           Case: 13-12629   Date Filed: 03/28/2014   Page: 1 of 21


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12629
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:12-cr-00234-CEH-TBS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ANDREW BEASLEY,

                                                          Defendant-Appellant.

                       ________________________

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

                             (March 28, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Andrew William Beasley appeals his total 115-month sentence imposed

after he pled guilty to one count of receipt of child pornography, in violation of 18

U.S.C. § 2252A(a)(2)(A) and (b)(1), and one count of possession of child

pornography, in violation of § 2252A(a)(5)(B) and (b)(2). On appeal, Beasley

argues that his 115-month sentence, 36 months below the advisory guidelines

range: (1) is procedurally unreasonable because the district court miscalculated his

offense level under U.S.S.G. § 2G2.2(b); and (2) is substantively unreasonable.

After review, we affirm.

                           I. BACKGROUND FACTS

A.    Beasley’s Offenses

      In January 2012, a special agent conducting an online child pornography

investigation located an IP address for a computer that possessed image and movie

files previously identified as child pornography in other investigations. After

entering the IP address into the Internet Crimes Against Children (“ICAC”)

database, the special agent found that the IP address had logged on to a peer-to-

peer file sharing network called “E-Donkey” over “4,000 times from June 16, 2011

to February 17, 2012, with more than 1,000 different image or movie files on E-

Donkey network.” After comparing those 1,000-plus files to those in the ICAC

database, the special agent found two files, in particular, that were previously

identified as child pornography and had file names indicative of child


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pornography. The special agent downloaded those two files from available “E-

Donkey” network hosts. The two files were videos containing child pornography.

       After linking the IP address to Beasley’s Florida residence, two special

agents executed a search warrant there. During his interview, Beasley initially

denied downloading and viewing images of child pornography and offered to get

his laptop and external media so the agents could preview it. However, to preserve

the forensic integrity of the evidence, agents told Beasley not to touch any

computer equipment. After being advised of his Miranda rights, Beasley admitted

that he had collected images and videos of child pornography since the early 1990s

and had over 40,000 child pornography images.

       During the search, the agents found a Compaq laptop computer and a Dell

computer in Beasley’s room. The laptop computer had an external hard drive

where Beasley said he stored his child pornography collection on a file called

“EMD,” which stood for “eMule downloads.” 1 A forensic examination of the two

computers revealed that: (1) the Dell computer contained 163 videos and 1,919

images depicting child pornography, some containing bestiality and bondage; (2)

the Compaq laptop contained one movie and 226 images depicting child




       1
         The presentence investigation report (PSI) referred to “E-Donkey.” At sentencing, the
parties referred to eMule, which is a free peer-to-peer file sharing program for Microsoft
Windows that connects to the eDonkey file-sharing network.
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pornography; (3) the external hard drive contained 103 movies and 4,260 images

depicting child pornography, some containing bestiality or bondage.

       In total, Beasley’s computers had 267 movies and 6,405 images of child

pornography. The forensic examination revealed that on November 29, 2010,

Beasley used eMule, a peer-to-peer file sharing program, to receive three movie

files containing child pornography. 2

B.     Charges and Guilty Plea

       The indictment charged Beasley with receipt of child pornography (Count

One) and possession of child pornography (Count Two). Count One alleged that,

on November 29, 2010, Beasley knowingly received three computer files (i.e., the

three movies the forensic examination showed Beasley downloaded using a peer-

to-peer file sharing program), that were shipped or transported by computer using

the Internet. Count Two alleged that, on February 15, 2012, Beasley knowingly

possessed computer images of child pornography that were shipped or transported

by computer using the Internet.



       2
          A peer-to-peer (or P2P) network allows users to share files directly over the Internet
using a software program. United States v. Vadnais, 667 F.3d 1206, 1208 (11th Cir. 2012).
“The software permits users to search for files located in the shared folder that is created by the
software on the computers of the other users, and when found, the requesting user can download
the file directly from the computer located. The copied file is placed in a designated sharing
folder on the requesting user’s computer, where it is available for other users to download in
turn, along with any other file in that folder.” Id. (quoting Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 919-21, 125 S. Ct. 2764, 2770-71 (2005) (citations and internal
quotation marks omitted)).
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      Without a plea agreement, Beasley pled guilty to both counts. At the plea

hearing, Beasley stated that he knowingly downloaded images of child

pornography. Beasley admitted the government’s factual basis for the plea,

summarized above.

