                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-11885                ELEVENTH CIRCUIT
                                                          FEBRUARY 4, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                            ACTING CLERK

                 D. C. Docket No. 08-00030-CR-1-MP-AK

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CRAIG MATTHEW FEIGIN,

                                                         Defendant-Appellant.


                       ________________________

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

                            (February 4, 2010)

Before BIRCH, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Craig Matthew Feigin appeals his thirty-month, above-guideline sentence,

imposed after he pled guilty to unauthorized access of a computer and obtaining

information from a protected computer. After careful review of the record and the

parties’ briefs, we discern no reversible error and AFFIRM.

                                I. BACKGROUND

       A federal grand jury indicted Feigin on one count of intentionally accessing

a computer without authorization and obtaining information from a protected

computer in furtherance of a criminal act, in violation of 18 U.S.C. § 1030(a)(2)

and (c)(2)(B)(ii). R1-1. Feigin subsequently pled guilty pursuant to a written plea

agreement. R1-29. In the plea agreement, Feigin indicated that he understood the

statutory penalties he faced and that the court had the sole discretion to determine

his sentence after consideration of the Sentencing Guidelines. Id. at 2-3. In

exchange for Feigin’s plea, the government “agree[d] not to recommend a specific

sentence,” but:

       reserve[d] the right to advise the District Court and any other
       authorities of its version of the circumstances surrounding the
       commission of the offense . . . including correcting any misstatements
       by defendant or defendant’s attorney, and reserves the right to present
       evidence and make arguments pertaining to the application of the
       sentencing guidelines and the considerations set forth in Title 18,
       United States Code, Section 3553(a).

Id. at 3.



                                          2
      As part of the plea agreement, Feigin stipulated to the following facts.

Feigin secretly installed several computer software programs, including one named

“webcamspyhacker,” on a computer belonging to an adult female, Marisol Garcia,

without her knowledge. R1-29-2 at 1. These programs allowed Feigin to control

the web camera on Garcia’s computer remotely and to view and record her

activities without her knowledge. Id. The images obtained captured Garcia and

other persons in various stages of dress and undress and were stored on a computer

server located in the Czech Republic. Id. at 1-2. Feigin created a website through

which he advertised and sold the “webcamspyhacker” software program to other

individuals. Id. at 2.

      The probation officer prepared a presentence investigation report (“PSI”), in

which he calculated Feigin’s base offense level at six, pursuant to U.S.S.G.

§ 2B1.1(a)(2), and applied a two-level enhancement under § 2B1.1(b)(9) because

Feigin’s offense involved the relocation of a fraudulent scheme to another

jurisdiction and/or sophisticated means. The probation officer increased Feigin’s

offense level to twelve, as required by § 2B1.1(b)(9), and applied a two-level

increase under § 3B1.3 because his offense involved a special skill, namely,

knowledge of computer software and hardware. After receiving a two-level

decrease for acceptance of responsibility under § 3E1.1(a), Feigin had a total



                                          3
adjusted offense level of twelve, which, together with a criminal history category

of I, yielded a guideline range of ten to sixteen months of imprisonment. Feigin

also faced a statutory maximum term of five years of imprisonment under 18

U.S.C. § 1030(a)(2) and (c)(2)(B)(ii). The probation officer noted additionally that

Garcia had submitted a victim impact statement, in which she told the court that

she suffered from insomnia, paranoia, and anxiety, and had issues with trust and

insecurity as a result of Feigin’s conduct.

      At the sentencing hearing, Feigin made no objections to the PSI but

requested that the court vary downward from the guideline range and sentence him

to time served (three weeks) and supervised release with special conditions that

would ensure he did not misuse any technology to victimize others. R4 at 2-6.

Feigin personally apologized to Garcia and to the court for his actions. Id. at 6.

      The government then called Garcia, who testified that she met Feigin

through her sister-in-law, who lived with Feigin’s girlfriend, and gave him access

to her computer because he had a reputation for being very knowledgeable about

computers. Id. at 7, 8-9, 15. About a month later, she noticed that the computer

was “moving on its own,” and took it to a friend of hers who was an information

technology (“IT”) specialist. Id. at 10. The IT professional explored Garcia’s

computer and found installed on it a program that allowed others to access the



                                              4
computer remotely as well as motion detection software that caused the computer’s

web camera to automatically take pictures whenever she moved in front of her

computer. Id. at 10-11. The IT professional tracked the pictures to a remote

server, which contained over 10,000 pictures of her. Id. at 11. Garcia stated that

she was captured nude in some of the photographs. Id. Garcia subsequently

searched the internet and found that Feigin had posted a video of her with the

comment: “This is my girlfriend who at the time had no idea that I was filming her.

