                   Case: 11-15534          Date Filed: 08/01/2012   Page: 1 of 12

                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15534
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 0:11-cr-60178-JEM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

DUANE GILLETTE,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                            (August 1, 2012)

Before HULL, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Duane Gillette appeals the procedural and substantive reasonableness of his
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240-month sentence for distribution of child pornography. On appeal, Gillette

argues that his sentence is procedurally unreasonable because the district court did

not consider his arguments or the 18 U.S.C. § 3553(a) sentencing factors. He

argues that his sentence is substantively unreasonable because it was longer than

necessary given the characteristics of his offense. For the reasons set forth below,

we affirm Gillette’s sentence.

                                          I.

      In November 2010, Gillette sent and received, via email, child pornography.

Federal Bureau of Investigation agents searched his home and storage unit in June

2011 and found more than 400 videos and more than 2,000 images depicting child

pornography. The images included young children, infants, and bondage

involving minors.

      Gillette pleaded guilty to distributing child pornography, in violation of 18

U.S.C. § 2252(a)(2). His presentence investigation report (“PSI”) assigned him a

base offense level of 22, under U.S.S.G. § 2G2.2; a 2-level increase, under

§ 2G2.2(b)(2), because the pornography involved a minor under the age of 12; a

5-level increase, under § 2G2.2(b)(3)(B), because the offense involved distribution

in exchange for a thing of value; a 4-level increase, under § 2G2.2(b)(4), because

the pornography portrayed sadistic or masochistic conduct; a 2-level increase,

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under § 2G2.2(b)(6), because the offense involve a computer; and a 5-level

increase, under § 2G2.2(b)(7)(D), because the offense involved at least 600

images. Gillette received a 3-level reduction, under U.S.S.G. § 3E1.1, for

acceptance of responsibility, which gave him a total offense level of 37. Gillette

received 1 criminal history point for a state conviction in 2003 for lewd or

lascivious exhibition to an individual under the age of 16. He was sentenced to

five years’ probation in that case, and he was required to register as a sex offender

in Florida. In 1993, he had been arrested for indecent assault of a child under the

age of 16. The adjudication was withheld in that case, and Gillette received two

years’ probation. He received no criminal history points for the 1993 offense.

Gillette’s criminal history category was I. Based on a total offense level of 37 and

a criminal history category of I, Gillette’s guideline range was 210 to 262 months’

imprisonment. Because the statutory maximum sentence was 240 months’

imprisonment, under U.S.S.G. § 5G1.1, his guideline range became 210 to 240

months’ imprisonment.

      Prior to the sentencing hearing, Gillette objected to the PSI, arguing that,

under United States v. Rodriguez, 64 F.3d 638 (11th Cir. 1995), he should receive

a downward departure for acceptance of responsibility. He asserted that, without

such a reduction, his guideline range would be above the statutory maximum

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sentence and he would not benefit from his acceptance of responsibility. Gillette

also moved for a downward variance on grounds that, among other reasons, he had

exhibited exceptional acceptance of responsibility, he had good prospects for

rehabilitation, and his crime was an anomaly in his life. In a letter to the court,

Gillette accepted responsibility and expressed remorse for his actions, explained

that abuse he experienced as a child influenced his actions, and stated that he was

working to get well and change his life. Finally, Gillette submitted two

psychological evaluations and a number of letters that his friends had written in

support of him.

      At the sentencing hearing, Gillette argued that a 3-level reduction for

acceptance of responsibility was insufficient because, with that reduction, the

guideline range would nonetheless include the 240-month statutory maximum

sentence. A downward variance or departure for acceptance of responsibility was

thus appropriate because, without one, Gillette would not benefit from the

acceptance-of-responsibility reduction due to the statutory maximum sentence.

The court stated that Gillette’s guideline range had already been lowered due to

the statutory maximum sentence being below the high end of the range. Although

Gillette’s argument was interesting, there was no compelling reason to impose a

downward variance or departure, and the court declined to do so.

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      As to Gillette’s offense, the court stated that this case was one of the more

egregious “noncontact” child pornography cases it had seen. Additionally, child

pornography crimes were not victimless crimes. Gillette acknowledged that his

crime was not a victimless crime, but he also argued that he had not had contact

with any of the victims. The court responded that the guideline calculations

already took into account the fact that Gillette had not had contact with the

victims. Gillette agreed, but argued that he was unlikely to commit future

offenses. In November 2010, before the government found Gillette’s child

pornography, he had put his computer in storage, and he had not possessed child

pornography since that time. Gillette had also sought treatment for his behavior.

