                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               No. 09-15311               SEPTEMBER 22, 2011
                           Non-Argument Calendar              JOHN LEY
                                                               CLERK
                         ________________________

                    D.C. Docket No. 09-00040-CR-3-MCR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

DAVID ALLEN GIRARD,
a.k.a. David A. Girard,

                                                           Defendant-Appellant.


                         ________________________

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

                             (September 22, 2011)

Before HULL, WILSON, and BLACK, Circuit Judges.

PER CURIAM:

     After pleading guilty, David Allen Girard appeals his 195-month total
sentence for one count of using a computer to attempt to persuade a minor to

engage in sexual activity, in violation of 18 U.S.C. §§ 2422(b) and 2426, and one

count of traveling in interstate commerce to engage in sexual conduct with a minor,

in violation of 18 U.S.C. §§ 2423(b) and 2426. After review, we affirm.

                            I. BACKGROUND FACTS

A.    Offense Conduct

      In 2009, a police officer posed on the Internet as a teenage boy using the

screen name “Caleb94infl.” The officer posted a profile indicating that he was

fourteen years old, had lived in foster homes and was unhappy. Shortly after

entering an Internet chat room, the officer encountered Defendant Girard, using the

screen name “Onestep99.”

      For approximately an hour and 45 minutes, Defendant Girard chatted with

“Caleb94infl,” discussing sexual activity and arranging to meet at a nearby Dairy

Queen to engage in sex. About thirty minutes later, Girard arrived at the Dairy

Queen and was arrested. Girard admitted that he was “Onestep99,” that he had

intended to meet a fourteen-year-old boy and that he probably would have engaged

in sexual relations with the boy.

      During a subsequent search of Defendant Girard’s residence, officers

discovered that Girard’s computer was equipped with programs to clean traces of



                                         2
online activity and to encrypt data. No child or adult pornography was found on

Girard’s computer. However, forensic analysis revealed that Girard had viewed

Caleb94infl’s Internet profile shortly after the officer entered the chat room.

B.    Plea Agreement

      Defendant Girard pled guilty pursuant to a written plea agreement. In

exchange for Girard’s guilty plea, the government agreed not to recommend a

specific sentence, but reserved the right to present evidence and make arguments as

to the application of the guidelines and the 18 U.S.C. § 3553(a) factors, as follows:

            The United States Attorney agrees not to recommend a specific
      sentence. However, the United States Attorney does reserve the right
      to advise the District Court and any other authorities of its version of
      the circumstances surrounding the commission of the offenses by
      DAVID ALLEN GIRARD, including correcting any misstatements
      by defendant or defendant’s attorney, and reserves the right to present
      evidence and make arguments pertaining to the application of the
      sentencing guidelines and the considerations set forth in Title 18,
      United States Code, Section 3553(a).

In addition, the parties reserved the right to appeal any sentence imposed.

C.    Presentence Investigation Report

      The presentence investigation report (“PSI”) calculated a total offense level

of 29, which included, inter alia, a two-level increase, pursuant to U.S.S.G.

§ 3A1.1(b)(1), because Girard knew or should have known that the victim of the




                                           3
offense was unusually vulnerable.1 The PSI noted that: (1) the undercover officer’s

online profile indicated that the fourteen-year-old boy was living in a foster home

and had “been bounced around most of [his] life”; (2) the “victim’s unstable home

environment would make him an unusually vulnerable victim”; and Girard had “a

history of exploiting similar circumstances. (see paragraphs 39 and 40).”

       Paragraphs 39 and 40 of the PSI indicated that, at the time of Girard’s arrest,

he was on probation for a 2001 conviction for possession of child pornography.

During the course of the 2001 investigation, law enforcement learned that Girard

had made contact with a seventeen-year-old boy in an Internet chat room and wired

the boy money for a bus ticket to visit Girard’s residence. The boy stayed at

Girard’s home for several days. Girard admitted he knew the boy was a minor and

wanted to help the boy, who was having problems at home. As a result, Girard

was separately charged with, and pled guilty to, contributing to the delinquency of

a minor.




