                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             NOV 28, 2007
                              No. 07-11090                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 06-00065-CR-FTM-29SPC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MICHAEL TYLER,

                                                          Defendant-Appellant.


                        ________________________

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

                            (November 28, 2007)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Michael Tyler appeals his 600-month sentence, where the applicable
guideline range was 292-365 months, after he pled guilty to transporting visual

depictions involving the use of minors engaged in sexually explicit conduct, in

violation of 18 U.S.C. § 2252(a)(1), being a parent or legal guardian who permitted

or assisted the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(b),

and using a minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a).

On appeal, Tyler argues that his sentence is procedurally and substantively

unreasonable, and that it is excessive in violation of the Eighth Amendment.

                        I. Reasonableness of Tyler’s Sentence

       We review a defendant’s sentence for reasonableness. United States v.

Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005); United

States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).1 After Booker,

sentencing requires two steps: first, the district court must correctly calculate the

guideline range; second, the district court must consider several factors listed in 18

U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v. Talley, 431

F.3d 784, 786 (11th Cir. 2005). Tyler does not challenge the calculation of his

guideline range, but rather contends that his sentence was unreasonable.

       A sentence may be procedurally or substantively unreasonable. United


       1
          We need not address the government’s contention that plain error applies because we
can affirm Tyler’s sentence even under a review for reasonableness.

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States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). “A sentence may be

unreasonable if it is the product of a procedure that does not follow Booker’s

requirements, regardless of the actual sentence. Additionally, a sentence may be

substantively unreasonable, regardless of the procedure used.” Id. Our

reasonableness review is deferential, and requires us to “evaluate whether the

sentence imposed by the district court fails to achieve the purposes of sentencing as

stated in [§] 3553(a).” Talley, 431 F.3d at 788. The party challenging the sentence

“bears the burden of establishing that the sentence was unreasonable in light of

[the] record and the factors in section 3553(a).” Id.

      In arriving at a reasonable sentence, the district court is required to consider

the factors set out in 18 U.S.C. § 3553(a):

      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 unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. at 786 (citing 18 U.S.C. § 3553(a)). The district court shall impose a sentence

that is sufficient, but not greater than necessary, to comply with the purposes of

factors two through five listed above. 18 U.S.C. § 3553(a). It is sufficient for the

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district court to acknowledge that it has considered the § 3553(a) factors, but it

need not explicitly discuss each of them. United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). We have recognized that “there is a range of reasonable

sentences from which the district court may choose.” Talley, 431 F.3d at 788.

Necessarily, there are also “sentences outside the range of reasonableness that do

not achieve the purposes of sentencing stated in § 3553(a) and that thus the district

court may not impose.” United States v. Martin, 455 F.3d 1227, 1237

(11th Cir. 2006).

      In the instant case, Tyler contends that his sentence was procedurally

unreasonable because the district court failed to consider his lack of criminal

history, age, and drug addiction. The district court, however, did in fact consider

these mitigating factors by considering Tyler’s sentencing memorandum and the

pre-sentence investigation report. Furthermore, the district court expressly found

that Tyler’s conduct was not attributable to his drug abuse. Tyler also argues that

the district court was not permitted to rely on factors incorporated in the

calculation of his guideline range when conducting a variance under 18 U.S.C.

§ 3553(a). This argument, however, is not supported by our case law. See United

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

      Tyler argues that his sentence was substantively unreasonable because the



                                           4
district court created an unwarranted sentencing disparity. He cites various district

court cases in which defendants convicted of child pornography offenses received

sentences no greater than 180 months’ imprisonment. Assuming without deciding

that this approach is acceptable, the cases cited are distinguishable from the instant

case because, unlike Tyler’s conduct, none of the defendants in those cases

engaged in repeated sexual misconduct with multiple children including the

defendant’s adopted son, documented that conduct, and transmitted it over the

Internet. Tyler has, thus, not demonstrated an unwarranted sentencing disparity.

Furthermore, Tyler has not demonstrated that his sentence was otherwise

substantively unreasonable.

                     II. Tyler’s Eighth Amendment Challenge

      We review Tyler’s Eighth Amendment challenge for plain error because

Tyler failed to raise this issue in the district court. United States v. Raad, 406 F.3d

1322, 1323 (11th Cir. 2005). “Plain error occurs where (1) there is an error; (2)

that is plain or obvious; (3) affecting the defendant’s substantial rights in that it

was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Id. (quotations

omitted).

      “The Eighth Amendment, which forbids cruel and unusual punishments,



                                            5
contains a narrow proportionality principle that applies to noncapital sentences.”

Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108

(2003) (quotations omitted). Outside the context of capital punishment, the

Supreme Court has made clear that successful challenges to the proportionality of

sentences are exceedingly rare. Raad, 406 F.3d at 1323. In reviewing an Eighth

Amendment challenge, the defendant has the burden to make a threshold showing

that “the sentence imposed is grossly disproportionate to the offense committed . . .

.” Id. (citations omitted). We have held that, “[i]n general, a sentence within the

limits imposed by statute is neither excessive nor cruel and unusual under the

Eighth Amendment.” United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir.

2005) (quotation omitted); accord United States v. Johnson, 451 F.3d 1239, 1243-

44 (11th Cir.), cert denied, 127 S.Ct. 462 (2006).

      Tyler argues that his sentence was excessive in violation of the Eighth

Amendment. This argument fails because the district court sentenced Tyler to the

statutory maximum on all three counts. Because the court sentenced Tyler within

statutory limits, Tyler has not made the required threshold showing of

disproportionality. Johnson, 451 F.3d at 1243. Thus, Tyler’s sentence did not

violate the Eighth Amendment.

      AFFIRMED.



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