           Case: 13-13080   Date Filed: 08/14/2014   Page: 1 of 12


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-13080
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 4:12-cr-10028-JEM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

WILLIAM J. BRITT,

                                                          Defendant-Appellant.

                        ________________________

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

                             (August 14, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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         William J. Britt appeals his 220-month imprisonment sentence following his

guilty plea to receiving a visual depiction involving a minor engaged in sexually

explicit conduct and possessing an unregistered firearm. We affirm.

                                     I. BACKGROUND

         In late October 2012, Britt’s former landlord was helping him move, when

the landlord saw discs and photographs that appeared to be child pornography. On

November 1, 2012, he contacted the Monroe County Sheriff’s Office and provided

four photographs and one CD as evidence. Based on this evidence, an arrest

warrant was issued, and law enforcement conducted a traffic stop on Britt’s van on

November 8, 2012. Britt was arrested; he provided written consent for law

enforcement to search his van. Arresting officers found a hand gun and a “sawed

off” shotgun, which was an unlawful length. Britt cooperated with law

enforcement and waived his Miranda 1 rights. In a videotaped interview, he

admitted to possessing child pornography. He also consented to the search of his

home, a recreational vehicle. He helped investigators by showing them numerous

computers, hard drives, and thumb drives containing child pornography and

consented to the seizure of these items.

         Britt was charged with receiving a visual depiction involving a minor

engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2) and


1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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(b)(1) (Count 1); knowingly possessing items containing visual depictions that had

been transported in interstate commerce involving a minor engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count 2);

and possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5841 and

5861(d) (Count 3). Britt pled guilty to Counts 1 and 3; the government dismissed

Count 2.

      After Britt pled guilty, he submitted the following statement regarding

acceptance of responsibility, which the judge quoted at his sentencing:

      I once read that character is what one does when no one is looking. I
      believe that adage is true. I also believe that I have demonstrated poor
      character. My actions have hurt the people and organizations I care
      deeply about. However noble I considered my intent, that does not
      justify the fact that I have hurt those very people I was supposed to set
      the example for. I hope that the subterfuge I used to maintain
      membership in those organizations I volunteered to assist will not
      reflect poorly on those organizations. My participation was solely
      based on my actions and no fault of their fine institutions. I dare not
      have the temerity to ask for forgiveness. I can only hope that time can
      heal the damage I have caused.

ROA at 339-40. Based in part on this statement, the probation officer

recommended a § 3E1.1 reduction in Britt’s offense level for acceptance of

responsibility. The officer also recommended a § 2G2.2(b)(5) sentencing

enhancement for a pattern of activity involving the sexual abuse or exploitation of

a minor.




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      During Britt’s sentencing hearing, a Federal Bureau of Investigation (“FBI”)

special agent testified, after Britt failed a polygraph examination, Britt told the

agent he had engaged in inappropriate sexual contact with several children. In

particular, Britt told the agent, while babysitting a boy who was three or four years

old, Britt had touched the boy’s bare penis and genital area in a sexual manner

while bathing the boy. Britt also told the agent that, while cleaning a different

three or four-year-old boy at a school where he assisted with special-needs

students, Britt had touched the boy’s bare penis and genital area in a sexual

manner. Britt told the agent, after touching the boys, he had been sexually aroused

and had masturbated.

      Britt testified he never inappropriately touched young boys and never had

been aroused sexually while cleaning or bathing children. He acknowledged,

however, he later had become aroused and masturbated, while thinking about boys

he had cleaned. Britt also apologized to the district judge and accepted full

responsibility for collecting child pornography, but he denied he had done anything

inappropriate to a child.

      The district judge imposed the five-level, § 2G2.2(b)(5) sentencing

enhancement for a pattern of activity involving the sexual abuse or exploitation of

a minor, and denied Britt’s request for the § 3E1.1, three-level acceptance-of-

responsibility reduction. The judge imposed a 220-month imprisonment sentence


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for receiving a visual depiction involving a minor engaged in sexually explicit

conduct, and a concurrent 120-month imprisonment sentence for possessing an

unregistered firearm.

      Britt raises three arguments on appeal: (1) the district judge clearly erred

when he imposed a five-level sentencing enhancement for a pattern of activity

involving the sexual abuse or exploitation of a minor, under U.S.S.G.

§ 2G2.2(b)(5); (2) the district judge clearly erred, when he denied a reduction for

acceptance of responsibility, under U.S.S.G. § 3E1.1; and (3) his sentence is

substantively unreasonable.