Afterwards[,] we had a big laugh about it.” Id. at 11-12 (quotation marks omitted).

Garcia described the video as a sales pitch, as Feigin had been promoting the

software programs. Id. at 12. She stated that some people had contacted her and

told her that she “deserved what [she] got; that they wanted to see the pictures;

[and that] they wanted to see what the whole hype was about.” Id. at 13. Garcia

testified that she has always had anxiety, but that it had “kicked in . . . hard” after

being victimized by Feigin. Id. at 13. She stated that she was receiving counseling

and taking medication to treat her anxiety. Id. at 13.

       The government’s counsel then made the following statement to the court:

             I’m very concerned, sir, that as unique as it may be in the
             age of technology in which we live, this is not the [last]
             time that the Court is going to be addressing this.

             So I’m concerned with respect to that, the precedence of
             the case, itself, and how this case will be looked at in the

                                            5
future and how the crime, itself, will be looked at in the
future.

Sir, the principal concern that I have, as I go through the
[PSI] and I look at the guidelines, is the fact that this case
and this crime, itself, is looked at as a financial crime
when in truth and in reality, it is anything but a financial
crime. This is really a crime upon a person. It is an
invasion of someone’s privacy. And it’s a crime that has
an impact on a victim and the kind of impact that isn’t
temporary and isn’t fleeting and isn’t just going to go
away, but [is] lasting and permanent.

This young woman has been victimized in this case and
she has gotten fallout . . . from people who have seen this
and solicited comments from her but that image is not
capturable again. You can’t recover it. This is
something that happened in the privacy of her own
bedroom and that privacy being violated . . . essentially
happens again and again and again when she comes
across these images, the videos and this setting. And I
think she very clearly explained to the Court the
emotional and psychological impact of the crime, itself.
Sir, none of those are factors that are considered by the
guidelines.

And typically — and I’m not saying this is anywhere
similar — but like in a child pornography crime when
images are dispatched and we know that the victims are
again and again victimized because those images are out
there, there is consideration in those types of cases for the
impact on the child, but not in these circumstances. And
that’s something . . . that needs to be brought to the
attention of the committee and have them address it and
determine if there should in fact be some consideration of
that. But, in the absence of that, sir, I ask the Court to
consider that under the [section] 3553(a) guidelines.



                              6
Id. at 15-17.

      For his part, Feigin argued that each of the multiple photographs taken of

Garcia was not an independent act, pointing out that, once the software was

installed, Garcia’s computer automatically took pictures upon detecting motion,

without any further action by him. Id. at 17. Feigin acknowledged that his actions

constituted an invasion of privacy, which he agreed was a serious offense, but

argued that the Sentencing Commission or Congress, not the court, should address

whether the Guidelines imposed a sufficient penalty. Id. at 17-18. Feigin argued

additionally that to the extent the government was advocating a specific sentence

when it urged the court to “come down especially hard on [Feigin,], its statements

violated the spirit, if not the letter, of the plea agreement. Id. at 18. The

government responded that it was not intending to argue for a specific sentence but

was merely making known to the court the relevant facts regarding the offense. Id.

      The court found that the PSI was “complete, true and accurate.” Id. It stated

that Feigin’s crime was one that “just keeps on giving,” as reflected by the victim’s

testimony. Id. It sentenced Feigin to thirty months of imprisonment, stating that it

varied from the guideline range “in consideration of all of the factors in 18 [U.S.C.

§] 3553(a) and all of the policy statements.” Id. at 18-19. Specifically, the court

found that “the guidelines [were] not sufficient for this crime as testified” and that



                                            7
[the thirty-month sentence] factors in the harm to Ms. Garcia. It is not a matter

considered in these guidelines or the policy statements. It justifies a sentence

outsider of the guidelines.” Id. at 19. Feigin did not object to the sentencing

proceedings or to the sentence itself. See id. at 24.

       The court’s judgment was entered on 10 April 2009. R1-41. The court

filed a statement of reasons for the sentence it imposed, indicating that it varied

upward based on extreme psychological injury under U.S.S.G. § 5K2.3, the

seriousness of the crime, and the harm to the victim. R2-42 at 2-3.

