           Case: 17-15036    Date Filed: 09/12/2018   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15036
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 3:16-cr-00057-MCR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

RICHARD D. WATERSON, II,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 12, 2018)

Before NEWSOM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      Richard Waterson, II appeals his sentences for attempted enticement of a

minor in violation of 18 U.S.C. § 2422(b), receipt of child pornography in violation

of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and committing a felony offense while

registered as a sex offender in violation of 18 U.S.C. § 2260A. On appeal, he

argues that his sentences are substantively unreasonable because they were greater

than necessary considering all the 18 U.S.C. § 3553(a) factors, and moreover were

disproportionate in violation of the Eighth Amendment. He argues further that his

sentences are procedurally unreasonable because the district court improperly

double-counted his prior conduct in order to justify two separate sentencing

enhancements.

                                          I

      A sentence may be procedurally unreasonable if the district court improperly

calculates the guideline range, treats the Guidelines as mandatory rather than

advisory, fails to consider the § 3553(a) factors, bases the sentence on clearly

erroneous facts, or fails to adequately explain the chosen sentence. Gall v. United

States, 552 U.S. 38, 51 (2007). The weight given to any particular § 3553(a) factor

is within the sound discretion of the district court. United States v. Williams, 526

F.3d 1312, 1322 (11th Cir. 2008).

      We review claims of impermissible double-counting de novo. United States

v. Webb, 665 F.3d 1380, 1382 (11th Cir. 2012). Impermissible double-counting


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occurs only if a part of the Guidelines is applied to increase a defendant’s

punishment on account of a kind of harm that was already fully accounted for by

applying another part of the Guidelines. Id. A district court may validly double-

count a factor if the Sentencing Commission intended that result and if each

relevant guideline provision addresses conceptually separate notions related to

sentencing. Id. Absent a specific direction to the contrary, we presume that the

Sentencing Commission intended that separate sections apply cumulatively, and,

consequently, defendants “asserting a double counting claim ha[ve] a tough task.”

Id.

      In United States v. Rothenberg, we previously upheld the application of both

U.S.S.G. § 2G2.2(b)(5) and U.S.S.G. § 4B1.5(b)(1) in enhancing the defendant’s

sentence, reasoning that the application of two pattern-of-activity enhancements

did not constitute double-counting “because they were applied, respectively, to two

separate and distinct offenses involving different conduct and different harms.”

610 F.3d 621, 624 n.4 (11th Cir. 2010).

      The two sentencing enhancements applied in Waterson’s case address

different harms. Section 2G2.2 of the Sentencing Guidelines provides for a five-

level increase if “the defendant engaged in a pattern of activity involving the

sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5). Likewise,

section 4B1.5 of the Guidelines provides for a five-level increase if “the defendant


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engaged in a pattern of activity involving prohibited sexual conduct,” and neither

§ 4B1.1 nor subsection (a) of § 4B1.5 applies. U.S.S.G. § 4B1.5(b)(1).

      In this case, the court did not err in applying both pattern-of-activity

enhancements. Waterson does not point to any provision or commentary notes

indicating that the Sentencing Commission did not intend for § 2G2.2(b)(5) and §

4B1.5(b)(1) to apply cumulatively. Webb, 665 F.3d at1382. Significantly, this

Court has previously upheld the application of both enhancements simultaneously,

further supporting the district court’s simultaneous application of the

enhancements in this case. See Rothenberg, 610 F.3d at 624–25. In Rothenberg,

both enhancements were based on two separate instances in the defendant’s past

where he had engaged in inappropriate behavior concerning a minor. Id. at 624

n.4. Likewise, in this case, Waterson had engaged in sexual misconduct involving

a minor on at least two occasions prior to committing the instant offense.

      Our precedent establishes that the district court did not impermissibly

double-count Waterson’s conduct in applying the enhancements under §

4B1.5(b)(1) and § 2G2.2(b)(5).

                                          II

      Once we determine that a sentence is procedurally sound, we must examine

whether the sentence is substantively reasonable in light of the record and the

§ 3553(a) factors. Gall, 552 U.S. at 51. We review the substantive reasonableness


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of a sentence for abuse of discretion. United States v. Rosales-Bruno, 789 F.3d

1249, 1255 (11th Cir. 2015). The party who challenges the sentence’s substantive

reasonableness bears the burden of showing it is unreasonable in light of the record

and § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

2010). “In determining a sentence, a district court must evaluate all of the

§ 3553(a) factors but can attach ‘great weight’ to one factor over others.” United

States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015). We reverse only if left with

the 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. United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc). We may, but are not required to,

apply a presumption of reasonableness to a within-Guidelines sentence. Gall, 552

U.S. at 51.

      We recognize a “narrow proportionality principle that applies to noncapital

sentences.” United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).

Successful proportionality challenges under the Eighth Amendment are

exceedingly rare because we give great deference to Congress in determining the

types and limits of punishments. Id. at 1256. Accordingly, the burden is on the

defendant to show that his sentence is grossly disproportionate to the crime

committed. Id. “In general, a sentence within the limits imposed by statute is


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neither excessive nor cruel and unusual under the Eighth Amendment.” United

States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (quoting United States v.

Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)).

      In this case, Waterson has not met his burden of showing that his sentences

are substantively unreasonable. Tome, 611 F.3d at 1378. The court placed great

emphasis on its need to protect the public, given the deeply disturbing nature of

Waterson’s crimes, and was entitled to weigh that factor more heavily than the

other § 3553(a) factors. Johnson, 803 F.3d at 618. The record supports the district

court’s concerns about the danger Waterson poses to the public. The PSI noted

that Waterson had openly pursued pedophilia and incest as far back as 2005.

Significantly, in committing the instant offense, Waterson took substantial steps

toward actually having sex with what he believed to be a 13-year-old girl,

demonstrating his willingness to pursue sex with a child. Further, the district court

expressed concerns over Waterson’s risk of recidivism. Those concerns are

supported by the record. Waterson committed the instant offense while on

probation, less than one year after he had been released from a term of

imprisonment related to conviction for another sexual offense. Waterson’s

forensic evaluation also suggests that he poses an average to above-average risk of

recidivism. From these record facts, the district court drew its conclusion that

Waterson poses a substantial risk to public safety. In light of these facts, we are


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not left with the “firm conviction” that the district court erred in imposing its

sentence, particularly given that the sentence imposed is within the Guideline

range, and not the maximum of life. Irey, 612 F.3d at 1190; Gall, 552 U.S. at 51.

      Nor has Waterson has shown that his sentence was disproportionate under

the Eighth Amendment. Waterson did not raise his Eighth Amendment claim

below, so we review only for plain error. Puckett v. United States, 556 U.S. 129,

135 (2009). Given that Waterson has not cited to any authority explicitly

rendering his sentence unconstitutional under the circumstances of his case, he has

not demonstrated that any alleged error was plain. United States v. Madden, 733

F.3d 1314, 1322 (11th Cir. 2013). Accordingly, his Eighth Amendment claim fails

under plain error review. Puckett, 556 U.S. at 135. Moreover, even if reviewed de

novo, Waterson’s claim fails. McGarity, 669 F.3d at 1255. He has failed to cite

any cases in which people who committed similar crimes were given dramatically

lower sentences, or explain how his own sentences are unreasonable. Moreover, in

light of the extremely serious nature of his offense, and the depth and longevity of

his sexual deviancy, Waterson has not demonstrated that his sentences, which fall

well within the Guidelines range, are excessive or cruel and unusual. Johnson, 451

F.3d at 1243.

      AFFIRMED.




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