             Case: 18-11772    Date Filed: 11/26/2018   Page: 1 of 6


                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-11772
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 3:17-cr-00082-MCR-1


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

JOHN P. LOTHAMER,

                                                            Defendant-Appellant.

                        ________________________

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

                              (November 26, 2018)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

     John Lothamer pled guilty to distribution and attempted production of child

pornography, in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(2). For these
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offenses, the district court sentenced him to 180 months of imprisonment followed

by a life term of supervised release. Lothamer appeals, arguing that the life term of

supervised release is substantively unreasonable, given his personal history, lack of

a criminal record or physical contact with any minor, and low risk of recidivism.

After careful review, we affirm.

      We typically review the reasonableness of the district court’s sentence of

supervised release for an abuse of discretion. United States v. Zinn, 321 F.3d 1084,

1087 (11th Cir. 2003). Both parties here, however, say that plain-error review

applies because Lothamer did not address or object to the life term at sentencing.

See United States v. Carpenter, 803 F.3d 1224, 1238 (11th Cir. 2015) (stating that

we generally review arguments raised for the first time on appeal for plain error).

Yet they do not cite any published case in which we have applied plain-error review

to an appeal of the reasonableness of a term of supervised release. And in any case,

we need not resolve whether plain-error review applies here because Lothamer

cannot prevail even under our ordinary abuse-of-discretion standard.

      In reviewing sentences for reasonableness, we ensure that the sentence is both

free from any significant procedural error and “substantively reasonable in light of

the totality of the circumstances and the § 3553(a) factors.” United States v. Trailer,

827 F.3d 933, 935–36 (11th Cir. 2016). Lothamer does not argue that the court




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procedurally erred in sentencing him, and we see no error in that regard, so we

consider only the substantive reasonableness of his sentence.

       In general, the district court must impose a sentence that is sufficient, but not

greater than necessary, to comply with the purposes of sentencing. 18 U.S.C.

§ 3553(a). When including a term of supervised release, the court must determine

the length of the term based on the purposes of deterrence, protection of the public,

and rehabilitation, but not retribution. 18 U.S.C. § 3583(c); see id. § 3553(a)(2)(B)–

(D).     The court must also consider, among other factors, the nature and

circumstances of the offense, the history and characteristics of the defendant, and

any relevant policy statements issued by the Sentencing Commission.                   Id.

§ 3553(a)(1), (5). The weight to be given each § 3553(a) factor is within the district

court’s sound discretion. United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir.

2013).

       “The party challenging a sentence has the burden of showing that the sentence

is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial

deference afforded sentencing courts.” United States v. Rosales-Bruno, 789 F.3d

1249, 1256 (11th Cir. 2015). Ordinarily, “we will reverse a sentence as substantively

unreasonable only if we are left with the definite and firm conviction that the

[d]istrict [c]ourt committed a clear error of judgment in weighing the factors by

arriving at a sentence outside the range of reasonable sentences dictated by the facts


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of the case.” United States v. Alberts, 859 F.3d 979, 985 (11th Cir. 2017) (quotation

marks omitted).

      Here, Lothamer has not met his burden of showing that the district court

abused its discretion by imposing a life time of supervised release. First, the

governing statute authorized a life term. For sex offenses, including distribution and

attempted production of child pornography, a district court must impose a term of

supervised release of at least five years, and it may impose a term up to life. 18

U.S.C. § 3583(k). Additionally, as we noted in United States v. Pugh, Congress

enacted § 3583(k) with the intent “to impose life terms of supervised release on sex

offenders.” 515 F.3d 1179, 1199 (11th Cir. 2009) (quotation marks omitted).

Accordingly, the court’s decision is consistent with § 3583(k).

      Second, the district court’s decision is also consistent with the guidelines. The

Sentencing Commission has issued a policy statement recommending life terms of

supervised release for sex offenses. U.S.S.G. § 5D1.2(b)(2) (“If the instant offense

of conviction is a sex offense, . . . the statutory maximum term of supervised release

is recommended.”). Lothamer does not dispute that his convictions qualify as “sex

offense[s]” within the meaning of this policy statement. The court was required to

consider this policy statement in imposing the term of supervised release, see 18

U.S.C. § 3553(a)(5), which further supports the reasonableness of the district court’s

decision to impose a life term.


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      Third, the district court’s imposition of a life term of supervised release is

supported by the other § 3553(a) factors and the particular facts of Lothamer’s case.

Lothamer argues that a life term is too harsh in light of his general history and

characteristics—including his veteran status, steady employment history, balanced

family life, and lack of criminal record—as well as the relatively minor nature of the

offenses, his lack of physical contact with minors, and his low risk of recidivism.

      But the district court reasonably balanced these mitigating factors against

other factors supporting a serious term of supervised release, and we will not second-

guess the court’s weighing decisions. In particular, the court cited his repeated

requests that a purported minor produce and send him pornographic images, his

illicit chats with two real minors, his “daddy rules” that demonstrated experience in

such a role, and his distribution of pornographic images to minors for the purpose of

having them produce similar images. This evidence, according to the court, reflected

a “pattern of activity” of Lothamer “grooming minors” on the internet and

“control[ing] children for [his] own sexual pleasure.” The court was entitled to

weigh these factors more heavily and to conclude, consistent with what the

guidelines recommend, that a serious term of supervised release was necessary to

deter others, to protect the public, and to promote rehabilitation. See 18 U.S.C.

§§ 3553(a)(2)(B)–(D), 3583(k).




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      Finally, we note that Lothamer’s life term of supervised release “can be

shortened in the future by the district court.” Trailer, 827 F.3d at 937. As we noted

in Trailer, in upholding a life term of supervised release for failure to register as a

sex offender, a defendant can both petition the district court “for modification of the

conditions of supervised release” and “also seek early termination of his supervised

release after he has served at least one year of the term.” Id. at 937–38 (citing 18

U.S.C. § 3583(e)). If the district court denies such a motion, he may seek appellate

review of that decision. Id. at 938.

      For these reasons, we affirm the district court’s decision to impose a life term

of supervised release for Lothamer’s child-pornography convictions.

      AFFIRMED.




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