           Case: 18-11390   Date Filed: 07/31/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11390
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:17-cr-00144-LSC-SGC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

BRAD RICHARD MCKLEROY,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 31, 2019)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Brad Richard McKleroy appeals his total sentence of 121 months’

imprisonment for possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2), and attempted transfer of obscene material to a

minor, in violation of 18 U.S.C. § 1470. On appeal, he argues that the district

court imposed a procedurally and substantively unreasonable total sentence

because it treated the low-end of his guideline range as a mandatory floor, failed to

consider mitigating factors and afford consideration to the 18 U.S.C. § 3553(a)

factors, and failed to consider that U.S.S.G. § 2G2.2, the guideline underlying his

child pornography offense, is not based on empirical data and does not properly

reflect the statutory purposes of sentencing.

      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard, evaluating both procedural and substantive

reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). Similarly, when a

district court recognizes its authority to grant a variance, we review for abuse of

discretion its decision not to grant a downward variance. United States v. Cubero,

754 F.3d 888, 897 & n.8 (11th Cir. 2014). However, “if a defendant fails to

clearly articulate a specific objection during sentencing, the objection is waived,”

and we review for plain error. United States v. Zinn, 321 F.3d 1084, 1088 (11th

Cir. 2003) (emphasis in original).




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      Under plain-error review, we may correct an error where (1) an error

occurred; (2) the error was plain; and (3) the error affects substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993). When these three factors are met, we

may exercise our discretion and correct the error only if it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” Id. (quotation

marks omitted) (alteration in original). For an error to be plain, it must be

“contrary to explicit statutory provisions or to on-point precedent in this Court or

the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir.

2013) (per curiam) (quotation marks omitted).

      A sentence may be procedurally unreasonable if the sentencing court failed

to properly calculate the guideline range, consider the 18 U.S.C. § 3553(a) factors,

or adequately explain the chosen sentence. Gall, 552 U.S. at 51. However, we do

not require a district court to state on the record that it has explicitly considered

each of the § 3553(a) factors and will consider it sufficient where the district court

acknowledges that it considered the defendant’s arguments and the § 3553(a)

factors. United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007). In

sentencing a defendant, the district court “should set forth enough to satisfy the

appellate court that [it] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356 (2007).


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      After reviewing for procedural reasonableness, we consider the substantive

reasonableness of a sentence. Gall, 552 U.S. at 51. In reviewing a district court’s

sentence for substantive reasonableness, we examine the totality of the

circumstances to determine whether the statutory factors in § 3553(a) support the

sentence in question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008) (per curiam). A sentence may be substantively unreasonable if a district

court unjustifiably relied on any § 3553(a) factor, considered impermissible

factors, or failed altogether to consider pertinent § 3553(a) factors. United States

v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).

      The district court’s sentence must be “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a)(2), including the need

for the sentence to reflect the seriousness of the offense and to promote respect for

the law, the need for adequate deterrence, the need to protect the public, and the

need to provide the defendant with educational or vocational training, medical

care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The district court

must also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the guideline

range, any pertinent policy statements of the Sentencing Commission, the need to

avoid unwarranted sentencing disparities, and the need to provide restitution to

victims. Id. § 3553(a)(1), (3)–(7).


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      The party who challenges the sentence bears the burden of showing that the

sentence is unreasonable in light of the record and the § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The weight given to any

specific § 3553(a) factor is committed to the sound discretion of the district court.

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). As such, the district

court need not specifically address every mitigating factor raised by the defendant

in order for the sentence to be substantively reasonable. United States v. Snipes,

611 F.3d 855, 873 (11th Cir. 2010). We will not remand for resentencing unless

left with a definite and firm conviction that the district court committed a clear

error of judgment in weighing the § 3553(a) factors by imposing a sentence outside

of the range of reasonable sentences based upon the facts of the case. United

States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). That we may reasonably

conclude a different sentence is appropriate is insufficient for reversal. Gall, 552

U.S. at 51.

      For child pornography offenses, the Sentencing Guidelines provide that

some of the specific offense characteristics include: (1) increasing by 2 levels

where “the material involved a prepubescent minor or a minor who had not

attained the age of 12 years,” (2) increasing by 2 levels where the offense involved

some level of distribution not otherwise described in that subsection, (3) increasing

by 4 levels where “the offense involved material that portrays sadistic or


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masochistic conduct or other depictions of violence,” (4) increasing by 2 levels

where “the offense involved the use of a computer or an interactive computer

service for the possession, transmission, receipt, or distribution of the material, or

for accessing with intent to view the material,” and (5) increasing by 5 levels

where the offense involved 600 or more images. U.S.S.G. § 2G2.2(b)(2),

(b)(3)(F), (b)(4), (b)(6), (b)(7)(D).

      We have previously indicated that the 2013 Sentencing Commission report,

centering around § 2G2.2, “does not invalidate § 2G2.2” and that a district court’s

use of the guideline does not render a defendant’s sentence substantively

unreasonable. Cubero, 754 F.3d at 899-900. In Cubero, we affirmed a 151-month

sentence as substantively reasonable where the defendant possessed hundreds of

images and more than 12 videos of child pornography. Id. at 898-901; see also

United States v. Carpenter, 803 F.3d 1224, 1235 (11th Cir. 2015).

      As an initial matter, because McKleroy did not object to the district court’s

imposition of the sentence based on the guideline range below, his arguments

related to that issue must be reviewed for plain error. The district court stated that

it based the total sentence on the § 3553(a) factors. Contrary to McKleroy’s

argument, the district court did not treat the low-end of his guideline range as a

mandatory floor because the court considered his arguments regarding a downward

variance and determined that neither a variance nor a low-end guideline sentence


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was appropriate in this case. Accordingly, the district court did not plainly err by

imposing a guideline sentence.

      Although McKleroy argues that the Sentencing Commission’s stance on

§ 2G2.2 is evidence of its unreasonableness, we have held that § 2G2.2 is valid and

a district court’s use of the guideline does not render a defendant’s sentence

substantively unreasonable. Cubero, 754 F.3d at 899-900. Further, the district

court utilized its discretion in emphasizing its concern with the nature of the

offense and McKleroy’s characteristics, including his “unusual” desire to engage in

a relationship with a minor based on his communications with an officer he

thought was a 14-year-old girl and his very active solicitation of child

pornography. The court also stated that it considered “nature and circumstances

of your offense and your history and characteristics and your conduct;” the court is

not required to list each of the § 3553 factors or specifically address every

mitigating factor raised by the defendant. Snipes, 611 F.3d at 873. The total

sentence imposed was commensurate with the facts of this case, and thus,

McKleroy’s sentence is procedurally and substantively reasonable. Accordingly,

we affirm.

      AFFIRMED.




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