                                                                  [DO NOT PUBLISH]
                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-11169                 OCT 20, 2010
                                   Non-Argument Calendar             JOHN LEY
                                 ________________________              CLERK

                          D.C. Docket No. 1:03-cr-00281-JEC-JFK-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

TIMOTHY KEITH YUKNAVICH,

lllllllllllllllllllll                                          Defendant-Appellant.
                                ________________________

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

                                      (October 20, 2010)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

         Timothy Yuknavich appeals his 48-month sentence imposed upon the

revocation of his supervised release. Yuknavich was on supervised release based

on his conviction for possessing child pornography under 18 U.S.C. §
2252(a)(2)(A), for which he was sentenced to 41 months in prison followed by 36

months of supervised release. Yuknavich contends that his new sentence is

unreasonable because (1) the sentence was longer than necessary and (2) the

district court focused too much on public safety considerations.

                                         I.

      Yuknavich admits that he is attracted to young boys—usually those between

the ages of thirteen and sixteen—and that he has problems controlling his

pedophilic urges. Yuknavich also has a history of acting on these urges. In 1975

he was sentenced to 60 months of probation for performing oral sex on a ten-year-

old boy in a hotel closet. In 1995 he was caught, by his wife, aggressively making

sexually provocative comments to a fifteen-year-old boy at a library. In 1998 he

was caught with child pornography on his work computer and he was sentenced to

84 months of probation. In 2002, Yuknavich was again caught with child

pornography, this time on his home computer. He pleaded guilty to five counts of

receiving child pornography and in 2004 he was sentenced to 41 months in prison

followed by 36 months of supervised release.

      After serving his prison term, Yuknavich was placed on supervised release

and began working at the Guitar Center in Atlanta, Georgia. The conditions of his

supervised release required him to follow a sex offender compliance contract.

                                         2
Yuknavich was charged with, and admitted to, the following violations: (1) he had

access to a computer; (2) he watched “kid-themed” movies and shows; (3) he

worked at a church;1 and (4) he had a one-and-a-half year relationship with a

twelve-year-old boy whom he met while working at the Guitar Center. Yuknavich

continued that relationship—with a young boy he admitted to being attracted

to—despite repeated demands from his probation officer and his employer to end

it. Yuknavich ignored their demands and even went over to the boy’s house and

spent time alone with him, although there is no allegation that he molested the

boy.

       Because Yuknavich violated the terms of his supervised release, he was

subject to a statutory maximum sentence of 24 months in prison for each of the

five counts of his 2004 conviction, for a total of 120 months. His recommended

guidelines range was 8 to 14 months imprisonment for violating the terms of his

supervised release. See United States Sentencing Guidelines § 7B1.4(a). The

government argued for a sentence of 24 months in prison for the first count, 24

months in prison for the second count, and 36 months of supervised release for

each of the final three counts, all to be served consecutively. Yuknavich argued



       1
        This was a violation of a Georgia law that prohibits sex offenders from being employed
within 1,000 feet of a church. Ga. Code Ann. §§ 42-1-12, 15.

                                              3
for a sentence of 24 months in prison for the first count and 36 months of

supervised release for each of the final four counts, with the four supervised

release counts to be served concurrently. The district court sentenced Yuknavich

to 24 months in prison for the first count and 24 months in prison for the second

count—for a total of 48 months in prison. The court also imposed an additional

sentence of 36 months of supervised release for the final three counts.

      The court explained, “I know the guideline range, but I think given your

history of molestation you are still having those proclivities and I think [you are]

really unable to control yourself.” The court stated that although it does not

always know whether a pedophile will recidivate, “there is no suspense with Mr.

Yuknavich . . . . I believe when you get out you are going to try to do this again.”

The court was especially disturbed by the prohibited relationship that Yuknavich

had with the young boy, considering Yuknavich’s recidivist history, the fact that

he was attracted to the boy, and his admission that he has fantasies about raping

young boys. After discussing his criminal history, and his current supervised

release violations, and the court’s fear of his re-offending, and his positive

attributes, and other issues such as his ailing father, the district court explained

that the sentence imposed was warranted by the need to protect society from the

danger that Yuknavich would commit further crimes. See 18 U.S.C. §

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3553(a)(2)(C).

                                         II.

      “We review the sentence imposed upon the revocation of supervised release

for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). “We review the reasonableness of a sentence for abuse of

discretion using a two-step process.” United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010). First, we look at “whether the district court committed any

significant procedural error,” and second we look at “whether the sentence is

substantively reasonable under the totality of the circumstances.” Id. “The party

challenging the sentence bears the burden to show it is unreasonable in light of the

record and the [18 U.S.C. ] § 3553(a) factors.” Id.