                                  II. DISCUSSION

      On appeal, Feigin argues that the government breached the plea agreement

because it failed to keep its agreement that it would not recommend or oppose a

particular sentence and would confine its remarks solely to the considerations

specified in the guidelines. He contends that the government violated the spirit of

the agreement by commenting on the sufficiency of the guidelines and the

§ 3553(a) factors, emphasizing factors that it acknowledged were not considered

by the guidelines, disparaging him by equating him to a child pornographer, and

presenting information that did not clarify events or resolve any ambiguity, as there

was no issue or fact in dispute or any statement that the government needed to

rebut. He posits that the government did not object to the PSI, which correctly



                                           8
characterized his offense as a financial one, did not indicate that the guidelines

were insufficient in any way, and did not recommend an upward variance. He

submits that the government’s comments impliedly advocated for a sentence

outside of the guideline range. Feigin also argues that the government’s intent and

any impact that the government’s statements had on the court were irrelevant,

because a breach of a plea agreement requires specific performance and is not

reviewed for harmless error, thus requiring that we remand the case for

resentencing under a different district court judge.

      “We review de novo whether the government breached a plea agreement.”

United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007) (per curiam). “The

government is bound by any material promises it makes to a defendant as part of a

plea agreement that induces the defendant to plead guilty.” United States v.

Taylor, 77 F.3d 368, 370 (11th Cir. 1996). “[W]hether the government violated

the agreement is judged according to the defendant’s reasonable understanding at

the time he entered his plea.” Id. (quotation marks and citation omitted). If the

parties dispute the meaning of the agreement, we interpret the terms of the plea

agreement based on objective standards, see United States v. Rewis, 969 F.2d 985,

988 (11th Cir. 1992), and any ambiguity “must be read against the government,”




                                           9
see United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (quotation

marks and citation omitted).

        A defendant is entitled to specific performance of an agreement which

induces his guilty plea. United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir.

1992). This is true regardless of whether the government’s breach had any effect

on the sentencing judge. See Santobello v. New York, 404 U.S. 257, 262-63, 92 S.

Ct. 495, 499 (1971) (remanding even though there was “no reason to doubt” the

sentencing court’s statement that the prosecutor’s recommendation, made in breach

of the plea agreement, did not influence its decision); United States v. Johnson,

132 F.3d 628, 630 (11th Cir. 1998) (per curiam) (noting that where the

government, not the sentencing court, violates a plea agreement, the court’s “acts

are not important to this issue”); but see Puckett v. United States, 556 U.S. ___,

___, 129 S. Ct. 1423, 1432 (2009) (stating that “breach of a plea deal is not a

‘structural’ error,” and is thus ordinarily subject to harmless error review). The

solemnization of a plea agreement does not, however, preclude the government

from disclosing relevant information to the sentencing court. Boatner, 966 F.2d at

1578.

        We have found that the government breached a plea agreement when the

plea agreement contained express obligations and the government’s affirmative



                                          10
actions contradicted those express terms. For example, in Rewis, we held that the

government’s statements at sentencing, which were unrelated to the underlying

offense and suggested a harsh sentence, violated its express agreement not to

recommend a sentence and went beyond its reserved right to make known to the

court relevant facts regarding the underlying offenses. 969 F.2d at 988. In

Johnson, we held that the government violated a plea agreement by becoming an

“enthusiastic advocate” for a “fact” at odds with a “fact” stipulated to by the

defendant in the plea agreement. 132 F.3d at 631 (holding that the prosecutor

breached an express term of the plea agreement by arguing at sentencing that the

defendant was responsible for a quantity of drugs greater than the amount

stipulated to in the plea agreement).

      We have found no breach in cases where the plea agreement contains less

express or specific language regarding the government’s rights and obligations. In

Thomas, we held that the government did not breach its agreement “not to

recommend a specific sentence” when it described the facts of the offenses and the

sentencing options available to the district court, and argued that running the

defendant’s sentences consecutively would be adequate to satisfy the § 3553(a)

factors. 487 F.3d at 1359-61. In so holding, we noted the plea agreement’s

language reserving the government’s “right to present evidence and make



                                          11
arguments pertaining to the application of the sentencing guidelines and the

considerations set forth in Title 18, United States Code, Section 3553(a).” Id. at

1360-61.1

       As an initial matter, we note that, contrary to the government’s assertion,

Feigin did challenge the government’s statements at sentencing as violating the

plea agreement. See R4 at 18. We thus review this issue de novo. Thomas, 487

F.3d at 1360.