       1
         Section 3A1.1(b)(1) provides that: “[i]f the defendant knew or should have known that a
victim of the offense was a vulnerable victim, increase by 2 levels.” U.S.S.G. § 3A1.1(b)(1). A
vulnerable victim is one who is the victim of the offense of conviction (or relevant conduct)
“who is unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” Id. § 3A1.1, cmt. n.2.

                                               4
       For the 2001 child pornography offense, the state court imposed a ten-year

sentence and split the sentence between three months in jail and sixteen months’

home confinement, with five years’ probation. For the 2001 contributing to the

delinquency of a minor offense, Girard was given a one-year suspended sentence,

with two years’ probation. As a condition of his probation on the child

pornography conviction, Girard was not allowed to have Internet access or contact

with minors and was required to register as a sex offender.

       With a total offense level of 29 and a criminal history category of III, the

PSI recommended an advisory guidelines range of 108 to 135 months’

imprisonment. Because the statutory mandatory minimum sentence was ten years’

imprisonment, the range became 120 to 135 months. See U.S.S.G. § 5G1.1(c)(2).

The PSI noted that if, pursuant to the commentary to U.S.S.G. § 3A1.1, Girard

knew or should have known that a victim of the offense was a vulnerable victim,

and his criminal history included a prior sentence for an offense involving a

vulnerable victim, an upward departure may be warranted.2 Neither party objected

to the PSI.

D.     Government’s Letter to Probation Office


       2
         The commentary to § 3A1.1 states that “[i]f an enhancement from subsection (b) applies
and the defendant’s criminal history includes a prior sentence for an offense that involved the
selection of a vulnerable victim, an upward departure may be warranted.” U.S.S.G. § 3A1.1,
cmt. n.4.

                                               5
       After the PSI was released, but before sentencing, the government sent a

letter to the probation office stating that: (1) an upward departure pursuant to

U.S.S.G. § 3A1.1(b)(1), cmt. n.4 was appropriate because Girard exhibited “a

penchant for young ‘troubled’ boys who come from unstable family

environments”; and (2) in light of the § 3553(a) factors, an upward variance from

the 120-to-135-month guidelines range was appropriate because Girard traveled

between states to engage in sexual acts with a troubled youth and previously

exploited children.

E.     Sentencing Hearing

       At sentencing, the parties confirmed they had no objections to the PSI. The

district court confirmed the PSI’s guidelines calculations and the advisory

guidelines range of 120 to 135 months.

       In mitigation, Girard argued that, due to a work-related accident in the fall of

2001, which crushed his foot, he took various medications to control the pain that

also affected his ability to control impulses. In response, the government noted

that Girard’s January 2001 arrest for the child pornography and contributing to a

minor’s delinquency offenses, which showed his “penchant for children,” predated

his injury.




                                           6
      The government stated that there were two possible bases for imposing a

sentence above the advisory guidelines range—an upward departure under

§ 3A1.1(b)(1) and an upward variance based on the 18 U.S.C. § 3553(a) factors.

The government submitted a copy of the undercover officer’s online profile, the

Internet chat between Girard and the officer posing as “Caleb94infl” and certified

copies of records relating to Girard’s prior 2001 convictions.

      The online profile showed a picture of a teenage boy and stated that the

boy’s name was Caleb and he was “14 years old.” According to Caleb’s profile,

his “life basically SUX,” he was in a foster home, he had “been bounced around

most of [his] life,” did not have many friends and “had to grow up quick.” The

chat transcript showed that Girard quickly steered the conversation with Caleb

toward sex, asked whether Caleb wanted to meet to engage in sexual acts and

arranged to meet Caleb within thirty minutes behind a Dairy Queen. A certified

copy of the arrest affidavit for Girard’s 2001 conviction for contributing to the

delinquency of a minor indicated that Girard let a thirteen-year-old boy spend the

night in his home, served the boy alcohol and gave him cigarettes.