      The factors to be considered under 18 U.S.C. § 3553(a) include: (1) the

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

defendant; (2) the need for the sentence imposed to protect the public, promote

respect for the law, and provide an adequate deterrence; (3) the kinds of sentences

available; and (4) the sentencing range established by the guidelines. 18 U.S.C. §

3553(a)(1)–(4). However, “nothing . . . requires the district court to state on the

record that it has explicitly considered each of the § 3553(a) factors.” United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

                                          5
                                              III.

       Yuknavich has failed to show that the sentence imposed by the district court

was procedurally unreasonable. To determine if a sentence is procedurally

unreasonable, we consider issues such as whether the district court improperly

calculated the guidelines range, treated the guidelines as mandatory instead of

advisory, failed to consider the appropriate statutory factors, selected a sentence

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

chose. See United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).

Here, Yuknavich admits that he violated the conditions of his supervised release

and does not allege that the district court relied on clearly erroneous facts. See

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (“To the

extent that the district court has found facts, we accept them unless they are clearly

erroneous.”). Additionally, the government and Yuknavich agree that, according

to the guidelines, Yuknavich’s actions constituted a Grade B violation.2 Both

parties also agree that for a Grade B violation, with Yuknavich’s criminal history,




       2
        Yuknavich and the government agree that Yuknavich’s employment within 1,000 feet of a
church constituted a Grade B violation, Ga. Code Ann. §§ 42-1-12, 15, while his other violations
were the less serious Grade C. See U.S.S.G. § 7B1.1(a)(2)–(3). Thus, for the purposes of the
guidelines, Yuknavich’s actions were a Grade B violation because “the grade of the violation is
determined by the violation having the most serious grade.” U.S.S.G. § 7B1.1(b)

                                               6
the guidelines recommend a prison sentence of 8 to 14 months.3 The district court

considered the guidelines range when it gave Yuknavich a sentence that is above

that range but below the statutory maximum.

       The district court also properly considered the 18 U.S.C. § 3553(a) factors

and adequately explained its sentence. During the sentencing hearing, it

discussed Yuknavich’s long history as a pedophile, his high likelihood of

recidivating, the need to incarcerate Yuknavich to protect the public, and the

sentencing options available.

       Yuknavich has also failed to show that his sentence is substantively

unreasonable. “In reviewing the reasonableness of a sentence, we must, as the

Supreme Court has instructed us, consider the totality of the facts and

circumstances.” Irey, 612 F.3d at 1189. We will vacate a sentence for substantive

unreasonableness “if, but 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



       3
        Without explanation or support, Yuknavich states that the applicable guidelines range is 5
to 11 months. That statement contradicts Yuknavich’s admission that he committed a Grade B
violation and his admission that the guidelines range for a Grade B violation is 8 to 14 months.
Further, to the extent that he is now arguing that his guidelines range should be 5 to 11 months, he
waived that argument by failing to present it to the district court. See Harrison v. Benchmark Elecs.
Huntsville, Inc., 593 F.3d 1206, 1215 n.8 (11th Cir. 2010).

                                                 7
sentences dictated by the facts of the case.” Id. at 1190 (quotation marks omitted).

“[A]lthough sentences outside the guidelines are not presumed to be unreasonable,

we may take the extent of any variance into our calculus.” Tome, 611 F.3d at

1378 (quotation marks and alterations omitted). “However, we must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Id. (quotation marks omitted). Yuknavich’s

argument for a 24-month sentence implicitly agrees that a sentence outside of the

guidelines range is not unreasonable because the top of the guidelines range is 14

months.

      The totality of the circumstances, including the 18 U.S.C. § 3553(a) factors,

makes the upward variance reasonable because: Yuknavich has a long and

repetitive history as a pedophile who acts on his attraction to young boys; he has

not been deterred by his previous punishments; he showed disrespect for the law

by committing four violations—that we know of—of his terms for supervised

release; he had a one-and-a-half year relationship with an underage boy whom he

was attracted to, even though his employer and his probation officer prohibited the

relationship; and the district court found that the public needs to be protected from

Yuknavich because “[he is] going to try to do this again.”

      Contrary to Yuknavich’s contention, the district court did not consider only

                                          8
the importance of protecting the public. Instead, it found that Yuknavich’s history

as a pedophile, his consistent disregard for the law, and his likelihood of

recidivating made protecting the public the most important issue when imposing

Yuknavich’s sentence. See United States v. Shaw, 560 F.3d 130, 1239–40 (11th

Cir. 2009). Given the totality of the circumstances, the sentence of a 48-month

prison term followed by 36 months of supervised release was not unreasonable.

      AFFIRMED.




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