United States v. Coltin Rylie Plummer

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13648
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COLTIN RYLIE PLUMMER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:20-cr-14023-KMM-1
____________________
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2 Opinion of the Court 21-13648
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Coltin Plummer appeals his 600-month total sentence for
production and distribution of child pornography in violation of 18
U.S.C. §§ 2251(a) and 2252(a)(2) and (b)(1). First, he argues that the
district court procedurally erred at sentencing because it did not
adequately explain why it chose a statutory maximum consecutive
sentence of 600 months’ imprisonment. Moreover, he contends
that the court erred by concluding, without proper evidentiary
support, that there were more than 15 victims and that he had a
proclivity to reoffend. Second, Plummer argues that his sentence
was substantively unreasonable because the district court failed to
properly apply the 18 U.S.C. § 3553(a) factors during sentencing
because his sentence is much greater than the sentence of similarly
situated defendants.
I. Background
Plummer was charged in a superseding indictment with
production of child pornography, in violation of 18 U.S.C. § 2251(a)
(Count One), and distribution of child pornography, in violation of
18 U.S.C. § 2252(a)(2) and (b)(1). He pleaded guilty to both counts,
pursuant to a written plea agreement. Count One carried a
minimum term of imprisonment of 15 years, with a maximum of
30 years. 18 U.S.C. § 2251(e) Count Two carried a minimum term
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of imprisonment of five years and a maximum term of 20 years. Id.§ 2252(b)(1).
The following is taken from the factual proffer to the plea
agreement.
[In February 2020], an [a]ssistant [p]rincipal [at a
Florida middle school], contacted law enforcement
about students receiving inappropriate Snapchat
messages. Upon arrival, officers were advised that
multiple children, between the ages of eleven and
twelve years old, had received lewd and threatening
messages from a person on Snapchat calling himself
“Johnny Reeves.”
Further investigation would reveal, as detailed below,
that Coltin Plummer used Snapchat to send
threatening and lewd messages to children, most of
who[m] were between eleven and fifteen years old.
Plummer is a resident of Jupiter, Palm Beach County,
Florida, and the children were located in multiple
places, including Martin and Palm Beach Counties,
Florida; Lucas County, Ohio; York County, South
Carolina; and Haldimand County, Ontario Province,
Canada. Plummer sent multiple children images of
child pornography, in some instances claiming that he
raped the depicted children. In many of the
conversations, Plummer asked the children to watch
him masturbate over Snapchat, and threatened to kill
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or rape them if they refused. In some instances,
Plummer took screenshots of the children’s locations
and sent it to the children, to imply that he knew
where to find them. In two instances, Plummer
caused female children to create images of child
pornography and send them to him, and in one
instance, Plummer sent those images to
acquaintances of the child.
With a criminal history of I and a total offense level of 43,
Plummer’s guideline imprisonment range was life. However,
because the statutory maximum (600 consecutive months) was less
than the minimum applicable guideline range (life), the guideline
term of imprisonment was 600 months. U.S.S.G. 5G1.2(b).
At sentencing, Plummer argued that the district court
should vary downward from the guideline of 600 months and
impose “any sentence between 15 and 24 years,” which would give
Plummer “meaningful credit” for his acceptance of responsibility. 1
In response, the government requested a below-guidelines
sentence of 40 years’ imprisonment in order to give Plummer
1
Plummer received a three-level reduction for acceptance of responsibility,
but it did not alter the resulting guidelines range because his offense level was
47 with the reduction, and the guidelines provide that where an offense level
is in excess of 43, the offense level will be treated as a 43. See U.S.S.G. Ch. 5,
Part A (cmt. n.2). Plummer argued at sentencing that due to these
circumstances, he did not receive “meaningful credit” for his acceptance of
responsibility.