      The government argued that: (1) Caleb’s online profile indicated that he was

in a foster home and had been “bounced around, which signifies his vulnerability

via an unstable home environment”; and (2) paragraphs 39 and 40 of the PSI, to



                                           7
which Girard did not object, indicated that Girard had “possessed child

pornography and contributed to the delinquency of a minor, who the Defendant

even admitted, ‘was having difficulties at home and at school.’” The government

stated that its position was “that the Defendant is choosing these victims based

upon their vulnerability, someone who doesn’t have a stable home environment or

is in a foster home and has a need or desire for affection and stability.” The

government asked the district court “to consider that portion of the United States

Sentencing Guidelines, that Application Note 4, when fashioning a sentence.” In

addressing the § 3553(a) factors, the government noted Girard’s criminal history of

crimes against children and “the nature of this offense which seems to have

graduated from his prior offenses” and argued that the public needed protection

from Girard.

      The district court found that an upward departure pursuant to U.S.S.G.

§ 3A1.1 was warranted because Girard’s prior 2001 conviction (for contributing to

a minor’s delinquency) and the instant offense both involved the selection of a

vulnerable victim. The district court described Girard’s selection of vulnerable

boys who were “lonely and in need of affection” as his “sort of modus operandi, if

you will.” As a result, the district court increased Girard’s offense level by two

levels to produce an advisory guidelines range of 135 to 168 months.



                                           8
      The district court next found that the need to protect the public from Girard

warranted an upward variance. The district court stressed that Girard’s offense

was “extremely serious” and that Girard’s conduct had “graduated” from his prior

2001 convictions. The district court noted that a program on Girard’s computer

was designed to erase or destroy images, which made it impossible for law

enforcement to recover any incriminating evidence that may have been on Girard’s

computer. When the district court stated that Girard failed to register as a sex

offender after his 2001 convictions, defense counsel interrupted and advised the

court that Girard in fact had registered. The district court stated, “I stand

corrected.”

      The district court said that “[t]here’s no question in this Court’s mind that

[Girard is] a serious sex offender, and [Girard is] a danger to the public and our

children.” At this point, the district court expressed concern that Girard may have

committed other acts, stating:

             The concern that I - - one concern I have is with this type of
      obsession - - and it’s not reflected in the Presentence Report, but
      between 2001 and 2009, I have a very hard time believing there were
      not more acts committed. I certainly have a hard time believing that
      you were not possessing child pornography on [your] computer,
      particularly in light of the data encryption destruction, if you will,
      program that you had on your computer.
             In any event, the primary factors for the Court’s variance in this
      case is the need for deterrence for you, Mr. Girard, as well as, most
      notably, the need to protect society from crimes of this nature.

                                           9
The district court pointed out that although Girard’s 2001 convictions “should have

been enough of a message” to Girard, the instant offense “was even more

aggravated” than his 2001 convictions, which suggested that Girard could not

control himself. The district court imposed concurrent 195-month sentences.

       Girard filed this appeal.

                                       II. DISCUSSION

A.     Breach of the Plea Agreement

       Girard argues that at sentencing the government breached the plea agreement

by arguing that there were circumstances supporting both an upward departure and

an upward variance.3

       “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (quotation marks omitted).

“Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding at the time he entered his plea.” Id.

(quotation marks omitted). The government breaches a plea agreement when it

       3
         We ordinarily review de novo whether the government breached a plea agreement, but
apply plain error review where, as here, the defendant failed to raise the issue before the district
court. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). To establish plain
error, the defendant must show: (1) an error, (2) that was plain, (3) that affected the defendant’s
substantial rights, and (4) that seriously affects the fairness and integrity or public reputation of
judicial proceedings. Id.; see also Puckett v. United States, 556 U.S. 129, ___ 129 S. Ct. 1423,
1432-33 (2009).

                                                  10
advocates a position incompatible with its promises in the agreement or makes a

recommendation “which merely pa[ys] ‘lip service’ to the agreement.” United

States v. Taylor, 77 F.3d 368, 370-71 (11th Cir. 1996).

