                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            DEC 30, 2008
                             No. 07-15947                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 07-14052-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MICHAEL PATRICK STEVENS,

                                                         Defendant-Appellant.


                       ________________________

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

                           (December 30, 2008)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Michael Patrick Stevens appeals his sentence of 151 months imprisonment

for transmitting child pornography in violation of 18 U.S.C. § 2252(a)(1). He

challenges the district court’s denial of his motion to continue his sentencing

hearing and its five-level increase of his base offense level for his relevant conduct

of possessing over 600 images of child pornography. Stevens also contends that

his sentence is procedurally and substantively unreasonable.

      Stevens sought to continue his sentencing hearing so that he could present a

second psychiatric evaluation as evidence of mitigating circumstances. He argues

that the district court violated his Sixth Amendment right to counsel when it denied

his motion to continue based solely on the fact that the motion was untimely. He

claims that he suffered specific substantial prejudice because he received a longer

sentence than similar defendants who had been given the opportunity to present

expert testimony about their psychological histories and conditions.

      “We review a district court’s denial of a motion to continue sentencing for

abuse of discretion.” United States v. Douglas, 489 F.3d 1117, 1128 (11th Cir.

2007). The defendant must show that the denial “produced specific substantial

prejudice.” Id. (quotation marks omitted). Where the continuance was sought for

the purpose of obtaining a witness, we consider these factors:

             (1) the diligence of the defense in interviewing the
             witness and procuring his testimony; (2) the probability

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             of obtaining his testimony within a reasonable time; (3)
             the specificity with which the defense was able to
             describe the witness’s expected knowledge or testimony;
             and (4) the degree to which such testimony is expected to
             be favorable to the accused, and the unique or cumulative
             nature of the testimony.

Id.

      Applying those factors to the present case, we conclude that the district court

did not abuse its discretion in denying Stevens’ motion for a continuance. The

court found that Stevens’ motion for a continuance—filed four days before the

scheduled sentencing hearing and over ninety days after Stevens’ guilty plea—was

untimely. Stevens did not establish the unique or non-cumulative nature of the

proposed psychiatric evaluation. He informed the court that one psychological

evaluation had been completed and that he sought a second one from a “Board

certified sexologist,” who might be able to “give the Court some valid information

relating to the history and characteristics of this defendant.”

      Stevens’ constitutional right to the assistance of counsel was not violated

because counsel was able to present evidence about mitigating circumstances.

Before the sentencing hearing, Stevens’ counsel submitted to the district court a

psychological evaluation conducted by Dr. Steven Edney that described Stevens’

personal history and problems involving his work, marital relations, and substance

abuse. Stevens made a statement to the court explaining the factors in his life that

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led to his admitted obsession with pornography and “trading pictures and videos

with people” in online chat rooms. Stevens’ counsel recounted statements from

family, friends, and neighbors about their good opinion of Stevens, and counsel

read to the court a letter written by Stevens’ wife.

      When it sentenced Stevens at the low end of the guidelines range, the district

court acknowledged that it had considered the statements presented at the hearing.

The possibility that Stevens would have received an even shorter sentence if he had

presented a second psychological report by another expert is pure speculation.

Stevens did not show that the denial of the continuance constituted an abuse of

discretion or that it caused him specific substantial prejudice. See Douglas, 489

F.3d at 1128.

      As for the five-level enhancement of his base offense level under

U.S.S.G. § 2G2.2(b)(7)(D) for possession of more than 600 images of child

pornography, Stevens did not challenge that enhancement in the district court.

Therefore, we review it only for plain error. United States v. Moriarty, 429 F.3d

1012, 1018-19 (11th Cir. 2005). “The four prongs of plain error review are: (1)

there must be error; (2) the error must be plain; (3) the error must affect the

appellant’s substantial rights; and (4) the error must seriously affect the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Novaton,

271 F.3d 968, 1014 (11th Cir. 2001) (quotation marks and alteration omitted). We


                                            4
will not correct any error unless all four requirements are met. See id.

Furthermore, “at least where the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      Stevens contends that the term “offense” in U.S.S.G. § 2G2.2(b)(7)(D)

should not include the relevant conduct of possessing hundreds of images of child

pornography because he was only convicted of transmitting two images. He

argues that the Sentencing Commission did not intend for possessors of child

pornography to be punished as severely as distributors.

