              Case: 18-15207    Date Filed: 11/18/2019   Page: 1 of 8


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-15207
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:18-cr-00238-VMC-CPT-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

BENJAMIN MICHAEL TSCHIRHART,
a.k.a. Jabberwockeysuperfly,
a.k.a. Ben Gerard,
a.k.a. Ben Ischehart,

                                                             Defendant-Appellant.
                          ________________________

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

                               (November 18, 2019)

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

PER CURIAM:

      Benjamin Tschirhart, a federal prisoner, pled guilty to having attempted to

entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). He
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now appeals his sentence of 132 months’ imprisonment and a lifetime of

supervised release, an upward variance from the guideline term of 120 months.

Tschirhart argues that his sentence was procedurally unreasonable because the

District Court did not consider all of the 18 U.S.C. § 3553(a) factors and used a per

se sentencing rule in imposing lifetime supervised release. He also argues that his

sentence was substantively unreasonable because the District Court did not fully

consider the § 3553(a) factors, creating an unwarranted disparity between his

sentence and that of similarly situated defendants. Finally, he argues that he is

entitled to a resentencing hearing before a different judge. We disagree and affirm

Tschirhart’s sentence.

                                            I.

      We turn first to Tschirhart’s argument that his sentence was procedurally

unreasonable. If a party does not raise an argument of procedural reasonableness

before the district court, we review only for plain error. United States v.

Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Reversal on grounds of plain

error requires a showing “(1) that the district court erred; (2) that the error was

‘plain’; and (3) that the error ‘affect[ed the defendant’s] substantial rights.’” Id.

(quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993)).

Tschirhart acknowledges that he did not object on procedural reasonableness




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grounds at his sentencing hearing, and therefore that plain error is the proper

standard of review.

      Procedural reasonableness refers to the process by which the district court

arrives at a sentence, whereas substantive reasonableness scrutinizes the resulting

sentence itself. A district court’s process of imposing a sentence will be

considered unreasonable if the court “miscalculat[es] the advisory guideline range,

treat[s] the Sentencing Guidelines as mandatory, fail[s] to consider the 18 U.S.C.

§ 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to

adequately explain the chosen sentence.” United States v. Trailer, 827 F.3d 933,

936 (11th Cir. 2016). Although the district court is required to consider the

§ 3553(a) factors, it is not required to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.

United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). Instead, an

acknowledgement by the district court that it considered the § 3553(a) factors is

sufficient. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007).

      In addition, it is procedurally unreasonable for a court to employ a per se

rule in sentencing that fails to consider the individual circumstances of the case.

United States v. Brown, 723 F.2d 826, 830 (11th Cir. 1984). However, when a

court considers the presentence investigation report and the defendant’s character,

and references its own discretion in choosing a sentence, it indicates that a per se

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sentencing rule was not used. See United States v. Lagrone, 727 F.2d 1037, 1039

(11th Cir. 1984).

      Here, Tschirhart’s sentence is not procedurally unreasonable because the

District Court explicitly stated that it considered all of the § 3553(a) factors. This

was enough; the Court was not required to discuss each factor individually.

Turner, 474 F.3d at 1281. Tschirhart argues that when the District Court stated

that “there are two things [it] look[s] at” in child-enticement sentencing –

“punishing the defendant” and “protecting the public” – it revealed its refusal to

consider other § 3553(a) factors. This is too rigid an interpretation of the Court’s

statement. First, the Court expressly stated that it was considering all of the §

3553(a) factors – not just punishment and protection of the public. Second, it

clearly did consider the other factors, given that it required Tschirhart to participate

in addiction and mental health treatment, evaluated Tschirhart’s character and

history, referenced Tschirhart’s guideline range, and multiple times alluded to the

fairness and justness of the sentence to Tschirhart. The Court did not plainly err

procedurally in considering the § 3553(a) factors; we find that it did consider each

of the factors appropriately.

      Tschirhart next argues that the Court admitted it was using a per se rule of

sentencing for child-enticement defendants when the Court said that it “always

put[s] individuals like this on lifetime of supervised release.” In the very next

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sentence, however, the Court acknowledges that it “think[s] maybe there was one

[defendant] that [it] didn’t [place on lifetime supervised release],” indicating that

the Court was aware that it had the discretion not to do so. The Court’s

acknowledgement of its discretion, in tandem with its consideration of the

individual circumstances of this case, indicates that it was not applying a per se

sentencing rule when it sentenced Tschirhart to a lifetime of supervised release.

