               Case: 15-11163    Date Filed: 01/06/2016   Page: 1 of 11


                                                           [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-11163
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 6:14-cr-00206-ACC-TBS-1

UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

versus

JESSE AUSBIN BROWN,

                                                           Defendant - Appellant.
                            ________________________

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

                                  (January 6, 2016)

Before TJOFLAT, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

         Jesse Ausbin Brown appeals his 240-month sentence for possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(5)(B). On appeal, Mr. Brown

contends that his sentence was procedurally and substantively unreasonable
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because the district court based the sentence, in part, on a finding that he had failed

to accept responsibility. For the reasons that follow, we affirm.

                                          I

      In 1992, Mr. Brown was convicted in the Western District of South Dakota

on two counts of sexual abuse of a child and was sentenced to 235 months. On

September 17, 2008 Mr. Brown was released from prison and began serving a

four-year term of supervised release in the Western District of South Dakota. His

supervised release was scheduled to terminate on September 16, 2012.

      Four days after the expiration of Mr. Brown’s term of supervised release,

September 20, 2012, the police in Winter Garden, Florida, received a complaint

regarding a man who was attempting to lure young children into his car. The

police pulled over Mr. Brown in his vehicle and discovered that he was a convicted

sex offender who had not registered in the State of Florida. Mr. Brown was

subsequently arrested and convicted for failure to register as a sex offender.

      After that arrest, Mr. Brown’s car was sold and the purchaser found a

smartphone belonging to Mr. Brown hidden in the car. An investigation revealed

that the phone contained approximately 1,050 pornographic images of children

between infancy to roughly 10 years of age. These images all showed the sexual

abuse/exploitation of children. Mr. Brown admitted to FBI agents that he used the

phone to connect to the internet, that he had hidden the phone in his car, that it


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contained numerous images of child pornography, and that he had collected child

pornography from 2009 until he was arrested in 2012. He also told the agents that

he would masturbate while looking at the images and did this to keep from acting

out physically against children.

      Pursuant to a one-count indictment, Mr. Brown was charged with possession

of child pornography and pled guilty. At the plea hearing, Mr. Brown was asked to

describe what he had done and he said, “I guess I stumbled into it . . . . I mean I

stumbled into some sites and . . . I just downloaded the pictures.” D.E. 66 at 14.

He agreed that he had known what he was doing was wrong. He also agreed with

the government’s stated factual basis for the plea, and the district court accepted

his plea.

      Pursuant to the advisory sentencing guidelines, Mr. Brown’s base offense

level was 18.     He received several enhancements: a two-level enhancement

because the material involved minors under the age of 12; a four-level

enhancement because the material portrayed sadistic or masochistic conduct or

other depictions of violence; a five-level enhancement for engaging in a pattern of

activity involving the sexual exploitation of a minor; a two-level enhancement

because he used a computer or interactive service for the possession, transmission,

receipt, or for accessing with intent to view the material; and a five-level

enhancement because the offense involved over 600 images. His base offense


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level was decreased by three levels for acceptance of responsibility, which resulted

in a total offense level of 33.

      Mr. Brown had six criminal history points—three points for his federal

sexual abuse of a child conviction in South Dakota and three points for his failure

to register as a sex offender conviction in Florida—which resulted in a criminal

history category of III. Based on a total offense level of 33, and a criminal history

category of III, Mr. Brown’s advisory sentencing guideline range was 168 to 210

months imprisonment.

      At sentencing, the district court adopted the PSI and defense counsel asked

the district court to sentence Mr. Brown at the low end of the suggested guideline

range because of his advanced age, 62, and his essential confinement to a

wheelchair. The government argued for a sentence at the high end of the guideline

range due to the severity of the crime, the large number of images of victims

between the ages of five and eight, Mr. Brown’s history, and the protection of the

public.    The government also argued that the “timeline [was] particularly

troubling,” given that Mr. Brown had previously sexually abused two young girls,

and upon release from prison for that offense, collected child pornography for, in

his own words, a “crutch to prevent [himself] from acting out.” D.E. 58 at 9.