       Here, the government agreed not to recommend a specific sentence, but

reserved “the right to advise the District Court . . . of the circumstances

surrounding the commission of the offense” and the “right to present evidence and

make arguments pertaining to the application of the sentencing guidelines and the

considerations set forth in Title 18, United States Code, Section 3553(a).” R1-29

at 3. At sentencing, the government never explicitly advocated for a particular

sentence and its comments regarding the nature of the crime fell within the scope

of its expressly reserved right to make arguments pertaining to the § 3553(a)



       1
          The factors outlined in § 3553(a) require a court to consider: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to afford adequate deterrence, to promote respect for the
law, to provide just punishment for the offense, to protect the public, and to provide the
defendant with needed educational or vocational training or medical care; (3) the kinds of
sentences available; (4) the Sentencing Guidelines’ range; (5) pertinent Sentencing Commission
policy statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to
provide restitution to victims. See 18 U.S.C. § 3553(a).

                                                12
sentencing factors. Moreover, the information the government presented was not

specifically precluded by the plea agreement, did not contradict stipulated facts,

and was relevant to the totality of Feigin’s criminal activities. Cf. Boatner, 966

F.2d at 1579 (holding that the government violated the plea agreement by

endorsing information that was specifically precluded by the plea agreement).

In sum, Feigin has failed to cite any promise in his plea agreement that was

breached when the government added the particular facts about his offense and

made remarks concerning the § 3553(a) factors. We therefore affirm as to this

issue.

         Next, Feigin argues that his sentence is procedurally unreasonable because

the district court failed to provide sufficient reasons for imposing a thirty-month

sentence, which was almost two times as great as the high end of the guideline

range. Relying on language in 18 U.S.C. § 3553(c), Feigin notes that the court was

required to provide reasons for the variance in open court and that post-sentencing

rationales were not adequate. He argues that the impact of his crime on the

individual and society already were factored into the guidelines, and that the

court’s “cryptic” comment that his crime “just kep[t] on giving” was not a factor

that the court could consider under § 3553(a). Appellant’s Brief at 33-34. Feigin

next argues that his above-guidelines sentence is substantively unreasonable given



                                           13
his lack of criminal history, his acceptance of responsibility, his otherwise

exemplary record as a productive member of society, the lack of societal purpose

that a long punishment served, and the fact that his offense was a “non-violent

computer crime.” Appellant’s Brief at 34-35, 38. He submits that the court’s

focus on a single factor — the harm to the victim — supports that his sentence was

unreasonable.

      In reply to the government’s waiver argument, Feigin argues that he did not

waive any claim of procedural error, as the caselaw relied on by the government

involved situations where defendants expressly withdrew objections, which did not

occur in his case. He argues that he sufficiently objected to preserve the issue, but

that, in any event, plain-error review would apply. He notes that the government

did not address the merits of his procedural reasonableness claim, and argues that

the court’s failure to articulate its reasons for a variance was plain error.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765

(2005). Whether inside or outside of the guidelines, we review a sentence for

reasonableness under an abuse-of-discretion standard. Gall v.United States, 552

U.S. 38, 51, 128 S. Ct. 586, 597 (2007). This review is deferential, and the

appellant bears the burden of establishing the absence of reasonableness in light of



                                            14
the record and the § 3553(a) factors. See United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008) (per curiam), cert. denied, 129 S. Ct. 2848 (2009).

      Review for reasonableness has two steps. First, we must “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.” Gall,

552 U.S. at 51, 128 S. Ct. at 597; United States v. Livesay, 525 F.3d 1081, 1093-94

(11th Cir. 2008) (holding that the district court committed procedural error by

failing to provide any reasoning or any indication of what facts it relied on to

justify a significant variance from the guidelines range). Second, we must

determine whether the sentence imposed is substantively reasonable based on the

factors in § 3553(a). Gall, 552 U.S. at 51, 128 S. Ct. at 597. Gall instructs that the

district court “must make an individualized assessment based on the facts

presented.” Id. at 50, 128 S. Ct. at 597. “The weight to be accorded any given

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

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation marks and

citation omitted).




                                          15
       Extraordinary circumstances are not required to justify a sentence outside

the Guidelines range. Gall, 552 U.S. at 47, 128 S.Ct. at 595. However, if the

district court decides that a sentence outside of the Guidelines range is warranted,

the district court is required to state its reasons for such a variance to allow for

meaningful appellate review. See id. at 50, 128 S. Ct. at 597; see also 18 U.S.C.