C.    PSI

      The probation officer’s PSI recounted the facts contained in the

government’s factual basis for the plea. The PSI calculated a total offense level of

34 under U.S.S.G. § 2G2.2.

      Specifically, the PSI assigned Beasley: (1) an offense level of 22, pursuant

to U.S.S.G. § 2G2.2(a)(2); (2) a two-level increase under § 2G2.2(b)(2) because

the pornographic material involved a prepubescent minor; (3) a two-level increase,

under § 2G2.2(b)(3)(F), because the offense involved distribution of child

pornography, other than distribution for pecuniary gain, thing of value, or to a

minor; (4) a four-level increase, under § 2G2.2(b)(4), because the offense involved

material that portrayed sadistic or masochistic conduct; (5) a two-level increase,

under § 3G2.2(b)(6), because the offense involved the use of a computer; and (6) a

five-level increase, under § 3G2.2(b)(7)(D), because the offense involved over 600

images. The PSI recommended a three-level reduction, pursuant to U.S.S.G.

§ 3E1.1, for acceptance of responsibility.




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      With a total offense level of 34 and a criminal history category of I,

Beasley’s advisory guidelines range was 151 to 188 months’ imprisonment.

Pursuant to 18 U.S.C. § 2252A(b)(1), Count One had a mandatory minimum

sentence of five years and a maximum of twenty years. Pursuant to § 2252A(b)(2),

Count Two had a maximum sentence of ten years.

C.    Beasley’s Objections

      Beasley objected to paragraph 32 of the PSI, which applied the two-level

“distribution” increase under U.S.S.G. § 2G2.2(b)(3)(F). Beasley also objected to

the PSI’s failure to give the two-level reduction under U.S.S.G. § 2G2.2(b)(1),

which applies when the defendant’s conduct is limited to solicitation or receipt of

child pornography and the defendant “did not intend to . . . distribute” the child

pornography. See U.S.S.G. § 2G2.2(b)(1).

      As to distribution, Beasley contended that, although he used a peer-to-peer

file sharing program, eMule, on his computer,“[t]here [was] no evidence that Mr.

Beasley knowingly shared his files with others.” Beasley pointed out that he “did

not participate in internet chat rooms in which he traded images with others, and he

did not purposely send images to others.”

      In addition, Beasley argued that the district court should vary downward and

impose the mandatory minimum five-year sentence. As mitigating factors,

Beasley stressed that: (1) he had no criminal history; (2) he suffers from pervasive


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developmental delays, Asperger’s Syndrome, ADHD, anxiety, and depression; (3)

although he has an IQ of 137, he has the social maturity of a 15-year-old; (4) as a

child, he became socially isolated due to his odd behaviors and instead socialized

on the Internet; (5) he idolized his father, who was a sexual voyeur who exposed

his son to child pornography at an early age; (6) his obsessive-compulsive behavior

contributed to his inability to stop viewing child pornography images once he

realized it was wrong; (7) after his father died of cancer, his depression and anxiety

worsened, he was hospitalized for suicidal ideation, and he was unable to work; (8)

he sought counseling, participated in psychological evaluations and treatment, and

hoped to continue counseling in prison; (9) he has a strong support network of

family and friends, reflected in letters submitted to the court; and (10) according to

Dr. Robert Cohen’s evaluation, Beasley was a low risk of recidivism with proper

therapy and medication.

D.    Addendum to the PSI

      In response, the probation officer prepared an addendum to the PSI stating

that the PSI’s offense-level computation was correct. To support the

§ 2G2.2(b)(3)(F) two-level “distribution” increase in paragraph 32 and lack of a

§ 2G2.2(b)(1) reduction, the probation officer added these facts: (1) Beasley “used

peer to peer fil[e] sharing in the commission of the offense”; (2) his “files are made

available to others using the file sharing program in exchange for access to their


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files”; and (3) Beasley “used the peer to peer to receive child pornography and

other users were able to access his files containing child pornography.” Simply

put, the probation officer contended that distribution was shown where a defendant

installed a file sharing program that allowed others to access the defendant’s files

even if the defendant himself did not actually forward any files to others.