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“meaningful credit” for his acceptance of responsibility. The
district court explained that given Plummer’s age (28), the nature
of the offense, and the number of victims in the case, a variance
was not appropriate, and denied the request. The district court
imposed the statutory maximum on each count to run
consecutively for a total of 600 months’ imprisonment, followed
by a life term of supervised release. The court emphasized the
disturbing nature of the offense, and that, although the
investigation had revealed only 15 victims, at least 31 images of
prepubescent children of a sexual nature were discovered in
deleted files on Plummer’s phone, which suggested that there were
additional victims who were not discovered. The district court
explained that it had considered the § 3553(a) factors, and that the
sentence imposed achieved the goal of deterrence and need to
promote respect for the law. Plummer timely appealed.
II. Standard of Review
We review the reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The Court
first reviews a sentence for procedural error and then considers
whether the sentence is substantively reasonable under the totality
of the circumstances. United States v. Turner, 626 F.3d 566, 573
(11th Cir. 2010).
III. Discussion
On appeal, Plummer argues that the district court
committed procedural error by failing to explain why it imposed
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the statutory maximum and by making unsupported factual
findings during the sentencing, including that there were
potentially more than 15 victims and that he was a recidivism risk.
He also argues that the sentence is substantively unreasonable
because the court unreasonably balanced the § 3553(a) factors by
overemphasizing deterrence and because his sentence is higher
than similarly situated defendants who promptly accepted
responsibility with criminal history category I.
In reviewing the reasonableness of a sentence, we first
consider whether the district court committed a procedural error,
such as failing to calculate or improperly calculating the guideline
range. Gall, 552 U.S. at 51. We ensure that the district court
treated the Guidelines as advisory, considered the § 3553(a) factors,
did not select a sentence based on clearly erroneous facts, and
adequately explained the chosen sentence. Id. A district court’s
acknowledgment that it has considered the § 3553(a) sentencing
factors 2 and the parties’ arguments is sufficient, and it is not
required to explicitly discuss each of them. United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009). Importantly, the weight given
2
The factors that the district court is to consider include, among others,
(1) “the nature and circumstances of the offense and the history and
characteristics of the defendant”; (2) “the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense” as well as to afford specific and
general deterrence and protect the public; and (3) “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), (2), (6).
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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. United States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015) (quotation omitted).
While we do not formally presume that a within-guideline-
range sentence is reasonable, we ordinarily expect it to be so.
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). The
refusal to grant a downward variance alone does not demonstrate
that the district court failed to afford consideration to mitigating
factors. United States v. Lebowitz, 676 F.3d 1000, 1016–17 (11th
Cir. 2012). We will “vacate the 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).
The sentencing court is permitted to make factual findings
based on undisputed statements in a defendant’s presentence
investigation report (“PSI”), which are deemed admitted. Fed. R.
Crim. P. 32(i)(3)(A); United States v. Beckles, 565 F.3d 832, 844
(11th Cir. 2009). Additionally, “[t]here is no requirement that
sentencing judges confine their considerations to empirical studies
and ignore what they have learned from similar cases over the
years. Indeed, one of the reasons district courts are given such wide
latitude in sentencing is their experience in handling criminal
cases.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009).
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Here, Plummer’s total sentence was within the guidelines.
The sentence is procedurally reasonable because the district court
explicitly acknowledged that it considered the § 3553(a) factors and
the parties’ arguments, and it directly addressed Plummer’s
arguments for a downward variance.
While Plummer argues that the district court failed to
account for his acceptance of responsibility, the district court
explicitly addressed his arguments concerning meaningful credit
for acceptance of responsibility. Further, the record establishes
that the district court explained adequately why it was not varying
downward and why a 600-month sentence was necessary “given
[Plummer’s] age and the nature of the offense, and the number of
victims.” See Rita v. United States, 551 U.S. 338, 357 (2007) (noting
that the explanation for a rejection of variance can be “brief”). The
weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court, and
Plummer has not shown that the district court weighed those
factors unreasonably. Rosales-Bruno, 789 F.3d at 1254 (quotation
omitted).
