            Case: 13-10716    Date Filed: 12/13/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-10716
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 9:12-cr-80115-DTKH-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

ERIC RUNYAN,
a.k.a. hard_n_big2000@yahoo.com,
a.k.a. Bigsausage69,
a.k.a. SausageKing Bigballs,

                                                           Defendant-Appellant.

                        ________________________

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

                             (December 13, 2013)



Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Eric Runyan appeals his above-guidelines total sentence of 240 months

which was imposed after Runyan pleaded guilty to knowingly receiving child

pornography and knowingly transferring obscene material to a minor, in violation

of 18 U.S.C. §§ 2252A(a)(1) and 1470. Briefly stated, Runyan texted a minor

female whom he believed was ten years old. Runyan sent the girl a photo of his

genitalia and then requested -- and received -- illicit photos of the girl’s genitalia in

return. No reversible error has been shown; we affirm.

      In this case, we review the final sentence for procedural and substantive

reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).

A sentence may be procedurally unsound if the district court calculates incorrectly

the guidelines range, treats the guidelines as mandatory, fails to consider the 18

U.S.C. § 3553(a) factors, chooses a sentence based on clearly erroneous facts, or

fails to explain adequately the chosen sentence. Id.

      After determining that a sentence is procedurally sound, we evaluate the

substantive reasonableness of a sentence -- whether inside or outside the guidelines

range -- under a deferential abuse-of-discretion standard. Gall v. United States,

128 S.Ct. 586, 597 (2007). In reviewing the substantive reasonableness of a

sentence, we examine “the totality of the circumstances, including . . . whether the


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statutory factors in § 3553(a) support the sentence in question.” Gonzalez, 550

F.3d at 1324.

      When a sentence is above the guidelines range, we “may consider the

deviation, ‘but must give due deference to the district court’s decision that the §

3553(a) factors, on a whole, justify the extent of the variance.’” United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). “We may vacate a sentence

because of the variance 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.’” United States v. Shaw, 560 F.3d

1230, 1238 (11th Cir. 2009). “[T]hat we ‘might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal.’” Id.

      The party challenging the sentence bears the burden of establishing that the

sentence is unreasonable in the light of both the record and the section 3553(a)

factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Runyan has not shown that his sentence procedurally is unreasonable. The

district court calculated properly the guidelines range, treated the guidelines as

advisory, considered properly the statutory factors, and explained in detail the

chosen sentence. Contrary to Runyan’s contention, nothing evidences that the

court selected Runyan’s sentence based on an unsupported belief that Runyan was


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a diagnosed pedophile. Instead, the court described Runyan as having engaged in

“predatory conduct toward children [that was] persistent [and] repetitive” over a

span of nine years. To the extent that the district court commented on the general

recidivism rate and difficulty in treating sex offenders, the court was entitled to

rely on its own experience in similar criminal cases. See Shaw, 560 F.3d at 1238.

Thus, Runyan has not shown that the district court relied on clearly erroneous facts

in selecting his sentence.

      Runyan also argues that the district court erred procedurally in departing

upward under U.S.S.G. § 4A1.3. Because the district court explained expressly

that it would have imposed the same sentence based on its consideration of the

section 3553(a) factors, we need not address Runyan’s argument. Instead, we must

only determine whether the sentence imposed was reasonable in the light of the

section 3553(a) factors. See United States v. Keene, 470 F.3d 1347, 1348-50 (11th

Cir. 2006).

      Given the totality of the circumstances, Runyan has not demonstrated that

his above-guidelines sentence substantively was unreasonable. The record

demonstrates that Runyan had a long history of predatory conduct toward young

girls. Runyan was first investigated in 2003 when he initiated sexual conversations

online with an undercover agent whom Runyan believed was a 13-year old girl.

Runyan set up a meeting with the girl to engage in sexual acts. Although Runyan


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never showed up for the proposed meeting, evidence demonstrated that Runyan

was enroute to the meeting place when his car broke down. Runyan was

investigated again in 2005 when he had repeated sexual conversations with an

undercover agent whom Runyan believed was a 12-year old girl.

      As part of the investigation in this case, police subpoenaed Runyan’s phone

records for a ten-day period surrounding Runyan’s contact with the victim. In that

time, Runyan texted with 60 different people. In each conversation, Runyan asked

the other person’s age and began talking about alcohol or sex. In many cases,

Runyan sent photos of his genitalia and requested photos of the other person’s

body and genitalia in return. In some cases, the other person sent the photos

Runyan requested. Runyan would often use intimidation in the chats, threatening

to send viruses to other person’s computer or to kill them if they did not cooperate.

Although none of the people depicted in the photos that Runyan received were

identified positively, an officer testified that they appeared to be girls between the

ages of 10 and 13.

      Based on the nature and circumstances of the offense on and on Runyan’s

persistent pattern of behavior over a number of years, the district court concluded

that an above-guidelines sentence was necessary to protect the public, promote

respect for the law, provide just punishment, and provide deterrence.




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       Runyan argues that substantively his sentence is unreasonable because (1)

the district court failed to consider his severe physical and mental disabilities,

including that he suffers from spina bifida, is confined to a wheelchair, and has an

IQ of only 77; (2) the district court gave too much weight to the court’s speculative

view that Runyan was a pedophile, * to the court’s speculative view about the

general recidivism rate among sex offenders, and to Runyan’s uncharged non-

criminal conduct; and (3) the district court unreasonably balanced the section

3553(a) factors.

       That the district court considered Runyan’s physical and mental disabilities

is clear. The district court heard considerable testimony about Runyan’s

disabilities, and the court acknowledged specifically Runyan’s disabilities in

sentencing Runyan. Although the court did not expressly address Runyan’s

argument for a sentence within or below the guidelines based on his disabilities,

the court explained in great detail why a sentence above the guidelines was

necessary in the light of the section 3553(a) factors. Thus, the court ruled

implicitly that factors such as the need to protect the public, the need to provide

just punishment, and the need for deterrence outweighed Runyan’s mitigating

evidence.



*
 As discussed, nothing evidences that the court relied on an unsupported pedophile diagnosis in
selecting Runyan’s sentence.
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      In essence, Runyan argues on appeal that the district court weighed

improperly the section 3553(a) factors. “We will not second guess the weight (or

lack thereof) that the [district court] accorded to a given factor under § 3553(a), as

long as the sentence ultimately imposed is reasonable in light of all the

circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010) (alterations omitted).

      On this record, we cannot say that Runyan’s above-guidelines sentence was

unreasonable or that “the district court committed a clear error of judgment in

weighing the § 3553(a) factors.” See Shaw, 560 F.3d at 1238. Runyan has not met

his burden of showing that his sentence is unreasonable, either procedurally or

substantively.

      AFFIRMED.




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