            Case: 18-13761   Date Filed: 06/10/2019   Page: 1 of 7


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 18-13761
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 1:15-cr-20106-RNS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

PATRICK KILLEN, JR.,
a.k.a. rebeccatill05,
a.k.a. beverlyhills05,
a.k.a. chanelizzabel,

                                                          Defendant-Appellant.

                         ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 10, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      In an earlier opinion, this Court vacated the original sentence of 139 years

imposed on Patrick Killen, Jr., as substantively unreasonable. United States v.

Killen, 729 F. App’x 703, 717–18 (11th Cir. 2018) (unpublished). We remanded

his case for resentencing before a different district judge. Id. at 718. On remand,

that district judge imposed a 50-year sentence. This is the appeal of the 50-year

sentence. After careful review, we affirm.

      A jury convicted Killen of three counts of coercing or employing a minor for

the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e); six counts

of distribution or receipt of child pornography, 18 U.S.C. § 2252(a)(2), (b)(1); two

counts of extortion by interstate threats, 18 U.S.C. § 875(d); two counts of

possession of child pornography involving a visual depiction of a prepubescent

minor younger than 12, 18 U.S.C. § 2252(a)(4)(B), (b)(2); and two counts of

possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Killen, 729 F.

App’x at 706. We do not recount the conduct that led to these convictions, as it

was described in the Court’s earlier opinion in Killen’s case. Id. at 706–07.

      Instead, we turn to Killen’s challenges to his sentence. Killen says the new

sentence violates our mandate. He also says his new sentence is procedurally and

substantively unreasonable. And he says his new sentence violates the Eighth

Amendment.




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      We review de novo whether the district court violated our mandate. United

States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). In an earlier decision, this

Court ruled the district court imposed a substantively unreasonable sentence by

failing to consider the need to avoid unwarranted sentencing disparities, one of the

factors enumerated in 18 U.S.C. § 3553(a). Killen, 729 F. App’x at 717–18. As an

example of the importance of considering sentencing disparities in the context of

offenses like Killen’s, the Court pointed to United States v. Kapordelis, 569 F.3d

1291 (11th Cir. 2009). Killen, 723 F. App’x at 717–18. In Kapordelis, a district

court imposed a 35-year sentence on a more mature defendant whose crimes

involved actual child abuse and whose conduct spanned a longer period than

Killen’s. 569 F.3d at 1318–19. The Court contrasted Killen’s sentence with

Kapordelis’s. See Killen, 723 F. App’x at 717–18. Killen says the mandate

required the district court to sentence him to less than 35 years.

      We conclude the district court complied with the mandate, which did not

require it to impose any particular sentence. Rather, the district court was required

on remand to consider the need to avoid unwarranted sentencing disparities. See

id. The district court followed that instruction. The district court considered the

sentence imposed in Kapordelis, the average sentence for offenders convicted of

producing child pornography, and sentences in other cases involving comparable




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conduct. It fashioned a sentence in light of other sentences in these comparable

cases. That analysis satisfied our mandate.

      We review the reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “A district court

abuses its discretion when it (1) fails to afford consideration to relevant factors that

were due significant weight, (2) gives significant weight to an improper or

irrelevant factor, or (3) commits a clear error of judgment in considering the proper

factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)

(quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)).

      Killen argues the district court misapplied the § 3553(a) factors, failed to

explain why it imposed consecutive sentences, and failed to explain why it

imposed the specific sentence it did. Each of these arguments fails.

      The district court considered the § 3553(a) factors. Killen says the district

court did not consider Sentencing Commission reports he submitted that show

child pornography production defendants on average receive shorter sentences than

his. He is mistaken. The district court expressly considered the average sentence

for producing child pornography. And Killen did not show that his conduct was so

similar to the average child pornography production defendant that he should have

been sentenced in line with the mean. In settling on a 50-year sentence, the district




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court considered other sentences in cases involving comparable conduct. This was

no abuse of discretion.

      Neither did the district court abuse its discretion in imposing consecutive

sentences. 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). Under U.S. Sentencing Guideline § 5G1.2(c), “[i]f

the sentence imposed on the count carrying the highest statutory maximum is

adequate to achieve the total punishment, then the sentences on all counts shall run

concurrently.” And under U.S. Sentencing Guideline § 5G1.2(d), “[i]f the

sentence imposed on the count carrying the highest statutory maximum is less than

the total punishment, then the sentence imposed on one or more of the other counts

shall run consecutively, but only to the extent necessary to produce a combined

sentence equal to the total punishment.”

      Killen says these Guideline provisions required the district court to make an

individual determination as to the sentence for each offense charged, rather than

“merely arriv[ing] at a final sentence.” Again, he is mistaken. This Court’s

precedent holds 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


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factors are considered, the only limitation on running sentences consecutively is

that the resulting total sentence must be reasonable.” Id. at 1347. The district

court considered the § 3553(a) factors in fashioning Killen’s sentence. There was

thus no abuse of discretion.

      We also conclude the district adequately explained its reasons for imposing a

50-year sentence. Contrary to Killen’s position, the district court gave a lengthy

explanation for the sentence it imposed, and it made clear that it had thoroughly

reviewed the record. Our review of the sentencing transcript convinces us the

district court gave the sentence due consideration and made its reasons plain.

      Finally, “we review de novo the legality of a sentence under the Eighth

Amendment.” United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).

The Eighth Amendment prohibits the infliction of cruel and unusual punishments.

U.S. Const. amend. VIII. In evaluating an Eighth Amendment challenge to a

sentence in a non-capital case, we must first “make a threshold determination that

the sentence imposed is grossly disproportionate to the offense committed.”

United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam)

(quotation marks omitted). The defendant bears the burden of making this

threshold showing. Id. In general, a defendant whose sentence falls within the

limits imposed by statute cannot make the threshold showing of gross

disproportionality, as we generally defer to Congress’s “broad authority to


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determine the type and limits of punishments for crimes.” Id. (quotation marks

omitted).

      Killen has not made the threshold showing. His sentence fell within the

statutory range and was a substantial variance downward from his guideline range.

He committed serious offenses with lasting consequences. We conclude his

sentence was not grossly disproportionate and thus does not violate the Eighth

Amendment.

      AFFIRMED.




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