Plummer’s arguments related to the district court’s factual
finding are similarly unpersuasive. The district court did not
clearly err in finding that there was a strong likelihood that there
were more victims than those named in Plummer’s plea agreement
because this factual finding was supported by evidence deemed
admitted in the PSI. Plummer’s deleted folder on his phone
contained 31 images of minors engaged in sexual activity or
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21-13648 Opinion of the Court 9
lascivious exhibition of their genitals. His phone also revealed that
he had recently deleted Snapchat and Tor. 3 While Plummer
objected to a two-point adjustment for obstruction of justice for
deleting Snapchat and Tor and other images of minors, Plummer
did not object to the fact that he had possessed those images and
deleted them. Therefore, the district court did not err by finding
that there were potentially more than 15 victims who had not been
discovered.
The district court also did not clearly err in finding that those
with a proclivity for child pornography often reoffend when given
an opportunity, based on its experience with similar cases. See
Shaw, 560 F.3d at 1238 (“[t]here is no requirement that sentencing
judges confine their considerations to empirical studies and ignore
what they have learned from similar cases over the years.”).
Additionally, the need to afford adequate deterrence to avoid
recidivism and to protect the public is a § 3553(a) factor the district
court was required to (and did) consider. 18 U.S.C. § 3553(a)(2)(B),
(C). Accordingly, Plummer has not shown that his sentence is
procedurally unreasonable.
Turning to the substantive reasonableness of Plummer’s
sentence, we consider whether a sentence is substantively
unreasonable under the totality of the circumstances and in light of
3
Tor is a dark web application that can be used to download and save child
pornography files.
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the § 3553(a) factors. United States v. Cubero, 754 F.3d 888, 892
(11th Cir. 2014).
In making a decision about whether prison terms should run
concurrently or consecutively, a district court “shall consider, as to
each offense for which a term of imprisonment is being imposed,
the factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). We
have held that § 3584(b) “authorizes the district court to impose a
consecutive sentence provided that it first considers the § 3553(a)
factors.” United States v. Covington, 565 F.3d 1336, 1346–47 (11th
Cir. 2009). “Once those factors are considered, the only limitation
on running sentences consecutively is that the resulting total
sentence must be reasonable, and ordinarily a sentence within the
advisory guidelines range is reasonable.” Id. at 1347.
When considering a claim of sentencing disparity, we first
consider “whether the defendant is similarity situated to the
defendants to whom he compares himself.” United States v.
Duperval, 777 F.3d 1324, 1338 (11th Cir. 2015). We have held that
evaluating alleged disparities requires more than consideration of
just the crime of conviction and the total length of the sentences;
factual circumstances must be compared as well. United States v.
Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015).
Plummer’s guideline sentence was substantively reasonable,
as the district court explicitly stated that it considered all the
§ 3553(a) factors. The court stated that it had considered the
characteristics of the defendant, the circumstances of the offense,
and the need to promote deterrence and respect for the law. While
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Plummer argues the judge gave too much weight to deterrence,
the weight accorded to each factor is within the court’s discretion.
Rosales-Bruno, 789 F.3d at 1254 (quotation omitted). Additionally,
the judge was authorized to impose consecutive sentences once it
had considered the § 3553(a) factors because the resulting sentence
was within the guideline range and was reasonable. See
Covington, 565 F.3d at 1347.
Finally, to the extent that Plummer argues that the district
court failed to consider the need to avoid unwarranted sentencing
disparities, the court stated that it had considered the § 3553(a)
factors, which included § 3553(a)(6) and the “need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” While
Plummer provided statistics of sentences for defendants convicted
of similar offenses, such statistics provided nothing more than the
crimes of conviction and the total lengths of the sentences, which
was insufficient to establish a sentencing disparity. See Azmat, 805
F.3d at 1048; see also United States v. Johnson, 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”).
Accordingly, the district court did not err in sentencing
Plummer to 600 months’ imprisonment. 4
4
Because the district court did not err, we need not consider Plummer’s
request to remand the case to a different district court judge for resentencing.
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AFFIRMED.