E.    Sentencing Court’s Resolution of Beasley’s Objections

      At the sentencing hearing, Beasley had no objections to the facts contained

in the PSI. When the district court asked for objections “as to the application of

the guidelines,” Beasley renewed his two objections to the PSI’s offense-level

calculation. Beasley’s counsel acknowledged that “the 11th Circuit is against me”

and explained that he was raising the objection in case the law changed as result of

a 2012 Sentencing Commission Report.

      The Report cited by Beasley stated that “every court of appeals that has

addressed the issue has held that a defendant’s knowing use of a P2P file-sharing

program that allows others to have access to child pornography files on the

defendant’s computer qualifies as ‘distribution’ even if the defendant only made

his illegal files available to strangers on the P2P network.” U.S. Sentencing

Commission, Report to Congress: Federal Child Pornography Offenses, Ch. 2B2,

at 33 (December 2012). The Report added that “[p]ut another way, the distribution

enhancement applies even if a defendant did not intend to distribute so long as he


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possessed knowledge that, by participating in a P2P file-sharing program whereby

he could access others’ files, he was making his child pornography files accessible

to others in the P2P network.” Id. However, the Report stated that the current

version of U.S.S.G. § 2G2.2 is outdated in light of technological advances and

recommended revisions. See generally id., Ch. 12.

      Beasley’s counsel argued that Beasley should receive the two-level

reduction because, other than the fact that he had the eMule software program on

his computer, there was no evidence Beasley intended to distribute child

pornography to other users. Beasley’s counsel added, “There’s no chat rooms.

There was no active role in trading and soliciting from others via e-mail or chats.”

      The prosecutor responded that Beasley’s use of “the peer-to-peer shared

folder” in the eMule peer-to-peer file sharing program disqualified him for the

§ 2G2.2(b)(1) reduction because it showed he intended to distribute. The

prosecutor stated that Beasley “knew and understood that using that peer-to-peer

shared folder would allow others to go into his shared folder, as well as him

soliciting or receiving or downloading that information from other people’s shared

folders . . . .” The prosecutor contended that the § 2G2.2(b)(3)(F) increase was

appropriate “because the defendant used that peer-to-peer file sharing network,”

and “the 11th Circuit has been very clear with regard to this in that the two-level

enhancement is used on the peer-to-peer shared file.”


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      The district court commented that the parties “acknowledge[d] that the case

law in the 11th Circuit has addressed that issue with regard to the distribution and

the fact that the defendant used the peer-to-peer file sharing in the commission of

the offenses with which he’s been adjudicated guilty.” The prosecutor summarized

her argument, stating that it was Beasley’s “use of this peer-to-peer shared drive”

that was an “act of distribution” requiring the two-level increase. Defense counsel

did not dispute the prosecutor’s statements about Beasley’s use of the peer-to-peer

“shared folder.”

      The district court overruled Beasley’s objections given it was undisputed

that Beasley used the eMule peer-to-peer file sharing program “and that others

were able to access his files containing the child pornography.” The district court

stated that it had resolved Beasley’s objections to the “probation officer’s

application of the guidelines” and that there were “no objections to the facts

contained in the presentence report.” The district court adopted the PSI’s facts as

the court’s findings of fact and found that Beasley’s total offense level was 34, his

criminal history was category I, which resulted in an advisory guidelines range of

151 to 188 months.

F.    Imposition of the 115-Month Sentence

      Beasley argued for a downward variance. Personally addressing the district

court, Beasley accepted full responsibility for his actions and promised that he was


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“never going to do what [he] did again.” Through counsel, Beasley discussed his

difficult family and social background and explained that his mental health

disorders made him unable to control conduct he knew was wrong. Beasley

explained that with the support of his family and friends and with his desire for

treatment, he was unlikely to reoffend. Beasley emphasized that he had not

accessed child pornography since the special agents’ interview, even though he

purchased a new laptop and viewed adult pornography with it.

      The government requested a sentence within the guidelines range, noting

that Beasley suffers from obsessive-compulsive disorder and a “chronic addiction

to pornography.” Although Beasley was “contrite,” he nevertheless purchased a

new laptop after moving to his mother’s home in New York, following the special

agents’ interview and seizure of his Florida computers. A forensic examination

revealed that the new laptop contained nine thumbnail images of child

pornography in unallocated space, in addition to large amounts of adult

pornography. A forensic examination of other computers found in Beasley’s

possession at his mother’s residence revealed a significant number of older child

pornography files. Although these older computers’ registries showed that the files

were last accessed in 2006, 2008, or 2010, Beasley still could have been charged

with possessing them. The government asked the district court to consider these




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newly discovered images as relevant conduct, but agreed that they did not change

Beasley’s guidelines calculations.

