              Case: 18-13966     Date Filed: 07/11/2019   Page: 1 of 5


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-13966
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 9:18-cr-80025-RLR-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DONALD ROWLEY,

                                                               Defendant-Appellant.

                           ________________________

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

                                   (July 11, 2019)

Before WILSON, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:

      Donald Rowley appeals his 168-month total-sentence, imposed at the high

end of the guideline range, after pleading guilty to receipt of child pornography, in
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violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child

pornography involving a prepubescent minor, in violation of 18 U.S.C.

§ 2252(a)(4)(B) and (b)(2). On appeal, he argues that his sentence is procedurally

unreasonable because the district court failed to adequately explain it and it was

greater than necessary to comply with the statutory purposes of sentencing.

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

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We use a two-

step process to review a sentence’s reasonableness. Id. at 51. First, we must

confirm that the district court committed no significant procedural error. Id. A

sentence is procedurally erroneous if a district court commits an 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. Next, we consider the substantive reasonableness of the sentence. Id.

      The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

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

provide just punishment, and deter criminal conduct. 18 U.S.C. § 3553(a)(2). The

court must also consider the nature and circumstances of the offense, the history


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

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

and the need to avoid unwarranted sentencing disparities among defendants with

similar records found guilty of similar conduct. Id. § 3553(a)(1), (3)-(6).

      Although the district court must consider the § 3553(a) factors, it need not

analyze each of the factors individually for the sentence to be procedurally

reasonable; rather, the district court may acknowledge that it has considered the

defendant’s arguments and the § 3553(a) factors. United States v. Sarras, 575 F.3d

1191, 1219 (11th Cir. 2009).

      Here, Rowley’s sentence is procedurally reasonable. Rowley does not

challenge the district court’s calculation of his guideline range or the substantive

reasonableness of his sentence. The district court did not treat the guidelines as

mandatory. Instead, it listened to the parties’ arguments and Rowley's statement,

and it considered the motion for downward variance and the § 3553(a) factors.

The court explicitly stated that it had considered Rowley’s arguments and the

§ 3553(a) factors. Sarras, 575 F.3d at 1219.

      Further, the record reflects that it considered the arguments and the §

3553(a) factors and adequately explained Rowley’s sentence. See Gall, 552 U.S.

at 51. Specifically, when denying the motion for variance and fashioning the

sentence, the district court considered the need to avoid unwarranted sentencing


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disparities among defendants with similar records, and it determined that Rowley’s

case differed from other cases because Rowley had prior incidences involving

sexual abuse of children. 18 U.S.C. § 3553(a)(6). In considering Rowley’s

history and circumstances, the district court listened to Rowley’s statement that he

had served his country and was honorably discharged from the military and that he

served his community through volunteer work. 18 U.S.C. § 3553(a)(1). It also

acknowledged that Rowley had admitted his criminal past and that he had

expressed a desire to seek help. 18 U.S.C. § 3553(a)(1).

      Nevertheless, the district court determined that it needed to consider all of

Rowley’s conduct—including his history of sexual abuse of children that spanned

30 years and involved the more distant sexual abuse of his daughter and

stepdaughters and the more recent abuse of his step-granddaughter—in order to

fully contemplate several of the § 3553(a) factors, including the need for just

punishment, and the need to respect the law, to deter Rowley and other offenders,

and to protect the public. 18 U.S.C. § 3553(a)(2). Finally, after listening to the

government explain that Rowley’s conduct in the instant case involved possessing

more than 450 videos of child pornography, including a video of the rape of a five-

year-old child, the district court noted that Rowley’s convictions were for very

serious offenses. 18 U.S.C. § 3553(a)(2). Based on these considerations, the court

concluded that a sentence at the high end of the guideline range would satisfy the §


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3553(a) factors and would be sufficient, but not greater than necessary to

accomplish the purpose of § 3553(a). Accordingly, the district court did not abuse

its discretion by imposing the guideline range total-sentence of 168 months’

imprisonment.

      AFFIRMED.




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