                                II. DISCUSSION

A. U.S.S.G. § 2G2.2(b)(5) Pattern-of-Activity Sentencing Enhancement

      We review a district judge’s application of the Sentencing Guidelines de

novo and factual findings for clear error. See United States v. Gupta, 572 F.3d

878, 887 (11th Cir. 2009). When a defendant challenges one of the factual bases

of his sentence, the government bears the burden of establishing the disputed fact

by a preponderance of the evidence, with reliable and specific evidence. Id.

      The Guidelines require a five-level increase, if the defendant engaged in a

pattern of activity involving the sexual abuse or exploitation of a minor. U.S.S.G.

§ 2G2.2(b)(5). The Guidelines commentary defines a pattern of activity as:

      any combination of two or more separate instances of the sexual abuse
      or sexual exploitation of a minor by the defendant, whether or not the
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          abuse or exploitation (A) occurred during the course of the offense;
          (B) involved the same minor; or (C) resulted in a conviction for such
          conduct.

Id. § 2G2.2, cmt. n.1. “Sexual abuse or exploitation” is defined, as conduct

described in 18 U.S.C. §§ 2241 and 2242. Id. Section 2241 prohibits engaging in

a “sexual act” with another person under the age of 12. 18 U.S.C. § 2241(c).

Section 2242 prohibits engaging in a “sexual act” with another person who is

incapable of appraising the nature of the conduct. Id. § 2242(2)(A). The term

“sexual act” for both statutes is defined to include “intentional touching, not

through the clothing, of the genitalia of another person who has not attained the

age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or

gratify the sexual desire of any person.” Id. § 2246(2)(D).

          In reaching credibility determinations, we allot substantial deference to the

factfinder, United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003), who

personally observes witnesses’ testimony and is in a better position than a

reviewing court to assess credibility, United States v. Ramirez-Chilel, 289 F.3d

744, 749 (11th Cir. 2002). The resolution of a credibility dispute will not be

reversed for clear error, unless the testimony is contrary to the laws of nature or is

so inconsistent or improbable on its face that no reasonable factfinder could accept

it. Id.




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      Britt has not shown the district judge clearly erred when he determined Britt

had engaged in two or more separate instances of sexual abuse or exploitation of a

minor. See 18 U.S.C. §§ 2241(c), 2242(2)(A), 2246(2)(D); U.S.S.G. § 2G2.2(b)(5)

& cmt. n.1. At the time he was bathing or cleaning the boys, Britt argues he did

not act with the intent to gratify himself sexually. The FBI agent, however,

testified Britt told the agent he had touched two boys’ bare penises in a sexual

manner when the boys were under the age of 12 and had been sexually aroused and

had masturbated after touching the boys. The district judge was entitled to credit

the agent’s testimony, which was not so inconsistent or improbable on its face that

no reasonable factfinder could accept it. See McPhee, 336 F.3d at 1275; Ramirez-

Chilel, 289 F.3d at 749.

B. Acceptance of Responsibility under U.S.S.G. § 3E1.1

      Because of his observation of a defendant, a district judge’s assessment of a

defendant’s acceptance of responsibility is entitled to great deference, and we

review it only for clear error. United States v. Moriarty, 429 F.3d 1012, 1022

(11th Cir. 2005). We will not find clear error unless our review of the record

leaves us with the “definite and firm conviction” that a mistake has been

committed. Gupta, 572 F.3d at 887 (citation and internal quotation marks

omitted).




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      Section 3E1.1 of the Sentencing Guidelines provides for a two-level

reduction in the offense level of a defendant, who clearly demonstrates acceptance

of responsibility for his offenses, with an additional one-level reduction possible if

requested by the government. U.S.S.G. § 3E1.1. Although a guilty plea may be

significant evidence of acceptance of responsibility, it may be outweighed by other

conduct inconsistent with acceptance of responsibility. Id., cmt. n.3; Moriarty, 429

F.3d at 1023. For example, a defendant who falsely denies relevant conduct that

the judge determines to be true has acted inconsistently with accepting

responsibility. U.S.S.G. § 3E1.1, cmt. n.1(A). Even though (1) the defendant

admitted wrongdoing, (2) the presentence investigation report (“PSI”)

recommended the decrease, and (3) the defendant apologized to the judge and the

victims at sentencing, we have affirmed a district judge’s denial of a § 3E1.1

reduction where we concluded the entire record did not clearly establish the

defendant’s acceptance of responsibility. See United States v. Sawyer, 180 F.3d

1319, 1323 (11th Cir. 1999).

