United States v. Thomas Goines

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12844 ELEVENTH CIRCUIT
DECEMBER 24, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00449-CR-T-24-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS GOINES,
a.k.a. Thomas Goins,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 24, 2008)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
After pleading guilty, Thomas Goines appeals his 78-month sentence for
possession of child pornography. Goines argues that his sentence was
unreasonable because the district court failed to adequately consider his personal
history and circumstances. After review, we affirm.
I. BACKGROUND
After receiving a tip from Goines’s employer that he had child pornography
on his work laptop computer, Federal Bureau of Investigation (“FBI”) agents
interviewed Goines at his home. During the interview, Goines admitted to
possessing child pornography on his home computer. FBI agents seized and
searched Goines’s home computer and found approximately 150 videos depicting
children, ranging from infants to teenagers, engaged in sexual activity. Goines’s
collection of pornographic material was “massive.” When the FBI returned to
arrest Goines less than two months later, he had already purchased a new computer
so he could get back on line, but no new child pornography was found on that
computer.
Goines pled guilty to one count of possessing visual depictions of minors
engaged in sexually-explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).
The Presentence Investigation Report (“PSI”) calculated a base offense level of 18,
under U.S.S.G. § 2G2.2(a) and increased his offense level: (1) by two levels
because he possessed graphic material that involved minors under the age of 12
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years (U.S.S.G. § 2G2.2(b)(2)); (2) four levels because he possessed material that
portrayed sadistic or masochistic conduct involving prepubescent children
(U.S.S.G. § 2G2.2(b)(4)); (3) two levels because he used a computer in his offense
(U.S.S.G. § 2G2.2(b)(6)); and (4) five levels because he possessed over 150
videos, the equivalent of 11,250 images of child pornography (U.S.S.G.
§ 2G2.2(b)(7)(D)). Pursuant to U.S.S.G. § 3E1.1(a) and (b), the PSI lowered
Goines’s offense level by three levels for acceptance of responsibility. With a total
offense level of 28 and a criminal history category of I, the PSI recommended an
advisory guideline range of 78 to 98 months’ imprisonment. Goines did not object
to the PSI.
At sentencing, Goines acknowledged the seriousness of his offense, but
argued that he should receive a sentence below the advisory range because he was
65 years old, he had no prior convictions, he had successfully raised his daughter,
he had a good employment history and was unlikely to re-offend. At the hearing,
Goines testified that when he downloaded the child pornography, he did not know
it was illegal.
Dr. Ted Shaw, a psychologist who evaluated Goines, testified that Goines
displayed a normal sexual attraction to adult and adolescent females and did not
show evidence that he ever molested a child. Based on Goines’s personal
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characteristics, lack of a serious disorder, and general law-abiding nature, Dr.
Shaw concluded that Goines did not present a danger to the community and was
not likely to re-offend, either by viewing child pornography or committing a more
serious offense. Dr. Shaw conceded, however, that there is no scientifically
validated assessment currently available to estimate the risk of an individual re-
offending.
After reviewing the § 3553(a) factors, the district court found that a sentence
at the low end of the advisory guidelines was sufficient but not greater than
necessary. The district court stated that a lower sentence was not appropriate
because there was a large volume of materials, the materials involved very young
children and the materials depicted acts that could be considered violence against
those children. The district court also noted that Dr. Shaw had no way of knowing
whether Goines would re-offend. The district court stated that it had considered
the advisory guidelines, the § 3553(a) factors, Dr. Shaw’s report, the PSI and
Goines’s statements to the court, and imposed a 78-month sentence. Goines filed
this appeal.
II. DISCUSSION
We review the reasonableness of a sentence under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. ___, ___, 128 S. Ct. 586, 597 (2007). A
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sentence may be procedurally or substantively unreasonable. United States v.
Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally
unreasonable if the district court does not follow the requirements of United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), regardless of the actual sentence
imposed. Hunt, 459 F.3d at 1182 n.3. For a sentence to be procedurally
reasonable, a district court must correctly calculate the guidelines range and
consider the factors in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784,
786 (11th Cir. 2005). “[A]n acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” Id. Once we determine that the sentence was
procedurally reasonable, we evaluate the ultimate sentence’s substantive
reasonableness, considering the totality of the circumstances. Gall, 552 U.S. at __,
128 S. Ct. at 597. The party challenging the sentence bears the burden of showing
that a sentence is unreasonable. United States v. Johnson, 485 F.3d 1264, 1272
(11th Cir. 2007).
On appeal, Goines argues that his sentence is unreasonable because the
district court did not meaningfully consider his unique history and characteristics –
his positive employment history, his lack of a criminal history, his family
background and age. The district court gave both parties an opportunity to present
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evidence and argue what sentence was appropriate. The district court considered
Goines’s arguments in mitigation, including those relating to his personal history
and characteristics. We cannot say the district court abused its discretion in
determining that Goines’s mitigating facts were outweighed by the need to protect
the public and for the sentence to reflect the seriousness of the offense. Goines has
not carried his burden to show his 78-month sentence is unreasonable.1
AFFIRMED.
1
We reject as meritless Goines’s newly-raised argument that his guidelines sex offense
enhancements needed to be, but were not, supported by empirical data. Goines’s reliance on
Kimbrough v. United States, 551 U.S. ___, 128 S. Ct. 558 (2007), is misplaced. Kimbrough
concluded that a district court may, but is not required to, deviate from the advisory guidelines in
a particular crack cocaine case because the guidelines range for these offenses did not take into
account empirical data. 128 S. Ct. at 575. It did not conclude that guidelines enhancements must
be supported by empirical data or that a district court must lower a sentence because a guideline
enhancement is not supported by empirical data.
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