      Here, the government promised not to recommend a specific sentence, but

reserved the right to advise the district court of the circumstances of the offense

and to argue the proper application of the guidelines and consideration of the 18

U.S.C. § 3553(a) factors. At sentencing, the government argued that an upward

departure might be warranted under the commentary to U.S.S.G. § 3A1.1(b)(1)

given that Girard’s criminal history included a 2001 conviction for contributing to

a minor’s delinquency offense “that involved the selection of a vulnerable victim.”

See U.S.S.G. § 3A1.1(b)(1), cmt. n.4. The government also argued that a variance

above the advisory guidelines range might be warranted based on various

§ 3553(a) factors, including Girard’s criminal history, the nature and circumstances

of his current offense and the need to protect the public from him. The government

did not, however, request a specific sentence or suggest the extent to which the

district court should impose either a departure or a variance. As such, the

government’s argument for the § 3A1.1(b) departure and an upward variance

struck a balance between exercising its reserved right to argue for the proper




                                          11
application of the guidelines and the proper consideration of the § 3553(a) factors

and its obligation not to request a specific sentence.

      Under the express terms of the plea agreement, it was not reasonable for

Girard to expect the government to refrain from advocating for an upward

departure authorized by the guidelines and supported by the PSI’s undisputed facts

or to expect the government not to emphasize those undisputed facts when

addressing whether the § 3553(a) factors warranted a variance. Thus, Girard has

not shown that the district court erred when it permitted the government to argue

for an upward departure and an upward variance.

      However, even if we assume arguendo that there was error, Girard did not

object to the government’s arguments in the district court and cannot show that any

alleged error was plain. This Court has never addressed in a published opinion

whether the precise language at issue in Girard’s plea agreement precludes the

government from advocating for an upward departure or variance, so long as the

government does not request a specific sentence. Furthermore, our only published

case addressing identical language in another plea agreement concluded that the

government did not breach the plea agreement when it asked the district court to

consider imposing consecutive sentences. See United States v. Thomas, 487 F.3d

1358, 1360-61 (11th Cir. 2007). Given the current law in this Circuit, we cannot



                                           12
say any alleged error was plain. See United States v. Chau, 426 F.3d 1318, 1322

(11th Cir. 2005) (explaining that for an error to be plain it must be “clear under

current law”).4

B.     Procedural Reasonableness

       Girard argues that his 195-month sentence is procedurally unreasonable

because the district court based it on speculation, rather than reliable evidence, that

Girard had a “modus operandi” of targeting vulnerable boys from unstable homes

and engaged in other undetected crimes.5

       The party challenging the sentence has the burden to show it is

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

reviewing the procedural reasonableness of a sentence, we consider whether the

district court committed any significant procedural error, such as, inter alia,

selecting a sentence based on clearly erroneous facts. Gall v. United States, 552

U.S. 38, 51, 128 S. Ct. 586, 597 (2007). A sentencing court’s findings of fact may

be based upon evidence presented at trial, facts admitted by the defendant’s guilty


       4
         The cases Girard cites involved plea agreements with substantially different language,
which makes them inapposite. Most importantly, in none of these cases did the government
reserve the right to present evidence and make arguments pertaining to the proper application of
the guidelines or to the consideration of § 3553(a)’s sentencing factors. See United States v.
Johnson, 132 F.3d 628 (11th Cir. 1998); United States v. Taylor, 77 F.3d 368 (11th Cir. 1996);
United States v. Rewis, 969 F.2d 985 (11th Cir. 1992). Thus, these cases do not establish error
that is plain.
       5
           Girard does not argue that his sentence is substantively unreasonable.

                                                  13
plea, undisputed statements in the PSI or evidence presented at the sentencing

hearing. United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004). A

sentencing court’s fact findings “cannot be based on speculation.” United States v.

Newman, 614 F.3d 1232, 1238 (11th Cir. 2010).

      If the defendant challenges a factual basis for his sentence, the government

must then prove those facts by a preponderance of the evidence. United States v.

Liss, 265 F.3d 1220, 1230 (11th Cir. 2001). However, the defendant’s challenge to

the facts “must be asserted with specificity and clarity” to trigger the government’s

burden of proof. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006).

