           Case: 19-10903   Date Filed: 12/10/2019   Page: 1 of 11


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10903
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:17-cr-14014-DMM-1



UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RICHARD EUGENE FYE, III,

                                                          Defendant-Appellant.

                       ________________________

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

                            (December 10, 2019)

Before WILSON, MARTIN, and BRANCH, Circuit Judges.

PER CURIAM:
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      Richard Fye pled guilty to one count of coercion of a minor into sexual

activity, one count of production of visual depictions of sexual exploitation of

minors, one count of knowingly receiving visual depictions of minors engaged in

sexually explicit conduct, and one count of possession of material containing

visual depictions of sexual exploitation of minors. Fye was sentenced to 300-

months imprisonment and a lifetime of supervised release. Although Fye wanted

to appeal from his judgment of conviction and sentence, his trial counsel failed to

file a timely notice of appeal. Fye moved to vacate his sentence pursuant to 28

U.S.C. § 2255. The district court granted Fye’s motion and, in accordance with

United States v. Phillips, 225 F.3d 1198 (11th Cir. 2000), vacated and reimposed

its judgment, thus permitting Fye to file a direct appeal.

      Fye raises two issues on direct appeal. First, he argues his 300-month

sentence was substantively unreasonable. Second, he argues the district court

should have conducted a de novo resentencing following the grant of his § 2255

motion, rather than simply reimposing its previous sentence. Finding no error, we

affirm the district court.

                                          I.

                                          A.

      On December 14, 2016, a fifteen-year-old girl (“EB”) and her parents filed a

complaint with the Sheriff’s Office in Washtenaw County, Michigan (the



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“Sheriff’s Office”). EB reported that, the previous day, she met a fourteen-year-

old boy named Marco through the social media application MeetMe. Marco and

EB began conversing on MeetMe and then switched over to Snapchat, another

social media application. Marco asked EB to send him nude photographs of

herself, which she did. After a few moments, Marco sent EB a screenshot of her

Facebook contacts and advised her that if she did not send him nude videos of

herself he would distribute the photographs to her friends and family members.

She complied with his demand and sent him two fifteen-minute videos of herself

engaged in sexually explicit activity.

      The Sheriff’s Office requested the help of the Detroit bureau of Homeland

Security Investigations, an arm of the United States Department of Homeland

Security, which traced Marco’s IP address to an address in Port St. Lucie, Florida.

After connecting the IP address with a cellular telephone number, law enforcement

identified “Marco” as the defendant in this action, a twenty-four-year-old man

residing at a sober living home for people recovering from substance abuse

addiction. Homeland Security also found that EB was not the only underage

female whom Fye had corresponded with in the guise of “Marco.” A search

warrant executed against one of the social media accounts registered at Fye’s

address showed that he carried on similar interactions—pretending to be Marco;

asking for nude photographs; and demanding nude videos—with several other



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underage individuals. Later searches would turn up more such evidence.

Homeland Security executed a search warrant at Fye’s residence and found an

iPhone and a laptop computer with over 200 suspected child pornography videos

and images.

                                         B.

      Fye was taken into federal custody on February 8, 2017 and detained

without bail pending trial. The following day, he was indicted by a grand jury in

the U.S. District Court for the Southern District of Florida on four counts:

(1) knowingly inducing, enticing, or coercing a minor to engage in sexual activity,

in violation of 18 U.S.C. § 2422(b); (2) production of material containing visual

depictions of sexual exploitation of minors, in violation of 18 U.S.C. § 2251(a) and

(e); (3) knowing receipt of a visual depiction of a minor engaged in sexually

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

possession of material containing visual depictions of minors engaging in sexually

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

      Fye pled guilty to the four-count indictment pursuant to a written plea

agreement and factual proffer. The U.S. Probation Department prepared a

presentence investigation report (“PSR”) setting forth the facts that formed the

basis for Fye’s indictment, as well as information about sixteen additional

underage video production victims. The government supplemented the PSR with



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information about additional victims of Fye’s conduct. Based on the offense level

of 43 calculated in the PSR, Fye’s guideline imprisonment range was life. The

PSR also set forth facts about Fye’s life that the district court could consider at

sentencing, including his history of substance abuse, up-and-down employment

record, and history of anxiety and depression. Prior to sentencing, Fye asked for a

downward variance from the guideline range of life imprisonment to the

mandatory minimum sentence of 15 years. The government opposed Fye’s request

and recommended a sentence of 60-years imprisonment.

