           Case: 12-12563   Date Filed: 02/26/2013   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12563
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:11-cr-00041-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CHRISTOPHER ROWAN,

                                                          Defendant-Appellant.

                       ________________________

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

                            (February 26, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-12563       Date Filed: 02/26/2013      Page: 2 of 10

       Appellant Christopher Rowan appeals his 60-month above-guideline

sentence that the district court imposed after he pled guilty to one count of sexual

abuse of a minor, in violation of 18 U.S.C. § 2243.1 The district court imposed

sentence above the advisory guideline range of 30-37 months’ imprisonment on

either of two independent grounds: (1) assignment of a five-level upward departure

under U.S.S.G. § 5K2.0(a)(1)(B); or (2) an upward variance under 18 U.S.C.

3553(a). On appeal, Rowan argues that the district court judge impermissibly

assisted the government at sentencing, violating Rowan’s due process right to a fair

and impartial tribunal, and the judge should therefore have recused himself from

the case and that his sentence is both procedurally and substantively unreasonable.

                                               I.

       Rowan maintains, first, that the district court judge acted unlawfully at his

sentencing hearing when he elicited argument and evidence from the government

regarding aggravating circumstances necessary to justify its request for an upward

departure under U.S.S.G. § 5K2.0(a)(1)(B). Moreover, Rowan argues that in light

of the judge’s biased conduct, he should have sua sponte recused himself.

       Because Rowan did not challenge the court’s conduct in the district court,

he concedes that his argument is subject to plain error review only. Under plain
       1
          Rowan’s plea agreement contained an appeal waiver clause, which he argues was
entered into unknowingly and involuntarily. However, under the waiver, Rowan retained the
right to appeal an above-guideline sentence, and moreover, the government has expressly
disclaimed enforcement of the waiver in this case. Therefore, we have no need to consider the
enforceability of the waiver but will instead proceed directly to the merits of the appeal.
                                               2
              Case: 12-12563      Date Filed: 02/26/2013     Page: 3 of 10

error review, the burden is on the defendant to establish: (1) error, (2) that is plain,

and (3) that affects substantial rights. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005). “If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted).

      “The Due Process Clause entitles a person to an impartial and disinterested

tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238,

242, 100 S. Ct. 1610, 1613, 64 L. Ed. 2d 182 (1980). Neutrality ensures that “life,

liberty, or property will not be taken on the basis of an erroneous or distorted

conception of the facts or the law.” Id. “At the same time, it preserves both the

appearance and reality of fairness, . . . by ensuring that no person will be deprived

of his interests in the absence of a proceeding in which he may present his case

with assurance that the arbiter is not predisposed to find against him.” Id.

      Relatedly, 28 U.S.C. § 455(a) instructs a federal judge to disqualify himself

if “his impartiality might reasonably be questioned,” and § 455(b) requires recusal

when any of the specific circumstances set forth in that subsection exist, including

when the judge “[i]s a party to the proceeding,” “has a personal bias,” or “has a

financial interest in the subject matter in controversy or in a party to the

proceeding, or any other interest that could be substantially affected by the


                                            3
              Case: 12-12563     Date Filed: 02/26/2013    Page: 4 of 10

outcome of the proceeding.” 28 U.S.C. § 455(a), (b)(1), (b)(4), (b)(5)(i). Under

§ 455, “a judge is under an affirmative, self-enforcing obligation to recuse himself

sua sponte whenever the proper grounds exist.” United States v. Kelly, 888 F.2d

732, 744 (11th Cir. 1989).

      We conclude from the record that the district court did not plainly err in

eliciting from the government testimony and evidence to justify an upward

departure. Contrary to Rowan’s assertion, the court did not assist the government

at sentencing; indeed, it did quite the opposite. The court’s exchange with the

government shows that it would not grant an upward departure until satisfied that

the government identified and proved a predicate aggravating circumstance. The

court rejected the government’s initial contention—that a departure was warranted

because Rowan was the victim’s stepfather—on the grounds that the four-level

adjustment under U.S.S.G. § 2A3.2(b)(1) considered and accounted for the

existence of a custodial relationship. Even after the government did subsequently

identify Rowan’s use of alcohol as an aggravating circumstance, the court elicited

testimonial evidence to prove it. Thus, the court did not err, plainly or otherwise.

Furthermore, because nothing about the district court judge’s conduct created a

doubt as to his impartiality or ability to preside over the case, sua sponte recusal

was not warranted.

                                          II.


                                           4
              Case: 12-12563     Date Filed: 02/26/2013    Page: 5 of 10

      Next, Rowan contends that his 60-month, above-guideline custodial

sentence is procedurally unreasonable because the district court: (1) focused on

the sentencing factors under 18 U.S.C. § 3553(a)(2)(A)—i.e., the need to reflect

the seriousness of the offense, promote respect for the law, and to provide just

punishment for the offense—to the exclusion of the remaining § 3553(a) factors;

(2) ignored the mitigating testimony of his wife; and (3) failed to explain its

sentence. He did not raise this challenge before the district court.

      We generally review the reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591, 169 L. Ed. 2d 445 (2007). As noted above, however, where a defendant

fails to object to an alleged sentencing error before the district court, we review for

plain error only. Rodriguez, 398 F.3d at 1298. We have not decided in a published

opinion whether plain error or abuse of discretion review applies to an unpreserved

claim of a sentence's procedural unreasonableness. We decline to decide that

question in this unpublished opinion because Rowan’s procedural claim fails under

either standard.