Through those actions, Gillette had exhibited an exceptional acceptance of

responsibility and therefore deserved a downward departure.

      The court stated that it had read the letters and psychological reports that

Gillette had submitted. As to Gillette’s sentence, the court stated that, although

the advisory guideline ranges for child pornography offenses sometimes seemed

“draconian,” this case was not Gillette’s first offense involving children.

Additionally, Gillette had possessed a large number of images. The court noted

that it had imposed below-guideline sentences in cases where, unlike Gillette, the

defendants had possessed only a small number of images. Moreover, although the

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guideline range might be harsh, Congress ultimately had the “right to declare the

will of the people” and to promulgate guideline ranges to reflect the appropriate

sentence in a particular case. The court believed that the guideline ranges

promulgated by the Sentencing Commission were usually fair, and the court did

not believe that Gillette’s case was one in which a sentence outside the guideline

range was appropriate, particularly given Gillette’s previous behavior.

      Additionally, the court found it unfortunate that Florida had not imposed

more meaningful punishments in Gillette’s prior cases because, had the state done

so, perhaps Gillette would have stopped his illegal conduct earlier and never

committed the instant offense. The court had considered the parties’ statements;

the PSI, which contained the advisory guideline range; and the statutory

sentencing factors. A sentence at the high end of the guideline range was

necessary to reflect Gillette’s repeated misconduct involving children. Thus, the

court sentenced Gillette to 240 months’ imprisonment.

                                         II.

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

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). Under the abuse of discretion standard, a sentence will

be affirmed unless we find that the district court has made a clear error of

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judgment. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc),

cert. denied, 131 S.Ct. 1813 (2011). “[W]e will not second guess the weight (or

lack thereof) that the [district court] accorded to a given factor . . . as long as the

sentence ultimately imposed is reasonable in light of all the circumstances

presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation

omitted). The party challenging a sentence bears the burden of establishing that it

is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      In reviewing the reasonableness of a sentence, we conduct a two-step

review, first ensuring that the sentence was procedurally reasonable, meaning that

the district court properly calculated the guideline range, treated the guideline

range as advisory, considered the § 3553(a) factors, did not select a sentence based

on clearly erroneous facts, and “adequately explain[ed] the chosen sentence.”

Gall, 552 U.S. at 51, 128 S.Ct. at 597. At the time of sentencing, the court must

state its reasons for imposing a particular sentence. 18 U.S.C. § 3553(c).

However, the 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 within the district court’s “own professional judgment” to determine the detail

necessary in its statement of reasons. Rita v. United States, 551 U.S. 338, 356,

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127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). It may be clear from the

circumstances of the case that the district court rests its “decision upon the

[Sentencing] Commission’s own reasoning that the Guidelines sentence is a proper

sentence (in terms of § 3553(a) and other congressional mandates) in the typical

case, and that the [court] has found that the case before [it] is typical.” Id. at 357,

127 S.Ct. at 2468. Thus, the court’s acknowledgment that it has considered the

§ 3553(a) factors together with the parties’ arguments is sufficient. Talley, 431

F.3d at 786.

       In Rodriguez, which was decided when the Sentencing Guidelines were still

mandatory, we held that a district court has the discretion to depart downward

when § 5G1.1(a)—which sets the guideline range at the statutory maximum where

the bottom of the applicable guideline range exceeds the statutory maximum—

renders § 3E1.1 ineffectual in reducing the defendant’s actual sentence. 64 F.3d at

643.

       Once we determine that a sentence is procedurally sound, we must examine

whether the sentence was substantively reasonable in light of the record and the

§ 3553(a) factors. Talley, 431 F.3d at 788. The district court is required to

“impose a sentence sufficient, but not greater than necessary, to comply with the

purposes set forth in” § 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include

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

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

public from the defendant’s future criminal conduct. Id. § 3553(a)(2). The court

must also consider the nature and circumstances of the offense, the defendant’s

history and characteristics, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. Id. § 3553(a)(1), (3)-(7). We ordinarily expect a sentence

within the guideline range to be reasonable. Talley, 431 F.3d at 788. Child

pornography crimes are serious offenses, particularly in light of the psychological

harm that the child victims face even as adults. United States v. Pugh, 515 F.3d

1179, 1195-98 (11th Cir. 2008).