      Beasley responded that: (1) there was no evidence that he viewed child

pornography on the new laptop; (2) the presence of the thumbnail images in the

unallocated space was consistent with someone visiting adult pornography

websites or downloading large amounts of adult pornography; (3) those thumbnail

images may be included in a cache of adult pornography that he downloaded; and

(4) the forensic report did not reveal any search terms for child pornography or any

files containing child pornography in the recent folder or the recycle bin.

      The district court was concerned about Beasley’s new laptop purchase

because it seemed inconsistent with Dr. Cohen’s opinion that Beasley was unlikely

to reoffend and Beasley’s allocution that he resolved to never look at child

pornography again. The district court acknowledged, however, that there was no

evidence Beasley had viewed child pornography on the new laptop and stated that

Beasley’s seemingly inconsistent conduct could be attributed to his “severe

addiction problem” with pornography. Beasley explained that his new laptop

purchase was not inconsistent with his low risk of recidivism because he used the

new laptop only to play online games, chat with friends on social networking

websites, and look at adult pornography, which, unlike child pornography, is not

against the law.


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      The district court then proceeded to consider the § 3553(a) factors, including

(1) Beasley’s difficult upbringing; (2) his disabilities; (3) the bullying he

experienced; (4) his father’s voyeurism and influence on his sexual morality; and

(5) Dr. Cohen’s report diagnosing Beasley with Asperger’s syndrome, major

depressive disorder, anxiety disorder, and ADHD and indicating that Beasley is at

a low risk of recidivism. The district court also considered the nature of Beasley’s

offense, stressing that this case was serious given the significant number of images.

The district court ultimately granted a downward variance of 36 months and

sentenced Beasley to two concurrent terms of 115 months’ imprisonment, followed

by ten years of supervised release.

      The district court listed its reasons for the variance, including the nature and

circumstances of the offense, Beasley’s history and characteristics, including his:

(1) mental health issues; (2) exposure to his father who was a negative influence;

(3) difficult teenage years; (4) depression; (5) voluntarily committing himself three

times for suicidal ideation; (6) “self-rehabilitation”; (7) low risk of recidivism

documented in Dr. Cohen’s report; and (8) lack of criminal history, particularly the

lack of “history of inappropriate contact offenses, particularly contact offenses

with minors.”




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       The district court asked the parties whether there were any objections to the

sentence imposed. Beasley’s counsel stated, “Just for the record, Your Honor, as

to procedural and substantive unreasonable[ness].”

                                       II. DISCUSSION

A.     Distribution Enhancement Under U.S.S.G. § 2G2.2(b)(3)(F)

       Beasley argues that the district court erred in applying the two-level

distribution increase and in denying a two-level reduction for lack of intent to

distribute.3 Section 2G2.2 applies to child pornography offenses. For a defendant,

like Beasley, convicted of receiving child pornography, U.S.S.G. § 2G2.2(b)(1)

provides a two-level reduction in the offense level if, among other things, “the

defendant’s conduct was limited to the receipt or solicitation of” child

pornography, and “the defendant did not intend to traffic in, or distribute, such

material.” U.S.S.G. § 2G2.2(b)(1) (emphasis added).

       If, however, the defendant’s offense involved “[d]istribution” of child

pornography, § 2G2.2(b)(3) calls for an offense-level increase depending on the

nature of that distribution. Specifically, a five-level increase applies if the offense

involved distribution that was for pecuniary gain or the receipt of a thing of value

or was to a minor; a six-level increase applies if the distribution was to a minor and


       3
        “We review the district court’s findings of fact for clear error and its application of the
Sentencing Guidelines de novo.” United States v. Newman, 614 F.3d 1232, 1235 (11th Cir.
2010) (quotation marks omitted).
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was intended to entice the minor to engage in any illegal activity; and a seven-level

increase applies if the distribution was to a minor and was intended to entice the

minor to engage in sexual conduct. U.S.S.G. § 2G2.2(b)(3)(A)-(E). If the offense

involved distribution “other than” for pecuniary gain, for a thing of value, or to a

minor, the district court imposes a two-level increase. Id. § 2G2.2(b)(3)(F).