      At the sentencing hearing on June 8, 2017 the district court heard from a

number of Fye’s victims. Some of the victim impact statements were in the form

of letters read in open court, while others came into evidence by live testimony

from victims’ family members. Fye called several of his own family members as

character witnesses who testified that his crimes were uncharacteristic and resulted

from his substance abuse. Some of these family members also submitted letters on

Fye’s behalf prior to sentencing. Fye also called Dr. Ben Taylor, a mental health

counselor specializing in sex offenders, who testified that Fye had a low risk of

recidivism and that Fye suffered from depression, post-traumatic stress disorder,

and obsessive compulsive disorder. Dr. Taylor admitted on cross-examination that

his assessment of the likelihood of Fye’s recidivism was based on general

statistics, not factors individual to Fye, and that he would diagnose Fye as either a



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pedophile or hebephiliac. The government then called Dr. Michael Brannon, a

forensic psychologist, as a rebuttal witness. Dr. Brannon did not interview Fye but

he did review Dr. Taylor’s reports. Dr. Brannon testified that he would have given

Fye a moderate-to-high probability of recidivism and that Dr. Taylor’s evaluation

of Fye did not accord with accepted evaluation methods.

       In determining Fye’s sentence, the district court first stated that, while Fye’s

crime was “extremely serious,” it did not warrant life in prison. The district court

then noted its consideration of a 2012 report by the United States Sentencing

Commission discussing how federal child pornography offenders are prosecuted,

sentenced, incarcerated, and supervised following reentry to the community.1 The

district court “tried to use the 2012 report as a guide because” he did not think the

guidelines were, “in many cases, . . . discerning enough and don’t recognize the

differences between different types of cases.” The court recognized that Fye’s case

“is worse than the average offender in some ways” because “[h]e targeted multiple

victims, including one very young child”; but the court also stated that Fye’s

conduct was “in other ways . . . less culpable than the typical offender” because he

had no physical contact with his victims and he did not attempt to seek them out

after they cut off contact. The court stated that Fye did not distribute the videos he


       1
         See U.S. Sentencing Comm’n, Federal Child Pornography Offenses (2012),
https://www.ussc.gov/research/congressional-reports/2012-report-congress-federal-child-
pornography-offenses.


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received (with one limited exception) and had no profit motive. The court took

note of Fye’s lack of a criminal history and the lack of “signs that he was going to

act physically on these impulses.”

      The district court sentenced Fye to 300-months imprisonment on Count 1

and 240-months imprisonment on Counts 2, 3, and 4, all to be served concurrently.

The court also sentenced Fye to supervised release for a term of life, as well as

additional special conditions. Fye did not file a notice of appeal following entry of

his judgment of conviction and sentence.

                                           C.

      On June 20, 2018, Fye filed a motion to vacate his sentence pursuant to 28

U.S.C. § 2255 claiming ineffective assistance of trial counsel. Fye alleged that

counsel was ineffective for failing to file a notice of appeal even though Fye

directed him to do so, and for failing to move to dismiss Count 1 in the indictment

for insufficiency of evidence. Fye produced emails showing that he asked his trial

counsel to file a notice of appeal but counsel failed to do so. Upon order of the

district court, Fye filed an amended motion with a memorandum of law a month

later. The government responded to the § 2255 motion agreeing that counsel was

ineffective for failing to file a notice of appeal but disagreeing that the failure to

move to dismiss Count 1 was constitutionally deficient.




