[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12681 ELEVENTH CIRCUIT
OCTOBER 4, 2010
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D. C. Docket No. 06-00006-CR-BAE-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT DANIEL SCHAEFER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 4, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Scott Daniel Schaefer pleaded guilty to possession of child pornography and
was sentenced to a 108-month term of imprisonment to be followed by three years
of supervised release. Schaefer challenges his sentence on appeal. First, he
argues that his sentence is substantively unreasonable. Second, he argues that he
was denied the effective assistance of counsel. Because Schaefer has not
demonstrated that his sentence was substantively unreasonable and he has not
shown that he was prejudiced by his counsel’s errors, we affirm his sentence.
I. Background
Schaefer was indicted for receipt and possession of child pornography
following a United States Postal Service sting operation. Schaefer agreed to plead
guilty to possession of child pornography in exchange for the government moving
to dismiss the remaining count of the indictment. The guidelines range for
Schaefer’s offense, based on the offense level and his criminal history, was 78 to
108 months. The district court sentenced Schaefer to a 108-month term of
imprisonment and three years of supervised release.
After he was initially sentenced, Schaefer did not file an appeal. Seven
months later, he wrote to the district judge, explaining that he had asked his
attorney to file a notice of appeal, but his attorney had refused to do so. Schaefer
was advised to file a motion under 28 U.S.C. § 2255, which he did. The district
court then granted the motion and eventually resentenced Schaefer according to
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the procedure set forth in United States v. Phillips, 225 F.3d 1198 (11th Cir.
2000). Schaefer now appeals his sentence.
II. Sentencing Issues
Schaefer first argues that his sentence is substantively unreasonable because
it does not achieve the purposes of 18 U.S.C. § 3553(a). Specifically, Schaefer
contends that his sentence is unreasonable because (1) the trial judge placed undue
emphasis on his “relatively minor criminal record;” (2) there is no evidence that he
will engage in further criminal conduct; (3) a shorter sentence would still have had
a deterrent effect; and, (4) he has not received any credit for his acceptance of
responsibility.
We review sentences for reasonableness, which essentially means we ask
whether the district court abused its discretion in imposing a sentence. United
States v. Booker, 543 U.S. 220, 261 (2005); United States v. Pugh, 1179, 1189
(11th Cir. 2008). Sentences, like this one, that are within the properly calculated
guidelines range are ordinarily expected to be reasonable. Rita v. United States,
551 U.S. 338, 341 (2007); United States v. Campbell, 491 F.3d 1306, 1313 (11th
Cir. 2007). Even if a sentence is within the guidelines, to be substantively
reasonable, it must also, considering the totality of the circumstances, achieve the
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purposes of § 3553(a).1 Gall v. United States, 552 U.S. 38, 51 (2007); Pugh, 515
F.3d at 1191; United States v. Williams, 435 F.3d 1350, 1354 (11th Cir. 2006).
The party challenging a sentence bears the burden of establishing its
unreasonableness. Pugh, 515 F.3d at 1189.
Schaefer’s arguments do not show that his sentence is unreasonable, indeed,
some of them do just the opposite. For example, although Schaefer claims the
district judge gave no consideration to his acceptance of responsibility, the
guidelines sentence reflects a three-level reduction based on Schaefer’s early
guilty plea.
Schaefer also argues that the trial judge gave undue weight to his “relatively
minor” criminal history in sentencing. This court has held that “the weight given
to any § 3553(a) factor is within the sound discretion of the district court and we
will not substitute our judgment in weighing the relevant factors.” United States v.
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Those purposes are:
(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 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.
See 18 U.S.C. § 3553(a).
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Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). Though the trial judge considered
Schaefer’s criminal history under the § 3553(a) analysis, there is nothing in the
record to suggest that he placed undue emphasis on it in making his decision.2
Schaefer’s remaining arguments are conclusory. His assertion that he will
not engage in similar conduct in the future does nothing to demonstrate that his
sentence is substantively unreasonable. His argument that a guidelines sentence is
unnecessary for deterrence is likewise unavailing. Though Schaefer makes these
assertions, he does not suggest how or why they show that his sentence is
unreasonable.
Schaefer has not presented any evidence that the trial court abused its
discretion by unjustifiably relying on any one § 3553(a) factor, imposing an
arbitrary sentence, or basing its sentence on an impermissible factor. Pugh, 515
F.3d at 1191–92. We therefore affirm the sentence imposed by the district judge.
III. Ineffective Assistance of Counsel
Schaefer also claims that he received ineffective assistance of counsel when
his lawyer failed to file an appeal despite his request after he was initially
sentenced. Because the district court granted Schaefer’s § 2255 motion and
2
Nothing requires a district judge to state on the record that he or she has explicitly
considered each of the § 3553(a) factors or to discuss each one in detail. United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005).
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resentenced him following the Phillips procedure, 225 F.3d at 1200, which
allowed Schaefer to take an appeal, any prejudice that he suffered as a result of his
prior counsel’s failings has been cured. As such, his claim is moot.
AFFIRMED.
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