                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 06-11493
                                                                 September 7, 2006
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK

                       D. C. Docket No. 05-60224-CR-JAL

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

BERT DENNIS FREEMAN,

                                                             Defendant-Appellant.

                           ________________________

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

                               (September 7, 2006)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Bert Dennis Freeman appeals his 75-month sentence, and life term of

supervised release, for receipt and possession of child pornography, in violation of

18 U.S.C. §§ 2252A(a)(2), (b)(1), (a)(5)(b), and (b)(2).      On appeal, Freeman
argues: (1) that the portion of his sentence imposing a life term of supervised

release is unreasonable in light of the 18 U.S.C. § 3553(a) factors; and (2) that his

Fifth Amendment due process rights were violated because the district court did

not apply a preponderance-of-the-evidence standard in sentencing him to a life

term of supervised release. After careful review, we find no error and affirm.1

       The relevant facts are these. On August 30, 2005, Freeman was indicted for

knowingly receiving and attempting to receive material containing child

pornography (two videotapes identified as “#7” and “#23”), in violation of 18

U.S.C. §§ 2252A(a)(2) and (b)(1) (Count 1), and knowingly and intentionally

possessing material containing child pornography (videotapes “#7” and “#23”), in

violation of §§ 2252A(a)(5)(b) and (b)(2). Freeman pled guilty to both counts and

proceeded to sentencing.

       According to the presentence investigation report (“PSI”), Freeman was

arrested after ordering, receiving, and submitting payment for two child

pornography videos, in response to an advertisement on the internet. After his

arrest, federal agents also found 83 files of child pornography on his computer hard

drive, 68 of which were analyzed and confirmed by agents to involve actual


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          The government contends that we should review Freeman’s claims for only plain error
because he did not make any objections to the sentence at his sentencing hearing. Because we find
no error based on the district court’s § 3553(a) analysis, we need not, and do not, reach the issue of
whether there was plain error.

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children. The PSI recommended a base offense level of 22, pursuant to U.S.S.G. §

2G2.2(a)(2), and the following adjustments: (1) a 2-level reduction because

Freeman’s conduct was limited to the receipt of child pornography without the

intent to distribute, U.S.S.G. § 2G2.2(a)(2); (2) a 2-level enhancement because the

material involved prepubescent minors, U.S.S.G. § 2G2.2(b)(2);         (3) a 4-level

enhancement because the material portrayed sadistic or masochistic conduct,

U.S.S.G. § 2G2.2(b)(4); (4) a 2-level enhancement because a computer was used in

the receipt of the material, U.S.S.G. 2G2.2(b)(6); and (5) a 2-level enhancement

because the offense involved more than 10, but less than 150, images, U.S.S.G. §

2G2.2(b)(6). After a 3-level reduction for acceptance of responsibility under §

3E1.1(a) and (b), Freeman’s adjusted offense level was a 27. With a criminal

history category I, Freeman faced a Guidelines imprisonment range of 70 to 87

months, and a Guidelines supervised release range of any term of years or life.

      At the sentencing hearing, Freeman made no objections to the PSI or to the

application of the Guidelines. The district court directed that the details of 14

chatroom conversations between Freeman and other individuals be included in the

PSI report as relevant conduct, to which there was no objection.            Freeman

presented an expert witness, Dr. Eric Imhoff, a certified provider of sex offender

treatment, who opined that Freeman had paraphilia, a condition in which an



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individual has engaged in “sexual thoughts, urges or behaviors involving. . .

children” for more than six months. Dr. Imhoff also opined that Freeman was

treatable, had accepted responsibility, and “present[ed] a low risk for a hands-on

offense.” Dr. Imhoff then was extensively cross-examined by the prosecutor and

thoroughly questioned by the district court concerning the foundation for his

opinion regarding Freeman’s low risk for recidivism.

      The district court also heard testimony from Freeman, his counsel, and his

mother who urged the court to “allow [Freeman] to be continued to be monitored,

if it’s possible, without sending him far away.” Defense counsel argued for the

district court to impose a lesser imprisonment sentence, and in doing so noted that

the court had “unlimited power in terms of supervised release,” which would “be

an opportunity to make sure that [Freeman] [was] progressing on the right track”

and “would be something that [Freeman would] have to live with.”

      The district court, after considering the aforementioned evidence, along with

the advisory Guidelines range of 70 to 87 months’ imprisonment and the factors of

§ 3553(a), sentenced Freeman to a 75-month term of imprisonment followed by a

life term of supervised release. The district court stated that the supervised-release

portion of Freeman’s sentence was “appropriate in this matter based upon

[Freeman’s] history of deviant sexual conduct, the 83 images of child pornography



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that were found on his computer, in addition to the offenses for which he stands

before the Court and the approximately 14 chatroom conversations in which

[Freeman] explicitly discusses and        solicits sexual conduct with       persons

representing themselves to be minor females.” This appeal followed.

