[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11404 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 11, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:09-cr-00038-RS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT L. HUGHES,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 11, 2011)
Before TJOFLAT, EDMONDSON and CARNES, Circuit Judges.
PER CURIAM:
Robert Hughes appeals the procedural and substantive reasonableness of his
97-month sentence imposed for receiving child pornography, 18 U.S.C. §
2252A(a)(2)(B). No reversible error has been shown; we affirm.
We evaluate the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007). Procedural
error may exist if the district court improperly calculated the guidelines, based a
sentence on clearly erroneous facts, failed to consider the 18 U.S.C. § 3553(a)
factors, or failed to explain adequately the sentence. Id. A sentence substantively
is unreasonable if it “fails to achieve the purposes of sentencing as stated in
section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
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. Id. Briefly stated, under section 3553(a), a district court should consider
the nature and circumstances of the offense, the history and characteristics of the
defendant, the need for the sentence to provide adequate deterrence, respect for the
law, and protection of the public, provision for the medical and educational needs
of the defendant, the guidelines range, policy statements of the Sentencing
Commission, and the need to avoid unwarranted sentencing disparities. See 18
U.S.C. § 3553(a)(1)-(7).
We conclude that Hughes’s sentence -- at the bottom of the applicable
guidelines range -- is reasonable both procedurally and substantively. See Talley,
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431 F.3d at 788 (noting that “ordinarily we would expect a sentence within the
Guidelines range to be reasonable”). The sentence is well below the 20-year
statutory maximum. See 18 U.S.C. § 2252A(b)(1); United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008) (concluding that a sentence was reasonable
because, among other things, it was well below the statutory maximum). The
sentence also is within the range of sentences for child pornography offenses that
we recently have upheld. See United States v. Alfaro-Moncada, 607 F.3d 720,
736 (11th Cir. 2010) (upholding an 87-month sentence, at the bottom of
defendant’s applicable guidelines range, for possession of child pornography and
emphasizing that “[t]he court’s decision to sentence [defendant] to a term of
imprisonment at the lowest end of his advisory guidelines range was lenient
enough”).
In addition, the district court listened to the arguments of the parties and
considered the section 3553(a) factors in concluding that a guidelines sentence
was appropriate. The court noted the interest in deterring the consumption of
child pornography and agreed with the government’s argument about the harm
caused by child pornography. The district court also considered that Hughes was
receiving counseling for his pornography addiction. The court did not, as Hughes
suggests, rely too heavily on the deterrence factor.
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And contrary to Hughes’s appellate argument, the district court did not
presume improperly that the guidelines range was reasonable. Instead, the court
recognized that the guidelines were advisory, considered Hughes’s request for a
downward variance, and concluded that a sentence at the low end of the advisory
guidelines range best complied with the section 3553 sentencing purposes.
Hughes argues, based on Kimbrough v. United States, 128 S.Ct. 558 (2007),
that the guideline under which he was sentenced -- U.S.S.G. § 2G2.2 -- is not
based on empirical data or national experience and, thus, should have been given
no deference by the district court. But we have explained that the child
pornography guidelines “do not exhibit the deficiencies the Supreme Court
identified in Kimbrough.” United States v. Pugh, 515 F.3d 1179, 1201-02 n.15
(11th Cir. 2008) (acknowledging that Kimbrough gave district courts authority to
deviate from the guidelines in crack cocaine cases because the sentencing ranges
did not take into account empirical data and national experience, but also
recognizing that we typically treat “child sex offenses as serious crimes, upholding
severe sentences in these cases”).
And even still, a lack of supporting empirical evidence does not in and of
itself render a guideline provision invalid. United States v. Snipes, 611 F.3d 855,
870 (11th Cir. 2010). Instead, a lack of empirical evidence is one factor the
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district court can consider in deciding whether to vary downward from the
guidelines range. See Kimbrough, 128 S.Ct. at 573-76 (explaining that the district
court may, but is not required to, deviate from the advisory guidelines in a
particular crack cocaine case because the guidelines range for these offenses did
not take into account empirical data); Snipes, 611 F.3d at 870. Thus, even if
empirical evidence did not support section 2G2.2, the district court still retained
the discretion to sentence Hughes within the guidelines range after considering
that range as one of many factors informing its imposition of Hughes’s sentence.
See id. And the court explicitly noted that it had discretion to impose a non-
guidelines sentence after acknowledging Hughes’s Kimbrough argument, but that
it was choosing not to do so.
Given the district court’s reasoned consideration of the section 3553(a)
factors and the discretion the court is afforded in evaluating and weighing those
factors, the court abused no discretion in imposing a guidelines sentence.
AFFIRMED.
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