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      The Magistrate Judge agreed with the government and issued a report and

recommendation (“R&R”) recommending the district court grant the § 2255

motion as to the notice-of-appeal ground only. The Magistrate Judge found that

counsel’s refusal to file a notice of appeal and refusal to provide Fye or his family

members with the names of potential appellate lawyers was a per se violation of

Fye’s rights under the Sixth Amendment. The Magistrate Judge also agreed with

the government that, when counsel’s deficient performance deprives a defendant of

his right to an appeal, the proper remedy is to (1) vacate the criminal judgment,

(2) reimpose the same sentence, (3) advise the defendant of all of his rights

associated with a criminal appeal, and (4) advise the defendant that he has fourteen

days from the reimposed sentence to file a notice of appeal. See Phillips, 225 F.3d

at 1201. The district court adopted the R&R and vacated and reimposed Fye’s

sentence by separate order. The district court dismissed the motion-to-dismiss

ground of Fye’s § 2255 motion and stated he would be permitted to refile such a

motion once his conviction and sentence become final.

      Fye moved for appointment of appellate counsel, which the district court

granted. Now represented by counsel, Fye timely filed his notice of appeal.

                                         II.

       “District courts must determine in each case what constitutes a sentence that

is ‘sufficient, but not greater than necessary,’ 18 U.S.C. § 3553(a), to achieve the



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overarching sentencing purposes of retribution, deterrence, incapacitation, and

rehabilitation.” Rosales-Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897,

1903 (2018) (quotation marks omitted). “We review the reasonableness of a

sentence under the deferential abuse-of-discretion standard.” United States v.

Delva, 922 F.3d 1228, 1256 (11th Cir. 2019). “A district court abuses its

discretion when it (1) fails to afford consideration to relevant factors that were due

significant weight, (2) gives significant weight to an improper or irrelevant factor,

or (3) commits a clear error of judgment in considering the proper factors.” United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks

omitted). “The party challenging the sentence bears the burden to show that the

sentence imposed is unreasonable in light of the record and the 18 U.S.C.

§ 3553(a) factors.” Delva, 922 F.3d at 1256 (quotation marks omitted).

                                            2.

      Fye argues that, while the district court discussed some of the § 3553(a)

factors at sentencing, it failed to give adequate weight to several of the factors. In

particular, Fye claims the district court failed to consider his argument that his

personal history and characteristics motivated a downward variance.

      At sentencing, the district court stated that Fye’s conduct “may have been

partially the result of [his] addiction in a particularly vulnerable time in his life

when he was unemployed, separated from his family, and receiving treatment for



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his addiction.” The district court concluded that these factors decreased Fye’s

likelihood of recidivism, even as the court also stated Fye’s history of addiction

could increase the likelihood of recidivism. While Fye may have preferred the

district court to consider and weigh these factors in such a way that resulted in a

lower sentence, the court was under no obligation to do so. It also bears noting

that the 300 months imposed by the court was already a stark downward departure

from both the government’s recommendation and the sentencing guidelines. This

is further evidence that the district court considered Fye’s personal history at

sentencing.

      The district court’s explanation of the sentence comports with 18 U.S.C. §

3553(a) and is not unreasonable in light of the record, so Fye cannot show the

court abused its discretion in sentencing him.

      Fye also argues that the district court should have held a de novo

resentencing after his trial counsel was found to be ineffective. However, Fye’s

counsel was not held ineffective for any of his conduct at sentencing. Rather, the

district court’s sole ground for granting the § 2255 motion was that Fye’s counsel

was “ineffective for failing to prosecute a requested direct appeal.” In such a

circumstance, Phillips commands vacatur and reimposition of the original sentence

without requiring the reopening of sentence proceedings. See United States v.




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Doyle, 857 F.3d 1115, 1121 (11th Cir. 2017). The district court properly followed

this procedure.

                                       III.

      Fye’s judgment of conviction and sentence are AFFIRMED.




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