     Case: 13-11397       Document: 00512785241         Page: 1     Date Filed: 09/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-11397
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         September 29, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

PAUL HARVILICZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:13-CR-14-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Paul Harvilicz pleaded guilty to one count of attempted transfer of
obscene material to a minor (an undercover officer posing as a 15-year-old girl),
in violation of 18 U.S.C. § 1470, and was sentenced to 70 months’
imprisonment.       The sentence is an upward variance from the applicable
advisory Sentencing Guidelines range of 21-27 months. Harvilicz claims his
sentence is substantively unreasonable because it is greater than needed to


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 13-11397

achieve sentencing the goals of 18 U.S.C. § 3553(a) (factors considered in
imposing a sentence); and, along that line, maintains the district court
provided inadequate reasons to support it.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the Guidelines-sentencing range for use in deciding on the sentence
to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error.        E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      When a district court imposes an upward variance, it “must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing”. Gall, 552 U.S. at 50 (citation
omitted). This court has not established any absolute rules regarding the
adequacy    of   reasons,   explaining   that   “the   open-court    reason-giving
requirement is a flexible, context-specific command”. United States v. Diaz,
714 F.3d 289, 293 (5th Cir. 2013) (citation omitted). “The sentencing judge
should set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007)
(citation omitted). “Appellate review is highly deferential as the sentencing
judge is in a superior position to find facts and judge their import under §
3553(a) with respect to a particular defendant.” United States v. Key, 599 F.3d
469, 473 (5th Cir. 2010) (citation omitted).
      The district court demonstrated it had a reasoned basis for its decision
after considering the parties’ arguments.       E.g., Rita, 551 U.S. at 356.      It



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                                  No. 13-11397

determined an upward variance was approrpiate based on “the nature and
circumstances of th[e] offense and [Harvilicz’s] history and characteristics” in
the light of its adoption of the facts in the presentence investigation report
(PSR) and the Government’s memorandum of facts. The court also noted
Harvilicz’s “prior sex offense conviction”.
      Harvilicz has also not shown the district court afforded “significant
weight to an irrelevant or improper factor” when considering the facts in the
PSR and the Government’s memorandum of facts, as he must when contesting
a non-Guideline sentence. United States v. Smith, 440 F.3d 704, 708 (5th Cir.
2006) (citation omitted). His lone contention on this point rests solely on the
possibility that the court erroneously ordered the upward variance because of
his online conversations with the undercover officer about his conduct with
other minors, as well as his online conversations with other minors not the
focus of the count to which he pleaded guilty. This assertion fails because, as
noted, the district court assessed the totality of the circumstances in the light
of the PSR and the Government’s memorandum of facts: inter alia, the nature
and circumstances of the offense and Harvilicz’s history and characteristics.
The record, viewed in its totality, and even excluding the allegedly unlawful
conversations, supports the upward variance. Therefore, the sentence is not
greater than needed to carry out the goals of § 3553(a).
      AFFIRMED.




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