                   Case: 12-10251          Date Filed: 11/21/2012   Page: 1 of 11

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10251
                                        Non-Argument Calendar
                                      ________________________

                         D.C. Docket No. 3:11-cr-00087-MMH-MCR-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

JAMES D. SPENCE, JR.,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (November 21, 2012)

Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
               Case: 12-10251       Date Filed: 11/21/2012       Page: 2 of 11

       Appellant James D. Spence, Jr. appeals his statutory maximum sentence of

240 months, imposed after he pled guilty to four counts of interstate transmissions

of threats to injure, in violation of 18 U.S.C. § 875(c). Spence engaged in conduct

that occurred between October 13, 2010, and October 22, 2010, when he made

over 1,000 telephone calls to hospitals around the country and told the women

who answered the phones that he was engaging in, or would engage in, sexual

conduct with minor girls. The district court, after finding that the Guidelines did

not adequately take into account the nature of Spence’s conduct, departed upward

pursuant to U.S.S.G. § 5K2.0. The court also determined that Spence’s criminal

history category substantially under-represented the likelihood of his committing

further crimes and departed upward pursuant to § 4A1.3. Spence’s post-departure

guideline range was thus 51 to 63 months.1 The court then imposed 60 months on

each count and ordered the sentences to be served consecutively, after considering

the factors in 18 U.S.C. § 3553(a).

       On appeal, Spence argues this his total sentence is procedurally

unreasonable because the court misapplied the Guidelines when it (1) ordered the

sentences to run consecutively, and (2) based the consecutive sentences on



       1
        However, the statutory maximum term of imprisonment is 60 months. 18 U.S.C.
§ 875(c). The capped guideline range, therefore, is 51-60 months. U.S.S.G. § 5G1.1(c)(1).

                                               2
              Case: 12-10251      Date Filed: 11/21/2012    Page: 3 of 11

unsubstantiated assertions. He argues that the sentence is substantively

unreasonable because (1) the variance resulting from running the sentences

consecutively is not justified by compelling reasons; and (2) the court erred in

weighing the § 3553(a) factors. We consider his arguments in turn below.

                           I. Procedural Unreasonableness

A. Consecutive Sentences

      First, Spence argues that his sentence was procedurally unreasonable

because the district court misapplied U.S.S.G. § 5G1.2 by misinterpreting the term

“total punishment.” He contends that the Guidelines permitted the court to impose

consecutive sentences only to the extent necessary to achieve the “total

punishment” from within the guideline range. Thus, the court was authorized to

impose consecutive sentences only to the extent necessary to achieve a total

punishment of 63 months, the top of his applicable guideline range.

      We review objections not raised before the district court for plain error only.

United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir. 2000). To establish plain

error, a defendant must show that there is (1) error, (2) that is plain, and (3) that

affects substantial rights. If those elements are met, we may then exercise our

discretion to notice a forfeited error, “but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

                                            3
             Case: 12-10251     Date Filed: 11/21/2012   Page: 4 of 11

quotation marks omitted). An error that affects substantial rights almost always

means an error that affects the outcome of the district court proceedings. United

States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009). To meet the defendant’s

burden of proving that the error affected his substantial rights, the defendant must

establish a probability sufficient to undermine confidence in the outcome. Id.

      If multiple terms of imprisonment are imposed on a defendant at the same

time, the terms may run concurrently or consecutively. 18 U.S.C. § 3584(a).

“Multiple terms of imprisonment imposed at the same time run concurrently unless

the court orders or the statute mandates that the terms are to run consecutively.”

Id. When determining whether to impose concurrent or consecutive sentences, the

court must consider the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C.

§ 3584(b). The § 3553(a) factors include the need to reflect the seriousness of the

offense, provide for just punishment, deter criminal conduct, protect the public

from the defendant’s future crimes, the nature and circumstances of the offense,

the history and characteristics of the defendant, and the applicable guideline range.