      An application note to § 2G2.2 defines “distribution” as “any act, including

possession with intent to distribute, production, transmission, advertisement, and

transportation, related to the transfer of material involving the sexual exploitation

of a minor.” Id. § 2G2.2, cmt. n.1. The note states that “distribution includes

posting material involving the sexual exploitation of a minor on a website for

public viewing but does not include the mere solicitation of such material by a

defendant.” Id.

      This Court already has addressed when the use of a peer-to-peer file sharing

program constitutes “distribution” under § 2G2.2(b), albeit in the context of the

five-level increase for distribution for a non-pecuniary thing of value. In United

States v. Spriggs, the defendant used a peer-to-peer file sharing program called

“Shareaza 2.0.” Spriggs, 666 F.3d 1284, 1286 (11th Cir. 2012). This Court

concluded that to establish “distribution,” the government need not prove that

another peer-to-peer network user actually downloaded a child pornography file

from the defendant’s computer. Id. at 1287. Rather, “[a]llowing files to be


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accessed on the Internet by placing them in a file sharing folder is akin to posting

material on a website for public viewing. When the user knowingly makes the

files accessible to others, the distribution is complete.” Id.

       Although the Spriggs Court determined that there was “distribution,” it

nonetheless concluded that the district court erred in applying the five-level

increase because there was no evidence that there was a transaction (i.e.,

exchanging child pornography with another user) for “a thing of value.” Id. at

1288-89 (explaining the guidelines contemplate a transaction conducted for

valuable consideration, not free access, to receive the five-level increase under

§ 2G2.2(b)(3)(B)). Because the two-level increase in U.S.S.G. § 2G2.2(b)(3)(F),

like the five-level increase in § 2G2.2(b)(3)(B), requires “distribution,” Spriggs’s

interpretation of that term to include “knowingly mak[ing] the files accessible to

others” through the use of a peer-to-peer file sharing program applies here. 4

       At Beasley’s sentencing hearing, it was undisputed that: (1) he knowingly

installed and used the peer-to-peer file sharing program eMule on his computer to

download child pornography; and (2) he made his own child pornography files

       4
         Three days after Spriggs, this Court decided United States v. Vadnais, in which another
defendant challenged the district court’s application of the five-level increase in
§ 2G2.2(b)(3)(B) based on his use of a peer-to-peer file sharing program called Limewire.
Vadnais, 667 F.3d 1206, 1207 (11th Cir. 2012). In Vadnais, the defendant did not dispute that
his use of Limewire was sufficient to establish “distribution” for purposes of the two-level
increase in § 2G2.2(b)(3)(F). Id. at 1209. The Vadnais Court concluded that “while the facts on
this record clearly support the two-level distribution enhancement, they cannot support the
additional inference that the distribution was for the expectation of receiving a thing of value
necessary for the five-level increase enhancement.” Id. at 1210.
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accessible to other eMule users. Under Spriggs, these facts were sufficient to

support the application of the two-level distribution enhancement. At sentencing,

Beasley argued that a more active role, such as using e-mail or chat rooms to trade

images, was necessary to show distribution. Beasley’s argument, however, is

foreclosed by Spriggs, which concluded that making child pornography files

accessible to other peer-to-peer network users is enough to constitute distribution

for purposes of § 2G2.2(b)(3). Indeed, at sentencing, Beasley’s counsel

acknowledged that his argument was foreclosed by our precedent.

      For the first time on appeal, Beasley argues that the government was

required to offer evidence that he knowingly made his child pornography files

accessible to other eMule users. This argument lacks merit because at the

sentencing hearing Beasley never made an objection that triggered the

government’s obligation to offer any evidence in support of the increase. At the

sentencing hearing, Beasley’s objection to his offense level calculation was a legal

one, not a factual one. See United States v. Bennett, 472 F.3d 825, 833-34 (11th

Cir. 2006) (concluding that the defendant waived his objection to the facts relating

to his prior convictions contained in the PSI and PSI addendum because he did not

object to them despite several opportunities to do so and instead at sentencing

stated that his objection “rested not on a dispute regarding the facts of those

convictions,” but on a legal argument as to whether those convictions were


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“serious enough to warrant the classification [as an armed career criminal]”);

United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009); United States v.

Norris, 50 F.3d 959, 962 (11th Cir. 1995) (explaining that failure to object to the

PSI’s fact findings precludes appellate review of that issue).

