                                                          [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT          FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                 No. 05-14197                   January 19, 2006
                                                              THOMAS K. KAHN
                             Non-Argument Calendar
                                                                  CLERK
                           ________________________

                         D. C. Docket No. 04-00001-CR-4

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

FRANKLIN JAMES LOVE,

                                                              Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                                (January 19, 2006)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

      Franklin James Love appeals his 70-month sentence imposed after a remand

from this Court. On appeal, Love argues that in resentencing him, the district court
(1) failed to resolve disputed facts and (2) imposed an unreasonable sentence.

After review, we affirm.

                               I. BACKGROUND

A.    Offense

      Love pled guilty to one count of transportation of child pornography, in

violation of 18 U.S.C. § 2252A(a)(1). Love contacted via the internet an

undercover police officer posing as a 15-year-old boy using the screen name

“Tyboy88 ” and sent the undercover police officer emails containing child

pornography. Over the course of a month, Love sent the undercover officer emails

containing pictures of teenage males engaged in anal intercourse, nude teenage

males, prepubescent females displaying their genitals in a lascivious manner,

prepubescent females engaging in vaginal and anal intercourse with adult males

and prepubescent females performing oral intercourse on adult males.

      When FBI Agent James Hendricks visited Love at his home, Love admitted

to collecting child pornography, some depicting children as young as two years

old. He also admitted communicating with and sending images to Tyboy88, whom

he thought was fifteen years old. When Agent Hendricks asked Love if Tyboy88

had told him how old he was, Love responded, “He told me he was fifteen.” A

subsequent search of Love’s computer revealed approximately 650 images of adult



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and child pornography. The FBI confirmed that some of these images depicted

victims of child sexual abuse.

B.    First Sentence

      The presentence investigation report (“PSI”) assigned Love a base offense

level of 17 pursuant to U.S.S.G. § 2G2.2(a) (2003). The PSI recommended four

enhancements: (1) a two-level enhancement under § 2G2.2(b)(1) because the

material involved a prepubescent minor or a minor under the age of 12; (2) a five-

level enhancement under § 2G2.2(b)(2)(C) because the offense involved

distribution to a person Love thought was a minor; (3) a four-level enhancement

under § 2G2.2(b)(3) because the offense involved material portraying sadistic or

masochistic imagery; and (4) a two-level enhancement under § 2G2.2(b)(5) for use

of a computer. After a three-level reduction under § 3E1.1 for acceptance of

responsibility, the PSI calculated a total offense level of 27. With a criminal

history category 1, the PSI recommended a guideline range of 70 to 87 months’

imprisonment.

      Love objected to the five-level enhancement for distribution to a person

Love thought was a minor because he did not believe the undercover officer was a

minor. The probation officer responded that the enhancement should apply, noting

that Love’s claim disputed information provided by Agent Hendricks that Love



                                          3
had stated that he thought that Tyboy88 was a 15-year-old boy. The probation

officer also cited United States v. Morton, 364 F.3d 1300 (11 th Cir. 2004), vacated

on other grounds, 125 S. Ct. 1338, opinion reinstated, 144 Fed. Appx. 804 (11 th

Cir.). cert. denied, 126 S. Ct. 785 (2005), for the proposition that an undercover

officer posing as a minor is considered a minor for purposes of the Sentencing

Guidelines. Prior to sentencing, Love also objected to the enhancements under

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district court

sentenced Love to 70 months’ imprisonment, the low end of the guidelines range.

      Love appealed to this Court, raising his Blakely claim and also arguing that

the district court violated Federal Rule of Criminal Procedure 32 by failing to

resolve the factual dispute regarding his belief that Tyboy88 was a minor. On May

6, 2005, we vacated Love’s 70-month sentence and remanded for resentencing in

light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), but did not

address Love’s Rule 32 argument. See United States v. Love, No. 04-15347, 2005

WL 1074342 (11 th Cir. 2005) (unpublished). In our prior opinion, this Court

stated, “We need not reach Love’s Rule 32 contentions, as his preserved Blakely

(now Booker) claim requires that we vacate his sentence and remand for

resentencing.” Id. at *1.

C.    Resentencing



                                          4
      At resentencing, Love reiterated his previous objection to the PSI’s factual

contention that Love thought Tyboy88 was a minor and the corresponding

recommended five-level enhancement under § 2G2.2(b)(2)(C). The government

cited Morton and argued that, when a defendant is dealing with an undercover

officer who represents himself to be a minor and the defendant does not refrain

from further contact, the defendant accepts the representation that the officer is a

minor. The district court, after considering the objections and the evidence,

adopted the position of the probation officer in the PSI Addendum and ordered that

the Addendum be attached to the statement of reasons.

      When defense counsel again pressed the issue regarding Love’s knowledge

of Tyboy88’s age, the district court expressed scepticism for Love’s claim and

stated that Love would need some evidence other than his own self-serving

statement, as follows:

      Well, you know, Mr. Walker, I’m trying to take your argument
      seriously, but when an undercover agent tells someone like your
      client, I’m 15 years old, or I’m 14 years old, and then the defendant
      continues on with that conduct and doesn’t cut off that conduct, other
      than every defendant at any time coming in Court and saying, well, I
      never actually saw the person, Judge, but in my mind I wasn’t dealing
      with a minor. I mean, it’s going to require some proof other than just
      the defendant saying, well, in my mind I wasn’t dealing with a minor;
      particularly when you’ve got a case like this where the depictions and
      the images all involve minors. I mean, anybody that looks at them
      knows that there are minors involved. So all of these images that he’s
      got, this six, or seven or 800, or however many of them that are out

                                           5
       there, are all minors; minor boys, minor girls. And then he’s talking
       on the internet with these undercover officers, but yet he wants to say,
       I had no idea I was dealing with a minor. In my mind I wasn’t dealing
       with a minor. In his mind, if he wasn’t dealing with a minor, why
       wasn’t this adult pornography?

