                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15213         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      AUGUST 19, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                               D.C. Docket No. 0:10-cr-60162-WJZ-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

THOMAS FORD,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (August 19, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Thomas Ford appeals his sentence of 198 months’ imprisonment, varying

downward from his guideline range, after pleading guilty to one count of
distribution of child pornography using any means or facility of interstate or

foreign commerce in violation of 18 U.S.C. § 2252(a)(2). Ford argues on appeal

that the district court erred in enhancing his offense level by five levels, pursuant

to U.S.S.G. § 2G2.2(b)(3)(B), because there was insufficient proof that he

distributed files in anticipation of receipt of something of value. Ford also argues

that his sentence is unreasonable because it is based on a flawed guideline that was

determined without the benefit of empirical evidence, and because the district

court failed to give proper consideration to the factors set forth in 18 U.S.C. §

3553(a).

                                           I

      We review the district court’s interpretation and application of the

Sentencing Guidelines de novo and its factual findings for clear error. United

States v. Knight, 562 F.3d 1314, 1322 (11th Cir.), cert. denied, 130 S.Ct. 192

(2009).

      Section 2G2.2(b)(3)(B) provides for a five-level increase in a defendant’s

sentence for transporting material involving the sexual exploitation of a minor if

his offense involved “[d]istribution for the receipt, or expectation of receipt, of a

thing of value, but not for pecuniary gain.” U.S.S.G. § 2G2.2(b)(3)(B). The

Guideline defines the phrase as meaning “any transaction, including bartering or

                                           2
other in-kind transaction, that is conducted for a thing of value but not for profit.”

U.S.S.G. § 2G2.2, comment. (n.1). “Thing of value” is further defined as

“anything of valuable consideration. For example, in a case involving the

bartering of child pornographic material, the ‘thing of value’ is the child

pornographic material received in exchange for other child pornographic material

bartered in consideration for the material received.” Id. We have also held that

“when a defendant trades child pornography in exchange for other child

pornography, the defendant has engaged in distribution for the receipt, or

expectation of receipt of a thing of value.” United States v. Bender, 290 F.3d

1279, 1286 (11th Cir. 2002) (quotation omitted).

      The district court found that Ford had participated in publicly available

peer-to-peer file sharing networks and had both distributed child pornography to

others and had viewed and downloaded child pornography files from others, a

finding that is supported by Ford’s own admissions to the same. Although Ford

argued that the child pornography files that he received were not a thing of value

under § 2G2.2(b)(3)(B), he never disputed that he had actually downloaded those

files from the file sharing networks. Thus, the district court did not err in

determining that, pursuant to § 2G2.2(b)(3)(B), the five-level upward adjustment

was warranted.

                                           3
                                          II

      We review the reasonableness of a sentence, “[r]egardless of whether the

sentence imposed is inside or outside the Guidelines range,” under a deferential

abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128

S.Ct. 586, 597 (2007). 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.” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011).

      Procedural reasonableness includes whether the district court properly

calculated the guideline range. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Once we

determine that a sentence is procedurally sound, we examine whether the sentence

was substantively reasonable in light of the totality of the circumstances and the

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

      “[T]he weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” United States v. Williams,

526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alterations omitted). A

sentence may be substantively unreasonable where a district court “unjustifiably

relied on any one § 3553(a) factor, failed to consider pertinent § 3553(a) factors,

                                          4
selected the sentence arbitrarily, or based the sentence on impermissible factors.”

United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).

      The district court is not required “to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Rather, it

is sufficient for the sentencing judge to 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.” Rita v. United States, 551

U.S. 338, 356, 127 S.Ct. 2456, 2468 (2007). The burden of establishing that a

sentence is unreasonable lies with the party challenging the sentence. United

States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).

      In Kimbrough, the Supreme Court held that a district court may deviate

from the Guidelines in a particular crack cocaine case because the Guidelines

range for these offenses did not take into account “empirical data and national

experience.” Kimbrough v. United States, 552 U.S. 85, 109-10, 128 S.Ct. 558,

575 (2007) (quotation omitted). The Supreme Court did not hold, however, that

all enhancements must be supported by empirical data or that all crack cocaine

sentences must be lower than the Guidelines range because of the lack of

supporting empirical data. See id. Instead, the Court held that “it would not be an

                                           5
abuse of discretion for a district court to conclude when sentencing a particular

defendant that the crack/powder disparity yields a sentence ‘greater than

necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.” Id. at 110,

128 S.Ct. at 575.

      In Pugh, we acknowledged that Kimbrough gave district courts the authority

to deviate from the Guidelines in crack cocaine cases because the sentencing

ranges did not take into account empirical data and national experience. See Pugh,

515 F.3d at 1201 n.15. However, we held that the child pornography guidelines

“do not exhibit the deficiencies the Supreme Court identified in Kimbrough.” Id.

Furthermore, we recognized that we have “typically treated child sex offenses as

serious crimes, upholding severe sentences in these cases.” Id. at 1202.

      The district court did not abuse its discretion by refusing to disregard the

guideline range produced by § 2G2.2. As we explained in Pugh, the child

pornography guidelines do “not exhibit the deficiencies the Supreme Court

identified in Kimbrough.” 515 F.3d at 1201 n.15. But even if those deficiencies

did exist, Kimbrough merely permits district courts to deviate from a guideline but

does not require them to do so. See Kimbrough, 552 U.S. at 109-10, 128 S.Ct. at

575. Furthermore, in this case, the district court actually varied downward from




                                          6
Ford’s guideline range of 210 to 240 months’ imprisonment by imposing a

sentence of 198 months’ imprisonment.

      Ford’s sentence is also substantively reasonable, because the district court

stated that it had considered Ford’s arguments and reviewed the entire revised PSI

in determining Ford’s sentence. Furthermore, the district court stated that it had

considered all the statutory factors and specifically noted that “the sentence to be

imposed reflects just punishment, promotes respect for the law, deters future

criminal conduct on the part of the defendant, and protects the public from future

criminal conduct by the defendant.”

      AFFIRMED.1




      1
             Ford’s request for oral argument is denied.

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