                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 26, 2008
                             No. 07-15600
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                   D. C. Docket No. 07-00029-CR-5-RS

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

MICHAEL DEMONT,

                                                     Defendant-Appellant.

                       ________________________

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

                              (June 26, 2008)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
       Michael Demont appeals his 169-month sentence for distribution or receipt

of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1), (2), and (b)(1).

Demont argues that his mid-Guidelines’ range sentence is unreasonable because

the district court should have sentenced him to less time than what the advisory

Guidelines required 1 and given much less supervised release because he presented

numerous and substantial mitigating factors during his sentencing hearing.

Demont also contends that his sentence is unreasonably high when compared to the

sentences imposed in other similar cases. For the reasons set forth more fully

below, we affirm.

                                                I.

       A presentence investigation report (“PSI”) was prepared after Demont pled

guilty to distribution of child pornography.2 According to the PSI, as a result of an

undercover online investigation that targeted individuals who were trading child

pornography, an FBI special agent determined that Demont was providing files that

met the definition of child pornography on an Internet-based peer-to-peer file

sharing network. The FBI executed a search warrant on Demont’s residence, and a



       1
          Demont’s Guidelines range was 151 to 188 months based upon an adjusted offense
level of 34 and a criminal history category of I.
       2
         Demont was also charged in the indictment with possession of child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), but the district court dismissed that charge
on the government’s motion.

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search of Demont’s computer and loose media revealed approximately 100 videos

and 350 images of child pornography.

      At the sentencing hearing, both Demont and the government indicated to the

court that they had no objections to the PSI’s facts or calculations. Demont’s

counsel commented, however, that Demont (1) had not committed the offense in a

sophisticated manner, (2) was not trying to sell or profit from the material,

(3) immediately cooperated with the law enforcement officers and answered any

questions they had, and (4) had led an otherwise quiet, law-abiding life. After

noting that Demont’s family was present in support of Demont, Demont’s counsel

requested a below-Guidelines sentence to take into account Demont’s medical

condition. Demont’s counsel then read a letter from Demont to the court.

      After noting that it previously had adjudicated Demont guilty, the district

court adopted the facts contained in the PSI and imposed a sentence of 169

months’ imprisonment. The court asked if Demont had any objections. Demont’s

counsel replied, “Just the legal objection, Your Honor, that the intended sentence is

greater than necessary to serve the purposes of sentencing, but no other

objections.”

                                          II.

      “‘In reviewing the ultimate sentence imposed by the district court for



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reasonableness, we consider the final sentence, in its entirety, in light of the

§ 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006)

(citation omitted). A sentence is unreasonable if it “fails to achieve the purposes of

sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). The party challenging the reasonableness of a sentence

“bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).” Id.

      The Supreme Court recently clarified the reasonableness standard as a

review for abuse of discretion. Gall v. United States, 552 U.S. —, 128 S.Ct. 586,

594, 169 L.Ed.2d 445 (2007). Specifically, the district court must impose a

sentence that is both procedurally and substantively reasonable. Id. 128 S.Ct. at

597. When reviewing the sentence for procedural reasonableness, we must

      ensure that the district court committed no significant procedural
      error, such as failing to calculate (or improperly calculating) the
      Guidelines range, treating the Guidelines as mandatory, failing to
      consider the § 3553(a) factors, selecting a sentence based on clearly
      erroneous facts, or failing to adequately explain the chosen
      sentence-including an explanation for any deviation from the
      Guidelines range.

Id.

      In considering the substantive reasonableness of the sentence, “Gall makes

clear that ‘it also remains true that the district court’s choice of sentence is not



                                            4
unfettered.’” United States v. Livesay, No. 06-11303, slip op. at 1912 (11th Cir.

Apr. 23, 2008) (citations and quotation marks omitted). “The district court is

obliged to consider all of the § 3553(a) factors, and those factors in turn guide

appellate courts, as they have in the past, in determining whether a sentence is

unreasonable.” Id. (citations and punctuation marks omitted).

      “Generally, when sentencing within the advisory Guidelines range, the

district court is not required to give a lengthy explanation for its sentence if the

case is typical of those contemplated by the Sentencing Commission.” Livesay,

No. 06-11303, slip op. at 1911; see also 18 U.S.C. § 3553(c). However, the

sentencing judge should “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. —, 127 S.Ct.

