United States v. Gregory Whitman

USCA11 Case: 22-11148 Document: 34-1 Date Filed: 03/08/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11148
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY WHITMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cr-00026-TKW-MJF-1
____________________
USCA11 Case: 22-11148 Document: 34-1 Date Filed: 03/08/2023 Page: 2 of 3
2 Opinion of the Court 22-11148
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Gregory Whitman challenges his 420-month total sentence
for attempted production of child pornography, in violation of 18
U.S.C. § 2251(a), receipt of child pornography, in violation of 18
U.S.C. § 2252A(a)(2), and commission of a felony involving a mi-
nor—i.e., attempted production of child pornography—by a sexual
offender, in violation of 18 U.S.C. § 2260A. He argues that his total
sentence is substantively unreasonable.
We consider the substantive reasonableness of a sentence
under a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The weight given to each 18 U.S.C.
§ 3553(a) factor is committed to the sound discretion of the district
court, and we will not substitute our judgment in weighing the rel-
evant factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.
2007). We will overturn a sentence as substantively unreasonable
only if we are “left with the definite and firm conviction” that a
clear error of judgment was made by the district court in weighing
the § 3553(a) factors, and the resulting sentence is outside the range
of reasonable sentences. United States v. Irey, 612 F.3d 1160, 1190
(11th Cir. 2010) (en banc).
Although we do not presume a sentence falling within the
guideline range is reasonable, we ordinarily expect such a sentence
to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th
USCA11 Case: 22-11148 Document: 34-1 Date Filed: 03/08/2023 Page: 3 of 3
22-11148 Opinion of the Court 3
Cir. 2008). A sentence imposed well below the statutory maximum
may indicate reasonableness. United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008).
Under § 3553(a), a sentencing court must impose a sentence
that is “sufficient, but not greater than necessary” to reflect the se-
riousness of the offense, to promote respect for the law, to provide
just punishment for the offense, to afford adequate deterrence, and
to protect the public from further crimes of the defendant. 18
U.S.C. § 3553(a). In addition, the court must consider, among
other factors, the nature and circumstances of the offense and the
history and characteristics of the defendant. Id. § 3553(a)(1).
Here, Whitman’s within-guideline-range total sentence for
child sex crimes is substantively reasonable. First, 420 months was
on the low end of his guideline range, and a sentence within the
guideline range is ordinarily expected be reasonable. Moreover,
the crime here is very serious—i.e. attempted production of child
pornography involving a minor by a sex offender. Second, 420
months was also well below the combined statutory maximum of
720 months. See 18 U.S.C. § 2251(e), 2260A; Gonzalez, 550 F.3d at
1324. Third, the district court was permitted to assign greater
weight to the seriousness of Whitman’s offense and the need to
protect the public than to his history of being sexually abused and
advanced age. Amedeo, 487 F.3d at 832; 18 U.S.C. § 3553(a).
Accordingly, we affirm.
AFFIRMED.