                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 11-12948              MARCH 22, 2012
                                        Non-Argument Calendar           JOHN LEY
                                      ________________________           CLERK

                           D.C. Docket No. 6:10-cr-00082-GAP-DAB-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff–Appellee,

                                                versus

ROBERT A. HOWARD, JR.,

lllllllllllllllllllllllllllllllllllllll                          lDefendant–Appellant.

                                     ________________________

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

                                           (March 22, 2012)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         After a jury found Robert Howard, Jr., guilty of one count of possessing and
one count of receiving child pornography, in violation of 18 U.S.C.

§§ 2252(a)(2)(B) and (a)(5)(B), respectively, the district court sentenced him to

151 months’ imprisonment. Howard appeals that sentence, arguing that it is

substantively unreasonable. We disagree and therefore affirm the sentence.

                                          I.

      Based upon a tip from family members, Brevard County, Florida, police

interviewed Howard’s adopted daughters. One indicated that Howard had shown

her sexually explicit photographs of children and had coaxed her to pose nude for

photographs. A search of Howard’s computer found images later determined to be

child pornography. The state of Florida charged Howard with, among other

things, sexual battery of a victim less than 12 years of age and sexual battery of a

child by a person in familial or custodial authority. Howard maintained his

innocence, but pleaded nolo contendere in February 2009 to sexual battery of a

child by a person in familial or custodial authority and to one count of possession

of child pornography. He was sentenced to four years’ imprisonment.

Subsequently, Howard was indicted for the federal charges that resulted in the

sentence he challenges in this appeal.

      After Howard was convicted, a presentence investigation report (PSI) was

prepared, which recommended a sentencing guidelines range that began and ended

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with the statutory maximum. The PSI also set forth in detail the conduct described

in the investigative reports that resulted in Howard’s conviction on the state

charges. At the sentencing hearing, Howard presented to the court a guidelines

range different from that set forth in the PSI based on an agreement that he had

reached with the government. As part of that deal, Howard expressly agreed to the

inclusion of a five-level increase for engagement in a pattern of activity involving

the sexual abuse or exploitation of a minor. See U.S.S.G. § 2G2.2(b)(5). The

court accepted that calculation, but overruled all of Howard’s factual objections to

the PSI and adopted it. Howard then argued that the facts that led to his state

conviction were “relevant conduct” in this case and requested a further four-level

decrease to account for his punishment on those charges. The court accepted

Howard’s contention and assigned him an offense level of 34, which supplied a

guidelines range of 151-188 months.

      The government presented the testimony of Howard’s adopted daughter,

who read from a prepared statement. She recounted how Howard had abused her,

by, among other things, forcing her to watch child pornography with him and

imitate what she saw while he took photographs. The government also offered,

without objection, one of those photographs.

      Howard argued for a further downward variance, asserting that he had

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already served his time and was required to register as a sex offender. He also

directed the court to a letter, which the court acknowledged having reviewed,

submitted by his wife, which said that Howard was a good man who had

contributed to society and that she needed Howard to care for her because she was

disabled.

      After argument from counsel, the court stated that it had considered the

factors outlined under 18 U.S.C. § 3553(a). Noting that it had already granted two

decreases from the PSI’s recommended guidelines range, the court determined

that, based upon “the facts, the statement of the victim, the argument of counsel,”

and the PSI, no further deviation downward was warranted. Howard, the court

noted, was “not just a looker, but, from the facts presented, . . . has been a doer”

because he abused his own adopted child. That aggravating factor, the court said,

“overrides the balance of any mitigating factors and suggests that a guideline

sentence in this case is appropriate.” Thus, finding that the sentence was

“consistent with the statutory objectives of § 3553(a),” the court sentenced

Howard to 151 months’ imprisonment followed by 15 years’ supervised release.

                                          II.

