                                                                  [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                       FILED
                                                                U.S. COURT OF APPEALS
                                 No. 11-10015                     ELEVENTH CIRCUIT
                             Non-Argument Calendar                    JULY 25, 2011
                           ________________________                    JOHN LEY
                                                                        CLERK
                      D.C. Docket No. 2:10-cr-14061-JEM-1

UNITED STATES OF AMERICA,
lllllllllllllllllllll                                            Plaintiff-Appellee,

                                       versus

NAT LEON LANE,
                                                lllllllllllllllllllllDefendant-Appellant.

                           ________________________

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

                                  (July 25, 2011)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:

      Nat Leon Lane appeals his 108-month total sentence, imposed below the

applicable guidelines range, after pleading guilty to one count of transporting

child pornography, in violation of 18 U.S.C. § 2252(a)(1), and one count of
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). Lane argues

that the district court erred by applying a five-level enhancement under United

States Sentencing Guidelines § 2G2.2(b)(3)(B) (Nov. 2010) for distribution of

child pornography “for the receipt, or expectation of receipt, of a thing of value.”

After careful review of the record and the parties’ briefs, we conclude that any

error in the calculation of the guideline range in this case would be harmless, and

we therefore affirm Lane’s sentence.

      Lane argues that his mere installation and use of a peer-to-peer file-sharing

program is not enough to support a finding that he distributed child pornography

obtained through that program in exchange “for the receipt, or expectation of

receipt, of a thing of value.” U.S.S.G. § 2G2.2(b)(3)(B). We review the district

court’s factual determinations for clear error, but review de novo its interpretation

of the guidelines and its application of the guidelines to the facts. United States v.

Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010).

      After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), district

courts must follow a two-step procedure at sentencing. United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005). “First, the district court must consult the

Guidelines and correctly calculate the range provided by the Guidelines. Second,

the district court must consider [the 18 U.S.C. § 3553(a)] factors to determine a

                                          2
reasonable sentence.” Id. (citation omitted). At the first step, district courts must

“begin all sentencing proceedings by correctly calculating the applicable

Guidelines range.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)

(quotation marks omitted). “An error in the district court’s calculation of the

Sentencing Guidelines range warrants vacating the sentence, unless the error is

harmless. A Sentencing Guidelines miscalculation is harmless if the district court

would have imposed the same sentence without the error.” United States v.

Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009) (citation omitted). “[T]he

Supreme Court and this Court have long recognized that it is not necessary to

decide guidelines issues or remand cases for new sentence proceedings where the

guidelines error, if any, did not affect the sentence.” United States v. Keene, 470

F.3d 1347, 1349 (11th Cir. 2006) (quotation marks omitted). Thus, if “a district

judge clearly states that he would impose the same sentence, even if he erred in

calculating the guidelines, then any error in the calculation is harmless.” Barner,

572 F.3d at 1248.

      Although the district court did not explicitly state that the sentence in this

case was independent of the guideline calculation, there is no question that this

sentence was not imposed pursuant to the guidelines, because the 108-month

sentence reflects a substantial downward variance from the guideline range of

                                          3
210- to 262-months. Given this substantial variance, and the district court’s

explanation that “a sentence below the low end of the advisory guideline range is

sufficiently punitive to deter the defendant from further criminal conduct and to

deter others from committing this type of crime,” we have no trouble concluding

from the record before us that the § 3553(a) factors would lead the district court to

impose the same 108-month sentence even without the application of the five-

level § 2G2.2(b)(3)(B) enhancement. See 18 U.S.C. § 3553(a) (requiring the

sentence imposed to be “sufficient, but not greater than necessary,” to achieve the

purposes of retribution, deterrence, public safety, and rehabilitation).1

       Nevertheless, the asserted error would not be harmless if the sentence would

otherwise be procedurally unreasonable under the guideline range advanced by

Lane. Keene, 470 F.3d at 1349. If the five-level enhancement under


       1
           Crucially, the district court did not indicate that the sentence imposed, despite
representing a downward variance, was contingent in any way on the guideline calculation. See
Keene, 470 F.3d at 1349 (“[I]f the resolution of the guidelines issue does matter to the judge’s
ultimate sentencing decision, noting that it does will help focus our attention on the issues that
matter.” (quotation marks omitted)). If the district court had so indicated in this case, we could
not say the asserted error would be harmless. See Barner, 572 F.3d at 1248 (finding that a
claimed error could not be harmless where the district judge “indicated that the sentence was
‘pursuant to the guidelines’”). Of course, “[w]hether to decide and state on the record if the
decision of a guidelines issue matters to the ultimate sentence imposed is up to the district court
in each individual case.” Keene, 470 F.3d at 1349. But where, as here, the district court imposes
a substantial downward variance in light of the § 3553(a) factors, and does not in any way
indicate the sentence imposed is the result of the guideline calculation, we think it is sufficiently
clear that the district court would impose the same sentence regardless of the guideline
calculation.

                                                  4
§ 2G2.2(b)(3)(B) were removed, Lane would have an offense level of 32, which

would combine with his criminal history category of I to yield a guideline range of

121- to 151-months incarceration. Thus, the 108-month sentence would still

represent a downward variance even under the guideline range advanced by Lane.

The district court also followed the two-step sentencing procedure required after

Booker. See Talley, 431 F.3d at 786. The district court carefully considered the

guidelines, as well as Lane’s objections to the guideline calculation, before

determining that a sentence below the guideline range was warranted in this case.

The district court also considered the statutory factors set out in 18 U.S.C.

§ 3553(a) and, as described above, discussed those factors to the extent necessary

to explain the sentence imposed. We conclude that, even under the guideline

range advanced by Lane, the 108-month sentence would be procedurally

reasonable. We therefore hold that the asserted error in the guideline calculation

would be harmless.2

       For these reasons, Lane’s 108-month total sentence is AFFIRMED.

       AFFIRMED.




       2
         We therefore do not reach the merits of Lane’s challenge to the application of the
§ 2G2.2(b)(3)(B) enhancement.

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