      Britt has not shown the district judge clearly erred when he denied a § 3E1.1

reduction. First, the district judge was in the best position to observe Britt’s

demeanor during the proceedings and was uniquely situated to make findings

regarding Britt’s acceptance of responsibility. See Ramirez-Chilel, 289 F.3d at

749. The judge did not clearly err when he found the statement submitted by Britt


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for his PSI acknowledged neither his wrongdoing nor the harm caused to the

victims of his child pornography. Although Britt stated near the end of his

sentencing hearing that he was sorry and accepted full responsibility for his

actions, he also continued to deny conduct the judge already had found to have

occurred. The district judge therefore was entitled to conclude Britt’s conduct,

including his denials of relevant conduct, was inconsistent with accepting

responsibility. See U.S.S.G. § 3E1.1, cmt. n.1(A).

C. Substantive Reasonableness

      We examine the substantive reasonableness of a sentence in view of the

totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Gall v. United

States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). A district judge is required to

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

purposes listed in § 3553(a)(2), including the need to reflect the seriousness of the

crime, promote respect for the law, provide just punishment for the crime, deter

criminal conduct, and protect the public from the defendant’s future criminal

conduct. 18 U.S.C. § 3553(a)(2). The party challenging the sentence has the

burden of showing it is unreasonable. United States v. Thomas, 446 F.3d 1348,

1351 (11th Cir. 2006).

      The weight to be accorded any given § 3553(a) factor is a matter committed

to the sound discretion of the district judge. United States v. Williams, 526 F.3d


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1312, 1322 (11th Cir. 2008). We will reverse only if left with the “definite and

firm conviction” that the district judge 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) (citation and internal quotation marks

omitted). A sentence imposed well below the statutory maximum is one indicator

of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008). Although we do not automatically presume a within-Guidelines

sentence is reasonable, we ordinarily expect such a sentence to be reasonable.

United States v. Tobin, 676 F.3d 1264, 1310 (11th Cir.), cert. denied, 133 S. Ct.

658 (2012), abrogated on other grounds as recognized in United States v. Castro,

736 F.3d 1308, 1313-15 (11th Cir.), petition for cert. filed, No. 13-8080 (U.S. Dec.

24, 2013). Consequently, a defendant, who was granted a significant downward

variance, will find it difficult to establish his sentence was unreasonable. See

Tobin, 676 F.3d at 1310.

      Britt has not met his burden of establishing his sentence is substantively

unreasonable in light of the record and the § 3553(a) factors. Irey, 612 F.3d at

1190; Thomas, 446 F.3d at 1351. His sentence is well below the 30-year statutory

maximum penalty. See 18 U.S.C. § 2252(a)(2), (b)(1); 26 U.S.C. §§ 5861, 5871;

Gonzalez, 550 F.3d at 1324. In recognition of Britt’s prior lengthy military


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service, the district judge also granted a substantial downward variance of 72

months below Britt’s Guidelines imprisonment range, which is another indication

of the reasonableness of his sentence. See Tobin, 676 F.3d at 1310. The district

judge noted Britt’s sentence met the § 3553(a) goals, particularly the need for

deterrence and punishment, while accounting for the positive factors in Britt’s

background. See 18 U.S.C. § 3553(a); Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      Britt asserts the district judge based his sentence on an erroneous finding

that he sexually had abused many more than two boys. This argument is

misplaced. In the context of the sentencing-hearing discussion cited by Britt for

this proposition, it is evident the judge was expressing his belief that Britt likely

had engaged in “a lot more than two” instances of misconduct, and not that Britt

had abused many more than two boys. See ROA at 367-68. Additionally, the

judge immediately added, “but I don’t know that,” which shows the judge did not

make that finding or base Britt’s sentence on it. See ROA at 368. Britt has cited

no binding precedent to support his argument, raised for the first time on appeal,

that the child pornography Guidelines are entitled to less deference because they

are not based on empirical data. Cf. United States v. Pugh, 515 F.3d 1179, 1201

n.15 (11th Cir. 2008) (noting the child-pornography Guidelines did not suffer from

the same deficiencies as the crack-cocaine Guidelines, which did not take account




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of empirical data and national experience). Britt has failed to show his

imprisonment sentence is incorrect.

      AFFIRMED.




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