The district court then noted that it struggled with this type of case, where the

defendant has no prior criminal history, was employed, was otherwise a

responsible citizen, had made efforts to rehabilitate and was not a trafficker. The

court also noted that it had heard the evidence presented, had reviewed the PSI and

had considered the parties’ arguments. The district court then sentenced Love to

70 months’ imprisonment, stating that it found “no reason to depart from the

sentence called for by application of the advisory sentencing guidelines inasmuch

as the facts as found are the kind contemplated by the Sentencing Commission.”

                                      II. DISCUSSION

A.     Rule 32

       Love asserts that the district court failed to resolve a factual dispute in the

presentence investigation report (“PSI”). He contends that the district court merely

adopted the PSI’s findings, which was insufficient to satisfy Rule 32.1

       When any portion of the PSI is disputed, Rule 32 requires the sentencing

court to “rule on the dispute or determine that a ruling is unnecessary either


       1
        We review a district court’s application of the Sentencing Guidelines de novo and its
findings of fact for clear error. United States v. Grant, 397 F.3d 1330, 1332 (11th Cir. 2005).

                                                 6
because the matter will not affect the sentencing, or because the court will not

consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). We agree with

Love that the mere adoption of the PSI does not satisfy the district court’s

obligation under Rule 32 to resolve objections raised at sentencing. United States

v. Khawaja, 118 F.3d 1454, 1460 (11 th Cir. 1997) (citing United States v. Page, 69

F.3d 482, 493-94 (11 th Cir. 1995), which noted that findings in a PSI that have not

considered the parties’ objections may be unreliable).

      However, the record shows that the district court did rule on Love’s

objection to the PSI’s factual allegation that Love thought Tyboy88 was a minor.

Contrary to Love’s assertion, the district court did not adopt the PSI. Rather, the

district court adopted the probation officer’s response to Love’s objection,

contained in the PSI Addendum. In addition, the district court discussed on the

record Love’s contention that he did not know Tyboy88 was a minor, expressing

scepticism about this claim and concluding that Love’s self-serving statement was

insufficient. Accordingly, the district court adequately resolved the disputed

portion of the PSI against the defendant and satisfied its obligations under Rule 32.

B.    Booker Reasonableness

      On appeal, Love argues that his 70-month sentence on remand is

unreasonable under Booker. After Booker, a district court, in determining a



                                          7
reasonable sentence, must consider the correctly calculated sentencing range under

the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553(a). See

Booker, 543 U.S. at ___, 125 S. Ct. at 764-66; United States v. Talley, ___ F.3d

___, No. 05-11353, 2005 WL 3235409, at *2 (11 th Cir. Dec. 2, 2005).2 We review

a defendant’s ultimate sentence, in its entirety, for unreasonableness in light of the

factors in § 3553(a). See United States v. Winigear, 422 F.3d 1241, 1245 (11 th Cir.

2005).

         After review, we conclude that nothing in the record shows that Love’s 70-

month sentence is unreasonable. First, the district court imposed a sentence at the

bottom of the guidelines range and almost one-third the length of the fifteen-year

statutory maximum sentence. See Talley, 2005 WL 3235409, at *4 (explaining

that, although we have declined to hold that a sentence within the guidelines range

is per se reasonable, ordinarily we expect such a sentence to be reasonable);

Winigear, 422 F.3d at 1246 (comparing, as one indication of reasonableness, the

actual prison term imposed to the statutory maximum). The court also considered


         2
         “The factors in § 3553(a) include: (1) the nature and circumstances of the offense; (2)
the history and characteristics of the defendant; (3) the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment; (4)
the need to protect the public; and (5) the Guidelines range.” United States v. Scott, 426 F.3d
1324, 1328-29 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)). “[N]othing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” Id. at 1329. Instead, indications in
the record that the district court considered facts and circumstances falling within § 3553(a)’s
factors will suffice. Talley, 2005 WL 3235409, at *2; Scott, 426 F.3d at 1329-30.

                                                 8
the following facts in mitigation: Love (1) had no prior criminal history, (2) was

gainfully employed and otherwise a responsible citizen, (3) had made efforts to

rehabilitate, and (4) was only a viewer and transmitter, and not a trafficker, in child

pornography. In other words, the district court considered the nature and

circumstances of the offense and the history and characteristics of the defendant.

Nonetheless, the district court concluded that these factors did not warrant

imposing a sentence below that contemplated by the advisory guidelines range.

      Love points to comments made by the district court during Love’s initial

sentencing wherein the district court expressed a desire to impose a lower sentence

and stated that a 70-month sentence was too severe given that Love was only a

viewer of child pornography and had no physical contact with children. These

comments are insufficient to carry Love’s burden to demonstrate that his post-

remand sentence is unreasonable. While those comments aided Love in obtaining

a Booker remand for the district court to sentence Love under advisory sentencing

guidelines, those comments did not bind the district court to give a lesser sentence.

Indeed, at resentencing, the district court again expressly considered the fact that

Love was only a viewer and transmitter of child pornography and concluded that

these facts were insufficient to warrant imposing a sentence below the advisory

guidelines range. We cannot say that the district court’s final determination on this



                                           9
point was unreasonable.

      For all these reasons, we affirm Love’s 70-month sentence.

      AFFIRMED.




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