      In his allocution, Mr. Brown stated that he had received “permission to have

pornography” from his sex offender program. Id. at 10. He also stated that he


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“had no physical or sexual drive whatsoever” because of the amount of time he

spent working. Id. Mr. Brown also said, “[a]nd the pictures, I never even saw the

pictures like I tried to explain this to the FBI agent that, you know, the phone was

in the car, and I accept that, you know. But I’m not evil. I really am not, ma’am.

I’m not that evil.” Id.

       The district court imposed a 240-month sentence.        It stated that it had

reviewed the PSI, considered the advisory guidelines, and the 18 U.S.C. § 3553(a)

factors, and had found “that the sentence imposed [was] sufficient but not greater

than necessary to comply with the statutory purposes of sentencing.” Id. at 10, 15.

Though the district court had adopted the PSI, which credited Mr. Brown with a

three-level deduction for acceptance of responsibility, part of the court’s

explanation for the variance was that Mr. Brown had not really admitted his

culpability. The court explained that:

       The Court feels that a maximum sentence permitted in this case,
       which is 240 months, is necessary to protect the public in this case.
       The defendant has 18 prior convictions, one of which is for sexual
       abuse of a child, another for failure to register as a sex offender. The
       need to deter the defendant’s criminal conduct and protect the public
       should take precedence in this case.

       The Court also notes that the defendant has demonstrated really no
       acceptance of responsibility for his actions. So the Court feels that a
       sentence within the statutory maximum is appropriate.

Id. at 15.



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      Mr. Brown objected to the sentence as unreasonable, arguing that the district

court did not consider his age and health. Mr. Brown further argued that the

underlying offense for sexual abuse, which was a contact offense, had a guideline

range of 235 months, which was lower than the non-contact offense at issue before

the court. The court explained that the guideline range increased as an offender

had more convictions, and clarified that “[t]he [c]ourt feels that the guideline, as I

have stated, is not sufficient to protect the public in this particular case. The

[c]ourt did consider [Mr. Brown’s] age and physical condition, but the need to

protect the public is so overwhelming when we’re talking about children.” Id. at

16.

      Mr. Brown now appeals, arguing that the 240-month statutory maximum

sentence imposed by the district court was both procedurally and substantively

unreasonable.     Mr. Brown contends that the sentence was procedurally

unreasonable because it was based, in part, on an erroneous conclusion of the

district court that he did not accept responsibility. He also contends that the

sentence was substantively unreasonable because the district court committed a

clear error in judgment when it considered Mr. Brown’s purported lack of remorse

in varying upward from the advisory guideline range and imposing the statutory

maximum sentence.




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                                         II

      We review the reasonableness of a sentencing decision for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 41 (2007).      We first look to

ensure that the district court committed no significant procedural errors. See

United States v. Beckles, 565 F.3d 832, 845 (11th Cir. 2009).            A significant

procedural error includes “failing to calculate (or improperly calculating) the

Guideline 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.” Gall, 552 U.S. at 51. Abuse of discretion

can be found when the district judge “(1) fails to afford consideration to relevant

factors that merited significant weight, (2) gives significant weight to an improper

or irrelevant factor, or (3) commits a clear error of judgment.” United States v.

Brown, 772 F.3d 1262, 1266 (11th Cir. 2014) (citing United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010)(en banc)).

      A “defendant bears the burden of clearly demonstrating acceptance of

responsibility and must present more than just a guilty plea. Although a guilty plea

can constitute significant evidence of acceptance of responsibility, it may be

outweighed by conduct of the defendant inconsistent with an acceptance of




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responsibility.” United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005)

(citing U.S.S.G. § 3E1.1 comment. (n. 3)).

