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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 12-15519, 12-15540
Non-Argument Calendar
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D.C. Docket No. 5:11-cr-00046-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARITY M. HOLLOWAY,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Georgia
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(October 16, 2013)
Before HULL, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Charity Holloway appeals her sentence of 135 months of imprisonment,
which was imposed above the applicable guideline range of 97 to 121 months of
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imprisonment, after she pled guilty to distribution of child pornography, in
violation of 18 U.S.C. § 2252(a)(2), (b)(1). We affirm.
I.
The undisputed facts in the presentence investigation report (“PSI”)
provided that Holloway’s criminal conduct was revealed during an investigation of
Steven Demink who, using an alias, had numerous online relationships with
women. Investigators determined that Demink had chatted online with Holloway
in 2009, and Demink had convinced Holloway to send him sexually explicit
photographs of herself and two minors. Investigators discovered numerous
pornographic images of minors (defined as visible genitals), which were
attributable to Holloway, on Demink’s computer. The minors involved in the
images were Holloway’s daughter (“C”) and the daughter’s friend (“T”), both of
whom were fourteen years old at the time. According to the PSI, the images
“included the minors touching each other, masturbating themselves, posing in
sexually suggestive manners and using toys in a sexual manner.” The PSI also
stated that several of the images of the minors depicted them drinking alcohol and
smoking while nude.
At sentencing, Holloway requested the district court to vary from her
applicable guideline range of 97 to 121 months of imprisonment and impose a
sentence of 60 months of imprisonment. She argued that, although she accepted
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responsibility for her actions with respect to the offense, she was manipulated by
Demink to take the photographs of C and T.
The district court stated it had considered the 18 U.S.C. § 3553(a) factors
and had reviewed the transcripts of the chats between Demink, Holloway, and C.
The court observed the chat transcripts supported the argument that Demink
manipulated Holloway, but the chat transcripts also revealed that Holloway knew
exactly what she was doing and knew that what she was doing was wrong. The
court stated it was apparent from the chat transcripts that the victims were
expressing to Holloway “their clear pain over what was going on” and they knew
“what was going on was wrong.” The court observed how Holloway made it clear
in her chats with Demink that she would continue to attempt to obtain nude
photographs of the minors for Demink even after the victims had made it clear “in
no uncertain terms that they do not want to participate in this, that they’re horrified
by this.” The court determined an upward variance from the applicable guideline
range of 97 to 121 months of imprisonment was appropriate in the case and
imposed a sentence of 135 months of imprisonment.
II.
On appeal, Holloway argues that her 135-month sentence is substantively
unreasonable because it rests on factors that are fully accounted for by the statute
under which she was convicted and the Guidelines. According to Holloway,
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although the district court believed that the nature and circumstances of the case
demanded an extraordinary sentence, the district court failed to distinguish
Holloway’s case from any other “run of the mine child pornography distribution
offense.” Holloway argues the district court’s view that her offense was despicable
was already accounted for in the child pornography guidelines, as there is no
evidence that her conduct was more despicable than those cases contemplated by
Congress and the Sentencing Commission in crafting those guidelines.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. See Gall v. United States, 552 U.S. 38, 51, 128 S.
Ct. 586, 597, 169 L. Ed. 2d 445 (2007). A district court’s sentence need not be the
most appropriate one, but rather need only be a reasonable one. United States v.
Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc). The party challenging the
sentence has the burden of establishing that the sentence was unreasonable based
on the record and the factors set forth in § 3553(a). United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005).
We review a sentence’s substantive reasonableness by examining the totality
of the circumstances, which includes an inquiry into whether the § 3553(a) factors
support the sentence in question. United States v. Gonzales, 550 F.3d 1319, 1323-
24 (11th Cir. 2008). The district court must impose a sentence sufficient, but not
greater than necessary, to comply with the purposes listed in § 3553(a)(2),
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including the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a).
In imposing a particular sentence, the court must also consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.
§ 3553(a)(1), (3)-(7). We do not substitute our own judgment for that of the
district court in weighing the relevant sentencing factors absent a clear error of
judgment. See United States v. Early, 686 F.3d 1219, 1223 (11th Cir. 2012).
Here, Holloway’s sentence of 135 months of imprisonment was imposed
above the applicable guideline range of 97 to 121 months of imprisonment, but
was well below the applicable statutory maximum of 20 years of imprisonment,
which is one indicator of a reasonable sentence. See Gonzales, 550 F.3d at 1324
(providing that a sentence imposed well below the statutory maximum is one
indicator of a reasonable sentence). Section 2G2.2 of the Sentencing Guidelines is
the applicable offense guideline for an offense like Holloway’s, involving the
possession or distribution of child pornography, but the guideline does not account
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for relevant conduct involving the production of child pornography. 1 See U.S.S.G.
§ 2G2.2. Thus, Holloway’s guideline range did not take into account all of her
relevant conduct, which included the production of the images she sent to Demink.
See U.S.S.G. § 1B1.3. The district court’s discussion of Holloway’s knowledge of
her actions was made in response to her argument that Demink manipulated her to
take the photographs of the minors, and illustrated exactly why the case was not a
“run of the mine child pornography distribution offense.” As the chat transcripts
indicate, and the district court observed, Holloway directly harmed C and T by
taking numerous nude photographs of them, despite the minors clearly indicating
that they did not want such photographs of them taken. See United States v.
McGarity, 669 F.3d 1218, 1264 (11th Cir.) (providing that the harm to the victim
of child pornography cannot be overstated and that sexually exploited children are
unable to develop healthy affectionate relationships later in life, have sexual
dysfunctions, and have a tendency to become sexual abusers as adults), cert.
denied, 133 S. Ct. 378 (2012). The district court’s discussion as to Holloway’s
knowing conduct illustrates the seriousness of the offense, which was not simple
possession or distribution, but extended to the production of the images.
1
Section 2G2.1 of the Sentencing Guidelines applies to offenses involving the production of
sexually explicit visual or printed material and provides that the applicable base offense level for
such offenses is 32. See U.S.S.G. § 2G2.1(a). The guideline also provides that a defendant’s
base offense level should be increased where the minor was not yet sixteen, where the defendant
was a parent of the minor, and where the offense involved distribution. See U.S.S.G.
§ 2G2.1(b)(1), (b)(3), (b)(5).
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We do not substitute our judgment for that of the district court in weighing
the relevant sentencing factors absent a clear error of judgment. See Early, 686
F.3d at 1223. Holloway has not shown that the district court committed a clear
error of judgment in weighing the § 3553(a) factors, in light of the facts underlying
the offense, which showed that her conduct was more serious than the other
offenses to which § 2G2.2 applies and caused direct harm to the victims. See id.
Thus, the district court imposed a reasonable sentence and did not abuse its
discretion in sentencing Holloway.
AFFIRMED.
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