United States v. Harder

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 18, 2011
No. 10-12128 JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 8:09-cr-00331-VMC-AEP-1

UNITED STATES OF AMERICA,

llllllllllllllllllPlaintiff-Appellee,

versus

WARREN HARDER,
a.k.a. Warren J. Harder,

llllllllllllllDefendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(January 18, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
Warren Harder appeals his 240-month sentence for attempting to produce

child pornography, in violation of 18 U.S.C. § 2251(a) and (e). Harder argues on

appeal that his sentence was procedurally unreasonable because the district court

focused on the need to punish him and protect the public to the exclusion of the

other 18 U.S.C. § 3553(a) factors. He also contends that his sentence was

substantively unreasonable because the sentence imposed was longer than

necessary and would result in a life sentence because of his advanced age and poor

health. Harder also argues that the 15-year statutory minimum sentence is cruel

and unusual punishment.

An appellate court reviews a final sentence for reasonableness, applying the

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct.

586, 597, 169 L.Ed.2d 445 (2007). Whether a sentence is reasonable is guided by

the factors set forth by Congress in § 3553(a). United States v. Pugh, 515 F.3d

1179, 1188-89 (11th Cir. 2008). Although we do not presume reasonable a

sentence that is within the guidelines range, United States v. Campbell, 491 F.3d

1306, 1313 (11th Cir. 2007), we have held that the use of the Guidelines remains

central to the sentencing process, United States v. Talley, 431 F.3d 784, 787 (11th

Cir. 2005). Accordingly, “when the district court imposes a sentence within the

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advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

one.” Talley, 431 F.3d at 788. The burden of establishing that the sentence is

unreasonable in light of the record and the § 3553(a) factors lies with the party

challenging the sentence. Id.

In reviewing a sentencing decision, we must ensure both procedural and

substantive reasonableness. Gall, 552 U.S. at 51, 128 S.Ct at 597. Factors that we

must consider in determining procedural reasonableness are whether the district

court properly calculated the Guidelines range, improperly treated the Guidelines

as mandatory, failed to consider the § 3553(a) factors, selected a sentence based

on clearly erroneous facts, or failed to adequately explain its chosen sentence. Id.

After determining the sentence is procedurally reasonable, we must consider

whether the sentence imposed is substantively reasonable in light of the § 3553(a)

factors. Id. These factors 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 needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to avoid
unwanted sentencing disparities; and (10) the need to provide restitution
to victims.

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18 U.S.C. § 3553(a). A sentence is substantively reasonable if, under the totality of

the circumstances, it achieves the purposes of § 3553(a). Pugh, 515 F.3d at 1191.

We “will defer to the district court’s judgment regarding the weight given to the

§ 3553(a) factors” unless it concludes that the district court “made a clear error of

judgment” and “imposed a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008) (quotations omitted).

Based on the record, Harder has failed to carry his burden of demonstrating

that his sentence was procedurally or substantively unreasonable because the

district court followed the proper procedures in determining his sentence and

applied the § 3553(a) factors to determine a sentence not greater than necessary to

achieve the goals of sentencing. The record does not support Harder’s contention

that the court inappropriately focused on the single § 3553(a) factor of punishment

at the expense of the factors that he presented in mitigation. In explaining the

basis for its sentencing determination, the district court emphasized Harder’s past

predatory behavior and offense, which accounted for his history and personal

characteristics, as well as the need to protect the public, in this case vulnerable

young girls, from further crimes committed by him. The court also stated that

instead of imposing a high-end guidelines sentence, as it was inclined to do, the

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court imposed a lower sentence after considering the letters of support, Harder’s

age, and the sincerity of his apology, which also accounted for his history and

personal characteristics. The court also acknowledged the need to impose just

punishment. Though the district court explicitly noted these reasons for imposing

the sentence, it was not required to specifically discuss each § 3553(a) factor,

provided that the record is clear that the court considered all of the factors. See

Talley, 431 F.3d at 786. Because the district court did not abuse its discretion by

sentencing Harder to a total of 240 months’ imprisonment, we affirm his sentence.

II.
We review the legality of a sentence under the Eighth Amendment de novo.

United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005). However, if an

Eighth Amendment challenge to the sentence is not raised in the district court, we

will review for plain error only. United States v. Johnson, 451 F.3d 1239, 1242

(11th Cir. 2006). The Eighth Amendment provides that “[e]xcessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” U.S. Const. amend. VIII. We accord substantial deference to Congress,

because “it possesses broad authority to determine the types and limits of

punishments for crimes.” Johnson, 451 F.3d at 1242-43.

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In evaluating an Eighth Amendment challenge in a non-capital case, we

must first make the threshold determination that “the sentence imposed is grossly

disproportionate to the offense committed.” Id. at 1243-44 (holding that, as the

defendant was sentenced within the statutory limits, he had not made a threshold

showing of a disproportionality). Thus, in general, “a sentence within the limits

imposed by statute is neither excessive nor cruel and unusual under the Eighth

Amendment.” Id. at 1243.

Harder cannot argue that the 15-year statutory minimum is cruel and

unusual punishment because the statutory minimum sentence was not applied to

him. Rather, Harder was sentenced to a 240-month guidelines sentence, which he

does not challenge as cruel and unusual punishment. Furthermore, even if

Harder’s 240-month sentence was unreasonable, and he were resentenced, he has

failed to demonstrate that the 15-year minimum sentence, within the statutory

limits, would be disproportionate. See Johnson, 451 F.3d 1243-44.

AFFIRMED.