[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13815 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 28, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 09-14015-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN GUY THOMAS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 28, 2010)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Stephen Guy Thomas, Jr. appeals his 210-month sentence for receipt and
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2). On
appeal, Thomas argues that his sentence is unreasonable because the district court
applied the Sentencing Guidelines as mandatory, rather than merely advisory, and
because several factors in this case warranted a downward variance from the
guideline range. After thorough review, we affirm.
We review the ultimate sentence a district court imposes for
“reasonableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting
Rita v. United States, 551 U.S. 338, 351 (2007)).
In reviewing sentences for reasonableness, we perform two steps. Pugh, 515
F.3d at 1190. First, we must “‘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. (quoting Gall v. United States, 552 U.S.
38, 51 (2007)).1 The district court need not state on the record that it explicitly
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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considered each factor and need not discuss each factor. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005). Rather, “an acknowledgment by the district
court that it has considered the defendant’s arguments and the factors in section
3553(a) is sufficient” under United States v. Booker, 543 U.S. 220 (2005). Id.
When the district court imposes a within-guidelines sentence, it need only “set
forth enough to satisfy the appellate court that [it] has considered the parties’
arguments and has a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita, 551 U.S. at 356.
If we conclude that the district court did not procedurally err, we must
consider the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’”
Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). A sentence may be
substantively unreasonable if it does not achieve the purposes of sentencing stated
in 18 U.S.C. § 3553(a). Id. at 1191. A sentence within the guidelines range is
ordinarily expected to be reasonable. Talley, 431 F.3d at 788.
The weight accorded to the § 3553(a) factors is left to the district court’s
discretion, and we will not substitute our judgment in weighing the relevant
factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). The fact
that we might reasonably conclude that a different sentence is appropriate is not
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sufficient to warrant reversal. United States v. Williams, 526 F.3d 1312, 1322
(11th Cir. 2008). “[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).” United States v. Thomas, 446 F.3d 1348, 1351 (11th
Cir. 2006) (quotation and brackets omitted).
Thomas has failed to show that his 210-month sentence is procedurally or
substantively unreasonable. At the sentencing hearing, the district court stated that
it had considered the statutory factors, as well as the advisory guidelines, in
determining Thomas’s sentence. The district court also stated that “I legally could
give him virtually nothing, but I think that would not be meeting my responsibility
if I were to do that,” acknowledging that the Sentencing Guidelines are not
mandatory, but rather that the sentencing judge retains discretion to depart from the
guidelines.
Moreover, although the district court here did not expressly state if or how
many statutory factors were considered in his decision to sentence Thomas, the
court did, however, acknowledge throughout the sentencing hearing that it had
received and considered all evidence submitted by the defendant. The court also
stated on the record that the mitigating evidence submitted by Thomas would result
in a sentence towards the low end of the guideline range. Since Thomas presents
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no additional arguments to explain how the low-end guideline sentence itself was
unreasonable nor how the sentence does not meet our ordinary expectation of
reasonableness, Thomas has not met his burden of establishing unreasonableness.
Talley, 431 F.3d at 786, 788.
AFFIRMED.
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