United States v. Lonnie Jonathon Harrelson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13042
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00039-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LONNIE JONATHON HARRELSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 10, 2019)
Before WILSON, NEWSOM, Circuit Judges, and PROCTOR, * District Judge.
PER CURIAM:
Honorable R. David Proctor, United States District Judge for the Northern District of
*
Alabama, sitting by designation.
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Lonnie Harrelson appeals his 360-month sentence imposed after he pleaded
guilty to one count of sexually exploiting a minor through the production of child
pornography under 18 U.S.C. § 2251(a) and (e). Harrelson argues that the district
court erred in applying a five-level enhancement under U.S.S.G. § 4B1.5(b) based
on its conclusion that he engaged in a “pattern of activity” involving prohibited
sexual conduct with a minor. Harrelson also argues that his sentence is
procedurally and substantively unreasonable because the district court did not
consider his lack of criminal history and his traumatic childhood when it imposed
his sentence. After review, we affirm.
I.
A federal grand jury indicted Harrelson on one count of production of child
pornography under 18 U.S.C. § 2251(a) and (e) (Count One) and one count of
possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and (b)(2)
(Count Two). Harrelson pleaded guilty to Count One pursuant to a written plea
agreement in exchange for the dismissal of Count Two. At his plea hearing,
Harrelson admitted to making videos of himself and H.R., a nine-year-old girl,
engaged in sexual activity.
Harrelson’s base offense level was 32 under U.S.S.G. § 2G2.1(a). The
probation officer applied (1) a four-level increase under § 2G2.1(b)(1)(A) because
the offense involved a minor under the age of 12; (2) a two-level increase under
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§ 2G2.1(b)(2)(A) because the offense involved a sexual act or sexual contact; and
(3) a four-level increase under § 2G2.1(b)(4) because the offense involved material
that portrays sadistic or masochistic conduct. The probation officer also applied a
five-level enhancement under § 4B1.5(b)(1) because Harrelson had engaged in a
“pattern of activity” involving prohibited sexual conduct with a minor. Harrelson
received a three-level decrease for acceptance of responsibility under § 3E1.1(a),
resulting in a total offense level of 43. Harrelson had a criminal history category
of I. Based on a total offense level of 43 and a criminal history category of I,
Harrelson’s guideline range was life imprisonment. But because the statutory
maximum for his offense was 30 years, his guideline term of imprisonment was
360 months.
Harrelson filed objections to the presentence investigation report (PSI).
First, Harrelson argued that the “pattern of activity” enhancement should not apply
because there was only one incident of sexual contact with H.R., and one incident
could not amount to a “pattern.” Harrelson also argued that a 240-month sentence
would be appropriate given his own traumatic childhood, in which he endured
physical and sexual abuse.
At Harrelson’s sentencing hearing, the government called Agent Noah
Miller as a witness. While investigating Harrelson, Agent Miller uncovered
multiple videos and photographs depicting sexual activity between Harrelson and
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H.R. While the videos and photos do not clearly show H.R.’s face, H.R.’s mother
identified her as the victim in the videos and photographs. H.R. was also able to
describe in detail the acts which took place in the videos, although she could not
remember how many times Harrelson had abused her. In sum, the government
presented at least seven different date-stamped photographs, in addition to the
videos, showing Harrelson engaged in sexual contact or activity with H.R.
Harrelson argued this evidence was insufficient to constitute a pattern of activity.
The court ultimately overruled Harrelson’s objection and imposed the five-level
enhancement, finding that the applicable guideline did not require multiple victims
to establish a pattern.
At the sentencing hearing, the government introduced a letter from S.H.,
Harrelson’s daughter, who was also a victim of sexual abuse. 1 S.H.’s letter
indicated that she feared that other children would be harmed if Harrelson was
released from prison. Both Harrelson and the government requested that the court
impose a sentence of 240 months. In his sentencing memorandum, Harrelson
emphasized that he had endured a traumatic childhood and that he was remorseful
for his actions.
1
While there is no evidence that Harrelson himself sexually abused S.H., there is evidence that
Harrelson allowed (and even facilitated) another adult male’s sexual abuse of S.H. Because
Harrelson was not charged for this conduct in this case, we have largely excluded these facts
from our discussion.
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The district court ultimately sentenced Harrelson to the statutory maximum
of 360 months imprisonment, followed by a life term of supervised release. The
court did so after confirming that it had reviewed Harrelson’s sentencing
memorandum. The court explained that the sentence was sufficient given all of the
18 U.S.C. § 3553(a) factors and the circumstances surrounding the case, and found
that a lower sentence would not accomplish the sentencing purposes identified in
the statute. The court noted that the case involved a pattern of activity which,
while acting to increase the guideline range, also called for a substantial sentence.2
The court reiterated that it had considered all of the § 3553(a) factors and indicated
that it would be willing to address any specific factor that either party wanted the
court to address, to which neither side responded.