18 U.S.C. § 3553(a)(1)-(7).

      Here, the record shows that the district court imposed consecutive sentences

pursuant to 18 U.S.C. §§ 3584 and 3553(a). Because the district court imposed

consecutive sentences pursuant to its statutory authority, and not based on

                                          4
              Case: 12-10251     Date Filed: 11/21/2012    Page: 5 of 11

§ 5G1.2, we conclude that the district court did not commit error, plain or

otherwise.

B. Unsubstantiated Assertions

      Next, Spence argues that the district court committed procedural error

because the decision to run his sentences consecutively was based on “clearly

erroneous facts.” He argues that the court accepted the government’s

representations that “hundreds” of victims had been “terrorized,” without any

evidence presented to support such a finding. Spence argues that the court’s

factual findings must be based on reliable and specific evidence, but the court

merely speculated that the recipients of his calls felt “utter horror,” as the

government did not present any witness testimony.

      We review the district court’s factual findings for clear error, and its

application and interpretation of the Guidelines de novo. United States v. Kinard,

472 F.3d 1294, 1297 n.3 (11th Cir. 2006).

      A sentence may be procedurally unreasonable if the district court failed to

accurately calculate the guideline range, treated the Guidelines as mandatory,

failed to consider the § 3553(a) factors, selected a sentence based on clearly

erroneous facts, or failed to adequately explain the reasons for the sentence. Gall

v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007)

                                           5
               Case: 12-10251    Date Filed: 11/21/2012   Page: 6 of 11

(emphasis added). The district court is entitled to make factual findings based on,

among other things, undisputed statements within the presentence investigation

report (“PSI”), or evidence presented during the sentencing hearing. United States

v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007). If a defendant does not dispute the

facts in the PSI, those facts are deemed admitted. United States v. Shelton, 400

F.3d 1325, 1330 (11th Cir. 2005).

        According to the undisputed facts in the PSI, Spence made over 1,000

telephone calls to 29 listed victims. Shelton, 400 F.3d at 1330. Because the PSI,

without dispute, indicated that at least 1,000 calls were made, and the court

referenced only the number of calls during its § 3553(a) analysis to run the

sentences consecutively, it did not rely on speculative facts. Smith, 480 F.3d at

1281.

        Moreover, sufficient evidence was presented in the PSI to allow the court to

infer that the victims of Spence’s calls were “terrorized.” The PSI described the

calls in graphic detail. The calls described sexual conduct that Spence stated he

had performed, or was going to perform, with young girls. The court even listened

to one of the recorded calls and found that the words “vile, depraved, horrific,

[and] repugnant” were inadequate to describe their nature. The court noted that the

victims – the women who answered the phones – would feel “utter horror and

                                          6
             Case: 12-10251     Date Filed: 11/21/2012    Page: 7 of 11

helplessness” at not being able to help the children that Spence was claiming to

molest. No further evidence was required. Cf. United States v. Caro, 309 F.3d

1348, 1351-52 (11th Cir. 2002) (holding that expert testimony was not required to

find that child pornography was sadistic in nature, when sadism was self-evident

in the photographs).

      Accordingly, we conclude that the district court did not clearly err in its

findings of fact, and the 240-month total sentence was not procedurally

unreasonable. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.

                         II. Substantive Unreasonableness

A. Degree of Variance

      Next, Spence argues that his sentence was substantively unreasonable

because the variance, achieved by running the four sentences consecutively, was

extreme and not justified by sufficiently compelling reasons. He argues that, after

the departures, his guideline range was 51 to 63 months. Thus, the 240-month total

sentence is 4.7 times higher (370%) than the low end of that guideline range.

      We review the reasonableness of a sentence under a “deferential abuse-of-

discretion standard.” Gall, 552 U.S. at 41, 128 S. Ct at 591. Extraordinary

justification or rigid mathematical formulas are not required for a sentence outside

the guideline range, but the district court should explain why the variance is

                                          7
              Case: 12-10251    Date Filed: 11/21/2012    Page: 8 of 11

appropriate in a particular case and “the justification for the variance must be

sufficiently compelling to support the degree of the variance.” United States v.

