                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-12844                ELEVENTH CIRCUIT
                                                            DECEMBER 24, 2008
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                   D. C. Docket No. 07-00449-CR-T-24-TGW

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

THOMAS GOINES,
a.k.a. Thomas Goins,

                                                           Defendant-Appellant.


                         ________________________

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

                               (December 24, 2008)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      After pleading guilty, Thomas Goines appeals his 78-month sentence for
possession of child pornography. Goines argues that his sentence was

unreasonable because the district court failed to adequately consider his personal

history and circumstances. After review, we affirm.

                                I. BACKGROUND

      After receiving a tip from Goines’s employer that he had child pornography

on his work laptop computer, Federal Bureau of Investigation (“FBI”) agents

interviewed Goines at his home. During the interview, Goines admitted to

possessing child pornography on his home computer. FBI agents seized and

searched Goines’s home computer and found approximately 150 videos depicting

children, ranging from infants to teenagers, engaged in sexual activity. Goines’s

collection of pornographic material was “massive.” When the FBI returned to

arrest Goines less than two months later, he had already purchased a new computer

so he could get back on line, but no new child pornography was found on that

computer.

      Goines pled guilty to one count of possessing visual depictions of minors

engaged in sexually-explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).

The Presentence Investigation Report (“PSI”) calculated a base offense level of 18,

under U.S.S.G. § 2G2.2(a) and increased his offense level: (1) by two levels

because he possessed graphic material that involved minors under the age of 12



                                          2
years (U.S.S.G. § 2G2.2(b)(2)); (2) four levels because he possessed material that

portrayed sadistic or masochistic conduct involving prepubescent children

(U.S.S.G. § 2G2.2(b)(4)); (3) two levels because he used a computer in his offense

(U.S.S.G. § 2G2.2(b)(6)); and (4) five levels because he possessed over 150

videos, the equivalent of 11,250 images of child pornography (U.S.S.G.

§ 2G2.2(b)(7)(D)). Pursuant to U.S.S.G. § 3E1.1(a) and (b), the PSI lowered

Goines’s offense level by three levels for acceptance of responsibility. With a total

offense level of 28 and a criminal history category of I, the PSI recommended an

advisory guideline range of 78 to 98 months’ imprisonment. Goines did not object

to the PSI.

       At sentencing, Goines acknowledged the seriousness of his offense, but

argued that he should receive a sentence below the advisory range because he was

65 years old, he had no prior convictions, he had successfully raised his daughter,

he had a good employment history and was unlikely to re-offend. At the hearing,

Goines testified that when he downloaded the child pornography, he did not know

it was illegal.

       Dr. Ted Shaw, a psychologist who evaluated Goines, testified that Goines

displayed a normal sexual attraction to adult and adolescent females and did not

show evidence that he ever molested a child. Based on Goines’s personal



                                          3
characteristics, lack of a serious disorder, and general law-abiding nature, Dr.

Shaw concluded that Goines did not present a danger to the community and was

not likely to re-offend, either by viewing child pornography or committing a more

serious offense. Dr. Shaw conceded, however, that there is no scientifically

validated assessment currently available to estimate the risk of an individual re-

offending.

      After reviewing the § 3553(a) factors, the district court found that a sentence

at the low end of the advisory guidelines was sufficient but not greater than

necessary. The district court stated that a lower sentence was not appropriate

because there was a large volume of materials, the materials involved very young

children and the materials depicted acts that could be considered violence against

those children. The district court also noted that Dr. Shaw had no way of knowing

whether Goines would re-offend. The district court stated that it had considered

the advisory guidelines, the § 3553(a) factors, Dr. Shaw’s report, the PSI and

Goines’s statements to the court, and imposed a 78-month sentence. Goines filed

this appeal.

                                 II. DISCUSSION

      We review the reasonableness of a sentence under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. ___, ___, 128 S. Ct. 586, 597 (2007). A



                                           4
sentence may be procedurally or substantively unreasonable. United States v.

Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally

unreasonable if the district court does not follow the requirements of United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), regardless of the actual sentence

imposed. Hunt, 459 F.3d at 1182 n.3. For a sentence to be procedurally

reasonable, a district court must correctly calculate the guidelines range and

consider the factors in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784,

786 (11th Cir. 2005). “[A]n acknowledgment by the district court that it has

considered the defendant’s arguments and the factors in section 3553(a) is

sufficient under Booker.” Id. Once we determine that the sentence was

procedurally reasonable, we evaluate the ultimate sentence’s substantive

reasonableness, considering the totality of the circumstances. Gall, 552 U.S. at __,

128 S. Ct. at 597. The party challenging the sentence bears the burden of showing

that a sentence is unreasonable. United States v. Johnson, 485 F.3d 1264, 1272

(11th Cir. 2007).

      On appeal, Goines argues that his sentence is unreasonable because the

district court did not meaningfully consider his unique history and characteristics –

his positive employment history, his lack of a criminal history, his family

background and age. The district court gave both parties an opportunity to present



                                          5
evidence and argue what sentence was appropriate. The district court considered

Goines’s arguments in mitigation, including those relating to his personal history

and characteristics. We cannot say the district court abused its discretion in

determining that Goines’s mitigating facts were outweighed by the need to protect

the public and for the sentence to reflect the seriousness of the offense. Goines has

not carried his burden to show his 78-month sentence is unreasonable.1

       AFFIRMED.




       1
        We reject as meritless Goines’s newly-raised argument that his guidelines sex offense
enhancements needed to be, but were not, supported by empirical data. Goines’s reliance on
Kimbrough v. United States, 551 U.S. ___, 128 S. Ct. 558 (2007), is misplaced. Kimbrough
concluded that a district court may, but is not required to, deviate from the advisory guidelines in
a particular crack cocaine case because the guidelines range for these offenses did not take into
account empirical data. 128 S. Ct. at 575. It did not conclude that guidelines enhancements must
be supported by empirical data or that a district court must lower a sentence because a guideline
enhancement is not supported by empirical data.

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