                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                      ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 11-14404         ELEVENTH CIRCUIT
                                                     APRIL 27, 2012
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                        CLERK

                D.C. Docket No. 1:11-cr-00217-JOF-JFK-1

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,

                                  versus



MARK STANLEY BAILEY

                                                          Defendant-Appellee.


                     __________________________

            Appeal from the United States District Court for the
                       Northern District of Georgia
                      _________________________

                             (April 27, 2012)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
      Mark Stanley Bailey appeals his 300-month sentence, imposed below the

applicable guideline range, after pleading guilty to one count of receipt and/or

distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1).

Bailey argues that his 300-month sentence is substantively unreasonable, because: (1)

his sentence was greater than necessary to satisfy the § 3553(a) factors, thus violating

the “parsimony principle,” when his offense level and criminal history was increased

simultaneously by his prior child molestation conviction for molesting his daughter

on multiple occasions and a second minor offense, raising the guideline range from

188 to 235 months to 324 to 405 months; (2) his health problems, including high

blood pressure, spinal stenosis, diabetes, and tremors, limit his mobility and, thus,

make him more vulnerable in prison; and (3) deterrence and protection of the public

could be achieved through supervised release rather than imprisonment. After careful

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)). We may “set aside a sentence only if we determine, after giving a full

measure of deference to the sentencing judge, that the sentence imposed truly is

unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc),


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cert. denied, 131 S.Ct. 1813 (2011). Bailey bears the burden of demonstrating that his

sentence is unreasonable. United States v. Turner, 626 F.3d 566, 573 (11th Cir.

2010).

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

Pugh, 515 F.3d 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

       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.’” Pugh, 515 F.3d at 1190


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         Under 18 U.S.C. § 3553(a), the district court must impose a sentence “sufficient, but not
greater than necessary to comply with the purposes” listed in § 3553(a), which 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 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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(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 Irey, 612 F.3d

at 1190. A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008).

      We have criticized the use of the phrase “parsimony principle” for the language

in § 3553(a) that a sentence be “sufficient, but not greater than necessary.” Irey, 612

F.3d at 1196-97. As we explained, the “parsimony principle” phrasing “tends to slant

the discussion towards shorter sentences by emphasizing only” the need to avoid

sentences that are too long. Id. at 1197.


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      In this case, Bailey has not shown that his sentence is unreasonable. As for

procedural reasonableness, the sentencing court properly calculated the guideline

range, treated the guidelines as advisory, considered the § 3553(a) factors, and

explained the reason it imposed a below-guideline sentence. Further, as provided for

in the Guidelines, the court correctly used Bailey’s prior molestation conviction to

enhance his offense level and as part of his criminal history category calculation.

U.S.S.G. § 2G2.2, comment. (n.3) (2010) (“A conviction taken into account under

subsection (b)(5) is not excluded from consideration of whether that conviction

receives criminal history points pursuant to Chapter Four, Part A (Criminal History)”).

Thus, those enhancements were properly applied to Bailey’s offense level

calculations.

      Bailey’s sentence is also substantively reasonable. His 300-month (25 year)

sentence was well below the 40-year statutory maximum term of imprisonment, and

thus is an indicator that such a sentence is reasonable. Gonzalez, 550 F.3d at 1324.

The sentence also met the goals encompassed in § 3553(a).              As the record

demonstrates, the court considered Bailey’s arguments regarding his health and age,

and decided that these factors were outweighed by the need to protect the public and

the seriousness of the offense. In particular, the court expressed concern about

Bailey’s prior molestation conviction, which raised public safety issues. In addition,


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the court said that an 188-month sentence would not necessarily protect the public or

deter Bailey from engaging in future child pornography, because there are elderly men

involved in child pornography and, therefore, old age will not necessarily change

Bailey’s behavior. The record thus shows that the sentence reflected a proper

balancing of the § 3553(a) factors, and the court committed no clear error of judgment

in weighing the factors. Irey, 612 F.3d at 1189. Accordingly, we affirm.

      AFFIRMED.




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