Irey, 612 F.3d 1160, 1186-87 (11th Cir. 2010) (en banc) (internal quotation marks

omitted), cert. denied, 131 S. Ct. 1813 (2011).

      While the degree of the variance here was large, we are persuaded that the

facts of this case support such a large variance. A 63-month sentence would be

wholly inadequate to effect the purposes of sentencing and the § 3553(a) factors.

The district court’s reasons were sufficiently compelling to warrant a 240-month

total sentence. Irey, 612 F.3d at 1186-87. The court noted that “vile, depraved,

horrific, and repugnant” were inadequate to describe the nature of the calls.

Spence’s history and characteristics show that he has committed the same type of

criminal behavior for 40 years and is almost certain to recidivate. Previous

sentences did nothing to deter Spence from engaging in this heinous conduct.

Accordingly, we conclude that the district court did not abuse its discretion in

running the sentences consecutively to impose a total 240-month sentence, the

statutory maximum.

B. Weighing the § 3553(a) Factors

      Finally, Spence argues that his total sentence is substantively unreasonable

because the court erred in weighing the § 3553(a) factors. He argues that, because

                                          8
                Case: 12-10251       Date Filed: 11/21/2012       Page: 9 of 11

the court erroneously found that hundreds of victims were terrorized, the court

necessarily weighed the § 3553(a) factors unreasonably against his personal

characteristics (his paraphilia2), the need for the sentence imposed to provide him

with needed medical care, and the sentencing range established for the applicable

category of offense he committed (51 to 63 months).

       On appeal, the party challenging the sentence has the burden of establishing

that the sentence is unreasonable in light of the record and the § 3553(a) factors.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A district court abuses

its discretion when it balances the § 3553(a) factors unreasonably or places

unreasonable weight on a single factor. Irey, 612 F.3d at 1189. We reverse only if

“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.”

Id. at 1190 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

A district court’s unjustified reliance upon any one § 3553(a) factor may be a

symptom of an unreasonable sentence. United States v. Pugh, 515 F.3d 1179,



       2
         Paraphilia is defined as “a type of mental disorder characterized by a preference for or
obsession with unusual sexual practices, as pedophilia, sadomasochism, or exhibitionism.”
Paraphilia Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/paraphilia (last
visited Oct. 22, 2012).

                                                9
             Case: 12-10251     Date Filed: 11/21/2012    Page: 10 of 11

1191 (11th Cir. 2008).

      The PSI indicates that Spence has committed the same or similar offenses

for 40 years. 18 U.S.C. § 3553(a)(1) (characteristics of the defendant). His

criminal history shows that he is nearly certain to recidivate. 18 U.S.C.

§ 3553(a)(1) (history and characteristics of the defendant). A lengthy sentence is

required to reflect the serious nature of Spence’s 1,000-plus phone calls, as well

as to promote respect for the law, and provide just punishment. 18 U.S.C.

§ 3553(a)(2)(A) (reflect seriousness of offense, promote respect for law, provide

just punishment). The nature of the calls was described as “vile, repulsive, [and]

disgusting.” 18 U.S.C. § 3553(a)(1) (nature and circumstances of offense).

Previous sentences did nothing to deter Spence from engaging in the same type of

criminal behavior. 18 U.S.C. § 3553(a)(2)(B) (afford adequate deterrence). The

only way to protect the public from further criminal conduct by Spence is

incarceration because a telephone is the only thing required for him to place more

threatening calls. 18 U.S.C. § 3553(a)(2)(C) (protect the public from defendant).

      The record does not indicate that the district court abused its discretion in

balancing the § 3553(a) factors or placing unreasonable weight on a single factor.

See Irey, 612 F.3d at 1189; Pugh, 515 F.3d at 1191. Although Spence argues that

the court exclusively focused on his criminal history, the court clearly stated that it

                                          10
              Case: 12-10251    Date Filed: 11/21/2012   Page: 11 of 11

considered heavily the factors of deterrence, protection of the public, and just

punishment.

      For the aforementioned reasons, we affirm Spence’s sentence.

      AFFIRMED.




                                         11
