                    Case: 12-11287          Date Filed: 11/15/2012   Page: 1 of 6

                                                                         [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11287
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 6:11-cr-00136-ACC-GJK-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                  versus

MARK BOYKIN,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (November 15, 2012)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
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       Mark Boykin appeals his 78-month sentence, imposed at the low end of the

applicable guideline range, after pleading guilty to one count of possession of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). On appeal, Boykin

argues that his sentence was substantively unreasonable because the district court

failed to vary from the guideline range calculated under U.S.S.G. § 2G2.2, which he

claims is unreasonably high. After thorough review, we affirm.

       We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)).

       In reviewing sentences for reasonableness, we typically perform two steps. Id.

at 1190. First, we “‘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. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1


       1
         The § 3553(a) factors 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 reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the

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       If we conclude that the district court did not procedurally err, we must consider

the   “‘substantive      reasonableness        of    the   sentence      imposed      under     an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Id.

(quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to determine

“whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). “[W]e will not second guess the weight (or lack thereof) that the

[district court] accorded to a given factor ... as long as the sentence ultimately

imposed is reasonable in light of all the circumstances presented.” United States v.

Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis

omitted), cert. denied, 131 S.Ct. 2962 (2011). We will “vacate the sentence 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 sentences dictated by the facts of

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

(quotation omitted), cert. denied, 131 S. Ct. 1813 (2011).



offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

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       The party who challenges the sentence bears the burden to show it is

unreasonable in light of the record and the § 3553(a) factors. United States v. Tome,

611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S.Ct. 674 (2010). Although we do

not automatically presume a sentence falling within the guideline range to be

reasonable, we ordinarily expect such a sentence to be reasonable. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

       Boykin has not carried his burden of demonstrating that his sentence was

substantively unreasonable.2 First, the district court did conduct an individualized

assessment. The PSI, which the district court adopted, showed that Boykin had a very

minimal criminal history, consisting of two misdemeanors committed when he was

only 20 years old. At the same time, he possessed hundreds of photographs and

videos of child pornography, including many depicting child victims who were under

12 years old and containing sadistic or masochistic conduct. The court explicitly

considered each of these facts -- the fact that minor children were abused, the fact that

the videos contained sadistic and masochistic conduct, the high number of images,

and Boykin’s prior criminal history -- when making its sentencing determination. In



       2
        Boykin raises no challenge to the procedural reasonableness of his sentence, and
accordingly, he has waived any claim in this respect. See United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003) (holding that issues not raised in an initial brief on appeal are
deemed abandoned).

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light of the record and the § 3553(a) factors, it found the “very, very serious nature

of the offense” to require a sentence within the guideline range. The court further

found, in acknowledgment of Boykin’s minor prior criminal history, a sentence at the

lowest end of the guideline range appropriate. Thus, because the court considered the

totality of the circumstances in crafting the sentence, Boykin’s sentence was not

substantively unreasonable on the basis that the court failed to conduct an

individualized assessment. See Gall, 552 U.S. at 51.

      Boykin argues, however, that the inherent unreasonableness of the child

pornography guidelines defeats the concept of an individualized assessment. But we

have previously upheld the validity of U.S.S.G. § 2G2.2, foreclosing Boykin’s

argument attacking the reasonableness of the child pornography offender guidelines

in and of themselves. In Pugh, for example, we said that the guidelines for child

pornography offenses are not substantively deficient, unlike the substantive

deficiencies the Supreme Court found embedded in the crack cocaine guidelines in

Kimbrough v. United States, 552 U.S. 85, 109 (2007). See Pugh, 515 F.3d at 1201

n.15. Although Boykin argues that our adherence in Pugh to the child pornography

guidelines is mere dicta, our caselaw does not support his claim. See Irey, 612 F.3d

at 1212 n.32 (reaffirming that “the guideline sentences for child pornography crimes

. . . do not exhibit the deficiencies the Supreme Court identified [in the crack cocaine

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guidelines] in Kimbrough” (quotation omitted)); United States v. Wayerski, 624 F.3d

1342, 1354 (11th Cir. 2010) (summarily rejecting the argument that the child

pornography offender guidelines are irrational and not empirically based). In any

event, Kimbrough would merely permit, but not require, deviation from the guidelines

range. See 552 U.S. at 91. Thus, Boykin’s argument that the child pornography

guidelines are intrinsically flawed is unavailing.

      The district court considered the guidelines range, along with the other §

3553(a) factors it was required to consult, and ultimately imposed a sentence at the

low end of that range. Moreover, the court did not substantively err when it consulted

the child pornography guidelines, because the guidelines themselves are not

substantively unreasonable. Accordingly, we affirm the sentence as reasonable.

      AFFIRMED.




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