If the defendant does not object to the PSI’s factual statements, they are deemed

admitted for sentencing purposes, and the district court may rely upon them even

in the absence of supporting evidence. United States v. Lopez-Garcia, 565 F.3d

1306, 1323 (11th Cir. 2009); United States v. Beckles, 565 F.3d 832, 843-44 (11th

Cir. 2009).

      Here, Girard did not carry his burden to show his sentence is procedurally

unreasonable. Girard made no objection to the PSI’s factual allegations regarding

his 2001 convictions, thus admitting them for sentencing purposes. In addition, the

government presented certified copies of Girard’s 2001 convictions, the fictitious

online profile for Caleb and Girard’s online chat with who he thought was Caleb.



                                          14
The district court’s findings that Girard’s criminal history demonstrated a pattern,

or “modus operandi,” of targeting lonely boys from troubled homes and that

Girard’s conduct escalated between the 2001 offenses and the instant offense were

based on these undisputed facts and evidence, rather than speculation.

      As for the district court’s comment expressing concern that, given the

computer software that destroys data, Girard may have committed other acts, a

review of the district court’s entire discussion of its reasons for imposing the

upward variance suggests this was an offhand comment rather than a factual basis

for the variance. Specifically, the district court primarily stressed the seriousness

of Girard’s current offense and that Girard had “graduated” from his earlier 2001

offenses. When the district court commented that it was hard to believe Girard had

not possessed child pornography between 2001 and 2009, the court also

acknowledged that the PSI did not reflect that Girard had committed any other acts

during those eight years. The district court then stated, “In any event, the primary

factors for the Court’s variance in this case” was the need to deter Girard and

protect the public. The district court then stressed that Girard’s 2001 convictions

did not deter him from committing the instant “even more aggravated” offense. In

sum, when the challenged comment is read in context, we do not think it reflects a

fact finding by the district court in support of the variance.



                                           15
        However, even assuming arguendo that the district court’s comment was

impermissible speculation, Girard never objected to it. As such, Girard is required

to show error that is plain that affected his substantial rights, i.e., that the court’s

speculation “actually did make a difference” and that there was a reasonable

probability that, absent the impermissible speculation, Girard would have received

a lesser sentence. See United States v. Pantle, 637 F.3d 1172, 1177 (11th Cir.

2011) (explaining that if the effect of the error is uncertain, the defendant cannot

show that it affected his substantial rights).6

        Girard also claims that the district court’s speculation “resulted in a

substantially higher sentencing range.” This argument lacks merit, too. The

district court made the challenged comment after confirming the PSI’s guidelines

calculations and imposing the vulnerable victim upward departure.


        6
          Ordinarily, if a defendant fails to object to a sentencing error before the district court, we
review for plain error. See United States v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006).
Although we have not yet done so in a published opinion, five other circuits have applied plain
error review to procedural reasonableness claims raised for the first time on appeal. See, e.g.,
United States v. Mancera-Perez, 505 F.3d 1054, 1058 (10th Cir. 2007); United States v. Gilman,
478 F.3d 440, 447 (1st Cir. 2007); United States v. Bailey, 488 F.3d 363, 367-69 (6th Cir. 2007);
United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006); United States v. Sylvester Norman
Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006). As the Tenth Circuit explained, “the
usual reasons for requiring a contemporaneous objection apply to challenges to the district
court’s method of arriving at a sentence. A timely objection to the method can alert the district
court and opposing counsel, so that a potential error can be corrected, obviating any need for an
appeal.” United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006); see also United
States v. Sorondo, 845 F.2d 945, 948-49 (11th Cir. 1988) (“The purpose of the plain error rule is
to enforce the requirement that parties object to errors at trial in a timely manner so as to provide
the trial judge an opportunity to avoid or correct any error, and thus avoid the costs of reversal.”
(quotation marks omitted)).

                                                  16
      For all of these reasons, Girard has not carried his burden to show prejudice

with regard to the alleged speculation.

      AFFIRMED.




                                          17