      We review a claim that a sentence is substantively unreasonable for abuse of

discretion. United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en

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banc), cert. denied 131 S. Ct. 1813 (2011). Our review is based upon the factors

outlined in 18 U.S.C. § 3553(a), id., which include, among other considerations,

“the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment of the offense, deter criminal conduct, [and] protect the

public from the defendant’s future criminal conduct,” as well as “the nature and

circumstances of the offense, the history and characteristics of the defendant, the

applicable guidelines range, and the need to avoid unwarranted sentencing

disparities.” United States v. White, 663 F.3d 1207, 1217 (11th Cir. 2011). “[T]he

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Langston, 590 F.3d 1226, 1237

(11th Cir. 2009) (internal quotation marks omitted).

      A sentence is substantively unreasonable only if the district court failed to

consider relevant factors that were due significant weight, gave significant weight

to an improper factor, or balanced the factors it properly considered unreasonably.

Irey, 612 F.3d at 1189. “[T]here is a range of reasonable sentences from which

the district court may choose . . . .” United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). “We ordinarily expect a sentence within the Guidelines range to

be reasonable, and the burden of establishing that a sentence is unreasonable lies

                                          5
with the party challenging it.” White, 663 F.3d at 1217 (internal quotation marks

and citations omitted). 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” will we vacate a sentence as substantively unreasonable.

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal quotation

marks omitted).

                                               III.

       Howard contends that his sentence is longer than necessary because it was

“driven by the singular fact that” he abused his adopted daughter. He argues that

the abuse was neither charged nor proved in his federal case and that, because he

pleaded no contest in state court, the allegations were never proved in any court

and thus were not properly considered at sentencing. Because the court gave

“overriding weight” to the evidence of abuse, he asserts, it ignored his arguments

for mitigation.1

       We conclude that the district court properly considered Howard’s abuse of

his adopted daughter. Under Florida law, a nolo contendere plea “is not an

       1
         Howard also argues that the government should not have prosecuted him at all and
would not have done so if his state sentence had been properly calculated. But he provides no
explanation of how the government’s exercise of its discretion to prosecute him could affect the
reasonableness of his sentence, rather than the underlying conviction. And Howard has not
challenged the jury’s guilty verdict. This contention is, therefore, not properly before us. See
United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir.2003).

                                                6
admission of guilt.” Grizzard v. State, 881 So. 2d 673, 677 (Fla. Dist. Ct. App.

2004). But, at sentencing, the district court had before it the PSI, Howard’s

agreement to accept a sentencing increase for a pattern of abuse of a minor, a

photograph (to which Howard did not object) illustrating that abuse, and the

testimony of Howard’s adopted daughter about the abuse she endured. Although

Howard did not admit guilt to the conduct by his plea to the state charges, the

district court had more than enough evidence to permit it properly to consider the

abuse as an aggravating factor militating in favor of a within-guidelines sentence.

District courts are not constrained in the evidence of a defendant’s “background,

character, and conduct” that they may properly consider in fashioning a reasonable

sentence. United States v. Amedeo, 487 F.3d 823, 832-33 (11th Cir. 2007)

(quoting 18 U.S.C. § 3661). Further, as the government rightly points out,

because the abuse was so wrapped into the crime for which Howard was

convicted, the district court could also properly have considered it part of the

offense conduct. See U.S.S.G. § 1B1.3(a). Howard argued as much when he

sought the four-level decrease that he received.

      Finally, there is no indication that the district court abused its broad

discretion in determining that the gravity of Howard’s abuse of a child in his care

outweighed the mitigating evidence he offered. Howard’s claim that the district

                                          7
court failed to consider that mitigating evidence is belied by the record. The

district court expressly stated that it had read the letter from Howard’s wife,

considered the arguments of his lawyer, and taken account of “everything that

[had] been presented,” in light of the § 3553(a) factors. As we have repeatedly

held, we are not at liberty simply to reweigh those factors as if this court were the

sentencing court. United States v. Barrington, 648 F.3d 1178, 1204 (11th Cir.

2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007)). And, of course, the district court had already

reduced Howard’s guidelines range according to the weight it reasonably

determined was due to the arguments Howard offered at sentencing. “It [was]

sufficient for the district court to explicitly acknowledge that it considered the

parties’ arguments at sentencing which were based on the sentencing factors, and

that it considered the factors in § 3553(a).” Id.

      The district court did not abuse its discretion and, therefore, Howard’s

sentence is not substantively unreasonable.

      AFFIRMED.




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