USCA11 Case: 22-12030 Document: 41-1 Date Filed: 11/02/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12030
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEIVON MCBRIDE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60095-RAR-1
____________________
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2 Opinion of the Court 22-12030
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Keivon McBride, proceeding with counsel, challenges his
below-guideline 480-months sentence for the production of child
pornography, in violation of
18 U.S.C. § 2251(a), and distribution
of child pornography, in violation of
18 U.S.C. § 2252(a)(2). In par-
ticular, he contends that the district court committed procedural
error in imposing the sentence and that the sentence itself is sub-
stantively unreasonable. Because no reversible error has been
shown, we affirm McBride’s sentence.
I
McBride pleaded guilty to production of child pornography,
in violation of
18 U.S.C. § 2251(a), and distribution of child pornog-
raphy, in violation of
18 U.S.C. § 2252(a)(2). The probation officer’s
Presentence Investigation Report (PSI) assigned McBride a total-
offense level of 43 1 and a criminal-history category of I. Based on
McBride’s criminal-history category, total-offense level, and the ap-
plicable statutory-maximum sentence, McBride’s guidelines term
of imprisonment was 3,840 months. See U.S.S.G. § 5G1.2(b).
At the sentencing hearing, the district court accepted the
PSI’s calculation of the applicable guidelines range. After
1 The PSI actually calculated McBride’s offense level to be 51. But an offense
level of “more than 43 is to be treated as an offense level of 43” because the
sentencing table includes only offense levels up to 43. U.S.S.G. § 5A, cmt. 2.
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22-12030 Opinion of the Court 3
considering the parties’ arguments at sentencing, the totality of the
circumstances, and the
18 U.S.C. § 3553(a) factors, the district court
sentenced McBride to 480 months’ imprisonment.
This Court must first ensure that the district court commit-
ted no significant procedural error, such as failing to calculate or
improperly calculating the guideline 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. Gall v. United States,
552 U.S. 38, 51
(2007). If the court’s sentencing decision is procedurally sound, this
Court then considers the substantive reasonableness of the sen-
tence.
Id. We consider the substantive reasonableness of a sen-
tence under a deferential abuse of discretion standard. 2 United
States v. Butler,
39 F.4th 1349, 1354–55 (11th Cir. 2022). In review-
ing the reasonableness of a sentence, we will not substitute our
own judgment for that of the district court and will affirm a sen-
tence so long as the court’s decision was “in the ballpark of permis-
sible outcomes.”
Id. at 1355 (citation omitted). The defendant
bears the burden of showing that the sentence is unreasonable in
light of the record and the
18 U.S.C. § 3553(a) factors. United States
v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
2 The government contends that McBride’s procedural-error argument should
be reviewed only for plain error because McBride never expressly raised the
specific objections he now makes on appeal. We need not decide this issue,
however, because we conclude that McBride’s argument fails under an abuse-
of-discretion standard.
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4 Opinion of the Court 22-12030
II
McBride contends that the district court committed proce-
dural error in imposing his sentence and that the sentence itself is
substantively unreasonable.
A
McBride first argues that the district court committed pro-
cedural error in imposing his sentence. A district court commits
procedural error when it incorrectly calculates the guidelines
range, treats the guidelines as mandatory, fails to consider the
18
U.S.C. § 3553(a) factors, selects a sentence based on clearly errone-
ous facts, or fails to explain the chosen sentence. Gonzalez,
550 F.3d
at 1323; Gall,
552 U.S. at 51. McBride contends, in particular, that
the district court did not consider the sentencing factors set forth
in
18 U.S.C. § 3553(a) and failed to explain its chosen sentence.
McBride failed to demonstrate that the district court com-
mitted procedural error. The court explicitly stated that it consid-
ered the statements of all parties, the PSI, and the § 3553(a) factors.
See Gall,
552 U.S. at 51; Butler, 39 F.4th at 1356 (“[A] district court’s
acknowledgement that it has considered the § 3553(a) factors and
the parties’ arguments is sufficient.”); Tr. of Sentencing, Doc. 53 at
46. It also provided an adequate explanation for McBride’s total
sentence by discussing the relevant sentencing data it reviewed to
avoid nationwide sentencing disparities, the unique nature and cir-
cumstances of his offenses, his lack of criminal history, the sexual
abuse he endured, the need to promote respect for the law and gen-
eral deterrence due to the seriousness of his offenses, and the need
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22-12030 Opinion of the Court 5
to stop abuse of young women via social media. See Tr. of Sentenc-
ing, Doc. 53 at 36–45; Gall,
552 U.S. at 46–47, 50–51; Butler, 39 F.4th
at 1356. Therefore, the court demonstrated that it properly
weighed the relevant § 3553(a) factors. See § 3553(a); Butler, 39
F.4th at 1356.
B
McBride next challenges his sentence as substantively unrea-
sonable. When reviewing a sentence for its substantive reasona-
bleness, we consider the “totality of the circumstances,” “including
. . . whether the statutory factors in § 3553(a) support the sentence
in question.” Gonzalez,
550 F.3d at 1324. “The party challenging
the sentence bears the burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors.”
United States v. Early,
686 F.3d 1219, 1221 (11th Cir. 2012).
Under § 3553(a), the district court must impose a sentence
that is sufficient, but not greater than necessary, to reflect the pur-
poses of § 3553(a)(2), including the need for the sentence to reflect
the seriousness of the offense, to promote respect for the law, to
provide just punishment, to afford adequate deterrence, and to pro-
tect the public from further crimes of the defendant.
18 U.S.C. §
3553(a). Additionally, the court must consider, among other fac-
tors, the nature and circumstances of the offense, the history and
characteristics of the defendant, and the need to avoid unwarranted
sentence disparities among similarly situated defendants.
Id. We
will not vacate a sentence on substantive-reasonableness grounds
unless “we are left with the definite and firm conviction that the
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6 Opinion of the Court 22-12030
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. Cabezas-Montano,
949 F.3d 567, 611 (11th Cir. 2020) (cita-
tion omitted). The court imposes a substantively unreasonable
sentence when it fails to afford consideration to relevant factors
that were due significant weight, gives significant weight to an im-
proper or irrelevant factor, or commits a clear error of judgment in
considering the proper factors. Butler, 39 F.4th at 1355. The court
commits a clear error of judgment when it weighs the § 3553(a)
factors unreasonably. Id. The weight given to each factor is com-
mitted to the sound discretion of the court, and the court may at-
tach great weight to one factor over the others. Id.
McBride has failed to demonstrate that his sentence is sub-
stantively unreasonable. He argues that it was unreasonable be-
cause it was disproportionate to the seriousness of the circum-
stances of the offenses and the offender. But McBride’s total sen-
tence of 480 months’ imprisonment was well below the guideline
imprisonment range of 3,840 months’ imprisonment, and thus
within the ballpark of permissible outcomes. See Butler, 39 F.4th at
1355. The court provided an adequate explanation and properly
considered and weighed the relevant § 3553(a) factors, including
the nature and circumstances of McBride’s offenses, his history and
characteristics, the need to promote respect for the law, the need
for deterrence, and the need to avoid nationwide sentencing dis-
parities. See § 3553(a); Butler, 39 F.4th at 1354–57; Gall, 552 U.S. at
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22-12030 Opinion of the Court 7
46–47, 50–51. Therefore, the district court did not abuse its discre-
tion by imposing McBride’s sentence.
AFFIRMED.
