[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10015 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 25, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-14061-JEM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
NAT LEON LANE,
lllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 25, 2011)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Nat Leon Lane appeals his 108-month total sentence, imposed below the
applicable guidelines range, after pleading guilty to one count of transporting
child pornography, in violation of 18 U.S.C. § 2252(a)(1), and one count of
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). Lane argues
that the district court erred by applying a five-level enhancement under United
States Sentencing Guidelines § 2G2.2(b)(3)(B) (Nov. 2010) for distribution of
child pornography “for the receipt, or expectation of receipt, of a thing of value.”
After careful review of the record and the parties’ briefs, we conclude that any
error in the calculation of the guideline range in this case would be harmless, and
we therefore affirm Lane’s sentence.
Lane argues that his mere installation and use of a peer-to-peer file-sharing
program is not enough to support a finding that he distributed child pornography
obtained through that program in exchange “for the receipt, or expectation of
receipt, of a thing of value.” U.S.S.G. § 2G2.2(b)(3)(B). We review the district
court’s factual determinations for clear error, but review de novo its interpretation
of the guidelines and its application of the guidelines to the facts. United States v.
Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010).
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), district
courts must follow a two-step procedure at sentencing. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005). “First, the district court must consult the
Guidelines and correctly calculate the range provided by the Guidelines. Second,
the district court must consider [the 18 U.S.C. § 3553(a)] factors to determine a
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reasonable sentence.” Id. (citation omitted). At the first step, district courts must
“begin all sentencing proceedings by correctly calculating the applicable
Guidelines range.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)
(quotation marks omitted). “An error in the district court’s calculation of the
Sentencing Guidelines range warrants vacating the sentence, unless the error is
harmless. A Sentencing Guidelines miscalculation is harmless if the district court
would have imposed the same sentence without the error.” United States v.
Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009) (citation omitted). “[T]he
Supreme Court and this Court have long recognized that it is not necessary to
decide guidelines issues or remand cases for new sentence proceedings where the
guidelines error, if any, did not affect the sentence.” United States v. Keene, 470
F.3d 1347, 1349 (11th Cir. 2006) (quotation marks omitted). Thus, if “a district
judge clearly states that he would impose the same sentence, even if he erred in
calculating the guidelines, then any error in the calculation is harmless.” Barner,
572 F.3d at 1248.
Although the district court did not explicitly state that the sentence in this
case was independent of the guideline calculation, there is no question that this
sentence was not imposed pursuant to the guidelines, because the 108-month
sentence reflects a substantial downward variance from the guideline range of
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210- to 262-months. Given this substantial variance, and the district court’s
explanation that “a sentence below the low end of the advisory guideline range is
sufficiently punitive to deter the defendant from further criminal conduct and to
deter others from committing this type of crime,” we have no trouble concluding
from the record before us that the § 3553(a) factors would lead the district court to
impose the same 108-month sentence even without the application of the five-
level § 2G2.2(b)(3)(B) enhancement. See 18 U.S.C. § 3553(a) (requiring the
sentence imposed to be “sufficient, but not greater than necessary,” to achieve the
purposes of retribution, deterrence, public safety, and rehabilitation).1
Nevertheless, the asserted error would not be harmless if the sentence would
otherwise be procedurally unreasonable under the guideline range advanced by
Lane. Keene, 470 F.3d at 1349. If the five-level enhancement under
1
Crucially, the district court did not indicate that the sentence imposed, despite
representing a downward variance, was contingent in any way on the guideline calculation. See
Keene, 470 F.3d at 1349 (“[I]f the resolution of the guidelines issue does matter to the judge’s
ultimate sentencing decision, noting that it does will help focus our attention on the issues that
matter.” (quotation marks omitted)). If the district court had so indicated in this case, we could
not say the asserted error would be harmless. See Barner, 572 F.3d at 1248 (finding that a
claimed error could not be harmless where the district judge “indicated that the sentence was
‘pursuant to the guidelines’”). Of course, “[w]hether to decide and state on the record if the
decision of a guidelines issue matters to the ultimate sentence imposed is up to the district court
in each individual case.” Keene, 470 F.3d at 1349. But where, as here, the district court imposes
a substantial downward variance in light of the § 3553(a) factors, and does not in any way
indicate the sentence imposed is the result of the guideline calculation, we think it is sufficiently
clear that the district court would impose the same sentence regardless of the guideline
calculation.
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§ 2G2.2(b)(3)(B) were removed, Lane would have an offense level of 32, which
would combine with his criminal history category of I to yield a guideline range of
121- to 151-months incarceration. Thus, the 108-month sentence would still
represent a downward variance even under the guideline range advanced by Lane.
The district court also followed the two-step sentencing procedure required after
Booker. See Talley, 431 F.3d at 786. The district court carefully considered the
guidelines, as well as Lane’s objections to the guideline calculation, before
determining that a sentence below the guideline range was warranted in this case.
The district court also considered the statutory factors set out in 18 U.S.C.
§ 3553(a) and, as described above, discussed those factors to the extent necessary
to explain the sentence imposed. We conclude that, even under the guideline
range advanced by Lane, the 108-month sentence would be procedurally
reasonable. We therefore hold that the asserted error in the guideline calculation
would be harmless.2
For these reasons, Lane’s 108-month total sentence is AFFIRMED.
AFFIRMED.
2
We therefore do not reach the merits of Lane’s challenge to the application of the
§ 2G2.2(b)(3)(B) enhancement.
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