      Mr. Brown contends that the district court procedurally erred by basing the

sentence, in part, on the clearly erroneous finding that he had not demonstrated an

acceptance of responsibility. We disagree, despite his guilty plea, Mr. Brown did

not met his burden, and the district court did not clearly err in concluding that he

had not demonstrated acceptance of responsibility. His equivocal statements that

he “stumbl[ed]” upon approximately 1,050 pornographic images of children, that

he “never even saw the pictures,” and that he had permission to have pornography

and yet no sex drive could reasonably be found to constitute a denial of the

acceptance of responsibility. At sentencing, the only thing Mr. Brown accepted

responsibility for was having the phone in the car.

        “If the district court did not procedurally err, then we consider the

substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard, based on the totality of the circumstances.” Beckles, 565 F.3d at 845

(quotations omitted). “The party challenging the sentence bears the burden of

establishing [that] the sentence is unreasonable in light of the record and factors in

18 U.S.C. § 3553(a).” Brown, 772 F.3d at 1266. The relevant § 3553(a) factors

include (1) the nature and circumstances of the crime as well as the history and

characteristics of the defendant; (2) the need to reflect the seriousness of the crime,


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to promote respect for the law, and to provide just punishment for the crime; (3)

the need for deterrence; and (4) the need to protect the public.

      A district court should not focus on one factor “single-mindedly” to the

detriment of other factors, and an unjustified reliance on any one factor may be a

symptom of an unreasonable sentence. See United States v. Crips, 454 F.3d 1285,

1292 (11th Cir. 2006). Nevertheless, the weight to be applied to any one factor is

within the discretion of the sentencing court. See United States v. Amedeo, 487

F.3d 823, 832 (11th Cir. 2007). See also Brown, 772 F.3d at 1266–67 (affirming

as reasonable a 240-month sentence for possession and receipt of child

pornography when the district court found the need to protect the public was

“perhaps [the] most important aspect” and varied upward from an advisory

guidelines range of 78–97 months).

      If the sentencing court decides, after serious consideration, to a sentence

outside of the applicable guidelines range, it should provide an explanation for the

variance.   See Brown, 772 F.3d at 1266.         We will reverse and remand for

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

district court 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.” Irey, 612 F.3d at 1189–90.




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      Mr. Brown has failed to meet his burden of showing his sentence is

substantively unreasonable under the totality of the circumstances. The district

court did not rely solely on Mr. Brown’s lack of acceptance of responsibility; that

was only one factor that the district court used in deciding an upward variance was

appropriate. The court’s two main justifications for the variance were the need to

protect the public and to deter Mr. Brown’s criminal conduct, which were

particularly reasonable, relevant, and proper in light of the facts presented. Mr.

Brown had already served a 235-month sentence for sexually abusing two young

girls and days after his supervised release ended he was suspected of trying to lure

children into his vehicle, which led to his arrest for failing to register as a sex

offender, which then led to the discovery of a considerably large amount of child

pornography on his cell phone, some of which was downloaded while he was on

supervised release. It is also worth noting the disturbing nature of the child

pornography found on Mr. Brown’s phone; the images on his phone were of very

young children, and all of them were of children being sexually abused. This is the

same child pornography that Mr. Brown admitted to FBI agents he had

downloaded so he could use as material to stimulate himself sexually and prevent

himself from “acting out” physically against children. In short, the district court’s

conclusion that Mr. Brown posed a danger to the community was not erroneous.




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      The district court stated the reasons supporting the sentence and the

justifications were sufficiently compelling to support the variance. When defense

counsel objected to the reasonableness of the sentence and the court again

highlighted the need to protect the public as the main factor in the decision for an

upward variance of 30 months. See generally United States v. Sarras, 575 F.3d

1191, 1220 (11th Cir. 2009) (“Child sex crimes are among the most egregious and

despicable of societal and criminal offenses, and courts have upheld lengthy

sentences in these cases as substantively reasonable.”). Looking at the totality of

the circumstances and giving due deference to the sentencing court’s justification

for the upward variance, we conclude that there was no abuse of discretion.

                                        III

      Mr. Brown’s 240-month sentence was not procedurally or substantially

unreasonable. Accordingly, we affirm.

      AFFIRMED.




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