           Case: 15-11557   Date Filed: 03/22/2016    Page: 1 of 7


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11557
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:14-cr-00020-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

DAVID CHRISTOPHER SCHAEFER,

                                                          Defendant-Appellant.

                      ________________________

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

                            (March 22, 2016)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       After pleading guilty, David Schaefer appeals his 97-month sentence for

possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(A) and

(b)(2). On appeal, Schaefer argues that his sentence, at the low end of the advisory

guidelines range, is procedurally and substantively unreasonable. After review, we

affirm.

       “We review the reasonableness of a sentence for an abuse of discretion using

a two-step process.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014)

(quotation marks omitted). We look first at whether the sentencing court

committed any significant procedural error, such as misapplying the guidelines or

treating them as mandatory, failing to consider the 18 U.S.C. § 3553(a) sentencing

factors, choosing a sentence based on clearly erroneous facts, or failing to

adequately explain the sentence imposed. Id. 1

       Second, we examine whether the sentence is substantively unreasonable in

light of the § 3553(a) factors and the totality of the circumstances. Id. The party

challenging the sentence bears the burden to show it is unreasonable. United

States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015). The weight given to any


       1
         The § 3553(a) factors include: (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 unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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particular § 3553(a) factor is within the district court’s discretion, and this Court

will not substitute its judgment for that of the district court. Id. We will reverse a

sentence only if we are “left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(quotation marks omitted).

      Here, the district court did not impose a procedurally unreasonable sentence.

Schaefer relies on the rationale from Kimbrough v. United States, 552 U.S. 85, 128

S. Ct. 558 (2007), which related to the former crack cocaine guidelines, to assert

that the district court should have varied downward based on his policy arguments

about the child pornography guidelines in U.S.S.G. § 2G2.2.

      Specifically, at his sentencing hearing, Schaefer asked the district court to

vary downward from the correctly calculated advisory guidelines range of 97 to

121 months’ imprisonment to a 48-month sentence. Schaefer argued that a 48-

month sentence was appropriate because it fell within the guidelines range that

would have applied if U.S.S.G. § 2G2.2 did not require a 2-level increase in his

offense level for his use of a computer and a 5-level increase for possessing 600 or

more images. See U.S.S.G. § 2G2.2(b)(6) & (7). Schaefer argued that a

downward variance was needed to effectively negate these two § 2G2.2


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enhancements because the enhancements: (1) were not based on empirical

evidence; (2) were not promulgated with normal procedural safeguards because

they were mandated by Congress; (3) were outdated; and (4) overstated the

seriousness of Schaefer’s criminal conduct.

      This Court, however, has already suggested that the kinds of deficiencies

presented by the former crack cocaine guidelines, and addressed in Kimbrough, are

not present in § 2G2.2. See Pugh, 515 F.3d at 1201 n.15. Moreover, this Court

has concluded that, while a district court has the discretion to consider a

Kimbrough-style challenge to the child pornography enhancements in § 2G2.2, it is

not required to vary downward based on those arguments. See United States v.

Cubero, 754 F.3d 888, 898-900 (11th Cir. 2014) (“[T]he district court’s use of

§ 2G2.2 as an advisory guideline does not render [the defendant’s] sentence

procedurally or substantively unreasonable.”). Nor is the district court required to

“give greater or more extensive reasons for rejecting [a defendant’s] request for a

downward variance from the § 2G2.2-based guidelines range.” Id. at 900.

      In Schaefer’s case, the district court listened to Schaefer’s Kimbrough-style

policy arguments against the § 2G2.2 enhancements. The district court engaged in

some discussion with defense counsel about these policy arguments, suggesting

that while they were good arguments, they were “better directed toward the

Sentencing Commission.” The district court also asked questions about Schaefer’s


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history of impulse control, potential future danger to children, and sharing of child

pornography files via Skype. In choosing the 97-month sentence, the district court

stated that it had considered “the advisory sentencing range and the sentencing

factors found at 18 U.S.C. [§] 3553(a)” and had “made an individualized

assessment based on the facts presented in this case.” The district court concluded

that “the advisory guideline range is adequate in this case, and the Court does not

find it appropriate in this case to make a downward variance from the advisory

guidelines range.”

      In other words, the record establishes that the district court acknowledged

and understood Schaefer’s policy arguments but found them unpersuasive. Thus,

we find no merit to Schaefer’s claims that the district court failed to adequately

consider his Kimbrough-style request for a downward variance and that the district

court was required to provide a more elaborate explanation of its decision to deny

that request.

      The record also belies Schaefer’s claim that the district court did not

adequately consider the § 3553(a) factors as a whole. The district court stated that

it had considered the § 3553(a) factors and the facts of Schaefer’s case, and was

not required to address each factor separately. See United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008) (explaining that “[a]n acknowledgment the

district court has considered the defendant’s arguments and the § 3553(a) factors


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will suffice”). We note also that the district court’s failure to specifically discuss

Schaefer’s “mitigating” evidence does not mean the district court failed to consider

such evidence. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007).

      Likewise, Schaefer has not shown that his sentence is substantively

unreasonable. Schaefer’s 97-month sentence is at the low end of the advisory

guidelines range of 97 to 121 months and is less than half the statutory maximum

of 240 months under 18 U.S.C. § 2254A(b)(2), both indications of reasonableness.

See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (noting that a

sentence imposed well below the statutory maximum is a sign of reasonableness);

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (explaining that we

ordinarily expect a sentence inside the advisory guidelines range to be reasonable).

      Moreover, the facts and § 3553(a) factors support the chosen sentence.

Schaefer admitted he is sexually attracted to minors, that he has struggled for years

with an addiction to pornography, and that he has been diagnosed with impulse

control disorder. At the time of his arrest, Schaefer’s computer contained hundreds

of videos depicting child pornography, some involving very young children or

sadistic or masochistic conduct. Schaefer also distributed some of this material to

others via Skype.

      This Court has already concluded that the denial of a request for a downward

variance based on policy disagreements with the § 2G2.2 enhancements alone does


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not render a sentence substantively unreasonable. See Cubero, 754 F.3d at 898-

901. Schaefer points to no other circumstances that leave us with the definite and

firm conviction that his sentence at the bottom of the advisory guidelines range is

outside the range of reasonable sentences. Accordingly, we cannot say the district

court’s 97-month sentence was an abuse of discretion.

      AFFIRMED.




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