      The probation officer even prepared an addendum to the PSI clarifying that

Beasley used the eMule peer-to-peer file sharing program to download child

pornography and “other [eMule] users were able to access [Beasley’s] files

containing child pornography.” Beasley never objected to this statement in the

PSI’s addendum, either in writing or orally at the sentencing hearing. In fact, at

the beginning of the sentencing hearing, Beasley confirmed that he did not dispute

the facts contained in the PSI, which at this point included the PSI addendum.

Beasley further acknowledged that “the case law, and the 11th Circuit [was]

against [him]” as to the two-level distribution enhancement and that he was

making his legal argument “for the record should the law change.”

      And, Beasley continued to raise no factual objection, even when both the

prosecutor and the district court stated on the record that it was undisputed that

Beasley had made his files accessible to other eMule users. Indeed, before

overruling Beasley’s objections to the PSI, the district court stated that “there

certainly is no objection with regard to the facts in this case that Mr. Beasley used

a peer-to-peer file sharing” and “that others were able to access his files containing


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the child pornography.” Yet, even at this point, Beasley did not raise a factual

objection. Beasley did not dispute at all, much less with “specificity and clarity,”

the fact that he knowingly allowed other eMule users to have access to his child

pornography files.

      On the particular record before us, we cannot say the district court erred in

applying the § 2G2.2(b)(3)(F) increase and denying the § 2G2.2(b)(1) reduction.

B.    Reasonableness

      We review the reasonableness of a sentence for an abuse of discretion using

a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error, such as miscalculating the advisory guidelines range, treating the guidelines

as mandatory, failing to consider the 18 U.S.C. ' 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to explain adequately the

chosen sentence. Id.

      Then, we examine whether the sentence is substantively unreasonable under

the totality of the circumstances. Id. Although we do not automatically presume a

sentence within the guidelines range is reasonable, we ordinarily expect such a

sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.

2008). A sentence imposed well below the statutory maximum is another indicator

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


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(11th Cir. 2008). The defendant bears the burden to show his sentence is

unreasonable in light of the record and the ' 3553(a) factors.5 United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

       Beasley’s procedural reasonableness claim rests on his challenge to the

calculation of his offense level under § 2G2.2(b)(1) and (b)(3)(F). As discussed

above, that challenge is unavailing. Accordingly, Beasley has not shown that his

sentence is procedurally unreasonable.

       As to substantive reasonableness, Beasley contends that the district court

focused on his new laptop purchase “to the exclusion of the other sentencing

factors,” and punished Beasley for viewing adult pornography on the new laptop. 6

The sentencing transcript belies this claim.

       Although the district court initially discussed Beasley’s new laptop purchase

in light of the likelihood of recidivism, the record indicates that the court did not

do so “single-mindedly,” “to the detriment of” the other § 3553(a) factors, and with


       5
         The § 3553(a) factors include: (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 promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. ' 3553(a).
       6
          Although Beasley’s brief frames this issue as a procedural reasonableness challenge, it is
in fact a substantive reasonableness challenge. See United States v. Irey, 612 F.3d 1160, 1194
(11th Cir. 2010) (en banc) (“[S]ubstantive review exists, in substantial part, to correct sentences
that are based on unreasonable weighing decisions.”)
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              Case: 13-12629    Date Filed: 03/28/2014   Page: 21 of 21


undue weight. See United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006)

(concluding that the district court’s single-minded focus on only one factor resulted

in an unreasonable sentence). Instead, as outlined above, the district court

extensively considered a number of other § 3553(a) factors, many of them

mitigating.

      Moreover, Beasley has not shown that the district court’s decision to impose

a 115-month sentence was an abuse of its discretion in light of the record and the

§ 3553(a) factors. Beasley’s sentence was 36 months below the advisory

guidelines range of 151 to 188 months and well below the twenty-year statutory

maximum, both indications of a reasonable sentence. See United States v. Hunt,

526 F.3d 739, 746 (11th Cir. 2008); United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008). As the district court noted, Beasley’s offenses involved

thousands of images of child pornography. Beasley admitted collecting child

pornography for about twenty years, and investigators found 6,405 images and 267

movies on the computer media at his Florida home, some depicting bestiality or

bondage. Under the totality of the circumstances, we cannot say the district court

committed a clear error of judgment and imposed a sentence outside the range of

reasonable sentences.

      AFFIRMED.




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