2456, 2468, 168 L.Ed.2d 203 (2007). “Unless a party contests the Guidelines

sentence generally under § 3553(a)-that is argues that the Guidelines reflect an

unsound judgment, or, for example, that they do not generally treat certain

defendant characteristics in the proper way-or argues for departure, the judge

normally need say no more.” Id. 127 S.Ct. at 2468.

      Although we do not apply a presumption of reasonableness, “ordinarily we

would expect a sentence within the Guidelines range to be reasonable.” Talley,



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431 F.3d at 788. We note that, notwithstanding the fact that he abandoned the

argument for failing to raise the issue in his opening brief, Demont effectively

requests us to apply our governing precedent when he argues in his reply brief that

we should not apply a presumption of reasonableness to a sentence within the

advisory Guidelines. See United States v. Levy, 416 F.3d 1273, 1276 n.3 (11th

Cir. 2005) (noting that we normally do not consider issues raised for the first time

in the reply brief).

       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 afford adequate deterrence, to promote respect for

the law, to provide just punishment for the offense, to protect the public, and to

provide the defendant with needed educational or vocational training or medical

care; (3) the kinds of sentences available; (4) the advisory guidelines range; (5)

pertinent Sentencing Commission policy statements; (6) the need to avoid

unwarranted sentencing disparities; and (7) the need to provide restitution to

victims. 18 U.S.C. § 3553(a)(1)-(7).

       Demont is correct when he observes in his brief that we have affirmed

downward variances in some distribution of child pornography cases. See United

States v. McBride, 511 F.3d 1293, 1298 (11th Cir. 2007) (affirming 84-month



                                           6
sentence for distribution of child pornography where Guidelines range was 151 to

188 months); United States v. Gray, 453 F.3d 1323 (11th Cir. 2006) (affirming 72-

month sentence for distribution of child pornography where Guidelines range was

151 to 188 months). However, in McBride, we affirmed the district court because

we did not find that the 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.” McBride, 511 F.3d at 1298. In Gray,

we affirmed the district court because “the district court gave specific, valid

reasons for imposing a sentence that was lower than the [G]uidelines range.”

Gray, 453 F.3d at 1325. Thus, in neither case did we affirm for the sole purpose of

complying with the single statutory factor, namely § 3553(a)(6), which provides:

“the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” Moreover, we have

recently stated that we have “typically treated child sex offenses as serious crimes,

upholding severe sentences in these cases.” United States v. Pugh, 515 F.3d 1179,

1202 (11th Cir. 2008). Significantly, after we made that observation in Pugh, we

distinguished cases, including Gray and McBride, in which we had affirmed

downward variances. Id. Nonetheless, we noted in Pugh that, in all of the cases

where downward variances were affirmed, substantial prison sentences had been



                                           7
imposed. Id.

      The district court was not required to give a lengthy explanation for its

decision to impose a Guidelines sentence. See Rita, 127 S.Ct. at 2468.

Nonetheless, the record reflects that the court did consider the § 3553(a) factors in

determining an appropriate sentence. See Livesay, No. 06-11303, slip op. at 1912.

Moreover, Demont’s 169-month sentence is within the Guidelines range and below

the 20-year statutory maximum. 18 U.S.C. § 2252A(b)(1); Talley, 431 F.3d at 788;

United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (comparing, as

one indication of reasonableness, the actual prison term imposed against the

statutory maximum). Further, the record reflects that the court considered

Demont’s arguments and the statements contained in his letter, and the court had a

reasoned basis for exercising its own legal decisionmaking authority. See Rita,

127 S.Ct. at 2468. Although Demont claims that his sentence is “unreasonably

high when considered in conjunction” with sentences that other defendants have

received, he did not assert this specific argument at sentencing, and there is no

evidence in the record that the court failed to consider the specific factor of

unwarranted sentence disparities when determining an appropriate sentence for

Demont. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (stating

that “nothing in Booker or elsewhere requires the district court to state on the



                                           8
record that it has explicitly considered each of the § 3553(a) factors or to discuss

each of the § 3553(a) factors”); Pugh, 515 F.3d at 1202.

      Accordingly, as Demont has not shown that the court abused its discretion

by imposing an unreasonable sentence, his sentence is

      AFFIRMED.




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