      In reviewing whether a sentence is procedurally reasonable, we must ensure

that the district court did not commit a 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


                                           5
              Case: 12-12563     Date Filed: 02/26/2013    Page: 6 of 10

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

chosen sentence.” Gall, 552 U.S. at 51, 123 S. Ct. at 597. The weight to be

accorded to any given § 3553(a) factor is a discretionary matter for the district

court. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). Although

the court is required to consider the § 3553(a) factors in making its sentencing

decision, it need not discuss each one in detail; “[r]ather, an acknowledgment by

the district judge that he or she has considered the § 3553(a) factors will suffice.”

United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (internal quotation

marks omitted). Consequently, a discussion of mitigating evidence presented

under § 3553(a) is not required. See id. at 833 (finding that district court did not

impose an unreasonable sentence when it failed to discuss mitigating evidence

because it was not required to discuss each § 3553(a) factor). That said, when a

district court imposes a sentence outside the guideline range, it should explain why

it has done so. Rita v. United States, 551 U.S. 338, 357, 127 S. Ct. 2456, 2468,

168 L. Ed. 2d 203 (2007). The length and detail of explanation required depends,

however, on the circumstances. United States v. Livesay, 525 F.3d 1081, 1090

(11th Cir. 2008). Ultimately, the court must merely say enough to show “that [it]

has considered the parties’ arguments and has a reasoned basis” for its decision.

Id.




                                           6
              Case: 12-12563     Date Filed: 02/26/2013   Page: 7 of 10

      We conclude from the record that Rowan’s sentence is procedurally

reasonable. The record shows that the district court properly calculated the

guideline range prior to departing or varying upward; that, by express reference, it

ultimately considered all of the § 3553(a) factors; that it not only heard mitigating

testimony from Rowan’s wife, but questioned her regarding his past use of alcohol

around the victim; and finally, that it explained the 60-month above-guideline

sentence. Rowan’s concern that the court focused solely on one single § 3553(a)

factor while paying no more than passing respect to the others is ill-founded. We

have repeatedly held that a detailed discussion of each § 3553(a) factor is not

required; moreover, so long as the factors are considered, the weight allocated to

each is a matter committed to the district court’s discretion. Finally, the record

shows that the court explained its above-guideline sentence as rooted in Rowan’s

use of alcohol to facilitate the offense. Accordingly, we hold that Rowan’s

sentence was not procedurally unreasonable.

                                         III.

      Finally, Rowan maintains it was substantively unreasonable for the district

court either to depart or vary upward from the guideline range because the

circumstance it relied on in doing so—namely, his use of alcohol to facilitate the

offense—is typical in cases of sexual abuse of a minor and thus did not merit any

departure or variance from the guideline range.


                                          7
              Case: 12-12563     Date Filed: 02/26/2013    Page: 8 of 10

      Unlike his challenge to the procedural reasonableness of his sentence,

Rowan raised his challenge to its substantive reasonableness before the district

court. In any event, a substantive challenge is reviewed for abuse of discretion.

Gall, 552 U.S. at 41, 128 S. Ct. at 591.

      Although Rowan’s substantive reasonableness challenge encompasses both

grounds relied on by the district court to sentence outside the guideline range—

departure or variance—the departure need not be separately reviewed. If the

resolution of a guidelines issue does not matter to the district court’s ultimate

sentencing decision, then we need not review the issue on appeal. United States v.

Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). In other words, we need not address

guidelines arguments, such as the alleged impropriety of an upward departure, if

the district court stated that it would have imposed the same sentence even absent

the challenged guideline calculation. Id. The reason being that, as we have long

recognized, “it is not necessary to decide guidelines issues or remand cases for new

sentence proceedings where the guidelines error, if any, did not affect the

sentence.” Id. That is the case here, and in such cases, the only issue before us is

whether the ultimate sentence imposed is substantively reasonable. Id.

      In determining whether a sentence is substantively reasonable, we examine

the totality of the circumstances, which includes an inquiry into whether the

§ 3553(a) factors support the sentence in question. United States v. Gonzalez, 550


                                           8
              Case: 12-12563    Date Filed: 02/26/2013    Page: 9 of 10

F.3d 1319, 1324 (11th Cir. 2008). The district court is required to impose a

sentence “sufficient, but not greater than necessary, to comply with the purposes”

set out in § 3553(a)(2)—retribution, deterrence, incapacitation, and rehabilitation.

18 U.S.C. § 3553(a); Tapia v. United States, 564 U.S. ----, ----, 131 S. Ct. 2382,

2387, 180 L. Ed. 2d 357 (2011). Reasonableness may be evidenced by a sentence

well below the statutory maximum. See Gonzalez, 550 F.3d at 1324. We will only

vacate a sentence for substantive unreasonableness upon a “definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors.” United States v. McGarity, 669 F.3d 1218, 1264 (11th Cir.)

(internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 378

(2012).

      As just explained, because the district court in this case stated that it would

have imposed the same sentence under its § 3553(a) authority, even absent the

five-level § 5K2.0(a)(1)(B) departure, under Keene we need only address the

reasonableness of Rowan’s sentence as a whole. We see no abuse of discretion.

Rowan developed and maintained an inappropriate relationship with his minor

stepdaughter, which culminated in planned sexual abuse. He took advantage of his

custodial relationship and used alcohol to facilitate his crime. Ultimately,

substantive reasonableness is judged in light of the totality of the circumstances,

and here, it was not unreasonable for the district court to impose an above-


                                          9
             Case: 12-12563     Date Filed: 02/26/2013   Page: 10 of 10

guideline sentence to reflect the seriousness of the offense, promote respect for the

law, and provide just punishment for the offense. Moreover, the 60-month

sentence remains well below the statutory maximum prison term of 15 years.

      For the reasons above, we affirm Rowan’s sentence.

      AFFIRMED.




                                         10
