that the appeal waivers were
unenforceable, Hooks’s claims are meritless. As discussed
previously, Hooks argues that his total life sentence is procedurally
unreasonable because the district court failed to adequately explain
the basis for the sentence, failed to consider his arguments in
mitigation, and failed to consider the § 3553(a) factors. Relatedly,
he argues that his sentence is substantively unreasonable because
there is a disparity between his sentence and the sentence Morris
received as well as other individuals who have committed the same
child pornography offenses, and that the § 3553(a) factors
supported his requested sentence of 60 years imprisonment.
We review a sentence for both procedural and substantive
reasonableness under a deferential abuse of discretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007). The burden rests on
the party challenging the sentence to show “that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and
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24 Opinion of the Court 22-11939
the substantial deference afforded sentencing courts.” United States
v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
With regard to his procedural challenges to the sentence, the
district court explained its reasons for sentencing Hooks to life
imprisonment, noting that the sentence was warranted due to the
nature and circumstances of the offense, Hooks’s history and
characteristics, the need to protect the public from future crimes,
and the need to adequately punish Hooks. Those reasons
correspond with the § 3553(a) factors that the district court is
instructed to consider when determining the appropriate sentence.
See 18 U.S.C. § 3553(a). Although Hooks may disagree with how
the district court weighed the relevant factors, the weight given to
a particular § 3353(a) factor “is committed to the sound discretion
of the district court,” and it is not required to give “equal weight”
to the § 3553(a) factors. Rosales-Bruno, 789 F.3d at 1254 (quotation
omitted). Moreover, “[w]e will not second guess the weight given
to a § 3553(a) factor so long as the sentence is reasonable under the
circumstances.” United States v. Butler, 39 F. 4th 1349, 1355 (11th
Cir. 2022).
The district court also expressly noted that it considered the
mitigation-related testimony of Dr. Boyd, but that it was not
persuaded by it. The fact that the district court did not address
Hooks’s mitigation arguments in further detail does not mean that
the district court failed to consider them. See Amedeo, 487 F.3d at
833 (explaining that the district court’s failure to discuss the
defendant’s mitigating evidence does not “mean[] that the court
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erroneously ‘ignored’ or failed to consider this evidence in
determining [the] sentence”). Thus, Hooks is not entitled to relief
on his claim that his sentence is procedurally unreasonable.
Hooks’s argument that his sentence is substantively
unreasonable is similarly unpersuasive. Although Morris was
convicted of some of the same offenses and received a lesser
sentence, there is no concerning sentencing disparity between
Hooks and Morris. 10 Morris received a lesser sentence based on the
substantial assistance she provided the government. Furthermore,
there are potentially mitigating facts in Morris’s case—that Hooks
provided her drugs, raped her, and forced her to take some of the
actions she took—that are not present in Hooks’s case. More
importantly, while Morris may have filmed and helped otherwise
facilitate the conduct in this case, Hooks was the perpetrator of the
sexual acts in the images and the video. Thus, Hooks is not
similarly situated to his codefendant. See United States v. Johnson,
10 Hooks cites to a number of other child pornography-related cases in which
defendants received lesser sentences. All Hooks has offered regarding those
cases are the crimes of conviction, the resulting sentences, and a few
barebones factual allegations; even taken together, that minimal information
is insufficient for us to make a proper comparison for purposes of evaluating
any alleged sentencing disparity. See United States v. Azmat, 805 F.3d 1018, 1048
(11th Cir. 2015) (explaining that courts “need[ ] to have more than the crime
of conviction and the total length of the sentences to evaluate alleged
disparities” and that “[t]he underlying facts of the crime and all of the
individual characteristics are relevant”). Thus, Hooks has not carried his
burden to show specific facts establishing that he is similarly situated to the
defendants in the referenced cases. Id.USCA11 Case: 22-11939 Document: 31-1 Date Filed: 06/27/2023 Page: 26 of 27
26 Opinion of the Court 22-11939
980 F.3d 1364, 1386 (11th Cir. 2020) (rejecting disparity claim
because “[d]efendant ha[d] not carried his burden to show specific
facts establishing that any codefendants are similarly situated”).
While the district court imposed the statutory maximum
sentence in this case, that sentence is within the applicable advisory
guidelines range and is substantively reasonable in light of the
§ 3553(a) factors. Hooks’s conduct in this case was particularly
egregious—Hooks sexually assaulted his own daughter to produce
child pornography in addition to the other images that involved
very young children. We have expressed that “the more serious
the criminal conduct is the greater the need for retribution and the
longer the sentence should be.” Irey, 612 F.3d at 1206 (en banc).
Further, as we have repeatedly emphasized, “[c]hild sex crimes are
among the most egregious and despicable of societal and criminal
offenses.” Id. (alteration in original) (quoting United States v. Sarras,
575 F.3d 1191, 1220 (11th Cir. 2009)). And “[w]hen child
pornography is produced in conjunction with the sexual abuse of
children, as it was here, the harm to the child victims is magnified
and perpetuated.” Id. at 1208; see also United States v. Pugh, 515 F.3d
1179, 1195–96 (11th Cir. 2008) (discussing the impact that child
pornography has on the victims). As a result, we have frequently
upheld lengthy sentences in cases involving child sex crimes. See,
e.g., United States v. Hall, 965 F.3d 1281, 1297–99 (11th Cir. 2020)
(upholding as reasonable a 480-month sentence for receipt of child
pornography, which was an upward variance of 300 months from
the guideline range); United States v. McGarity, 669 F.3d 1218, 1254,
1264 (11th Cir. 2012) (upholding as reasonable life sentences for
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engaging in a child exploitation enterprise), abrogated on other
grounds by Paroline v. United States, 572 U.S. 434 (2014); Sarras, 575
F.3d at 1196, 1220–21 (upholding as substantively reasonable a total
1,200 month sentence for three counts of knowingly persuading a
minor to engage in sexually explicit conduct and one count of
knowingly possessing child pornography); United States v. Johnson,
451 F.3d 1239, 1240, 1244 (11th Cir. 2006) (upholding as reasonable
consecutive sentences totaling 140 years for producing and
distributing child pornography). Under the circumstances of this
case, we cannot say that the district court’s decision to impose the
statutory maximum of life imprisonment was an abuse of
discretion.
AFFIRMED.