      U.S.S.G. § 2G2.2(b)(7)(D) covers both possession and distribution of child

pornography and contains a specific offense characteristic that permits a five-level

enhancement “[i]f the offense involved . . . 600 or more images.”

U.S.S.G. § 2G2.2(b)(7)(D). An offense is defined as “the offense of conviction

and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different

meaning is specified or is otherwise clear from the context. ” U.S.S.G. § 1B1.1

cmt. n.1(H). Unless otherwise specified, specific offense characteristics are

determined based on all acts committed in preparation for and during the offense of

conviction as well as acts that were part of the same course of conduct. See

U.S.S.G. § 1B1.3(a). Relevant conduct is not limited to the conduct charged in the


                                           5
indictment. United States v. Ignancio Munio, 909 F.2d 436, 438 (11th Cir. 1990).

Stevens cannot show that a decision by the Supreme Court or this Court prohibited

the district court from considering evidence of his possession of hundreds of

images of child pornography in order to enhance his base offense level under

U.S.S.G. § 2G2.2(b)(7)(D).

       Finally, Stevens contends that his sentence is both procedurally and

substantively unreasonable. His procedural argument is that the district court

simply stated that it had considered the statutory factors, which was an inadequate

explanation of the sentence. His substantive argument is that the court refused to

give him extra time to get a second psychological evaluation and that it imposed a

five-level enhancement for possession of child pornography, so he was punished as

if he were a distributor of hundreds of images when he actually only distributed

two images. He asserts that those decisions thwarted § 3553(a)(6)’s objective of

avoiding unwarranted sentencing disparities.1

       The Supreme Court has explained that the reasonableness standard of review

       1
         In support of his argument about sentencing disparities Stevens cites decisions such as
United States v. Gray, 453 F.3d 1323, 1324 (11th Cir. 2006), where we upheld a 72-month
sentence for distribution of child pornography where the defendant’s guideline range was the
same as Stevens’—151 to 188 months. Stevens’ argument overlooks the point that
reasonableness review is deferential both when the government contends that the sentence is too
low and when the defendant contends that the sentence is too high. See id. at 1325 (“[T]here is a
range of reasonable sentences from which the district court may choose.”); see also United States
v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (“Review for reasonableness is deferential.”).




                                                6
requires us to consider the ultimate sentence imposed under a “deferential abuse-

of-discretion standard” and to take into account the totality of the circumstances.

Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 597 (2007). We must “first

ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines

range.” Id. 552 U.S. at ___, 128 S. Ct. at 597.

      A sentence may be substantively unreasonable if it does not achieve the

purposes of sentencing as set forth in § 3553(a). United States v. Pugh, 515 F.3d

1179, 1191 (11th Cir. 2008). Section 3553(a) requires the sentencing court to

impose a sentence “sufficient, but not greater than necessary” to reflect the

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

the offense, deter criminal conduct, protect the public from future criminal conduct

by the defendant, and provide the defendant with necessary educational or

vocational training or medical care. See 18 U.S.C. § 3553(a)(2). The sentencing

court must also consider the § 3553(a) factors in determining a particular sentence.

See 18 U.S.C. § 3553(a)(1), (3)–(7).

      In explaining the sentence imposed, an acknowledgment by the district court


                                           7
that it has considered the defendant’s arguments and the factors in section 3553(a)

is enough. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The

district court is not required to explicitly state that it has considered each of the

§ 3553(a) factors. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005). The burden of establishing that the sentence is unreasonable in light of the

record and the § 3553(a) factors lies with the party challenging the sentence. See

Talley, 431 F.3d at 788. Although a sentence within the advisory guidelines range

is not per se reasonable, we ordinarily expect such a sentence to be reasonable. See

id. at 787–88.

      The district court correctly calculated Stevens’ sentencing guideline range,

considered testimony and evidence relevant to the § 3553(a) factors, and explained

in enough detail the sentence imposed. For reasons we have already discussed, the

court did not abuse its discretion in deciding not to grant Stevens a continuance so

that he could introduce a second psychological evaluation, and it did not err in

imposing a five-level enhancement for Stevens’ possession of over six hundred

images of child pornography. Stevens’ sentence is procedurally and substantively

reasonable.

      AFFIRMED.




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