II.
On appeal, Harrelson first argues that the district court erred in applying the
five-level enhancement under § 4B1.5(b)(1). We review the district court’s
interpretation of the guidelines and its application of the guidelines to the facts de
novo. United States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015).
2
The court explicitly noted that it did not rely on hearsay evidence about the sexual abuse of
other minors in determining Harrelson’s sentence. The court explained that it would impose the
360-month sentence because the photographs, videos, and admitted facts involving H.R. were
sufficient to sustain such a sentence.
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Section 4B1.5(b)(1) of the Sentencing Guidelines provides for a five-level
enhancement in “any case in which the defendant’s instant offense of conviction is
a covered sex crime . . . and the defendant engaged in a pattern of activity
involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b)(1). A “pattern of
activity” exists if, “on at least two separate occasions, the defendant engaged in
prohibited sexual conduct with a minor.” Id. § 4B1.5, comment. n.4(B)(i).
On appeal, Harrelson argues that multiple occasions of unlawful sexual
contact with a single victim is insufficient to show a “pattern of activity.” For this
enhancement to apply, Harrelson argues, the government instead must show
unlawful sexual contact against multiple minors. Harrelson’s argument is squarely
foreclosed by our precedent in United States v. Fox, No. 18-10723, 2019 WL
2461709 (11th Cir. June 13, 2019). In Fox, we held, consistent with our sister
circuits, that the § 4B1.5(b)(1) enhancement properly applies when the defendant
engages in repeated prohibited sexual conduct with the same minor. Id. at *3; see
also United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013); United States v.
Brattain, 539 F.3d 445, 447–48 (6th Cir. 2008); United States v. Phillips, 431 F.3d
86, 90 n.5 (2d Cir. 2005). The record supports, and Harrelson does not dispute on
appeal, that he sexually abused H.R. on multiple occasions. The district court thus
properly applied the § 4B1.5(b)(1) enhancement.
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Harrelson also argues that his 360-month sentence was both procedurally
and substantively unreasonable. We review the reasonableness of a sentence under
a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). A sentence may be procedurally unreasonable if the sentencing court fails
to properly calculate the guideline range, consider the 18 U.S.C. § 3553(a) factors,
or adequately explain the chosen sentence. Id. But we do not require a district
court to explain each of the § 3553(a) factors. Rather, it is sufficient for the court
to acknowledge that it considered the defendant’s arguments and the § 3553(a)
factors. See United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007).
After reviewing for procedural reasonableness, we consider the substantive
reasonableness of a sentence. Gall, 552 U.S. at 51. In reviewing a district court’s
sentence for substantive reasonableness, we examine the totality of the
circumstances to determine whether the statutory factors in § 3553(a) support the
sentence in question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008) (per curiam). The district court must issue a sentence “sufficient, but not
greater than necessary” to comply with the § 3553(a) factors, including: (1) the
nature and circumstances of the offense and the history and characteristics of the
defendant and (2) the need for the sentence imposed to reflect the seriousness of
the offense, to promote respect for the law, to afford adequate deterrence to
criminal conduct, and to protect the public from further crimes of the defendant.
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18 U.S.C. § 3553(a)(1), (2)(A)–(C). The court should also consider the kinds of
sentences available, the applicable Guideline range, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(3)–(4), (6)–(7).
The weight given to any specific § 3553(a) factor is within the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). The district court need not specifically address every mitigating factor
raised by the defendant for the sentence to be substantively reasonable. United
States v. Snipes, 611 F.3d 855, 873 (11th Cir. 2010). We will vacate a sentence “if,
but 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 by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc).
Harrelson’s sentence is both procedurally and substantively reasonable. As
to procedural reasonableness, the court considered Harrelson’s sentencing
memorandum, in which he asked for leniency given his traumatic childhood and
remorse for his actions. The court also stated that it had considered all the
§ 3553(a) factors before imposing the sentence. See Dorman, 488 F.3d at 938.
And, although it was not required to, the court offered to explain the reasoning for
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its sentence based upon any of the § 3553(a) factors to either side, to which neither
side responded.
Harrelson’s sentence, which was within the guideline range, was also
substantively reasonable. Both the nature of Harrelson’s crime, which involved the
ongoing sexual abuse of a minor, and the need to protect the public, as illustrated
by S.H.’s letter to the court, support Harrelson’s sentence. Harrelson argues that
the district court failed to consider his difficult childhood and lack of criminal
history, but the district court was not required to explicitly address the mitigating
factors for the sentence to be substantively reasonable. See Snipes, 611 F.3d at
873. Accordingly, we affirm.
AFFIRMED.
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