                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             December 19, 2008
                               No. 08-12162                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 07-00331-CR-T-27-TGW

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JULIAN RUSSELL CLAWSON,

                                                          Defendant-Appellant.


                         ________________________

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

                             (December 19, 2008)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Julian Russell Clawson appeals his 78-month sentence for possession of
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On

appeal, Clawson challenges the reasonableness of his sentence. Clawson argues

that his sentence was unreasonable and greater than necessary to satisfy the

statutory objectives of § 3553(a). While Clawson does not dispute his Guidelines

calculation, he challenges the district court’s adherence to the Guidelines range in

light of the nature of his offense, his unique history, and the alleged inherent flaws

in U.S. S ENTENCING G UIDELINES M ANUAL § 2G2.2.

      Clawson’s sentence is subject to review for reasonableness. United States v.

Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam). Reasonableness review

requires the application of an abuse-of-discretion standard. Gall v. United States,

128 S. Ct. 586, 594 (2007).

      [We] must first ensure that the district court committed no significant
      procedural error, such as failing to calculate (or improperly
      calculating) the Guidelines 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.

Id. at 597. If the district court’s decision is procedurally reasonable, our analysis

then turns to the substantive reasonableness of the sentence. Id.

       “In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the



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§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.

2006). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court. . . .” United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007) (internal quotation marks omitted). However,

“[w]e may find that a district court has abused its considerable discretion if it has

weighed the factors in a manner that demonstrably yields an unreasonable

sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

“[O]rdinarily, we would expect a sentence within the Guidelines range to be

reasonable.” Talley, 431 F.3d at 788.

      “[T]he party who challenges the sentence bears the burden of establishing

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

section 3553(a).” Id. The § 3553(a) factors include: “(1) the nature and

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

(2) the need to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense; (3) the need for deterrence; (4) the

need to protect the public; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of sentences

available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of

the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;



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and (10) the need to provide restitution to victims.” Id. at 786 (summarizing 18

U.S.C. § 3553(a)).

      After correctly calculating Clawson’s Guidelines range, the district court

considered the § 3553(a) factors. The district court considered “the history and

characteristics of the defendant,” noting his honorable military career, his difficult

childhood, his amenability to treatment, and the difficult circumstances with which

he was face at the time the crime was committed. The district court also

considered the seriousness of the crime, the need for deterrence, and the need to

protect the public. The district court then sentenced Clawson at the bottom of the

Guidelines range.

      The record demonstrates that Clawson’s sentence suffered from no

procedural error, as the district court correctly calculated the Guidelines range,

considered the Guidelines advisory, and took into account the § 3553(a) factors.

Likewise, Clawson has not carried his burden of establishing that his 78 month

sentence, which was at the bottom of the applicable Guidelines range, was

substantively unreasonable. Because we “ordinarily . . . expect a sentence within

the Guidelines range to be reasonable,” and because the district court considered

the § 3553(a) factors, we conclude that the district court’s sentence was reasonable.

Talley, 431 F.3d at 788.



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      Additionally, Clawson’s argument that the district court erred in adhering to

the Guidelines because of the inherent flaws in § 2G2.2 is unavailing. Defining

and fixing penalties for federal crimes are Congressional, not judicial, functions.

United States v. Evans, 333 U.S. 483, 486, 68 S. Ct. 634, 636 (1948). See also

Mistretta v. United States, 488 U.S. 361, 377-78, 109 S. Ct. 647, 658 (1989)

(noting that Congress has given the Sentencing Commission the discretion to

determine the relative severity of federal crimes, assess the relative weight of the

offender characteristics, and decide which types of crimes are to be considered

similar for the purposes of sentencing). We decline to hold either that § 2G2.2 is

flawed or that the district court abused its discretion by relying on a section of the

Sentencing Guidelines. The district court was correct to rely on § 2G2.2 when

sentencing.

                                   CONCLUSION

      Having reviewed the record and the briefs of the parties, we discern no error.

Accordingly, we affirm Clawson’s sentence.

      AFFIRMED.




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