            Case: 13-15750    Date Filed: 09/19/2014   Page: 1 of 5


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15750
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20608-FAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JOSEPH DARIO KAMER,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 19, 2014)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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      Joseph Dario Kamer appeals his total 180-month imprisonment sentence,

imposed after pleading guilty to one count of possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B), and one count of receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2). Kamer argues (1) that the

district court committed significant procedural error by making a clearly erroneous

conclusion about how many videos of child pornography he possessed; (2) that the

district court committed significant procedural error by not considering the need to

provide restitution to victims when imposing his imprisonment sentence; and (3)

that the court abused its discretion by ignoring sentences imposed on similarly

situated defendants and imposing a substantively unreasonable sentence. Kamer

did not raise these objections at his sentencing hearing.

      Normally, we review a purported error for plain error when a party failed to

object on that ground before the district court. United States v. Massey, 443 F.3d

814, 818 (11th Cir. 2006). We normally are precluded from reviewing a claim that

factual findings were erroneous when a party fails to object to the findings before

the district court. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).

However, we will review these issues as if Kamer preserved his alleged errors

because the district court offered him no opportunity to object after imposing the

sentence. See United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (per

curium).


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      We review the reasonableness of a sentence under an abuse of discretion

standard. United States v. Irey, 612 F.3d 1160, 1186 (11th Cir. 2010) (en banc).

First, we ensure that the district court committed no significant procedural error,

such as failing to calculate the guidelines range, not considering the § 3553(a)

sentencing factors, or selecting a sentence based on clearly erroneous facts. United

States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). Second, we review whether

the sentence is substantively reasonable under the totality of the circumstances. Id.

We only vacate a sentence as substantively unreasonable when we have a definite

and firm conviction that the sentence is outside the range of reasonable sentences.

Irey, 612 F.3d at 1190.

      We must ensure ourselves that the district court’s factual findings were

procedurally reasonable before sentencing Kamer. The district court must make

independent factual findings to establish the factual basis for its guidelines

calculations. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006).

We review the district court’s findings of fact for clear error. United States v.

Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011). A factual finding is clearly

erroneous when we have a definite and firm conviction that the district court made

a mistake after reviewing all of the evidence. Id. It may rely on undisputed

statements in the presentence report hearing when making these findings.

Hamaker, 455 F.3d. at 1338. When sentencing the defendant, the district court


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must consider several factors, including the nature and circumstances of the

offense, the history and characteristics of the defendant, the purposes of

sentencing, the guidelines range, the need to avoid unwarranted sentencing

disparities, and the need to provide restitution to victims. 18 U.S.C. § 3553(a). It

must discuss its consideration of the factors enough to show that it considered the

parties’ arguments and had a reasoned basis for its decision. United States v.

Flores, 572 F.3d 1254, 1270-71 (11th Cir. 2009) (per curium). It is not required to

discuss each factor. Id. at 1270.

      We must also ensure ourselves that Kamer’s sentence of 180 months of

imprisonment is substantively reasonable. The district court must impose a

sentence sufficient, but not greater than necessary, to meet the purposes of

punishment. 18 U.S.C. § 3553(a). The weight given to any individual sentencing

factor is committed to the sound discretion of the district court. United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). A sentence within the guidelines

range is ordinarily expected to be reasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005).

      Kamer’s 180-month sentence of imprisonment is procedurally and

substantively reasonable. First, the district court did not make a clearly erroneous

factual conclusion because it never concluded that Kamer possessed more videos

than he admitted to possessing in his factual proffer. Second, it did not commit


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significant procedural error by failing to discuss its consideration of the need for

restitution because it discussed several § 3553(a) factors supporting Kamer’s

sentence, including the severity of his crime, his admission that he was unable to

stop viewing child pornography, and the need to protect the public from his crimes.

It was not required to explicitly discuss restitution during sentencing. Flores, 572

F.3d at 1271. Finally, it did not abuse its discretion by imposing a substantively

unreasonable sentence. It concluded that several factors weighed in favor of a

within-guidelines sentence, including the nature of the offense, the history of the

defendant, and the need to promote respect for the law, provide adequate

deterrence, and protect the public. Furthermore, we ordinarily expect a sentence

within the guidelines range to be substantively reasonable. Talley, 431 F.3d at 788.

Accordingly, we affirm Kamer’s sentence.


      AFFIRMED.




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