      Gillette’s sentence is both procedurally and substantively reasonable. As to

procedural reasonableness, the court properly calculated the guideline range,

treated that range as advisory, stated that it considered the § 3553(a) factors,

explained that guideline ranges as determined by the Sentencing Commission were

generally fair, and determined that a sentence within Gillette’s guideline range was

fair given the circumstances of this case. Contrary to Gillette’s arguments on

appeal, the court did consider Gillette’s arguments and the § 3553(a) factors. The

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court first considered Gillette’s argument regarding an additional reduction for

acceptance of responsibility. The court noted that it was an interesting argument,

but that there was no compelling reason to further reduce Gillette’s guideline

range. Moreover, contrary to Gillette’s contention, Rodriguez is inapplicable here.

Unlike the district court in Rodriguez, the district court in this case did not treat

the Sentencing Guidelines as mandatory, and the bottom of Gillette’s guideline

range did not exceed his statutory maximum sentence. See 64 F.3d at 643.

      Gillette argues on appeal that the court improperly denied his request for an

additional reduction simply because the court was unhappy that Gillette received a

break due to the statutory maximum sentence. Gillette misreads the record. In

stating that the statutory maximum sentence provided Gillette a break, the court

was merely noting that Gillette’s guideline range, after a reduction for acceptance

of responsibility, would have been 210 to 262 months. Due to the statutory

maximum sentence, however, the high end of Gillette’s guideline range was

reduced from 262 to 240 months. Thus, the court was correct that the statutory

maximum sentence had actually benefitted Gillette in terms of the guideline

calculations, and the court’s statement was not improper. Gillette also misreads

the record as to the court’s statements regarding his state court crimes. The court

did not state that it was imposing a 240-month sentence because Florida had been

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too lenient in punishing Gillette, as Gillette asserts on appeal. Rather, the court

stated that those lenient punishments were unfortunate because more meaningful

punishments might have deterred Gillette from committing the instant offense.

      Moreover, it is clear from the record that the court considered Gillette’s

sentencing arguments and the § 3553(a) factors. For example, as to the nature of

the offense, the court noted that Gillette’s conduct was amongst the most

egregious noncontact conduct the court had seen in child pornography cases. The

court also expressly stated that it had considered the parties’ arguments; the PSI,

which contained the advisory guideline range; and the statutory factors. As to the

guideline range and Gillette’s personal history and characteristics, the court

explained that the Sentencing Guidelines expressed the will of the people as to

what was an appropriate sentence in a specific case and that, generally, a

defendant’s guideline range was fair. The court acknowledged that, while the

guideline ranges for child pornography cases could be extreme, the range

applicable in Gillette’s case was fair given the number of images he possessed and

his past conduct involving minors. Because the court stated that it had considered

the § 3553(a) factors and the parties’ arguments and found that the guideline range

was fair, no additional detail was necessary in the court’s explanation of the

sentence. See Rita, 551 U.S. at 356-57, 127 S.Ct. at 2468; Talley, 431 F.3d at 786.

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      Gillette’s sentence is also substantively reasonable in light of the record and

the § 3553(a) factors. The 240-month sentence was within the applicable

guideline range, and we ordinarily expect such a sentence to be reasonable. See

Talley, 431 F.3d at 788. The sentence, moreover, met the goals encompassed

within § 3553(a). Gillette possessed more than 400 videos and more than 2,000

images of child pornography, a serious crime. See Pugh, 515 F.3d at 1195-98. In

addition to possessing such a large collection of child pornography, Gillette shared

his collection with others, and the collection included young and infant children

and images depicting bondage with minors. Due to these specific offense

characteristics, Gillette’s 240-month sentence was reasonable and will not produce

unwarranted sentencing disparities. Additionally, the instant offense was not

Gillette’s first crime in which minors were put at risk. Considering Gillette’s

repeated disregard for laws protecting children, a sentence within the guideline

range was necessary to promote respect for the law, provide just punishment, deter

Gillette from further criminal activity, and protect the public. Based on the above,

Gillette’s ultimate sentence was reasonable, and we will not re-weigh the

§ 3553(a) factors. See Snipes, 611 F.3d at 872.

      For the foregoing reasons, we affirm Gillette’s sentence.

      AFFIRMED.

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