§ 3553(c) (providing that a district court “at the time of sentencing, shall state in

open court the reasons for its imposition of the particular sentence”). If the court

imposes a variance, it must “ensure that the justification is sufficiently compelling

to support the degree of the variance,” and a major variance “should be supported

by a more significant justification than a minor one.” Gall, 552 U.S. at 50, 128 S.

Ct. at 597.

      A district court must impose a sentence that is “sufficient, but not greater

than necessary,” to comply with the purposes set forth in § 3553(a)(2), namely, to

reflect the seriousness of the offense, promote respect for the law, provide just

punishment, afford adequate deterrence, protect the public from further crimes by

the defendant, and provide the defendant with appropriate correctional treatment or

medical care. See 18 U.S.C. § 3553(a)(2). The court must also consider other

factors in § 3553(a), as set out above. While a district court need not state on the

record that it has explicitly considered each § 3553(a) factor and need not discuss



                                            16
each factor, United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005), “the

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority,” United States v. Agbai, 497 F.3d 1226, 1230

(11th Cir. 2007) (per curiam) (quotation marks, alteration, and citation omitted).

We will vacate a sentence 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.” United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008) (quotation marks and citation omitted). The fact that we

“might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. “[A]

district court’s unjustified reliance on any one Section 3553(a) factor may be a

symptom of an unreasonable sentence.” Pugh, 515 F.3d at 1191. When

considering whether a defendant’s sentence is reasonable, we have compared the

sentence actually imposed to the statutory maximum. See, e.g., United States v.

Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006).

      Here, Feigin has not demonstrated that his sentence was procedurally

unreasonable. There is no dispute that the court properly calculated the guideline



                                          17
range of ten to sixteen months pf imprisonment, took into account the parties’

arguments, and treated the guidelines as advisory. See Gall, 552 U.S. at 51, 128 S.

Ct. at 597. Based on the victim’s testimony, the court stated, in open court, that it

had a better understanding of the damage and harm that Feigin’s actions caused,

which the court described as a harm that “just kep[t] on giving.” R4 at 18-19.

Moreover, the court stated that the harm to Garcia was not accounted for

adequately by the guidelines, indicating that a sentence in the guideline range

would be insufficient under the § 3553(a) factors. Id.; cf. Livesay, 525 F.3d at

1093. Although the reasons for the above-guideline sentence given by the court

are brief, they are nonetheless sufficient for adequate appellate review, given that

the court explained the grounds on which it relied to justify the variance. See Gall,

552 U.S. at 50-51, 128 S. Ct. at 597; Livesay, 525 F.3d at 1093. Therefore, the

district court did not commit a procedural error in sentencing Feigin.

      Feigin also has failed to demonstrate that his sentence is substantively

unreasonable. Evidence showed that Feigin’s conduct, while having a financial

aspect, was a deliberate invasion of privacy that had a lasting impact on the victim.

Specifically, the victim testified that over 10,000 pictures were taken of her, some

of her without clothing on, and that Feigin posted a video with images of her on the

internet for countless viewers to see. Based on the internet postings, she received



                                          18
unsolicited and distasteful messages, and suffered emotional and psychological

harm as a result. Feigin’s thirty-month sentence reflected the seriousness of the

offense, as shown by the harm to the victim, and was reasonably designed to insure

adequate deterrence for others who might contemplate similar criminal conduct.

See 18 U.S.C. § 3553(a)(2)(A), (B). Lastly, Feigin’s thirty-month sentence is

significantly lower than the statutory maximum sixty-month term under 18 U.S.C.

§ 1030(a)(2) and (c)(2)(B)(ii). See Valnor, 451 F.3d at 751-52; see also Gonzalez,

550 F.3d at 1321, 1324 (holding that a fifty-month sentence was reasonable in light

of a ten-year statutory maximum). Given the deference accorded to the district

court, we hold that Feigin’s thirty-month sentence was reasonable. See Pugh, 515

F.3d at 1191.

                               III. CONCLUSION

      Feigin appeals his thirty-month sentence for accessing a computer without

authorization and obtaining information from a protected computer. Because we

find that the government’s comments at sentencing did not violate the plea

agreement and because the sentence imposed was reasonable, we AFFIRM.




                                         19