      Freeman asserts that his sentence was unreasonable because the district court

did not adequately consult some of the factors listed in 18 U.S.C. § 3553(a). He

makes various arguments, some that he raised in the district court and others that

he raises for the first time here, in support of mitigation. We are unpersuaded by

any of them.

      Our reasonableness review is guided by the factors in 18 U.S.C. § 3553(a).

United States v. Booker, 543 U.S. 220, 261 (2005); United States v. Winingear,

422 F.3d 1241, 1245 (11th Cir. 2005). And our “[r]eview for reasonableness is

deferential.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he

party who challenges the sentence bears the burden of establishing that the

sentence is unreasonable in the light of both th[e] record and the factors in section

3553(a).” Id. These factors include the following:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;

      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;

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             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;

      (3) the kinds of sentences available;

      ....

      (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). Although sentencing courts must be guided by these factors,

“nothing in Booker or elsewhere requires the district court to state on the record

that it has explicitly considered each of the § 3553(a) factors or to discuss each of

the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (stating that,

post-Booker, district courts need not conduct an accounting of every § 3553(a)

factor and expound on how each factor played a role in the sentencing decision).

      Based on our careful review, with particular attention to the sentencing

transcript and the PSI, we readily conclude that Freeman’s sentence is reasonable.

The district court explicitly stated that it had consulted § 3553(a) prior to imposing

a sentence that fell within the advisory Guidelines range. Cf. Talley, 431 F.3d at

788 (observing that “when the district court imposes a sentence within the advisory

Guidelines range, we ordinarily will expect that choice to be a reasonable one”).

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Before announcing its sentence, the court considered the testimony of Dr. Imhoff,

Freeman’s mother, and Freeman, and heard Freeman’s arguments, all of which

pertained to “the nature and circumstances of the offense and the history and

characteristics of the defendant,” within the meaning of § 3553(a)(1), since they

concerned Freeman’s family and work responsibilities, his diagnosis for paraphilia,

and his remorse and desire for rehabilitation. Moreover, in imposing sentence, the

district court highlighted the serious nature of Freeman’s crime involving a

“history of deviant sexual conduct,” including “the 83 images of child pornography

that were found on his computer, in addition to the offenses for which he stands

before the Court and the approximately 14 chatroom conversations in which

[Freeman] explicitly    discusses and     solicits sexual conduct with        persons

representing themselves to be minor females.”         Cf. 18 U.S.C. § 3553(a)(2)

(discussing factors pertaining to need for sentence imposed “to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense” and “to afford adequate deterrence to criminal

conduct” and “to protect the public from further crimes of the defendant”).

      We also note that the life term of supervised release is entirely consistent

with both defense counsel’s argument and Freeman’s mother’s testimony in favor

of continued monitoring rather than a longer term of imprisonment. Cf. id. at §



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3553(a)(2)(D) (discussing need for sentence “to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in

the most effective manner”).        Finally, the parties’ arguments and the PSI’s

calculations outlined “the kinds of sentences available,” as discussed in §

3553(a)(3). On this record, Freeman’s sentence was reasonable.

      Freeman’s argument that the district court failed to apply a preponderance-

of-the-evidence standard in imposing a life term of supervised release is without

merit. The government bears the burden of proving the applicability of guidelines

that enhance a defendant’s offense level. United States v. Cataldo, 171 F.3d 1316,

1321 (11th Cir. 1999).       The district court’s factual findings for purposes of

sentencing may be based on, among other things, evidence heard during trial,

undisputed statements in the PSI, or evidence presented during the sentencing

hearing. United States v. Saunders, 318 F.3d 1257, 1271 n. 22 (11th Cir. 2003).

      It is well-settled that where a defendant does not object to the facts of the

PSI, they are deemed admitted for Booker purposes. See United States v. Shelton,

400 F.3d 1325, 1330 (11th Cir. 2005) (holding that a defendant admits to the PSI’s

factual statements about his relevant conduct where he raises no objections to those

statements). “It is also established law that the failure to object to a district court’s

factual findings precludes the argument that there was error in them.” United States



                                           8
v. Wade, --- F.3d ---, 2006 WL 2195284, at *3 (11th Cir. Aug. 4, 2006) (citing

United States v. Weir, 51 F.3d 1031, 1033 (11th Cir. 1995); United States v.

Norris, 50 F.3d 959, 962 (11th Cir. 1995)).     In the case at bar, the facts stated in

the PSI, upon which the district court made its factual findings, were admitted and

deemed established because Freeman made no objection to “the Court’s finding of

facts and conclusions of law. . .[or] to the manner in which [the] sentence was

imposed,” when specifically asked whether he wished to do so. See DE:51 at 22.

Thus, the district court properly made and considered the factual findings

supporting a life term of supervised release.

      AFFIRMED.




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