           Case: 17-12682   Date Filed: 05/08/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12682
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 1:15-cr-00395-WSD-RGV-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

LEONARD NATHANIEL PERAGINE, JR.,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                              (May 8, 2018)

Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Leonard Peragine appeals his 340-month sentence for enticement of a child

for sexual activity and possession and distribution of child pornography under 18

U.S.C. §§ 2422(b), 2252(a)(2), 2252(b)(1), 2252(a)(4)B), and 2252(b)(2). On

appeal, he argues that the district court committed both procedural and substantive

errors. He asserts that the district court’s sentence was procedurally unreasonable

because it applied the sentencing enhancements found in U.S.S.G. § 2G2.2 without

regard to a report from the Sentencing Commission in 2013 that those

enhancements are “outdated,” and because it should have instead applied the

Guidelines calculation for enticement of a child for sexual activity under § 2G1.3.

And he contends that the district court’s sentence was substantively unreasonable

because the sentence it imposed was greater than necessary to account for the

factors listed in 18 U.S.C. § 3553(a).

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

United States, 552 U.S. 38, 41 (2007). The party who challenges a sentence bears

the burden to show that the sentence is unreasonable in light of the record and the

§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

                                          I

      We review for procedural reasonableness to ensure that the district court

committed no significant procedural error, such as (1) improperly calculating the

defendant’s sentencing range, (2) treating the Guidelines as mandatory, (3) failing


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to consider the 18 U.S.C. § 3553(a) factors, (4) selecting the sentenced based on

clearly erroneous facts, or (5) failing to adequately explain the chosen sentence.

Gall, 552 U.S. at 51. Procedural errors are harmless when the district court would

have imposed the same sentence regardless of a particular Guidelines calculation,

and when the ultimate sentence is reasonable. United States v. Keene, 470 F.3d

1347, 1349 (11th Cir. 2006).

      Here, the district court did not procedurally err. Peragine does not contend

the district court incorrectly calculated the Guidelines. Nor does he argue that the

court improperly treated the Guidelines as mandatory or committed a clear error of

judgment. Instead, he asserts that sentencing him under § 2G2.2—rather than

§ 2G1.3—unfairly “warp[ed] the assessment of [his] offense conduct.” For

support, Peragine points to a report issued by the U.S. Sentencing Commission in

2013 that critiqued the enhancements available under § 2G2.2 as outdated in light

of modern technology. But this Court has squarely rejected similar arguments

before, and has held on substantially similar facts that “the Commission’s 2013

report does not render the non-production child pornography guidelines in § 2G2.2

invalid or illegitimate”—or, for that matter, “alter[] our appellate duties in

reviewing a § 2G2.2-based sentence or the district court’s sentencing duties or

discretion in any way.” United States v. Cubero, 754 F.3d 888, 900 (11th Cir.

2014). Peragine’s related contention that the district court was “authorized to


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consider” the 2013 Report misses the point. The sole question here is whether the

district court abused its discretion when it applied the enhancements available

under § 2G2.2. This Court’s precedent makes clear that it did not.

      Nor does anything in this Court’s precedent support Peragine’s suggestion

that, in the case of multiple counts which cannot be grouped together, a district

court must determine which crime Congress intended to be the more serious and

use the Guidelines calculation applicable to that offense. In basing the Guidelines

calculation on the group of offenses that yielded the higher offense level, the

district court here was following the explicit instructions of U.S.S.G. § 3D1.4.

      Finally, even if Peragine were correct that the district court committed a

procedural error in applying the Guidelines, the error would be harmless because

the court expressly stated that it would have imposed the same sentence regardless

of the Guidelines calculation:

      I made all these guideline rulings to the best of my ability. I believe
      that they are right. But in a case like this, at the end of the day, it’s …
      ultimately deciding what’s fair and just and consistent with the criteria
      under the [§] 3553 factors. And having gone through what the
      guidelines would be if I was wrong on all this … regardless of what
      my rulings were and whether they were wrong in the guidelines, this
      is the appropriate sentence in the case.
      For all of these reasons, we reject Peragine’s argument that the district court

committed procedural error.




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                                           II

      For a sentence to be substantively reasonable, the district court must impose

a sentence that is “sufficient, but not greater than necessary to comply with the

purposes” listed in 18 U.S.C. § 3553(a), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, and protect the public from the defendant’s

future criminal conduct. See 18 U.S.C. § 3553(a)(2). The court must also consider

the nature and circumstances of the offense and the history and characteristics of

the defendant. Id. § 3553(a)(1).

      Although we do not formally presume that a sentence falling within the

Guideline range is reasonable, we ordinarily “expect” such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). The weight

given to any specific § 3553(a) factor is committed to the sound discretion of the

district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). A court

can abuse its discretion when it (1) fails to consider relevant factors that were due

significant weight, (2) gives an improper or irrelevant factor significant weight, or

(3) commits a clear error of judgment by balancing the proper factors

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

banc). Moreover, a district court’s unjustified reliance on any one § 3553(a) factor


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may be indicative of an unreasonable sentence. United States v. Pugh, 515 F.3d

1179, 1191 (11th Cir. 2008).

      Here, the district court’s sentence is not substantively unreasonable. The

court discussed the § 3553(a) factors at sentencing and gave detailed justifications

for its sentence, which focused on the need to reflect the severity of the crime as

well as the need to ensure that Peragine would not harm children in the future. The

court acknowledged that Peragine was a victim himself when he was a child, but

reasonably balanced against this mitigation evidence the need for a sentence that

properly reflected the seriousness of Peragine’s crimes as well as the necessity to

protect other victims.

      Moreover, under our precedent, it is also significant that the sentence that

the district court imposed was not just within the applicable Guidelines range of

360 months-to-life, see Hunt, 526 F.3d at 746, but below both the Guidelines range

and the statutory maximum, which was life imprisonment, see United States v.

Holt, 777 F.3d 1234, 1269 (11th Cir. 2015).

      AFFIRMED.




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