                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           DECEMBER 12, 2006
                              No. 06-12966                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 05-00135-CR-3-MCR

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

MICHAEL STEVEN FOSTER,

                                                      Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                            (December 12, 2006)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     Michael Steven Foster pleaded guilty to numerous counts of engaging in
sexual acts with a minor. Counts 1 through 13 charged that Foster engaged in

sexual acts with a female who had not attained the age of 12, in violation of 18

U.S.C. § 2241(c). Counts 14 through 41 charged that Foster engaged in sexual acts

with a female between the ages of 12 and 16, in violation of 18 U.S.C. § 2243(a).

The different counts corresponded to the different dates of the offenses. Foster

admitted that, at least monthly over a four-year period, he engaged in vaginal

intercourse and oral sex with his daughter, who was under age 12 at the time the

relationship started, and that he told her he would begin a relationship with her

younger sister if she did not cooperate.1

       Prior to sentencing, Foster moved to admit his mental evaluation into

evidence. The court admitted the report, which detailed molestation Foster

suffered as a child and the remorse he felt over the instant conduct. The report also

opined that there was little likelihood of recidivism.

       The probation officer prepared a presentence investigation report, listing

each count as a separate group because each involved a separate harm. After

applying the appropriate enhancements and reductions, and determining the

multiple count adjustments, the total adjusted offense level was 38. Because Foster

had a criminal history category I, the resulting guidelines range was 235 to 293


       1
           Although Foster admitted that the acts occurred monthly, the victim told protective
services that the acts occurred every other day.

                                              2
months imprisonment, and the statutory maximum under § 2241(c) was life

imprisonment. The probation officer noted that the guidelines did not take into

account the complete conduct because it did not account for the number of offenses

and disregarded many of the groups.2

       Foster made no objections to the guidelines calculations. He did, however,

call the court’s attention to his mental evaluation as mitigating evidence. The

district court imposed a sentence of life imprisonment on counts 1 through 13, with

concurrent 180-month sentences on counts 14 through 41. After considering the

sentencing factors in 18 U.S.C. § 3553(a), the court found that the guidelines range

was not sufficient punishment and deterrence, and it considered that many of the

groups had not been taken into account in calculating the guidelines range. The

court determined that the repeated nature of the conduct and Foster’s

characteristics, coupled with the need to protect society, provide just punishment,

and give Foster the opportunity for treatment and counseling, warranted a sentence

of life imprisonment. Foster objected to the sentence and the court’s imposition of

an upward variance.



       2
         Under § 3D1.4(c), “[d]isregard any Group that is 9 or more levels less serious than the
Group with the highest offense level.” In this case, Counts 1 through 13 had an offense level of 36;
counts 14 through 41 had an offense level of 22, which was more than 9 levels below the higher
group. Thus, counts 14 though 41 were not counted in determining the multiple count adjustment.


                                                 3
       On appeal, Foster argues that the sentence imposed is unreasonable because

the court did not properly consider the § 3553(a) factors such as the likelihood of

recidivism or his history and characteristics and essentially ignored the mental

evaluation.

       We review a defendant’s sentence for reasonableness in light of the

§ 3553(a) sentencing factors.3 United States v. Johnson, 451 F.3d 1239, 1244

(11th Cir.), cert. denied, 127 S.Ct. 462 (2006); United States v. Winingear, 422

F.3d 1241, 1244 (11th Cir. 2005). “After the district court has accurately

calculated the [g]uideline range, it may impose a more severe or more lenient

sentence that we review for reasonableness.” Winingear, 422 F.3d at 1244. Foster

bears the burden of showing that his sentence was unreasonable. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       Foster does not argue that the court incorrectly calculated his guidelines

range and challenges only whether the ultimate sentence imposed was reasonable.



       3
          These factors are: “(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4)
the need to protect the public; (5) the need to provide the defendant with needed educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.” 18
U.S.C. § 3553(a).



                                                 4
Upon review, we conclude the sentence imposed was reasonable. First, the court

explained that it had considered the mental evaluation, in addition to Foster’s

history, the need to protect society and provide adequate punishment, and the

frequency and duration of the offenses. Moreover, the court considered that the

guidelines calculations did not include all of the counts, and, therefore, did not

adequately reflect the offenses. Thus, the court properly considered the § 3553(a)

sentencing factors.

      Foster was convicted of 41 counts of engaging in sexual acts with his own

daughter over a four-year period. Given the nature and gravity of these offenses,

we conclude that the district court imposed a reasonable sentence. United States v.

Eldick, 443 F.3d 783, 790 (11th Cir. 2006) (affirming upward variance in light of

the gravity of the offenses). Foster has not met his burden to prove otherwise.

Accordingly, we AFFIRM.




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