The Court explained its belief that a lifetime of supervised release was important in

this case based on the information in the presentence investigation report,

including the “troubling” statements made by Tschirhart, and a need to protect the

public, which demonstrates that the Court considered many relevant factors and

did not simply apply an improper per se sentencing rule. Lagrone, 727 F.2d at

1039. The Court did not plainly err in the process of imposing this sentence.

                                           II.

      We next turn to Tschirhart’s challenge to the substantive reasonableness of

his sentence. Tschirhart argues that his sentence was substantively unreasonable

because the District Court did not fully consider the § 3553(a) factors and because

it varied upward from Tschirhart’s guideline sentencing range.

        We review the reasonableness of a sentence under the deferential abuse of

discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). In reviewing a sentence for unreasonableness, we consider

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whether the district court abused its discretion in concluding that the factors found

in § 3553(a) support the sentence. Id.1 The weight given to any specific § 3553(a)

factor is left to the district court’s sound judgment. United States v. Clay, 483 F.3d

739, 743 (11th Cir. 2007). A district court abuses its discretion by (1) failing to

consider relevant factors that were due significant weight; (2) giving an improper

or irrelevant factor substantial weight; or (3) committing a clear error of judgment

by balancing proper factors unreasonably. United States v. Irey, 612 F.3d 1160,

1189 (11th Cir. 2010) (en banc). In addition, the district court has wide discretion

to decide whether the § 3553(a) factors justify a variance from the defendant’s

guideline sentencing range. United States v. Rodriguez, 628 F.3d 1258, 1264 (11th

Cir. 2010).

       Here, the Court did not abuse its discretion by imposing a slight upward

variance from the guidelines range and statutory minimum. Rather, the Court

appropriately used its discretion by choosing to give increased weight to the factors

of protecting the public and punishing the defendant in deciding that an upward

variance was warranted. Clay, 483 F.3d at 743. As previously discussed in Part I,

supra, the District Court appropriately considered all of the § 3553(a) factors when



1
  Under § 3553(a)(2), the district court must impose a sentence that is sufficient, but not greater
than necessary, to: (1) reflect the seriousness of the offense, (2) promote respect for the law, (3)
provide just punishment for the offense, (4) deter criminal conduct, and (5) protect the public
from the defendant’s future criminal conduct. The court must also consider the criminal history
and characteristics of the defendant. § 3553(a)(1).
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deciding what sentence to impose. The Court’s slight upward variance from the

statutory minimum was proportional to the concern that the Court had for

protection of the public, particularly children, which is a recognized statutory

factor that the Court is entitled to consider and weigh. Even with the slight upward

variance, the sentence was still well below the statutory maximum of life

imprisonment, which is another indication of its reasonableness. United States v.

Dougherty, 754 F.3d 1353, 1364 (11th Cir. 2014).

      Tschirhart argues that the District Court’s imposition of an upward variance

created a disparity between his sentence and sentences in other similar child-

enticement cases, thus making his sentence unreasonable. We have indicated that

a defendant’s arguments regarding unwarranted disparities in sentencing should be

specific enough for the court to “gauge” whether the defendants are truly similarly

situated. United States v. Hill, 643 F.3d 807, 885 (11th Cir. 2011). Tschirhart has

not satisfied this standard of specificity, as he fails to identify similarities between

himself and the defendants beyond being convicted of the same offense. Id.

Moreover, the District Court stated that it was imposing an upward variance

because this case was dissimilar from other child-enticement cases, given the

“really troubling” statements Tschirhart made about children (including his own)

and the compelling need to protect the public from his beliefs and actions. The

Court explained that it rarely varies upward from the guideline range, but that in

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this case it concluded that an upward variance was warranted. Therefore, any

disparity between Tschirhart’s sentence and the sentences of other child-

enticement defendants does not strike us as unreasonable, and Tschirhart has not

met his burden of showing that the District Court imposed a sentence that “truly is

unreasonable.” Irey, 612 F.3d at 1191.

                                         III.

      Finally, because we conclude that Tschirhart’s sentence was reasonable, we

need not consider his argument that the case should be assigned to a different

District Court judge for resentencing. In sum, we find no error in the District

Court’s imposition of sentence and affirm.

      AFFIRMED.




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